Google Payments Terms of Service for Waze Carpool
Please select the terms of service as a Rider or a Driver:
16 May 2016
These Terms of Service are a legal agreement, between you and Google Payment Corp. (“GPC” or “we”), a wholly owned subsidiary of Google Inc., that govern your access to and use of the Services (as defined below). Please review these Terms of Service before you decide whether to accept them and continue with the registration process. By agreeing to these Terms of Service, you represent the following:
- You are 18 years of age or older; and
- Capable of entering into a legally binding agreement.
If you are a business entity, you also represent that you are:
- Duly authorized to do business in the country or countries where you operate; and
- Your employees, officers, representatives, and other agents accessing the Services are duly authorized to access the Services and to legally bind you to these Terms of Service and all transactions conducted under your username and password.
By agreeing to these Terms of Service, you authorize GPC to charge your Payment Instrument when you incur transactions or fees using any of the services offered hereunder.
1. Definitions Appearing in These Terms of Service
- “Applicable Law” Any and all federal, state and local laws, rules and regulations applicable to the Services.
- “Customer” A person who registers for the Service(s).
- “Driver” Customer who uses the Processing Service to process Payment Transactions from Riders.
- “Google” Google Inc.
- “Google Account” The account you create with Google Inc. for the use of Google Services, as defined in the Google Terms of Service.
- “Google Payments Account” The account assigned to you by GPC when you accept these Terms of Service. The account may be accessed at any time by loading the Waze Carpool application and selecting ‘payments’ or by clicking here.
- “Google Web Sites” The web site pages or mobile application interfaces of Google, a Google affiliate or a Google-affiliated or partner company.
- “GPC” Google Payment Corp.
- “Online Card Processing Service” The service by which GPC holds a Rider’s registered Payment Instrument information in Rider’s Google Payments Account and, at the time of Rider’s purchase from a Driver using such Payment Instrument, GPC provides such information to Driver (or Driver’s card processor, including potentially GPC itself) for processing through the applicable card network, which Driver, in turn, provides to the issuer of Rider’s Payment Instrument for approval and financial settlement through the card network to the Driver.
- “Payment Instrument” A credit card, debit card, ACH-enabled checking or savings account, gift card or other prepaid payment method, and/or other financial account that is registered in a Customer’s account.
- “Payment Transaction” The processing of a payment that results in the debiting, charging, or other related transaction, of the Purchase Amount to a Rider’s Payment Instrument.
- “Processing Service” The Online Card Processing Service.
- “Product” A ride from a Driver that a Rider may purchase using a Service.
- “Purchase Amount” The dollar amount of a Payment Transaction to pay for a Product, and any related fees, taxes or shipping charges, as applicable.
- “Rider” A Customer using a Service to purchase goods and/or services from a Driver.
- “Service(s)” The Google Payments products and services described in these Terms of Service that are or facilitate the Processing Service.
- “We”, “us” Google Payment Corp.
- “You”, “you” A person or business that applies to, or registers to use, or uses, the Services.
B. Google Payments Terms
2. Registration for Google Payments
2.1. Setting Up a Google Payments Account
When you accept these Terms of Service (for example, when first registering a Payment Instrument), you are creating a Google Payments Account that is associated with your Waze Carpool Account, and which may be accessed at any time by loading the Waze Carpool application and selecting ‘payments’ or by clicking here. You may be asked to provide information such as your name, contact information, Payment Instrument information (including your bank name, routing number and account number for the account, if applicable), and/or date of birth. We may verify your registration information with a third party verification vendor. In some cases, we may ask you to send us additional information, such as a copy of your driver’s license or passport, or to answer additional questions to help us verify your identity.
The information you provide will be used by us to determine if you are eligible to begin and/or continue to use the Services. Provision and use of such data is subject to the Google Payments Privacy Notice, as described more fully in Section 8 below.
2.2. USA PATRIOT ACT NOTICE
To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each individual or business that opens an account or requests credit.
2.3. Accuracy of Registration Information
You are responsible for providing accurate registration information and for keeping your registration information up to date, or notifying us in the event of changes. Changes to your primary residence address may require you to accept new terms of service for the country to which you have moved. In addition, as certain services are currently offered only in select countries, changes to your primary residence address may result in your becoming ineligible for certain services.
2.4. Relation to your Google Account
In order to use the Services, you must have a Waze Carpool account and/or a Google Account (your “Google Account”) which must be in good standing, in accordance with the applicable terms of service. If you or Google closes your Google Account for any reason, your Google Payments Account will also be closed and you will no longer be able to access the Services.
3. The Processing Service
3.1. Getting Started with the Processing Service
In order to use the Processing Service, you must complete all information elements required on pages where you register a Payment Instrument in your Google Payments Account. You must register a valid Payment Instrument to make Payment Transactions.
You authorize GPC to confirm that your Payment Instrument is in good standing with the issuing financial institution, including, but not limited to, by submitting a request for a payment authorization and/or a low dollar credit and/or debit to the Payment Instrument, in accordance with the relevant card association rules. GPC, in its sole and absolute discretion, may refuse to approve or may terminate existing registrations for the Processing Service with or without cause or notice, other than any notice required by any Applicable Law, and not waived herein.
3.2. Online Card Processing Service
The Online Card Processing Service facilitates a credit or debit card purchase by a Rider from a Driver that is registered with GPC to receive certain merchant payment processing services. The Online Card Processing Service stores information from Riders, such as their Payment Instruments and other information. GPC receives and processes Payment Transactions on behalf of the Drivers, as the agent of the Driver, through the appropriate payment network. When Rider chooses to pay for Products with the Processing Service, Rider authorizes the Driver to submit charges (and, in the case of refunds, credits) to Rider’s registered Payment Instrument. Payment received by GPC (including authorization of the payment) from the issuer of your registered Payment Instrument shall constitute payment to the Driver, and your payment obligation to Driver shall be deemed completed and discharged at that time. Purchases made through the Online Card Processing Service are also subject to the terms and conditions governing Rider’s Payment Instrument between Rider and the issuer of the Payment Instrument. Rider is responsible for any charges and related fees that may be imposed under the Payment Instrument terms and conditions as a result of Rider’s use of a Payment Instrument.
You acknowledge and agree that your purchases of Products are transactions between you and the Driver, and not with GPC, Google or any of their affiliates. Neither GPC nor Google are a party to your Payment Transaction for the purchase of Products, and GPC, Google, or other GPC affiliates are not a Rider or a Driver in connection with any Payment Transaction, unless expressly designated as such in the listing of the Product on a Google Web Site.
3.3. Permissible Payment Transactions
You may only use the Processing Service to process a Payment Transaction for a Product that is purchased from a Driver through a legitimate, bona fide sale of the Product. The Processing Service may not be used to process a Payment Transaction, or otherwise transfer money between a Rider and Driver, that is unrelated to a purchase of a Product. The Processing Service may not be used to receive cash advances from Drivers or to facilitate the purchase of cash equivalents (travelers checks, prepaid cards, money orders, etc.). You may not use the Processing Service to purchase any illegal goods or services or for any other underlying illegal transaction.
You agree that you will not use the Processing Service to purchase any Products that violate these Terms of Service, other policies or rules applicable to the Processing Service, or Applicable Law. Failure to comply with these limitations may result in suspension or termination of your use of the Processing Service.
3.4. Service Fees
GPC does not charge a fee to use the Processing Service as a Rider. The financial institution that issues your Payment Instrument may charge a fee in connection with the debiting or charging of the Payment Instrument resulting from the Payment Transaction. You should consult the terms and conditions governing your Payment Instrument for more information about any such fees.
GPC will provide various tools to assist Customers in communicating with each other to resolve a dispute that may arise between Riders and Drivers with respect to their transaction.
If Customers are unable to resolve a dispute, GPC can mediate disputes between riders and drivers if either party requests assistance. If this occurs, GPC will review the dispute and propose a non-binding solution, if appropriate. For more detailed information, please email email@example.com.
