Terms of Service

1. Acceptance of Terms

These Terms of Service (“Terms”) are a legal agreement between You (“You” or “User”) and Creators Payment Solutions, LLC. (doing business as Melon Pay) ("CPS" "We," "Us," or "Our"). This document governs Your use of Our software, systems and services (“Services”), and your personal account with CPS (“CPS Account”), including Your use of our website located at www.getmelon.io These Terms define Your rights and obligations and may affect your rights in the future; You should read all the Terms carefully. Reading these Terms will help You understand your rights and obligations in your business relationship with Us. If You do not agree to be bound by these terms and conditions, please do not use Our Services. If You have any questions or concerns after reading these terms and conditions, please contact us at support@getmelon.io.

By using CPS’s Services, You agree to these Terms, including terms that may limit CPS’s liability, and terms that require resolution of disputes by arbitration. You also agree to any additional terms of any third party whose services are integral to the Our Services provides to You under these Terms, Our Privacy Policy, and any other policies and terms that are incorporated into or are referenced in these Terms.

Only individual businesses entities located in the United States are eligible to use the Our Services.  You acknowledge and agree that You will not use the CPS Services for any prohibited or illegal purposes or for any non-commercial personal or household expenses.  You represent to Us that You have authority to bind yourself, Your business and Your entity to these Terms, and that You and Your business accept these Terms.

To be effectively used, our Services require that you use the Services in conjunction with other users. To facilitate Your use of Our Services, you agree that any third parties with whom you use our Services are aware of these Terms and agrees to them. You further acknowledge and agree that Your use of the Services with any third party You have independently engaged is done solely at the User's own discretion and pursuant to the User's own terms/conditions with such third party. You acknowledge and agree that CPS is not liable for such third parties' compliance with any applicable laws and regulations with respect to the Services offered directly to Users.

2. CPS Payment Service Provider Partners

CPS uses certain third party services in order to provide its Services. (“Payment Service Providers”).  These Payment Service Providers include, at this time, among others, Plaid, Inc. Our Payment Service Providers provide various services, including processing, operating Application Programming Interface, and collecting, holding, sending, and receiving Payments on Your behalf to designated Recipients. You understand that CPS does not operate any financial institution, bank, money servicing business or payment service provider and that all financial transactions are operated by these Payment Services Providers and not by CPS directly. In order to use our Services, you agree to be bound by the terms and conditions and other policies government the Payment Services Providers’ websites and other business operations.

The following terms and conditions of CPS’s Payment Service Providers (“Payment Service Provider Terms”), as amended from time to time by such Payment Service Provider, apply to Your use of the CPS Services to the extent the Services involve the use of these Payment Service Providers’ business operations and are incorporated by reference into these Terms:

In order to use the payment functionality of our application, you must open a "Dwolla Account" provided by Dwolla, Inc. and you must accept Dwolla's Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla's financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize us to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla Account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla Account activity, and can be reached at http://help.getmelon.io/en/ and/or support@getmelon.io.

• Dwolla's Terms of Service, available here: https://www.dwolla.com/legal/tos/
• Dwolla's Privacy Policy, available here: https://www.dwolla.com/legal/privacy/
• Dwolla's financial institution partners, available here: https://www.dwolla.com/legal/about-our-financial-institution-partners/
• Plaid End User Privacy Policy, available here: https://plaid.com/legal/#end-user-privacy-policy 
• Plaid End User Services Agreement – United States, available here: https://plaid.com/legal/#end-user-services-agreement-us 

3. Amendments and Notices

You agree that CPS may update these Terms at any time without notice as we deem necessary by posting the revised version on our website (“CPS Website”) or communicating it to You through the CPS Services. The amended Terms will be effective as of the time posted. Your continued use of the CPS Services constitutes Your acceptance of the amended Terms.

You agree that we may communicate with You electronically with respect to important information regarding the CPS Services or Your CPS Account. We may also provide notices to You by posting them on the CPS Website, or by sending them to the email address linked to Your CPS Account. CPS Website and email notices shall be considered received by You within 24 hours of the time posted or sent.

