MERCHANT AGREEMENT

Effective Date: May 12, 2020

Welcome to Swaypay. This Merchant Agreement (the “Agreement) is for merchants who use Swaypay through Shopify Inc. (“Shopify”). This Agreement is a legal contract between you and Swaypay when you use any or all of Swaypay's website at www.Swaypayit.com (the “Website”), the Swaypay web application (the “App”), all software integration between you and Swaypay for purposes of enabling purchasing facilitated by Swaypay, and/or all services, domains and content provided by Swaypay (collectively, the “Services”). 

 

Acceptance of Agreement 

You agree to the terms and conditions set forth in this Agreement. This Agreement is the only agreement between us and you and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the subject matter of this Agreement. 

Merchants must be one of the following: (a) business entities that can form legally binding contracts under applicable law, (b) individuals who are of the age of majority in their applicable state, or (c) individuals under the age of majority who use the Services only in conjunction with and under the supervision of a parent or legal guardian who is at least 21 years of age. For individuals under the age of majority, the parent or legal guardian is deemed the merchant and is responsible for any and all activities and is the responsible party bound by the terms of this Agreement. If you are agreeing to this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind the entity to this Agreement. 

The terms “Alcamy” or “Swaypay” or “us” or “we” or “our” refer to Alcamy App, Inc. d/b/a Swaypay, the owner of the Website and App. The terms “you” or “your” refer to the merchant or an individual entering into this agreement on behalf of a merchant.

 

Modifications

This Agreement may be amended at any time by us without specific notice to you. The latest Agreement will be posted on the Website and App, and you should review this Agreement prior to using the Services, so you are aware of any changes. Your continued use of the Services following the posting of a revised Agreement means that you accept and agree to the changes.

 

Swaypay’s Services and Your Obligations

  1. Swaypay is an online payment system that allows customers to pay for products or services (the “goods”) based on their social media engagement and impact. Swaypay facilitates transactions between you and customers. As a result, Swaypay does not have control over the quality, safety, morality or legality of any aspect of the goods listed, the truth or accuracy of the listings, the ability of you to sell goods, or the ability of customers to pay for goods. Swaypay cannot ensure that you or a customer will actually complete a transaction. Consequently, Swaypay does not transfer legal ownership of goods from you to the customer. You agree that Swaypay is a transaction facilitator and as such is not responsible or liable for any content, including, without limitation, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other merchants, or third parties. You use the Services at your own risk.

  2. As part of the Services, we provide a customer with the ability to receive discounts on various goods sold by you. In order for customers to receive these discounts, they must post the goods they purchase from you on social media platforms (i.e., Instagram, Facebook, TikTok, etc.) (“Posts”). The purpose of customers posting your goods is to provide advertising for your goods. 

  3. Customers will be given the option to complete their purchase by using Swaypay. Swaypay collects information from customers, in accordance with our Privacy Policy, to provide them with a Swayscore. Their Swayscore will dictate user specific pricing at the point of sale based on their transaction history and engagement across social media platforms. 

  4. Before purchasing a good with Swaypay, customers will receive instructions regarding their social media posting obligations. The obligations include, but are not limited to, the number of Post(s) to publish, which social media platform to use, and the timeline for which the Post(s) must be published. The instructions must be followed in order for customers to receive the full discount. If any instruction is not followed, Swaypay reserves the right to charge customers the full list price for the products and services they purchase using Swaypay. Repeated violations of their posting obligations, which will be determined in Swaypay’s sole discretion, may lead to their removal from the Service. Customer obligations regarding FTC disclosures and our requirements are explicitly laid out in our Customer Terms of Service. Any violations of the FTC disclosures will be the responsibility of you and the customers. 

  5. Swaypay reserves the right to modify or terminate the Services for any reason, without notice, and at any time. 

  6. We may communicate with the customers in order for us to fulfill the Services to you and to customers and as we describe in our Privacy Policy and Terms of Service.

  7. You will provide users who make purchases with Swaypay with the same customer support, refund policies, and any other buyer services, protections, or rights as those provided to purchasers of goods that do not use Swaypay.