GPC may offer a feedback or other ranking system on the Processing Service to assist you in evaluating other Customers of the Service. You acknowledge that any such feedback or ranking system represents solely the opinion of other Customers of the Processing Service, and is not an opinion, representation, or warranty by GPC with respect to other Customers of the Processing Service.
You agree to release GPC, Google, and other GPC affiliates, and their agents, contractors, officers and employees, from all claims, demands and damages (actual and consequential) arising out of or in any way connected with a dispute. You agree that you will not involve GPC in any litigation or other dispute arising out of or related to any transaction, agreement, or arrangement with any Driver, other Rider, advertiser or other third party in connection with the Service. If you attempt to do so, (i) you shall pay all costs and attorneys’ fees of GPC, Google, and other GPC affiliates and shall provide indemnification as set forth below, and (ii) the jurisdiction for any such litigation or dispute shall be limited as set forth below. However, nothing in these Terms of Service shall constitute a waiver of any rights, claims or defenses that you may have with respect to a Payment Transaction under the Rider’s card issuer agreement or Carrier Billing Account terms and conditions, the card association rules or applicable state and federal laws, such as the federal Truth in Lending Act or the Electronic Fund Transfer Act.
If you are a California resident, you hereby expressly waive California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor.”
Except as set forth in these Terms of Service, all Payment Transactions processed through the Processing Service are non-refundable to Rider by GPC and are non-reversible by Rider through the Processing Service. You may have additional refund or charge-back rights under your Payment Instrument issuer agreement or applicable state and federal laws. You should review your periodic statement received from the issuer of your Payment Instrument which will reflect all purchase transactions through the Processing Service.
4. Use of Services
Notwithstanding any limitations described elsewhere in these Terms of Service, we may establish general practices and limits concerning use of the Services, including without limitation individual or aggregate transaction limits on the dollar amount or number of transactions during any specified time period(s). We reserve the right to change, suspend or discontinue any aspect of the Services at any time, including hours of operation or availability of the Services or any Service feature, without notice and without liability. We also reserve the right to impose limits on certain Service features or restrict access to some or all of the Services without notice and without liability. We may decline to process any transaction without prior notice to you.
GPC may delay, hold, cancel or reverse processing of any transaction if:
(a) a Rider makes a claim to GPC for a refund or other reversal, or
(b) GPC, in its sole discretion, believes that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates Applicable Law, these Terms of Service, or any applicable GPC or Google policies.
Rider authorizes the charge or debit to Rider’s Payment Instrument, by GPC as agent of the Driver, as necessary to complete processing of a Payment Transaction. Rider also authorizes the crediting or debiting, as applicable, to Rider’s Payment Instrument, by GPC as agent of the Driver, in connection with chargebacks, reversals, refunds, or adjustments through the Service by a Driver.
We may limit or suspend your use of one or more Services at any time, in our sole and absolute discretion. If we suspend your use of a Service, we will attempt to notify you by electronic mail. Suspension of your use of a Service will not affect your rights and obligations pursuant to these Terms of Service arising before or after such suspension or with respect to any non-terminated Services.
If you believe your Google Payments Account has been opened or used in an unauthorized manner, please contact us at firstname.lastname@example.org.
4.3. Unclaimed Property
If GPC is holding funds due to you arising from a Payment Transaction processed using any service described herein, and GPC is unable to contact you and has no record of your use of the service for several years, Applicable Law may require GPC to report these funds as unclaimed property. If this occurs, GPC will try to locate you at the address shown in our records, but if GPC is unable to locate you, it may be required to deliver any such funds to the applicable state as unclaimed property. GPC reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by Applicable Law.
4.4. GPC Not a Banking Institution, Issuer, or Processor
GPC is not a bank or other chartered depository institution. GPC is not an issuer of any Funding Account, Payment Instrument or other item, unless expressly stated otherwise. With respect to the Processing Service, GPC processes Payment Transactions through the Processing Service as an agent of and on behalf of Drivers. Funds held by GPC or its service providers (including any bank service providers) in connection with the processing of Payment Transactions are not deposit obligations of Rider and are not insured for the benefit of Rider by the Federal Deposit Insurance Corporation or any other governmental agency.
These Terms of Service do not amend or otherwise modify your agreement with the issuer of your Funding Account or Payment Instrument, and you are responsible for ensuring your use of the Services complies with such agreements. You also are responsible for all charges and/or debits to your Funding Account or Payment Instrument resulting from purchases of Products, in accordance with such agreements. In the event of any inconsistency between these Terms of Service and your agreement with the issuer of your Funding Account, or Payment Instrument, these Terms of Service govern the relationship between you and GPC solely with respect to the Services, and your agreement with the issuer of your Funding Account or Payment Instrument governs the relationship between you and the issuer of such item. You acknowledge and agree that you are solely responsible for the Funding Account or Payment Instrument. GPC is not responsible for the accuracy or availability of any information you enter or otherwise store with the Services, including, without limitation, whether such information is current and up-to-date.
4.5. Third Party Providers
GPC may have arranged for third party providers to provide products or services to you through the Services (“Third Party Providers”). In order to use these products or services, you may be required to agree to additional terms and conditions from those Third Party Providers, and may be subject to additional requirements of the Third Party Provider. By agreeing to these Terms of Service or continuing to use the Services, you hereby agree to any Third Party Provider terms that apply to your use of such products and services through the Services, which may be updated from time to time. For avoidance of doubt, these Third Party Provider terms are between you and the applicable Third Party Provider, not GPC.
4.6. Third Party Fees
You are responsible for any fees charged by your telecommunications provider, Payment Instrument, merchant, or any other third party in connection with your use of the Services.
4.7. No Extension of Credit
GPC is not extending you any credit under this Agreement.
4.8. No Relationship with Issuer of Payment Instruments
Use of the Services is not approved by or offered in conjunction with the issuer of your Funding Account or Payment Instrument. Your Funding Account or Payment Instrument issuer may impose fees, transaction limits, or other limitations on transactions incurred using the Services.
4.9. Instruction Regarding Consumer Reports
You instruct and authorize GPC to obtain consumer reports about you, as the term “consumer reports” is defined under the Fair Credit Reporting Act, and to use the information contained in such consumer reports to evaluate your prospective or ongoing eligibility to use the Services, to detect and prevent fraud, and to create, evaluate, and modify GPC risk management and mitigation tools, and to otherwise improve GPC’s Services.
You understand and agree that personal information provided to Google or GPC in connection with the Services is subject to the Google Payments Privacy Notice: https://payments.google.com/files/privacy.html. By agreeing to these Terms of Service you hereby agree to the Google Payments Privacy Notice, which may be updated by Google or GPC from time to time. You understand and agree that, to the extent permitted by Applicable Law, any data you provide to GPC in connection with the Services may be shared with Google and, conversely, any data you provide to Google in connection with the Services may be shared with GPC.
6. Username and Password Information
You are responsible for: (a) maintaining the confidentiality of your username and password, (b) any and all transactions by persons that you give access to or that otherwise use such username or password, and (c) any and all consequences of use or misuse of your username and password. You agree to notify us immediately of any unauthorized use of your username or password or any other breach of security regarding the Services of which you have knowledge. If you are a business entity, you agree that all officers, employees, agents, representatives and others having access to the username and/or password shall be vested by you with the authority to use the Services and to legally bind you. You shall be responsible for all actions by current and former officers, employees, agents, representatives and others, regardless of whether authorized by you, that access the Services using the business’ user name and password.
7. Electronic Communications
GPC may be required to provide certain disclosures, notices and communications (collectively “Communications”) to you in written form. Pursuant to these Terms of Service, we will deliver such Communications to you in electronic form. Your agreement to these Terms of Service confirms your ability and consent to receive such Communications electronically, rather than in paper form.