Except as otherwise stated, You must send notices to CPS at the following email address: support@getmelon.io

4. Your CPS Account

In order to use the CPS Services, You must create a CPS Account.  To do so, You or the owner of Your business must be a resident of the United States or one of its territories and must be over the age of 13. If You are not at least 18 years old, but You are 13 years old or older, You must have an eligible representative (“Eligible Representative”) who will agree to these Terms and any Payment Service Provider’s Terms on Your behalf.  Your Eligible Representative must be Your parent or legal guardian. If You are a legal entity that is owned, directly or indirectly, by an individual who is not at least 18 years old, but the individual is 13 years old or older, Your Eligible Representative must either obtain the consent of Your board or of an authorized officer. Any such approving board, authorized officer, parent, or legal guardian is responsible to CPS and/or CPS’s Payment Service Provider and is legally bound to these Terms as if the Eligible Representative had agreed to the Terms itself. You may not use the CPS Services if You are under 13 years of age or if You are a business owned by a person under 13 years of age. In order to establish Your CPS Account, CPS will ask You for information, which may include but is not limited to, Your name, date of birth, phone number, Your business EIN, your social security number (if applicable), and other personal information.

In order to use our Services, You may also be required to (i) verify Your phone number; (ii) link Your Google or Apple account; or (iii) link Your bank account (“Your Bank Account”).  In order to link Your Bank Account, You will be required to verify Your Bank Account by providing additional information, as discussed below.  Certain CPS Services may only be available to You after You have linked Your Bank Account. If you do not link your bank account it is likely you will be unable to make use of the Services as they are intended to be used and your User experience will suffer.

You acknowledge that CPS, directly or through its Payment Service Providers, may collect additional information and make inquiries as necessary to verify Your identity. This may include asking or requiring You to take steps to confirm information and verifying Your information against third party databases or through other sources. CPS and its Payment Service Providers reserve the right to deny Your use of the Services or to limit Your use of Your CPS Account. You further understand that CPS and its Payment Services Providers may be required by laws and regulations of the United States and other countries to collect this information related to You and Your business.

You must provide accurate and complete information in response to verification questions, and You must keep all of Your information current. Because the information we request in order to set up your account may be sent to federally regulated financial institutions, if You provide false information in response to our inquiries You may be in violation of criminal laws and regulations of the United States and other countries and may subject you to fines, sanctions, and ultimately criminal liability.  You are fully responsible for ensuring that your Bank Account and Personal profile information are updated at all times.

You are solely responsible for safeguarding Your CPS Account and for all activity that occurs under Your CPS Account, including for any actions taken by persons to whom You have granted access to the CPS Account. We reserve the right to change, suspend or terminate Your CPS Account if You provide inaccurate, untrue, or incomplete information, or fail to comply with the registration requirements.

5. CPS Services

CPS’s primary service involves assisting parties to automate the transfer of cash based on certain predetermined conditions. CPS enables You to automatically share money deposited in Your bank account from predetermined sources with other parties in predetermined ratios on a recurring basis (“Share Payments”). You understand that by initiating a Share Payment, a portion of any deposit into your bank account meeting the predetermined condition will be automatically debited from Your Bank Account and paid to the recipient You identified when you established your remitted to Your designated Recipient. By establishing a Share Payment You expressly authorize CPS and its Payment Service Provider to deduct the the amount of any Share Payment from Your Bank Account on a recurring and pre-authorized basis, and to send the amount determined in the conditions set when you scheduled the Share Payment, less any fees assessed by CPS and its Payment Service Providers to the Recipients You designated in the Share Payment order. Making a Share Payment will require that the other party have an active CPS Account All payments services in connection with the Share Payments are performed by CPS’s Payment Service Providers pursuant to the Payment Service Provider Terms directly between You and the relevant Payment Service Provider.

You understand that CPS can only accomplish Share Payments after the deposit to be shared has been received into Your Bank account and all funds have cleared. CPS is not liable for any direct or indirect losses or damages if a Share Payment is not processed because the funds you intended to share in your Share Payment were not deposited into Your Bank Account in time to accomplish the Share Payment. 