  8. To the extent required, you will comply with applicable Payment Card Industry (“PCI”) security regulations and will notify us in the event that the status of your PCI compliance changes.

Fees and Transaction Process

  1. By using our Services, you agree to how we and our online payment processor charge you and your customers for using the Service. For every purchase a customer makes, Swaypay imposes a service fee that is embedded in the final, discounted purchase price the customer sees (the “Service Fee”). This fee will be charged on every purchase a customer makes using Swaypay. The Service Fee can be found on our Pricing Page.

  2. Swaypay uses Stripe, Inc. (“Stripe”) for payment processing. Stripe charges a fee for every transaction made through Swaypay (the “Stripe Fee”). You will be responsible for paying the Stripe Fee. You may be required to enter into an agreement with Stripe and its sponsoring bank. We are not responsible for and assume no liability regarding your agreement with Stripe.

  3. By using Swaypay, you will also be responsible for paying a fee to Swaypay for the Services (the “Application Fee”). This fee will be charged on every purchase a customer makes using Swaypay. Service Fee can be found on our Pricing Page.

  4. As soon as a customer makes a purchase, the final purchase price paid by the customer will be deposited into your account, whether through Stripe, another payment processor, or a bank account. You will be responsible for remitting the Service Fee and Application Fee to Swaypay within 48 hours of your receipt of such fees. You will also be responsible for remitting the Stripe Fee to Stripe. 

  5. Swaypay is and will be the sole and exclusive owner of all right, title, and interest in and to the Posts, including all copyrights and other intellectual property rights therein. It is possible you will want to use the Posts for other purposes, including, but not limited to, advertising campaigns. If you do, please contact Swaypay, and Swaypay may charge you a licensing fee to use the Posts (the “Licensing Fee”) to use the Posts. 

  6. Swaypay reserves the right to adjust the Service Fee, Application Fee, and Licensing Fee. Stripe reserves the right to adjust the Stripe Fee. These changes will be posted on our Website and App and may also be communicated to you in an electronic communication. Your continued use of the Services constitutes your agreement with the adjusted fees. The fees that are in effect on the date of sale of the good shall govern the transaction.

  7. You are responsible for paying all applicable taxes associated with using the Services. You are required to list prices, applicable taxes and shipping costs for the goods you sell. The fees Swaypay collects shall be based on the final price that a customer pays.

  8. All refunds are handled by you. The Service Fee, the Application Fee, and the Stripe Fee will not be refunded to you or the customer. 

  9. We may refuse service to anyone for any reason. We will not bear the risk of credit card fraud in connection with any of your products that are not fulfilled. 

 

Shopify

Shopify is not liable for any fault in the Services or any harm that may result from the installation or use of the Services. Except where expressly stated by Shopify, Shopify cannot provide assistance with the installation or use of the Services. As between Swaypay and Shopify, Swaypay is solely responsible for the Services, and Swaypay is solely responsible for any liability which may arise from your access to or use of the Services, including: (a) the development, use, marketing or distribution of or access to the Services, including support of the Services; or (b) Swaypay’s access, use, distribution or storage of Merchant Data, as defined below. Shopify owns certain intellectual property that Swaypay uses to provide the Services. Nothing herein grants you any additional rights to Shopify intellectual property or alters any agreement you have with Shopify. 

 

Registration

  1. Certain sections of, or offerings from, the Services may require you to register. If registration is requested, you agree to provide us with accurate, complete registration information. Each registration is for your use only and not on behalf of any other person or entity except your business entity (if any). We require each individual at your business to have a registration. We do not permit (i) any other person using the registered sections under your name; or (ii) access through a single name being made available to multiple users on a network. You are responsible for preventing such unauthorized use.

  2. You authorize Swaypay, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include requiring you to provide us certain information about you. Swaypay reserves the right to close, suspend, or limit access to your account and/or the Services in the event that, in our sole discretion, (i) we are unable to obtain or verify identity or eligibility; (ii) the security of your account has been compromised; or (iii) your account has been used in, or seems to have been used in, a nefarious manner.