7.1. Electronic delivery of communications
You agree and consent to receive electronically all Communications provided to you in connection with your Google Payments Account and your use of the Services. Communications include: (a) agreements and policies you must agree to in order to use the Services (e.g., these Terms of Service and the Google Payments Privacy Notice), including updates to those agreements and policies; (b) payment authorizations and transaction receipts or confirmations; (c) account statements and history; and, (d) all other communications or documents related to or about your account and your use of the Services. Electronic Communications shall be deemed to be received by you upon delivery in the following manner: (a) posting them to your Google Payments Account on the Google Payments website or in an associated mobile application; (b) posting them on or in a website or mobile application associated with Google or the Services; (c) sending them via electronic mail to the email address you used to create your Google and Google Payments Account registrations; or (d) otherwise communicating them to you via the Services. It is your responsibility to open and review Communications that we deliver to you through the methods described above. We may, but are not obligated to under these Terms of Service, provide you with notice of the availability of a Communication that is delivered in one of the methods described above (for example, by informing you of such Communication through a notification sent to your mobile device). You should maintain copies of electronic Communications by printing paper copies or saving electronic copies, as applicable.
7.2. Hardware and software requirements
In order to access and retain electronic Communications, you will need to maintain or have access to the following computer hardware and software at your own expense: (a) a computer or mobile device with Internet or mobile connectivity; (b) a current web browser that includes 128-bit encryption (e.g. Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled; (c) the appropriate mobile application, in the case of Communications delivered through such application, d) software capable of opening documents in PDF format; (e) access to the valid email address you used to create your Google and Google Payments Account registrations; and, (f) sufficient storage space to save past Communications or a printer to print them. By giving your consent to these Terms of Service, you confirm that you are able to meet the above requirements, and that you can receive, open, and print or save any Communications referenced in these Terms of Services for your records.
7.3. Requesting additional copies and withdrawing consent
The following additional terms will apply to such electronic Communications:
(a) you may contact GPC, Google Wallet or the Third Party Provider, as applicable, to request another electronic copy of the electronic Communication without a fee;
(b) you may request a paper copy of such electronic Communication within ninety days of the original Communication issuance date, and GPC, Google Wallet or the Third Party Provider, as applicable, reserves the right to charge a fee to provide such paper copy;
(c) you may contact Google to update your registration information used for electronic Communications or to withdraw consent to receive electronic Communications; and
(d) GPC or the Third Party Provider reserves the right to terminate your use of the Services and the associated Third Party Provider products and services if you decline or withdraw consent to receive electronic Communications.
You may contact GPC in relation to this Section 7 by emailing us at email@example.com.
8. Termination of Service
We may, in our sole and absolute discretion without liability to you or any third party, terminate your use of one or more Services for any reason, including without limitation inactivity or violation of these Terms of Service or other policies we may establish from time to time.
Upon termination of your use of the Services, you remain liable for all Payment Transactions, and any other obligations you have incurred under these Terms of Service. Upon termination, we have the right to prohibit your access to the Services, including without limitation by deactivating your username and password, and to refuse future access to the Services by you or if a business entity, its parent, affiliates or subsidiaries or its or their successors).
9. Responsibility for Taxes
The reporting and payment of any applicable taxes arising from the use of the Services is your responsibility. You hereby agree to comply with any and all applicable tax laws in connection with your use of the Services, including without limitation, the reporting and payment of any taxes arising in connection with Payment Transactions made through the Service.
10. No Endorsement of Products
GPC and Google do not represent or endorse, and shall not be responsible for:
(a) the reliability or performance of any Driver, merchant or Third Party Provider;
(b) the truth or accuracy of the description of any Product, or of any advice, opinion, offer, proposal, statement, data or other information (collectively, “Content”) displayed or distributed, purchased or paid through the Services, or the Google Web Sites; or
(c) your ability to buy or redeem Products using the Services. GPC and Google hereby disclaim any liability or responsibility for errors or omissions in any Content in the Services. GPC and Google reserve the right, but shall have no responsibility, to edit, modify, refuse to post or remove any Content, in whole or in part, that in its sole and absolute discretion is objectionable, erroneous, illegal, fraudulent or otherwise in violation of these Terms of Service.
You agree to indemnify, defend and hold harmless GPC, Google, and their subsidiaries and other affiliates, and its and their directors, officers, owners, agents, co-branders or other partners, employees, information providers, licensors, licensees, consultants, contractors and other applicable third parties (including without limitation, and Paymentech, L.P. and relevant Customers) (collectively “Indemnified Parties”) from and against any and all claims, demands, causes of action, debt or liability, including reasonable attorneys fees, including without limitation attorneys fees and costs incurred by the Indemnified Parties arising out of, related to, or which may arise from:
(a) your use of the Services;
(b) any breach or non-compliance by you of any term of these Terms of Service or any GPC Party policies;
(c) any dispute or litigation caused by your actions or omissions; or
(d) your negligence or violation or alleged violation of any Applicable Law or rights of a third party.
THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON, PROVIDED IN CONNECTION WITH OR ACCESSIBLE THROUGH THE SERVICES, ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, GPC, GOOGLE, AND THEIR SUBSIDIARIES AND OTHER AFFILIATES, AND THEIR AGENTS, CO-BRANDERS OR OTHER PARTNERS, INCLUDING BUT NOT LIMITED TO, DEVICE MANUFACTURERS (COLLECTIVELY, “GPC PARTIES”), MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER FOR THE SERVICES OR THE CONTENT, MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SERVICES, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES. EACH GPC PARTY DISCLAIMS WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE GPC PARTIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE GPC PARTIES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS, P2P PAYMENTS OR THE SERVICES.
THE GPC PARTIES ARE NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT INSTRUMENT OR SAVE TO ANDROID PAY INFORMATION, INCLUDING, WITHOUT LIMITATION, WHETHER SUCH INFORMATION IS CURRENT AND UP-TO-DATE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SUCH INFORMATION IS REPORTED BY THE ISSUER AS OF A PARTICULAR TIME ESTABLISHED BY THE ISSUER AND MAY NOT ACCURATELY REFLECT YOUR CURRENT TRANSACTIONS, AVAILABLE BALANCE, OR OTHER ACCOUNT OR PROGRAM DETAILS AT THE TIME THEY ARE DISPLAYED TO YOU THROUGH THE SERVICES OR AT THE TIME YOU MAKE A PURCHASE OR REDEMPTION. YOU MAY INCUR FEES, SUCH AS OVERDRAFT FEES OR OTHER CHARGES AS A RESULT OF SUCH TRANSACTIONS, PER YOUR AGREEMENT WITH YOUR PAYMENT INSTRUMENT OR SAVE TO ANDROID PAY ISSUER, OR YOUR ATTEMPT TO MAKE A PURCHASE OR REDEMPTION MAY NOT BE SUCCESSFUL.
13. Limitations of Liability; Force Majeure
IN NO EVENT SHALL ANY GPC PARTY BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH ANY GPC PARTY OR THE SERVICES, OR ANY GOODS, SERVICES, OR INFORMATION PURCHASED, RECEIVED, SOLD, OR PAID FOR BY WAY OF THE SERVICES, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF THE GPC PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. IN NO EVENT SHALL THE GPC PARTIES’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THESE TERMS OF SERVICE EXCEED THE NET FEES GPC HAS ACTUALLY RECEIVED AND RETAINED FROM YOUR VALID TRANSACTIONS DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
Each party acknowledges that the other party has entered into these Terms of Service relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. In addition to and without limiting any of the foregoing, no GPC Party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
14. Governing Law
These Terms of Service shall be governed by the laws of California, except for California’s choice of law rules, and applicable federal United States laws. Each party agrees to submit to personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties specifically exclude from application to the Terms of Service the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
In addition to the electronic communications authorized under the Section entitled, “Electronic Communications”, statements, notices and other communications to you may be made by mail, email, postings on the Google Web Sites or other reasonable means. We may also provide notices of changes to the Terms of Service or other matters by displaying links to notices on the Google Web Sites. Notice to GPC and Google may be made by mail to:
Google Inc. Attn: Google Payments 1600 Amphitheatre Parkway Mountain View, CA 94043
16. Modification of Terms of Service
We have the right, in our sole and absolute discretion, to change, modify, or amend any portion of these Terms of Service at any time by posting notification here or otherwise communicating the notification to you. The changes will become effective, and shall be deemed accepted by you, after the initial posting and shall apply on a going-forward basis with respect to transactions initiated after the posting date. In the event that you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services.