You maybe able to cancel a Share Payment by requesting a cancellation through Your CPS Account. However, if you have previously scheduled a Share Payment and the Share Payment was not accomplished due to lack of funding, CPS may not cancel any past or future Share Payments until all Share Payments that failed due to lack of funding have been fully processed. As a result, your past failed Share Payments may result in a delay in you cancelling future Share Payments or in discontinuing using CPS Services. 

If You would like to request a cancellation or refund of a Share Payment after the deposit that would fund the Share Payment have been deposited, You may contact CPS at support@getmelon.io.  CPS’s ability to cancel Your Share Payment or provide You with a refund may depend on various factors, including factors outside of CPS’s control. CPS will attempt to work with its Payment Service Providers to cancel, refund, or resolve Your Share Payment, but cannot guarantee any such resolution or refund. CPS may charge a fee in connection with any such request made by You.

In order to accomplish the Services, you authorize CPS to debit each bank account associated with You or any party with whom You do business, including making Share Payments without separate notice to collect amounts you owe under this Agreement. If CPS is unable to collect those amounts by debiting a User Bank Account, then you immediately grant to CPS a new, original authorization to debit each User Bank Account without notice and according to the applicable User Bank Account Debit Authorization. CPS may rely on this authorization to make one or more attempts to collect all or a subset of the amounts owed. Your authorization to debit will remain in full force and effect until (a) all of your CPS Accounts are closed; or (b) all fees and other amounts you owe under these Terms and any associate agreements are paid in full, whichever occurs later. If applicable debit scheme authorization rules grant you the right to revoke your debit authorization, then to the extent Law permits, you waive that right.

6. User’s Representations and Warranties.

You represent as of each time you use CPS’s Services, that:

(a) you have the right, power, and ability to enter into and perform under this Agreement;

(b) you are a business (which may be a sole proprietor) or a non-profit organization located in the United States and are eligible to apply for a CPS account and use the Services;

(c) you have, and comply with, all necessary rights, consents, licenses, and approvals for the operation of your business and to allow you to access and use the Services in compliance with this Agreement and Law;

(d) your employees, contractors and agents are acting consistently with this Agreement;

(e) your use of the Services does not violate or infringe upon any third-party rights, including IP Rights, and you have obtained, as applicable, all necessary rights and permissions to enable your use of Content in connection with the Services;

(f) you are authorized to initiate settlements to and debits from the User Bank Accounts;

(g) you comply with Law with respect to your business, your use of the Services and the performance of your obligations in this Agreement;

(h) you do not use the Services to conduct a Prohibited Business, as defined herin, transact with any Prohibited Business;

(i) all information you provide to CPS is accurate and complete.

If any of these representations and warranties is not accurate or does not apply to You, You may not use CPS’s Services and must immediately inform CPS that you do not qualify to use CPS’s services.

You agree to indemnify CPS against any claims, harm, or actions against CPS based on Your use of the Services. You specifically agree to defend CPS against any claim made against CPS to the extent arising out of or relating to:

(i) your breach of any of your representations, warranties or obligations under this Agreement;

(ii) your use of the Services, including use of Personal Data;

(iii) an allegation that any of the trademarks you use with CPS, or any content or actions you use with CPS infringes on or misappropriates the rights, including IP Rights, of the third party making the Claim; or

(iv) Your negligence, willful misconduct or fraud.

You will indemnify the CPS against all CPS losses arising out of or relating to any Claims made against CPS as described herein.

7. Taxes And Tax Reporting

CPS’s fees exclude all Taxes. You have sole responsibility and liability for:

(a) determining which, if any, Taxes or fees apply to the sale of your products and services, acceptance of donations, or payments you make or receive in connection with your use of the Services; and

(b) assessing, collecting, reporting and remitting Taxes for your business.

If CPS is required to withhold any Taxes, CPS may deduct those Taxes from amounts otherwise owed to you and pay those Taxes to the appropriate taxing authority. If you are exempt from paying, or are otherwise eligible to pay a reduced rate on, those Taxes, you may provide to CPS an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status or reduced rate eligibility, in which case CPS will not deduct the Taxes covered by the certificate. You must provide accurate information regarding your tax affairs as CPS reasonably requests, and must promptly notify CPS if any information that CPS prepopulates is inaccurate or incomplete. CPS may send documents to you and taxing authorities for transactions processed using the Services. Specifically, Law may require CPS to file periodic informational returns (such as 1099s) with taxing authorities related to your use of the Services. CPS may send tax-related information electronically to you.