 

Assignment

Right to use the Services is not transferable or assignable. Any password or right given to you to obtain information is not transferable or assignable. Swaypay may freely assign this Agreement in its sole discretion without notice to you.

Non-Disclosure of Confidential Information

By making use of the Services, you will be exposed to certain confidential and proprietary information of Swaypay (“Confidential Information”). For example, as a user of the Services, you will learn the business methods Swaypay uses to carry out its business including pricing, fulfillment and marketing strategies. You will also correspond regularly with Swaypay regarding your use of the Services. You agree to not disclose or use Swaypay’s Confidential Information except as necessary to carry out the purpose of this Agreement, and you further agree to not disclose or make public any communications you may have with Swaypay.

Prohibited Uses

  1. You are solely responsible for your conduct and activities relating to Swaypay and any and all data, text, information, usernames, trademarks, logos, graphics, images, photographs, profiles, audio, video, items, and links (together, "Content") that are submitted, posted and/or displayed on Swaypay.

  2. You may not (a) copy, republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Services; (b) create compilations or derivative works of any Services; (c) use any Services in any manner that may infringe any copyright, intellectual property right, proprietary right, or property right of us or any third parties; (d) remove, change or obscure any copyright notice or other proprietary notice or terms of use contained in the Services; (e) make any portion of the Services available through any timesharing system, service bureau, the Internet or any other technology now existing or developed in the future; (f) remove, decompile, disassemble or reverse engineer any software in the Services or use any network monitoring or discovery software to determine the Services’ architecture; (g) use any automatic or manual process to harvest information from the Services; (h) use the Services for the purpose of gathering information for or transmitting (1) unsolicited commercial email; (2) email that makes use of headers, invalid or non-existent domain names, or other means of deceptive addressing; and (3) unsolicited telephone calls or facsimile transmissions or telephone solicitations; (i) use the Services in a manner that violates any state or federal law; (j) export or re-export the Services in violation of the export control laws or regulations of the United States; and (k) use the Services in any way except as permitted by this Agreement.

  3. You may not use Swaypay (or consummate any transaction that was initiated using the Service) to violate any applicable law, statute, ordinance or regulation, or in any matter that violates this Agreement. Swaypay has the right to suspend your account with Swaypay temporarily or permanently if it believes you are in violation of these terms or any applicable law. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services and, if applicable, your listing, solicitation of offers to purchase, and sale of goods

 

Content

 

Swaypay does not claim ownership rights in your Content. You grant Swaypay a license solely to enable Swaypay to use any Content you supply Swaypay with, so that Swaypay is not violating any rights you might have in that Content. You grant Swaypay a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise the rights you have in the Content, in any media now known or not currently known. You agree to allow Swaypay to store or re-format your Content on Swaypay and display your Content on Swaypay in any way as Swaypay chooses. 

 

Swaypay's Intellectual Property

  1. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Services are protected under applicable copyrights, trademarks and other proprietary and intellectual property rights.  The copying, redistribution, use or publication by you of any such matters or any part of the Services, except as allowed by this Agreement is strictly prohibited.  You do not acquire ownership rights to any content or other materials viewed through the Services. The postings of information or materials on the Services does not constitute a waiver of any right in such information and materials. Some of the content on the Services is the copyrighted work of third parties.

  2. Swaypay’s name, logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Swaypay or its affiliates or licensors. You must not use such marks without the prior written permission of Swaypay. All other names, logos, product and service names, designs, and slogans on the Website and App are the trademarks of their respective owners.

 

Feedback

 

If you provide any feedback (including identifying potential errors and improvements) to Swaypay concerning the Services (“Feedback”), you hereby assign to Swaypay all right, title, and interest in and to the Feedback, and Swaypay is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Services and to create other products and services. Swaypay will treat any Feedback as non-confidential and non-proprietary. You will not submit any Feedback that you consider confidential or proprietary. 