You may not assign these Terms of Service or any rights or obligations hereunder, by operation of law or otherwise, without our prior written approval and any such attempted assignment shall be void. We reserve the right to freely assign these Terms of Service and the rights and obligations hereunder, to any third party without notice or consent. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
Upon termination of your use of the Services or termination of these Terms of Service for any reason, in addition to this section, the following sections shall survive termination: 3.2, and 7 through 20.
19. English Language Controls
Any translation of these Terms of Service is provided for your convenience. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original English.
20. Other Provisions
The failure of GPC or Google to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect and remain enforceable between the parties. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. These Terms of Service, including GPC’s or Google policies governing the Services referenced herein, constitute the entire agreement between you and GPC with respect to the use of the Services. These Terms of Service are not intended and shall not be construed to create any rights or remedies in any parties other than you and GPC, Google, and other GPC affiliates which each shall be a third party beneficiary of these Terms of Service, and no other person shall assert any rights as a third party beneficiary hereunder.
7 June 2018
These Driver Terms of Service (the “Agreement”) are a legal agreement between Google Payment Corp. (“GPC”) and you (“Driver”). GPC is a subsidiary of Google Inc. (“Google”). You should review this entire Agreement before you decide whether to accept this Agreement and continue with the registration process.
BY CLICKING “I AGREE TO THE TERMS OF SERVICE” BELOW AND CLICKING ON THE “COMPLETE SIGN UP” BUTTON YOU AGREE TO BE BOUND BY THIS AGREEMENT.
SECTION 1. DEFINED TERMS
1.1. “Beta Features” means those features of the Service which are identified by GPC as beta or unsupported
1.2. “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party.
1.3. “Disputes” means any disagreements, litigation, or other disputes between Driver and a Rider or between Driver and a third party arising from the use of the Service, but excluding Service Disputes.
1.4. “Driver Interfaces” means the website pages, mobile applications, listings, or other user-facing interfaces employing the Service.
1.5. “Google Website” means the website pages of any website owned or operated by Google or its affiliates.
1.6. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
1.7. “Payment Account” means the credit card account, debit card account, or other payment instrument that is registered by a Rider with the Service and accepted by GPC to facilitate the processing of Payment Transactions.
1.8. “Payment Transaction” means the processing of a payment through the Service that results in the debiting or charging of the Purchase Amount to a Rider’s Payment Account and the issuance of funds to Driver’s Settlement Account.
1.9. “Policies” means the various policies, guidelines, and other terms and conditions that are referenced in this Agreement but are not expressly set forth in this Agreement. The Policies may be updated from time to time by GPC. The Policies include, without limitation, the following:
- https://support.google.com/payments/business/answer/75724 (the “Content Policies”)
- https://payments.google.com/files/privacy.html (the “Google Payments Privacy Notice”)
- https://www.google.com/permissions/ (the “Google Brand Feature Guidelines”)
- https://www.waze.com/carpool/legal/tos (the “Waze Carpool TOS”)
1.10. “Ride” mean a ride offered by Driver that a Rider may pay for using the Service.
1.11. “Rider” means a person or entity that registers to use the Service to make payments using a Payment Account.
1.12. “Purchase Amount” means the monetary amount of a Payment Transaction, which includes any taxes, shipping charges, handling charges, or other fees that are charged to the Rider as part of the Payment Transaction.
1.13. “Service” means the service, described in this Agreement, that facilitates a credit or debit card (or other Payment Account) purchase by a Rider from a Driver that is registered with GPC to receive certain merchant payment processing services.
1.14. “Service Disputes” mean any disagreements, litigation, or other disputes between GPC and Riders arising solely from an error in the functioning of the Service.
1.15. “Settlement Account” means the deposit account of Driver maintained at a financial institution located in the United States that is designated by Driver and approved by GPC for receipt of funds from the processing of Payment Transactions through the either the Automated Clearing House network (“ACH Network”) or such other network or service as GPC permits from time to time.
SECTION 2. SERVICE FEATURES AND DESCRIPTION
2.1. Service Description. Driver acknowledges and agrees that:
(i) Driver’s sales of Rides are transactions between Driver and the Rider and not with GPC or any of GPC’s affiliates;
(ii) GPC is not a Rider or a Driver in connection with any Payment Transaction;
(iii) GPC will not be responsible for and does not control any aspect of the Rides or the description of the Rides; and
(iv) You agree that:
(a) You designate GPC as your agent for the sole and limited purpose of receiving and processing payments made by Riders for ride share services provided by you (a Driver). GPC is not acting for a Rider and is not a party to any Payment Transaction;
(b) GPC will not be responsible for and does not control if a Rider will complete the purchase of or payment for rides. When a Rider seeks to make a purchase with a Payment Account, GPC will receive and process the Payment Transaction as agent of the Driver through the appropriate payment processing network, including without limitation credit card or debit card networks; and
(c) Receipt of payment by GPC (including authorization of the payment) from the issuer of the registered Payment Instrument shall constitute payment to you for the ride share services, the Rider’s payment obligation to you shall be deemed completed and discharged at that time, and you shall have no further claims against the Rider with respect to such payment (or payment settlement failure) or the related ride share services.
2.2. Permissible Payment Transactions. Driver may only use the Service to process a Payment Transaction for a Ride that is purchased by a Rider through a legitimate, bona fide sale of the Ride. A Payment Transaction may not be submitted for capture through the Service until Driver has satisfied any requirements for charging and shipping as described in the Program Policies. The Service may not be used to process a Payment Transaction for Driver, or otherwise transfer money between a Rider and Driver, that does not directly result from a Rider’s purchase of a Ride. Driver may not use the Service to provide cash advances to Riders or to facilitate the purchase by Riders of cash equivalents (e.g., travelers checks, prepaid cards, money orders). GPC may establish general practices and limits concerning use of the Service, including without limitation individual or aggregate transaction limits on the dollar amount or number of Payment Transactions during one or more specified time periods. Driver may not use the Service to process Payment Transactions in connection with an illegal transaction or the sale or exchange of any illegal or prohibited goods or services.
2.3. Limitations on the Use of Service. Driver must comply with the Policies and any other limits concerning use of the Service as updated by GPC from time to time, including without limitation operating rules and/or policies of the card associations or networks that are used to process the Payment Transactions attached hereto as Exhibit A (as may be updated from time to time).
Driver’s Payment Transactions may be protected pursuant to the chargeback resolution policies (“Chargeback Resolution Policy”) as described in the Program Policies.
GPC has the right:
(a) to change, suspend or discontinue the Service, in whole or in part, as necessary to perform maintenance or updates to the Service; and
(b) to impose limits on certain features or restrict access to parts or all of the Service without notice and without liability.
GPC may decline to process any Payment Transaction in connection with, among other reasons, fraud prevention activities, applicable law, or GPC policies.
2.4. Prohibited Actions. Unless expressly permitted in writing by GPC, Driver may not:
(i) require Rider to provide Driver with the account numbers of any credit card, debit card, or other payment instrument;
(ii) add any Service use surcharge to a Payment Transaction;
(iii) separately process as a Payment Transaction the amount of any tax applicable to a purchase of a Ride;
(iv) submit to the Service a Payment Transaction that was previously returned as a chargeback; or
(v) permit the use of the Service for payment of any debt owed to Driver by Rider.