8. Fees For The Services And Collection

CPS charges fees for its services and unless otherwise reflected in a written agreement between CPS and You, those fees are a total of 5% of the amount received by You as part of any transaction conducted as part of the Services. Ordinarily any other fees will be reflected in your Individual Service Agreement. CPS may revise the Fees at any time. If CPS revises the Fees for a Service that you are currently using, CPS will notify you at least 30 days before the revised Fees apply to you.

You must pay, or ensure that CPS is able to collect, Fees and other amounts you owe under this Agreement when due. CPS may deduct, recoup or setoff Fees and other amounts you owe under these Terms or under any other agreements you have with CPS, from any accounts you have with CPS or any Payment Service Providers. If you fail to pay invoiced amounts when due, if your CPS Account balance is negative or does not contain funds sufficient to pay amounts that you owe under these Terms, or under any other agreement with CPS, or if CPS is unable to collect amounts due from your account balance, then CPS may, to the extent Law permits, deduct, recoup or setoff those amounts from: (a) funds payable by CPS or its Affiliate to You; (b) Your Bank Account connected to CPS; and (c) the CPS account balance of each CPS account that CPS determines, acting reasonably, is associated with you or your Affiliate. If the currency of the amount being deducted is different from the currency of the amount you owe, CPS may deduct, recoup or setoff an amount equal to the amount owed (using CPS’s conversion rate) together with any fees CPS incurs in making the conversion.

You agree to indemnify CPS for all actions related to Your use of the CPS Services. You agree to defend, indemnify and hold CPS harmless from any claim or demand (including reasonable legal fees) made or incurred by any third party due to or arising out of Your breach of these Terms, Your improper use of the CPS Services, Your violation of any law or the rights of a third party and/or the actions or inactions of any third party to whom You grant permissions to use Your CPS Account or access to the CPS Services on Your behalf.

You are liable for all costs CPS incurs during collection of any amounts you owe under these Terms, in addition to the amounts you owe. Collection costs may include attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, applicable interest, and any other related cost.

9. Arbitration and Waiver of Class Action Rights

1.  Our Agreement To Arbitrate

All disputes, claims and controversies, whether based on past, present or future events, arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s IP Rights (which will be resolved in litigation before the United States District Court for the Northern District of California), will be determined by binding arbitration in San Francisco, California before a single arbitrator.

The American Arbitration Association will administrate the arbitration under its Commercial Arbitration Rules, specifically under the American Arbitration Association’s Commercial Arbitration Rules as described in Section 13.1(b) of the General Terms. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs), and in other cases where the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply.

The arbitrator will apply the substantive law of the State of California and of the United States, excluding their conflict or choice of law rules.

Nothing in this Agreement will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this Section 13 referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. Sections 1-16) will govern any arbitration conducted in accordance with this Agreement.

1. Arbitration Procedures

A party must notify the other party of its intent to commence arbitration prior to commencing arbitration. The notice must specify the date on which the arbitration demand is intended to be filed, which must be at least 30 days after the date of the notice. During this time period, the parties will meet for the purpose of resolving the dispute prior to commencing arbitration.

To commence arbitration after the notice provided in the previous paragraph, a party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, stating the subject of the dispute and the relief requested.

Subject to the disclaimers and limitations of liability stated in this Agreement, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of California. In making a determination, the arbitrator will not have the authority to modify any term of this Agreement. The arbitrator will deliver a reasoned, written decision with respect to the dispute to each party, who will promptly act in accordance with the arbitrator’s decision. Any award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in San Francisco, California. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.

In accordance with the AAA Rules, the party initiating the arbitration is responsible for paying the applicable filing fee. Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or relating to this Agreement, the arbitrator will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.