 

Privacy

Swaypay provides the Services to merchants, like you, who use Shopify to power their stores. You hereby consent to the collection, use, sharing, and storage of Personal Information (as defined below) regarding your individual users and regarding your customers in accordance with the Privacy Policy and this Agreement. If required, you will provide clear notice to your customers and obtain any legally-required consent from your customers for the collection, sharing, and use of that data by you and us. You hereby consent to the collection, use, and storage of Merchant Data (as defined below) in accordance with the Privacy Policy and this Agreement. We will respond in a reasonably prompt manner to questions regarding our privacy practices. “Merchant Data” means information (including Personal Information) relating to you or your store, including business, financial and product information and any information relating to a customer, including order information, payment information, or account information. “Personal Information” means any information relating to a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, a phone number, an email address, an identification number, location data, an online identifier, or any other information specific to that natural person. You acknowledge that Shopify may share certain information about your Shopify account with us. 

 

Disclaimer

The Services are provided “as-is,” “as available,” with “all faults”, and warranties, express or implied, are disclaimed (including but not limited to the disclaimer of any implied warranties of merchantability and fitness for a particular purpose). The Services may contain bugs, errors, problems or other limitations. We and our Affiliated Parties (as defined below) have no liability whatsoever for your use of the Services. No advice or information, whether oral or written, obtained by you from us through the Services shall create any warranty, representation or guarantee not expressly stated in this agreement. We and our Affiliated Parties have no liability whatsoever for the content of the Posts. Swaypay does not guarantee continuous, uninterrupted access to the Services, and operation of the Services may be interfered with by numerous factors outside Swaypay's control.

 

Limitation of Liability

  1. We and any Affiliated Party are not liable for any indirect, special, incidental, punitive, or consequential damages (including damages for loss of business, loss of profits, litigation, or the like), whether based on breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if advised of the possibility of such damages. The negation and limitation of damages set forth above are fundamental elements of the basis of the bargain between us and you. The Services presented would not be provided without such limitations. 

  2. The aggregate liability of us and any Affiliated Party in connection with any claim arising out of or relating to the Services provided herein or hereby shall not exceed $100 and that amount shall be in lieu of all other remedies which you may have against us or any Affiliated Party.

 

Indemnification

 

You agree to indemnify, defend and hold us and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers or information and documents, attorneys, advertisers, products and service providers, and affiliates (collectively, “Affiliated Parties”) harmless from any liability (including, but not limited to, gross negligence and willful misconduct), loss, claim and expense, including reasonable attorneys’ fees, related to your violation of this Agreement, your access to or use of the Services; your failure to comply with PCI compliance requirements; and your relationship with your customers.

Termination and Breach

  1. Either party may terminate this Agreement for any reason without advanced notice. In order for you to terminate this Agreement, you must uninstall the Services and notify us. Upon termination of this Agreement or your use of the Services, the parties agree to use reasonable efforts to reconcile any amounts due either party under this Agreement, and make any final payments due under this Agreement within 30 days of termination. 

  2. Without limiting any other remedies, Swaypay may, without notice, and without refunding any fees, delay or immediately remove the Services, warn Swaypay's community of your actions, issue a warning to you, temporarily or indefinitely suspend your account privileges, terminate your account, prohibit access to the Services, and take technical and legal steps to keep you off the Services and refuse to provide services to you, if Swaypay, in its sole discretion, has reason to believe that any of the following apply: (i) you have breached this Agreement or other policy documents and community guidelines incorporated herein; (ii) Swaypay is unable to verify or authenticate any of your information; or (iii) Swaypay believes that you are acting inconsistently with the letter or spirit of Swaypay's policies, has engaged in improper or fraudulent activity in connection with Swaypay or the actions may cause legal liability or financial loss to Swaypay's merchants or to Swaypay.

 

Severability

 

If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.

 

No Agency

You and Swaypay are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

 

Arbitration

  1. Any issues or disputes that arise between you and customers regarding your products and services must be handled in accordance with your dispute resolution processes. Under no circumstances will Swaypay be responsible or liable for any disputes between you and customers arising in connection with their use of your services, nor will Swaypay be obligated to provide assistance or intervention in connection with such disputes.