2.5. Payment Transaction Authorization. Driver acknowledges that the receipt of an authorization for a Payment Transaction indicates that, as of the date of the authorization, the underlying Payment Account has sufficient credit with the card issuer or Carrier for the amount of the Purchase Amount. Driver further acknowledges that upon receipt of an authorization for a Payment Transaction, Rider’s payment obligation to Driver is completed and discharged (except in the event of chargeback or other reversal). Driver acknowledges that the authorization is not a confirmation of the Rider’s identity; nor is an authorization a guarantee by GPC that the transaction will not be subject to a chargeback or other reversal.
2.6. Beta Features. From time to time, GPC may make Beta Features available to Driver as part of the Service, which are provided “as is.” Driver’s use of Beta Features is solely at Driver’s own risk. GPC reserves the right, in its sole discretion, to include or cease providing Beta Features as part of the Service at any time.
SECTION 3. SERVICE IMPLEMENTATION
3.1. Implementation of Service. Driver agrees not to use the Service through any method or interface other than the Driver Interfaces. GPC may immediately suspend Driver’s use of the Service if Driver attempts to access the Service other than through the Driver Interfaces.
3.2. Implementation Setup. Driver agrees to provide current, complete and accurate registration information for the Service and to maintain and promptly update the information. Driver will set up and maintain a Settlement Account that is capable of receiving funds through the ACH Network (or, if permitted by GPC from time to time, another account). Driver authorizes GPC to confirm that the Settlement Account is in good standing with the financial institution, including by submitting a request for a payment authorization and/or a low monetary credit to the Settlement Account. Driver authorizes GPC to reconfirm the Settlement Account any time the account information is changed. Driver also authorizes GPC to obtain from time to time a credit report and to otherwise make credit or other background inquiries on Driver as GPC deems appropriate to assess Driver’s eligibility for continued use of the Service. GPC may require Driver to provide additional information from time to time as a condition of Driver’s continued use of the Service in connection with a credit or other background inquiry.
3.3. Support. Prior to making any support request to GPC, Driver will first use reasonable efforts to resolve the problem on its own without any escalation to GPC. Thereafter, Driver may submit a written request for technical support via the methods specified by GPC. Any support that Driver provides to Riders will be at Driver’s own expense. Driver agrees that any telephone communications between Driver and GPC related to the support or operation of the Service may be recorded by GPC for quality assurance and training purposes.
3.4 Prior to using the Driver Interfaces, Driver must separately agree to the terms of service applicable to Waze Carpool Service (the “Carpool TOS”) and have the Driver’s Service account linked to the Driver’s account. In the event of any conflict between this Agreement and the Carpool TOS, the terms of the Carpool TOS will control.
3.5. Service Fees. For transactions conducted through the Waze Carpool Service, Driver will be charged a revenue share payable to the Waze Carpool Service, as set forth in the applicable Carpool TOS. Any fee discounts or fee waivers that are being offered by GPC for the Service do not apply to the revenue share specified in the Carpool TOS.
3.6. Payment Terms; Monthly Payment GPC will use commercially reasonable efforts to electronically transfer funds for Payment Transactions submitted for capture by Driver within a calendar month to Driver’s Settlement Account before close of business on the 15th day of the following calendar month. The monthly payment schedule described in the foregoing sentence will apply to all of Drivers Payment Transactions. At GPCs option, and with no prior notice to Driver, funds may be transferred to Drivers Settlement Account more frequently than monthly. GPC may withhold or delay payments to Drivers under this Section in the circumstances specified in Section 6 of the Agreement.
3.7. Bank Fees. Driver agrees to pay all fees, including any applicable currency conversion fees, associated with the conversion of funds and the processing of the ACH to the Settlement Account. Driver acknowledges and agrees that Driver bears all risk of loss arising from any changes in the currency exchange rates between the time Payment Transactions are processed and the time that settlement funds are sent by ACH to the Settlement Account. Banks that process the ACH to the Settlement Account also may impose fees and charges related to processing of the ACH and related currency conversion, and the Driver is solely responsible for all such fees and charges.
3.8. Rider Currency. The Waze Carpool Service may permit Driver to list purchase prices for Driver’s Rides, and a Rider to purchase Driver’s Rides, in a currency different from that of the Driver’s Settlement Account (“Rider Currency Purchase Transaction”). For any Rider Currency Purchase Transaction, Driver will be paid by GPC in the currency of Driver’s Settlement Account, based on an exchange rate that will be applied to the purchase amount (denominated in Rider Currency) at the time the Payment Transaction is submitted to GPC for processing by Driver. The exchange rate will be determined by a financial institution utilized by GPC to calculate exchange rates, and may be adjusted based on market conditions without notice to Driver. If a Rider Currency Purchase Transaction is subsequently subject to refund, reversal, chargeback or other adjustment, GPC will apply the same exchange rate and currency that applied to the original Rider Currency Purchase Transaction in calculating the obligation of the Driver for the refund, reversal, chargeback or other adjustment. GPC reserves the right to impose fees on this currency conversion.
SECTION 4. ADDITIONAL SERVICE TERMS
4.1. GPC Not A Banking Institution. Driver hereby acknowledges and agrees that:
(i) GPC offers the Service to facilitate the processing of Payment Transactions in connection with Ride purchases by Riders,
(ii) GPC processes Payment Transactions on behalf of Driver only and not on behalf of Riders,
(iii) GPC is not a bank or other chartered depository institution and
(iv) funds held by GPC or its service providers (including any bank service providers) in connection with the processing of Payment Transactions are not deposit obligations of Driver and are not insured for the benefit of Driver by the Federal Deposit Insurance Corporation or any other governmental agency.
4.2. Unclaimed Property. Driver acknowledges and agrees that if
(i) GPC is holding funds that are due to Driver arising from a Payment Transaction processed through the Service or otherwise,
(ii) GPC is unable to contact Driver and
(iii) GPC has no record of Driver’s use of the Service for several years, then GPC may be required under applicable law to report the balance of such funds as unclaimed property. In the event of the foregoing, GPC will try to locate Driver at the Driver’s mailing address shown in GPC’s records and, if GPC is unable to locate Driver, Driver acknowledges and agrees that GPC may be required to deliver any such funds to the applicable state as unclaimed property; provided, however that GPC may deduct a dormancy fee and other administrative charges from such unclaimed funds, as permitted by applicable law.
4.3. No Endorsement. Driver acknowledges that GPC does not endorse any of the information or other content relating to Driver or provided by Driver to GPC (“Driver Content”), or any of the Rides. Driver agrees not to state or imply any endorsement by GPC or Google. To the extent that Driver Content appears within the Service or on Google Websites, GPC reserves the right to modify or remove the Driver Content at its sole discretion.
4.4. Rider Identity. GPC has no responsibility to Driver to investigate the background or confirm the identity of Riders, except to the extent required by applicable law. GPC may offer a feedback or other ranking system to assist Driver in evaluating Riders or to assist Riders in evaluating Driver. Driver acknowledges that any feedback or ranking system represents solely the opinion of third parties, and is not an opinion, representation, or warranty by GPC.
4.5. Disputes. Except as expressly provided for in the Chargeback Resolution Policy, Driver is solely responsible for Disputes and GPC is not a party to and will not be responsible for any Disputes. With respect to Disputes, Driver is subject to the Chargeback Resolution Policy and other dispute procedures as provided by GPC from time to time. GPC may provide tools to facilitate communication between Driver and a Rider to resolve Disputes. If Driver and a Rider are unable to resolve a Dispute, GPC may mediate the Dispute upon either party’s request and may propose a non-binding solution at GPC’s sole discretion. Driver acknowledges that, except in the event of a chargeback or other reversal, upon receipt of an authorization pursuant to Section 2.5 Driver will look exclusively to GPC or the card acquiring bank, and not to Rider, for funds properly due and payable in the event that GPC fails to timely settle funds received from the card system in settlement of Driver’s submitted card transactions. GPC is solely responsible for Service Disputes and Driver is not a party to and will not be responsible for any Service Disputes; provided, that Driver agrees to provide reasonable assistance to GPC in resolving Service Disputes.