1. Confidentiality of Arbitration

The parties will keep confidential the existence of the arbitration, the arbitration proceeding, the hearing and the arbitrator’s decision, except (a) as necessary to prepare for and conduct the arbitration hearing on the merits; (b) in connection with a court application for a preliminary remedy, or confirmation of an arbitrator’s decision or its enforcement; (c) CPS may disclose the arbitrator’s decision in confidential settlement negotiations; (d) each party may disclose as necessary to professional advisors that are subject to a strict duty of confidentiality; and (e) as Law otherwise requires. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration, except as Law requires or if the evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.

1. Conflict Between AAA Rules and This Contract

In the case of a conflict between the provisions of this Section 13 and the AAA Rules, the provisions of this Section 13 will prevail.

1. Waiver Of All Class Action Claims

To the extent Law permits, any dispute arising out of or relating to this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. Notwithstanding any other provision of this Agreement or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of this class waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither party is entitled to arbitration.

1. Waiver of Jury Trial 

If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.

10. Termination; Suspension; Survival.

1. Termination

1. Your Termination. You may terminate these Terms and your agreement with CPS at any time by closing your CPS Account. If after termination you use the Services again, these Terms will apply with an Effective Date that is the date on which you first use the Services again.

1. CPS’s Termination. CPS may terminate these Terms and any associated Agreement (or any part) or close your CPS Account at any time for any or no reason by notifying you. In addition, CPS may terminate these Terms and any associated agreement (or any relevant part) for cause if CPS exercises its right to suspend Services and does not reinstate the suspended Services within 30 days.

1. Termination for Material Breach. A party may terminate these Terms and any associated agreement immediately upon notice to the other party if the other party materially breaches these Terms, and if capable of cure, does not cure the breach within 10 days after receiving notice specifying the breach. If the material breach affects only certain Services, the non-breaching party may choose to terminate only the affected Services.

1. Effect on Other Agreements. Unless stated to the contrary, termination of these Terms will not affect any other agreement between the parties.

1. Suspension – CPS may immediately suspend providing any or all Services to you, and your access to CPS, if:

1. CPS believes it will violate any Law or regulation or the Terms and Conditions or other relevant agreement of any Payment Service Provider;

1. A Governmental Authority or a Financial Partner requires or directs CPS to do so;

1. you do not update in a timely manner your implementation of the Services or CPS’s technology to the latest production version CPS recommends or requires;

1. you do not respond in a timely manner to CPS’s request for User Information or do not provide CPS adequate time to verify and process updated User Information;

1. you breach these Terms or any other agreement between the parties;

1. you breach any terms and conditions of any Payment Service Provider or any other financial services partner;

1. you enter an Insolvency Proceeding;

1. CPS believes that you are engaged in a business, trading practice or other activity that presents an unacceptable risk to CPS; or

1. CPS believes that your use of the Services:

1. is or may be harmful to CPS or any third party; 
2. presents an unacceptable level of credit risk; 
3. increases, or may increase, the rate of fraud that CPS observes; 
4. degrades, or may degrade, the security, stability or reliability of the CPS Services, or any third party’s system (e.g., your involvement in a distributed denial of service attack); 
5. enables or facilitates, or may enable or facilitate, illegal or prohibited transactions; or 
6. is or may be unlawful.

1. Survival – the following will survive termination of these Terms:

1. provisions that by their nature are intended to survive termination; and
2. provisions that allocate risk, or limit or exclude a party’s liability, to the extent necessary to ensure that a party’s potential liability for acts and omissions that occur during the Term remains unchanged after this Agreement terminates.

11. General Terms

a. Suspension or Termination

CPS may, in its sole discretion, suspend or terminate these Terms and/or Your CPS Account and Your use of the CPS Services at any time for any reason.  Such suspension or termination does not relieve You of any of Your obligations under these Terms.

b. Compliance with Governmental Authorities

CPS or its Payment Service Provider may freeze, withhold, or remit funds in Your Bank Account in response to a facially valid subpoena, court order, search warrant, or other binding order from a governmental authority, including but not limited to tax levies or wage garnishment orders.

c. Disputed Transactions

In the event of any dispute, including, without limitation, in the event that You receive a Payment in connection with CPS Pay, a Split or Payment on an Invoice, and such Payment is later disputed by a User or Brand, CPS and/or its Payment Service Provider, reserves the right to debit Your Bank Account for the disputed amount.