  2. You agree that you are required to resolve any claim that you may have against Swaypay on an individual basis in arbitration, as set forth in this Section (referred to herein as the “Arbitration Agreement”). This will preclude you from bringing any class, collective, or representative action against Swaypay, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Swaypay by someone else. YOU ACKNOWLEDGE AND AGREE THAT YOU AND Swaypay ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Unless both you and Swaypay otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.

  3. The arbitration will be administered by JAMS, Inc. (“JAMS’) pursuant to its Streamlined Arbitration Rules and Procedures (the “Rules”).  The Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/

  4. This Agreement (including this Arbitration Agreement) shall be governed by and interpreted in accordance with the laws of the State of Illinois and United States federal laws applicable therein, without regard to principles of conflicts of laws. 

  5. Any arbitration must be commenced by filing a demand for arbitration within two years after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law provides a different limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.

  6. Any arbitration hearing (“Hearing”) will be located at a site in Cook County, Illinois. The specific site will be selected by the Arbitrator, pursuant to the Rules. The Hearing will be conducted in English.

  7. The arbitration will be conducted in front of a single arbitrator (the “Arbitrator”), selected from the appropriate list of JAMS arbitrators pursuant to the Rules. The parties agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement or the documents it incorporates by reference, including any claim that all or any part of this Agreement (including this Arbitration Agreement) is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement (including the Arbitration Agreement) is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

  8. The Arbitrator may issue an arbitration award in accordance with the Rules and any limitations of liability set out in this Agreement. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential effect. Attorneys’ fees and costs shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award.

  9. Notwithstanding the provisions in this Agreement regarding consent to be bound by amendments to this Agreement, if Swaypay changes this Arbitration Agreement after the date you first agreed to the Arbitration Agreement (or to any subsequent changes to the Arbitration Agreement), you may reject any such change by providing Swaypay written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided by email from the email address associated with your account to: support@swaypayit.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Swaypay in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Arbitration Agreement (or to any subsequent changes to the Arbitration Agreement).

  10. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from this Agreement; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Agreement (including this Arbitration Agreement) or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

  11. If and only if this Arbitration Agreement is found not to apply to you or your claim, you and Swaypay agree that any judicial proceeding must be brought exclusively in the state courts and federal courts located within Cook County, Illinois and you and Swaypay consent to venue and exclusive jurisdiction in those courts. Any claim not subject to arbitration must be commenced within two years after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law provides for a different limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.

 

Force Majeure

 

Swaypay will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Swaypay’s reasonable control, such as strikes, blockades, war, terrorism, riots, natural disasters, epidemics or pandemics, or governmental action, in so far as such an event prevents or delays Swaypay in fulfilling its obligations hereunder.

 

Survival

 

Sections 4 (Fees and Transaction Process), 8 (Non-Disclosure of Confidential Information), 9 (Prohibited Uses); 10 (Content), 11 (Swaypay's Intellectual Property), 12 (Feedback), 13 (Privacy), 14 (Disclaimer), 15 (Limitation of Liability), 16 (Indemnification), 17 (Termination and Breach), 18 (Severability), 19 (No Agency), 20 (Arbitration) shall survive any termination or expiration of this Agreement.

 

Entire Agreement

 

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. 

 

Notices

 

Except as explicitly stated otherwise, any notices being sent to Swaypay shall be given by postal mail to 104 Midwest Club Pkwy Oak Brook, IL 60523. Any notices being sent to you will be sent to the email address you provide to Swaypay. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Swaypay may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Swaypay in your merchant account. In such case, notice shall be deemed given three days after the date of mailing.

 

Contact

 

All notices will be sent by e-mail or will be posted on the Website or by any other means then specified by us. We will send notices to you at the e-mail address maintained in our records. You will monitor your e-mail messages frequently to ensure awareness of any notices sent by us. If you have any questions or concerns about this Agreement, please email us at support@swaypayit.com

THE COMPANY

Swaypay is a payment option that plugs into storefronts and lets shoppers use social media posts as currency directly at the point of sale.

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