SECTION 5. BRAND FEATURES
5.1. GPC Brand Features. All uses of GPC Brand Features require prior approval from GPC in accordance with the Google Brand Feature Guidelines. GPC may revoke the permission granted in this paragraph to use GPC Brand Features by providing notice to Driver and a reasonable period of time to cease usage. Driver agrees to adhere to the Google Brand Feature Guidelines.
5.2. Driver Brand Features. Subject to this Agreement, Driver grants GPC and its affiliates a limited, nonexclusive and nonsublicensable license to display Driver Brand Features in connection with:
(i) operating the Service and
(ii) promotions, presentations, marketing materials, verbal communications, and lists of Drivers (e.g. a Driver directory posted on a Google Website) that identify Driver as a Driver that has implemented the Service.
5.3. Brand Feature Rights. Each party retains all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Brand Features. Except as expressly provided in this Agreement, neither party acquires any right, title or interest in any Brand Features of the other party, and any rights not expressly granted are deemed withheld. All use by GPC of Driver Brand Features (including any associated goodwill) will inure to the benefit of Driver, and all use by Driver of GPC Brand Features (including any associated goodwill) will inure to the benefit of GPC. While this Agreement remains in effect and upon request, each party agrees to furnish the other party with samples of the usage of the other party’s Brand Features as contemplated by this Section 5 to enable the other party to monitor and ensure that the usage is consistent with the other party’s quality control requirements. While this Agreement remains in effect, Driver agrees not to challenge or assist others to challenge the GPC Brand Features (except to protect Driver’s rights to its own Brand Features) and not to register any Brand Features or domain names that are confusingly similar to those of GPC.
SECTION 6. SERVICE FEES AND PAYMENT TERMS
6.1. Service Fees. The transaction processing and other fees for the Service will be as set forth in clause 3 (the “Service Fees”). GPC reserves the right to earn interest and/or other compensation from its service provider banks or others arising from the processing of Payment Transactions that have not settled to Driver.
6.2. Payment Terms. GPC will hold amounts due and payable to Driver (subject to adjustments as described in Section 6.3) separate from GPC’s general corporate funds and will not use the amounts for GPC’s corporate operating expenses. GPC will not be obligated to settle funds to Driver:
(i) for any Payment Transaction for which GPC has not received full settlement in final available funds if Driver does not capture funds during an authorization hold period indicated in the Program Policies or
(ii) if Driver’s earned balance at the time of disbursement or transfer is less than $50 dollars.
6.3. Payment Adjustments. Driver acknowledges that Riders may retain a chargeback right pursuant to card association and network rules and/or their agreement with the holder of the Payment Account (including a Carrier), and GPC will have the right (but not the obligation) to pass chargebacks to Driver. As to particular Payment Transactions, GPC may withhold payments or reverse previous payments if:
(i) a Rider makes a claim to GPC for a refund or other reversal or
(ii) GPC believes that the Payment Transactions are invalid, involve misconduct or fraud (such as fraudulent use of a payment instrument), or otherwise violate applicable law, this Agreement, or the Policies. Driver agrees to cooperate with GPC and to provide any information that may be reasonably requested by GPC in its investigation of any of the foregoing circumstances. GPC may withhold payment amounts to Driver x) in the event GPC requires additional information from Driver to complete a credit or other background inquiry pursuant to Section 3.2, including but not limited to correction or completion of invalid or incomplete bank account or tax information; y) due to tax levies imposed on amounts due to Driver by the IRS or other competent tax authority; or z) due to a fraud or risk flag. GPC may offset any payment obligation that GPC may have to Driver under this Agreement against:
(a) Service Fees owed by Driver,
(b) amounts overpaid to Driver due to a later reversal, refund, chargeback or other adjustment to prior Payment Transactions, and
(c) any other amounts owed by Driver to GPC under this Agreement or any other agreement. In the event that Driver incurs a negative balance (i.e. due to negative adjustments exceeding the settlement proceeds for a particular period), GPC may debit the Settlement Account for the amount of the negative balance. Furthermore, GPC may choose to invoice Driver for any amounts owed by Driver under this Agreement which will be immediately due and payable.
6.4. Reserve. GPC reserves the right to withhold a portion of the proceeds that are payable to Driver with respect to the processing of Payment Transactions (a “Reserve”) to help ensure that sufficient funds are available to GPC in the event of chargebacks, reversals and other liabilities related to Driver’s use of the Service. Circumstances where GPC may impose a Reserve include, but are not limited to:
(i) adverse changes in Driver’s financial condition or its payment record with creditors; or
(ii) excessive rate of chargebacks, reversals, or Rider support issues.
GPC is not responsible for any losses sustained by Driver as a result of the imposition of a Reserve.
6.5. Refunds and Adjustments. To the extent the Driver Interfaces allow, Driver will disclose its return/cancellation policy on the Driver Interface. Where a Driver allows a return, cancellation or price adjustment in connection with a Payment Transaction, Driver will initiate a credit to the Rider using the refund function of the Service within three (3) days of receiving the Rider’s request. Refunds cannot exceed the total amount of the Payment Transaction. Driver agrees not to accept cash or any other consideration from a Rider in exchange for issuing a refund to a Rider. Driver agrees not to give cash refunds to a Rider in connection with a Ride paid for with the Service unless required by law. If Driver provides a refund through a means other than through the Service, Driver remains responsible if the Payment Transaction results in a chargeback through the Service. GPC may reject or delay a refund request from Driver through the Service if GPC is unable to obtain sufficient funds from Driver to fund the refund.
6.6. Taxes and Other Charges. Driver will pay any applicable taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental entities of whatever kind and imposed with respect to the transactions under this Agreement, including penalties and interest, but specifically excluding taxes based upon GPC’s net income. For purposes of clarification, GPC is not responsible for, and is not the entity collecting sales or income or other taxes with respect to Payment Transactions. When GPC has the legal obligation to collect any applicable taxes, the appropriate amount will be invoiced to and paid by Driver net thirty (30) days from the date of invoice or other notification. Driver will promptly provide GPC with documentation as may be required by the applicable governmental entity in order for GPC to process payments hereunder (including, without limitation, a valid certificate of Driver’s exemption from obligation to pay taxes as authorized by the appropriate governmental entity), and GPC may withhold any payments required to be made hereunder until Driver has provided the documentation. Driver acknowledges that, beginning in 2011, GPC will report to the Internal Revenue Service the gross annual sales made by Driver through GPC in any calendar year where Driver both (i) receives aggregate payments exceeding $20,000, and (ii) has more than 200 transactions. Driver will promptly provide GPC with original or certified copies of all tax payments or other sufficient evidence of tax payments at the time the payments are made by Driver pursuant to the Agreement.
SECTION 7. CONFIDENTIALITY AND PROPRIETARY RIGHTS
7.1. Confidentiality. Driver will hold confidential and will not use or share any Rider information obtained through the Service, except to process the transaction the Rider requested, or as otherwise expressly permitted by the Program Policies. Driver acknowledges that Rider information received from GPC in connection with the Service is subject to the Google Payments Privacy Notice, and Driver agrees it will not use or share Rider information obtained from GPC in any manner that contravenes the Google Payments Privacy Notice. Driver will not disclose or cause to be disclosed any GPC Confidential Information without GPC’s prior written consent, except to those employees, agents, representatives, or contractors of Driver who require access to GPC Confidential Information to perform under this Agreement (“Authorized Personnel”) and who are bound by a written agreement not to disclose third party confidential information. Driver agrees that Driver is responsible for any act and/or omission of any Authorized Personnel in breach of this paragraph. Driver agrees to use the same degree of care, but no less than a reasonable degree of care, as Driver uses with respect to its own information of a similar nature to protect the GPC Confidential Information and to prevent communication of GPC Confidential Information to any unauthorized third parties. “GPC Confidential Information” includes without limitation:
(i) all GPC software, technology, programming, specifications, materials, guidelines and documentation relating to the Service;
(ii) any information provided pursuant to this Agreement, including, without limitation, tangible, intangible, visual, electronic, present, or future information such as:
(a) trade secrets;
(b) financial information, including pricing;
(c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; and
(d) business information, including operations, planning, marketing and promotion plans, and products; and
(iii) any other information designated in writing by GPC or Google as “Confidential” or an equivalent designation.