d. Third Party Services

The CPS Services may enable You to connect to third-party services or products, including services and products provided by CPS’s Payment Service Providers (“Third Party Services”). If You decide to use Third Party Services, You will be responsible for reviewing and understanding the terms and conditions for such services. CPS is not responsible or liable for the performance of any Third Party Services. Further, You agree to resolve any disagreement between You and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship. The CPS Services may contain links to third party websites. The inclusion of a link to a third party website does not imply an approval, endorsement, or recommendation by CPS. Such third party websites are not governed by these Terms.

e. DISCLAIMER OF WARRANTIES

THE CPS SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. CPS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CPS IS NOT RESPONSIBLE FOR YOUR FAILURE TO PERFORM OBLIGATIONS UNDER THESETERMS AND DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANYPRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, CPS, A PAYMENT SERVICEPROVIDER, OR ANY OTHER THIRD PARTY.

CPS provides the Services “AS IS” and “AS AVAILABLE”. Except as expressly stated in this Agreement, and to the maximum extent permitted by Law, CPS does not make any, and expressly disclaims all, express and implied warranties and statutory guarantees with respect to its performance under this Agreement and the Services, including as related to availability, the implied warranties of fitness for a particular purpose, merchantability and non-infringement, and the implied warranties arising out of any course of dealing, course of performance or usage in trade. CPS is not liable for any losses, damages, or costs that you or others may suffer arising out of or relating to hacking, tampering, or other unauthorized access or use of the Services, your CPS Account or your failure to use or implement anti-fraud or data security measures. Further, CPS is not liable for any losses, damages, or costs that you or others may suffer arising out of or relating to (a) your access to, or use of, the Services in a way that is inconsistent with these Terms; (b) unauthorized access to servers or infrastructure, or to CPS’s data (c) Service interruptions or stoppages; (d) bugs, viruses, or other harmful code that may be transmitted to or through the Service (e) errors, inaccuracies, omissions or losses in or to any CPS data; (f) User content; or (g) the defamatory, offensive, or illegal conduct of others.

To the maximum extent permitted by Law, CPS will not be liable to you or any third party with whom you use the Services in relation to these Terms or the Services during and after your use of the Services, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for any lost profits, personal injury, property damage, loss of data, business interruption, indirect, incidental, consequential, exemplary, special, reliance, or punitive damages, even if these losses, damages, or costs are foreseeable, and whether or not you or the CPS Parties have been advised of their possibility.

To the maximum extent permitted by Law, CPS will not be liable to you or any third parties with whom you use the Services in relation to these Terms or the Services during and after the your use of the Services, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for losses, damages, or costs exceeding in the aggregate the greater of (i) the total amount of Fees you paid to CPS (excluding all pass-through fees levied by Financial Partners) during the 3-month period immediately preceding the event giving rise to the liability; and (ii) $500 USD.

f. Customer Service And Method Of Communications

Unless otherwise stated in these Terms, any customer service inquiries, complaints and requests should be sent to support@getmelon.io.

By accepting this Agreement or using any Service, you consent to electronic communications for all communications between You and CPS. 

(a) Notices to CPS. Unless this Agreement states otherwise, for notices to CPS, you must contact us. A notice you send to CPS is deemed to be received when CPS receives it.

(b) Notice to You. In addition to sending you a Communication electronically, CPS may send you Communications by physical mail or delivery service to the postal address listed in the your CPS account or provided by You to CPS. A Communication CPS sends you is deemed received by you on the earliest of (i) when posted to your CPS account; (ii) when sent by text message or email; and (iii) three business days after being sent by physical mail or when delivered, if sent by delivery service.

g. Governing Law

These Terms and any dispute will be governed by the Federal Arbitration Act, as set forth above, and by California law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.

h. Interpreting These Terms And Contractual Rules of Interpretation

No provision of this Agreement will be construed against any party on the basis of that party being the drafter.

References to “includes” or “including” not followed by “only” or a similar word mean “includes, without limitation” and “including, without limitation,” respectively.