This Agreement imposes no obligation upon Driver with respect to GPC Confidential Information that: (w) was known to Driver before receipt from GPC or Google; (x) is or becomes publicly available through no fault of Driver; (y) is rightfully received by Driver from a third party without a duty of confidentiality; or (z) is independently developed by Driver without a breach of this Agreement. If GPC Confidential Information is required to be produced by law, court order, or other governmental demand (“Process”), Driver must immediately notify GPC of that obligation. Driver will not produce or disclose GPC Confidential Information in response to the Process unless GPC has (I) requested protection from the court or other legal or governmental authority requiring the Process and the request has been denied, or (II) consented in writing to the production or disclosure of the GPC Confidential Information in response to the Process. Upon GPC’s written request, Driver will promptly return all GPC Confidential Information, together with all copies, or certify in writing that all GPC Confidential Information and copies have been destroyed.
7.2. Username, Password. Driver will be responsible for maintaining the confidentiality of its Service username/password. Driver is responsible for all Service activity by persons that use the username/password, including any consequences of the use or misuse of the username/password and merchant key. Driver agrees to notify GPC immediately of any unauthorized use of its username/password or merchant key or any other breach of security regarding the Service of which Driver has knowledge. Driver agrees that all officers, employees, agents, representatives and others having access to the Service username/password and merchant key will be vested by Driver with the authority to use the Service and legally bind Driver.
7.3. Proprietary Rights. GPC and its licensors retain all right, title and interest, including without limitation all Intellectual Property Rights relating to the Service (and any derivative works or enhancements thereof), including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. Driver does not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in the Agreement. Any rights not expressly granted in this Agreement are deemed withheld. Driver agrees not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service.
SECTION 8. WARRANTIES; DISCLAIMER OF WARRANTIES
8.1. Representations and Warranties. Driver represents and warrants that:
(i) if an individual, Driver is at least 18 years old,
(ii) if a business entity, Driver is duly authorized to do business in the United States,
(iii) Driver is capable of and has full power and authority to enter into the Agreement and this Agreement will constitute the valid and binding obligations of Driver,
(iv) Driver is a resident of the United States,
(v) Driver’s execution of this Agreement and use of the Service does not violate any other agreement to which Driver or its affiliates are subject; and
(vi) Driver will comply with all applicable laws, regulations and ordinances in connection with Driver’s use of the Service.
8.2. DISCLAIMER OF WARRANTIES. THE SERVICE (INCLUDING ALL CONTENT, SOFTWARE, DATA TRANSMISSION, FUNCTIONS, MATERIALS AND INFORMATION PROVIDED IN CONNECTION WITH OR ACCESSIBLE THROUGH THE SERVICE) IS PROVIDED “AS IS” AND WITHOUT WARRANTY. GPC AND ITS AFFILIATES AND AGENTS DISCLAIM ALL WARRANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE), INCLUDING WITHOUT LIMITATION WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GPC does not warrant that the OPERATION OF the Service will be uninterrupted or error free. GPC WILL not be responsible for any service interruptions, including, but not limited to, power outages, system failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of Payment Transactions or the Service.
SECTION 9. LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1. LIMITATION OF LIABILITY. GPC (INCLUDING ITS AFFILIATES AND AGENTS) WILL NOT BE LIABLE TO DRIVER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, OR PROCUREMENT OF SUBSTITUTE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF GPC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE OR LOSS. IN NO EVENT WILL GPC’S LIABILITY ARISING OUT OF THIS AGREEMENT AND THE SERVICE (WHEN AGGREGATED WITH GPC’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT AND THE SERVICE) EXCEED THE NET FEES THAT GPC HAS RECEIVED AND RETAINED UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ARISES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated in this paragraph and that these limitations are an essential basis of the bargain between the parties.
9.2. Driver Indemnification. Driver will indemnify, defend and hold the GPC Indemnified Parties harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) brought against any of the GPC Indemnified Parties, arising out of or related to:
(i) the Driver’s use of the Driver Interfaces other than as expressly permitted by GPC,
(ii) Driver Brand Features;
(iii) Driver’s use of the Service; and/or
(iv) any breach of or non-compliance with this Agreement or the Policies by Driver.
“GPC Indemnified Parties” include
(a) GPC, Google, and their subsidiaries and affiliates and
(b) officers, directors, agents, employees, information providers, licensors, licensees, consultants, contractors and other applicable third parties (including without limitation Paymentech, L.P.) of GPC, Google, and their subsidiaries and affiliates. GPC may join in defense with counsel of its choice at its own expense
SECTION 10. TERMINATION
10.1. By Driver. Driver may terminate this Agreement or Driver’s use of the Service at any time upon providing prior written notice to GPC or as otherwise permitted by GPC.
10.2. By GPC. GPC may terminate, limit or suspend this Agreement or Driver’s use of the Service at any time for any reason and without liability to Driver, including without limitation:
(ii) violation of this Agreement or the Policies, or
(iii) if Driver’s use of the Service, in GPC’s reasonable discretion, creates a risk of financial harm or loss of goodwill to GPC or any of the payment card systems used for processing Payment Transactions.
10.3. Effect of Termination. Sections 1, 4, 5.3, 6.3, 6.5, 6.6, 7.1, 7.3, 8, 9, 10.3, and 11 will survive any termination or expiration of this Agreement. Notwithstanding the payment terms described in Section 6.2 (Payment Terms), upon the expiration or termination of this Agreement or other cessation of Driver’s use of the Service, GPC may withhold funds to cover GPC’s expectation of potential chargeback exposure for up to one hundred eighty (180) days. Driver will remain liable for chargebacks and any other obligations incurred by Driver after the expiration or termination of this Agreement. Following the expiration or termination of this Agreement, GPC may disable Driver’s access to the Service.
SECTION 11. GENERAL
11.1. Notice to GPC. Except as otherwise specified in the Agreement, all notices given under this Agreement by Driver to GPC will be in English and in writing to Google Payment Corp., 1600 Amphitheatre Parkway, Mountain View, CA 94043, with a copy to Attn: Legal Department at the same address. Notice to GPC will be deemed given upon receipt when delivered personally, upon written verification of receipt from overnight courier, or upon verification of receipt of registered or certified mail.
11.2. Notice to Driver. GPC may communicate with Driver regarding the Service by means of electronic communications, including without limitation:
(i) posting notices or communications within the Service console, on a Google Website, in a Google mobile application, or through notification delivered via a Google mobile application or device notification
(ii) sending them via electronic mail to the email address Driver provides during registration; or
(iii) otherwise communicating them to Driver via the Service.
GPC and Driver agree that GPC may communicate by means of electronic communications the following types and categories of communications and records: this Agreement (and revisions or amendments), notices or disclosures regarding the Service, payment authorizations, and any other matter relating to Driver’s use of the Service. Driver is responsible for providing its own hardware, software and electronic access to the Internet in order to use the Service and access the electronic communications. Driver should maintain copies of electronic communications by printing a paper copy or saving an electronic copy on Driver’s computer. Electronic communications will be deemed received by Driver when GPC sends the electronic communication to the email address of Driver provided at the time of registration or as revised by Driver thereafter in accordance with this Agreement or when GPC posts the electronic communication within the Service console or on a Google Website. For those categories of communications or records that GPC is otherwise required under applicable law to provide in a written paper form to Driver, GPC and Driver agree that GPC may provide the communications or records to Driver by means of electronic communications. The following additional terms will apply to electronic communications:
(a) Driver may contact GPC at the following email address: firstname.lastname@example.org to request another electronic copy of the electronic communication without a fee;
(b) Driver may request a paper copy of an electronic communication, and GPC reserves the right to charge Driver a fee to provide a paper copy;
(c) Driver may contact GPC through the help center to update Driver’s registration information (such as email address) used for electronic communications or to withdraw consent to receive electronic communications; and
(d) GPC reserves the right to terminate Driver’s use of the Service if Driver declines or withdraws consent to receive electronic communications from GPC.
11.3. Governing Law; Venue. The laws of California, excluding California’s choice of law rules, and applicable federal United States laws will govern this Agreement. The exclusive venue for any dispute related to this Agreement will be the state or federal courts located in Santa Clara County, California, and each party consents to personal jurisdiction in these courts. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
11.4. Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties with respect to the subject matter. This Agreement supersedes any other prior or collateral agreements, whether oral or written, with respect to the subject matter. The Agreement will be binding on and inure to the benefit of each of the parties and their permitted successors and assigns. GPC will have the right, at its sole and absolute discretion, to change, modify, or amend any portion of this Agreement at any time by posting notification on a Google Website or otherwise communicating the notification to Driver. The changes will become effective, and will be deemed accepted by Driver, after the initial posting by GPC or the sending by GPC of notification to Driver and will apply on a going-forward basis with respect to Payment Transactions initiated after the posting or sending date. In the event that Driver does not agree with the modification, Driver must terminate its use of the Service, which will be Driver’s sole and exclusive remedy.
11.5. Assignment. Driver may not assign (including by way of merger, sale of stock, or sale of assets) this Agreement or any rights or obligations under this Agreement without the prior written consent of GPC. Any attempt by Driver to make an assignment or transfer in violation of this paragraph will be void and without effect. GPC may assign this Agreement or any rights or obligations under this Agreement to Google or subsidiary of Google.
11.6. Force Majeure. Neither party will be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
11.7. Other Provisions. The failure of GPC to exercise or enforce any right or provision of the Agreement will not constitute a waiver of the right or provision. Headings are for reference purposes only and will not be used for interpretation of this Agreement. Unless otherwise expressly stated, all amounts stated in this Agreement are denominated in United States dollars. The Policies and URLs referenced in this Agreement are incorporated by reference and may be updated by GPC from time to time. The parties are and will remain independent contractors and nothing in this Agreement will be deemed to create any agency, partnership, or joint venture relationship between the parties. Neither party will be deemed to be an employee or legal representative of the other nor will either party have any right or authority to create any obligation on behalf of the other party. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and remain enforceable between the parties. This Agreement is not intended and will not be construed to create any rights or remedies in any parties other than Driver and GPC and no other person may assert any rights as a third party beneficiary; provided, that Google will be a third party beneficiary; provided, further that the GPC Indemnified Parties will be a third party beneficiary of the Driver indemnity in Section 9; provided, further that Paymentech, L.P will be a third party beneficiary of the agreement in Exhibit A and the Driver indemnity in Section 9.
Three Party Agreement between Driver, GPC, and Paymentech, L.P.
This Exhibit A applies to Driver if Driver uses the Service to engage in aggregate payment card transaction amounts of five thousand dollars ($5,000) or more in gross merchandise volume (GMV) for three consecutive months. This Exhibit contains terms required by the groups of Card issuer banks or debit networks that facilitate the use of payment cards (“Associations”). These terms form a three-party agreement between Driver, GPC, and Paymentech, L.P. (“Paymentech”), the service provider with which GPC has entered into a separate agreement to assist GPC in processing Driver’s Payment Transactions involving payment cards.
- Driver agrees to comply with all Association Rules, as may be applicable and in effect from time to time. Driver understands that GPC or Paymentech may be required to modify this Exhibit A in order to comply with requirements imposed by the Association Rules.
- Association Rules are the bylaws, rules, and regulations, as they exist from time to time, of the Associations.
- Card is both the plastic card or other evidence of the account and the account number, issued by a Card issuer or a debit network to the Cardholder, either of which are accepted for the purpose of paying Driver, and which will be processed under this Driver Payment Terms of Service.
- Cardholder is the person to whom the Card is issued and who is entitled to use the Card.
- Retrieval Request is a request for information by a Cardholder or Card issuer relating to a claim or complaint concerning a Card sale Driver has made.
- Sales Data is the evidence and/or electronic record of a Payment Transaction representing payment by use of a Card or of a refund/credit to a Cardholder.
Driver Acceptance of Cards
- Driver agrees to comply with all Association Rules, as may be applicable and in effect from time to time. Driver understands that GPC or Paymentech may be required to modify this Exhibit A in order to comply with requirements imposed by the Association Rules.
- The Association Rules require that each Sales Data Driver tenders to GPC for processing comply with the following conditions: (1) The Sales Data represents payment or refund of payment, for the bona fide sale or lease of the goods, services or both, which Driver has provided in the ordinary course of its business; (2) The Sales Data does not involve any element of credit for any purpose other than payment for a current transaction (including payment of a previously-dishonored check) and, except in the case of approved installment or pre-payment plans, the goods have been shipped or services actually rendered to the Cardholder; (3) To Driver’s knowledge, the Sales Data is free from any material alteration not authorized by the Cardholder; and (4) Driver has not advanced any cash to the Cardholder in connection with the Card transaction, nor has Driver accepted payment for effecting credits to a Cardholder’s account.
Refunds and Adjustments
- The Card Associations require Driver to maintain a fair policy with regard to the return/cancellation of merchandise or services and adjustment of Card sales. Driver must also disclose its return/cancellation policy to Driver’s customers.
- If Driver allows a price adjustment, return of merchandise or cancellation of services in connection with a Card sale, Driver must prepare and deliver to GPC Sales Data reflecting the refund or adjustment within 3 days of receiving the customer’s request for the refund/adjustment.
- The amount of the refund/adjustment cannot exceed the amount shown as the total on the original Sales Data except by the exact amount required to reimburse the Cardholder for postage that the Cardholder paid to return merchandise. Driver is not allowed to accept cash or any other payment or consideration from a customer in return for preparing a refund to be deposited to the Cardholder’s account nor to give cash refunds to a Cardholder in connection with a Card sale, unless required by law.
- If Driver’s refund policy prohibits returns under certain circumstances, Driver may still receive a chargeback relating to the sales pursuant to the Association rules.
- The Associations require Driver to store original documentation of each transaction for at least six months from the date of the respective transaction, and to retain copies of all the data for at least 18 months from the date of the respective transaction. The Associations do not allow Driver to charge a fee for the creation or storage of the copies.
Data Security and Privacy
- Driver must exercise reasonable care to prevent disclosure of Card information, other than to Driver’s agents and contractors for the purpose of assisting Driver in completing a Card transaction, or to the applicable Association, or as specifically required by law. Association Rules require Driver to comply with all security standards and guidelines that may be published from time to time by Visa, MasterCard or any other Association, including, without limitation, the Visa U.S.A. Cardholder Information Security Program (collectively, the “Security Guidelines”). Driver understands and agrees that failure to comply with the Payment Card Industry Data Security Standard requirements and other Security Guidelines may result in fines and/or penalties being levied against Driver or against GPC or Paymentech because of Driver’s actions by the Associations. If this occurs Driver agrees to reimburse GPC or Paymentech immediately for any fine or penalty imposed due to violation of the Security Guidelines.
- The Association Rules provide that Cardholder information and transaction data is owned by the Associations, the Card issuer and the Cardholder.