Except where expressly stated otherwise in a writing executed between you and CPS, these Terms will prevail over any conflicting policy or agreement for the provision or use of the Services.

All references in these Terms to any terms, documents, or other agreements are to those items as they may be amended, supplemented or replaced from time to time. All references to APIs and URLs are references to those APIs and URLs as they may be updated or replaced.

The section headings of these Terms are for convenience only, and have no interpretive value.

Unless expressly stated otherwise, any consent or approval that may be given by a party (i) is only effective if given in writing and in advance; and (ii) may be given or withheld in the party’s sole and absolute discretion.

Any reference to “business days” means weekdays on which banks are generally open for business. Unless specified as business days, all references in this Agreement to days, months or years mean calendar days, calendar months or calendar years.

Unless expressly stated to the contrary, when a party makes a decision or determination under these Terms, that party has the right to use its sole discretion in making that decision or determination.

The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.

i. Force Majeure

CPS shall not be liable for any issues or delayed performance caused by circumstances beyond CPS’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, service provider failures or delays.

j. Assignment

You may not assign or transfer any obligation or benefit under these Terms without CPS’s prior written consent. Any attempt to assign or transfer in violation of the previous sentence will be void in each instance. If you wish to assign your obligations or rights under these Terms, please contact us. CPS may, without your consent, freely assign and transfer and or all of its rights and obligations under these Terms, in whole or in part. This Agreement will be binding on, inure to the benefit of, and be enforceable by the parties and their permitted assigns.

k. No Agency Relationship

Each party to these Terms is an independent contractor. Nothing in these Terms serves to establish a partnership, joint venture, or general agency relationship between CPS and You. If these Terms expressly establish an agency relationship between you as principal and CPS or its Payment Service Providers as agent, the agency conferred, including your rights as principal and CPS’s obligations as agent, is limited strictly to the stated appointment and purpose and implies no duty to you, or CPS, and will in no event establish an agency relationship for tax purposes.

l. Severability

If any court or Governmental Authority determines a provision of thesr Terms is unenforceable, the parties intend that these Terms be enforced as if the unenforceable provision were not present, and that any partially valid and enforceable provision be enforced to the extent that it is enforceable.

m. No Waiver

If CPS fails or delays in exercising any right, power or remedy or to take action against any breaches of these Terms, it does not mean that it waives its right at a later time to enforce the same. To be effective, a waiver must be in a writing signed by the waiving party. The failure of either party to enforce any provision of these Terms will not constitute a waiver of that party’s rights to subsequently enforce the provision.

n. Entire Agreement

These Terms constitute the entire agreement and understanding of the parties with respect to the Services, and supersedes all prior and contemporaneous agreements and understandings.

o. Modification of This Agreement.

CPS may modify all or any part of these Terms at any time by posting a revised version of the modified version of these Terms on its website or by notifying you. The modified Terms are effective upon posting or, if CPS notifies you, as stated in the notice. By continuing to use Services after the effective date of any modification to these Terms, you agree to be bound by the modified Terms. It is your responsibility to check the CPS website regularly for modifications to this Agreement. Except as these Terms otherwise allow (and as explained in this paragraph), this Agreement may not be modified except in a writing signed by the parties.

12. Definitions

“Claim” means any claim, demand, government investigation or legal proceeding made or brought by a third party.

"Communication” means any written or electronic transmission of information or communication, including a notice, approval, consent, authorization, agreement, disclosure or instruction.

“Content” means all text, images, and other content that CPS does not provide to you and that you upload, publish or use in connection with the Services.

“Customer” means an entity or individual who owes payment to you in exchange for you providing goods or services (including charitable services).

“Dispute” means an instruction a Customer initiates to reverse or invalidate a processed Transaction (including “chargebacks” and “disputes” as those terms may be used by Payment Method Providers).

“Fees” means the fees applicable to the Services.

“Force Majeure Event” means an event beyond the control of CPS, including a strike or other labor dispute; labor shortage, stoppage or slowdown; supply chain disruption; embargo or blockade; telecommunication breakdown; power outage or shortage; inadequate transportation service; inability or delay in obtaining adequate supplies; weather; earthquake; fire; flood; act of God; riot; civil disorder; civil or government calamity; epidemic; pandemic; state or national health crisis; war; invasion; hostility (whether war is declared or not); terrorism threat or act; Law; or act of a Governmental Authority.

“Insolvency Proceeding” means the occurrence of any of the following (or any analogous procedure or step):

(a) as defined by Law, you are unable (or deemed to be unable) to pay your debts;

(b) you are the subject of a petition, resolution, order or any other step in relation to winding up, bankruptcy or equivalent proceedings;

(c) you stop, or threaten to stop, carrying on all or part of your business (except for the purposes of an amalgamation, reconstruction or reorganization);

(d) you enter into a compulsory or voluntary liquidation, or a liquidator is appointed in relation to you or any of your assets;

(e) you are the subject of a petition for an administration order or an application for such an order, or a notice of intention to appoint an administrator to you is given, or any other step is taken by any individual or entity with a view to the administration of you under Law;

(f) a moratorium is agreed or declared with respect to all or part of your debts;

(g) you enter, or propose to enter, into any compromise or arrangement of your debts with or for the benefit of some or all of your creditors generally, or in respect of a particular type of your debts;

(h) you begin proceedings or negotiations, or propose or agree, to reschedule, readjust or defer your debts;

(i) a liquidator, receiver, administrative receiver, administrator, manager or other similar officer is appointed in respect of the whole or any part of your assets;

(j) an enforcement of any security over, or an execution, attachment, lien, levy, distress or similar procedure is levied against, any of your assets;

(k) any legal proceeding, corporate action or other procedure or step is taken in connection with appointing an administrator, administrative receiver, receiver, liquidator, manager, trustee in bankruptcy or other similar officer in relation to you or any of your assets; or

(l) where any User Group Entity or shareholder of a User Group Entity is subject to any of the events listed in this definition.

“IP Rights” means all copyrights, patents, trademarks, service marks, trade secrets, moral rights and other intellectual property rights.

“IRS” means Internal Revenue Service.

“IRS Code” means Internal Revenue Code, 26 U.S.C. Title 26.

“Law” means all applicable laws, rules, regulations and other binding requirements of any Governmental Authority.

“Legal Process” means a writ of attachment, lien, levy, subpoena, warrant, or other legal order.

“Mark” means a trademark, service mark, design mark, logo or stylized script.

“Personal Data” means any information relating to an identifiable natural person that is Processed (as defined in the Data Processing Agreement) in connection with the Services, and includes “personal data” as defined under EU Regulation (EU) 2016/679 (General Data Protection Regulation) and “personal information” as defined under the CCPA.

“Principal Owner” means, with respect to a legal entity, an individual who directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise, owns at least 25% of the equity interests of the legal entity.

“Privacy Policy” means any or all of a publicly posted privacy policy, privacy notice, data policy, cookies policy, cookies notice or other similar public policy or public notice that addresses a party’s Personal Data practices and commitments.

“Protected Data” means (a) all User Information that you provide to CPS; and (b) any Personal Data that CPS uses when acting as a “Data Processor” (as defined in the Data Processing Agreement) when providing the Services.

“Refund” means an instruction you initiate to provide a full or partial return of funds to a Customer for a processed Transaction.

“Representative” means an individual submitting your application for a CPS Account.

“Service” means a service CPS makes available to you under this Agreement.

“Tax” or “Taxes” means any applicable taxes and duties imposed by any Governmental Authority, including sales and use tax, excise tax, gross receipts tax, value-added tax (VAT), goods and services tax (GST) (or equivalent transaction taxes) and withholding tax.

“Tax Information Report” means a required tax information return or report, including IRS Form 1099, IRS Form 1042-S, or any other similar form.

“Third-Party Service” means a service, product, or promotion provided by a third party that utilizes, integrates with or is ancillary to the Services.

“Transaction” means a Payment Method transaction request initiated via the CPS Technology through which CPS is directed to capture funds for or from a payer’s associated account with respect to a payment from a Customer to you, and includes the authorization, settlement and if applicable, Disputes, Refunds and Reversals with respect to that Payment Method transaction request.

“Update” means a modification, feature enhancement or update to the Services or CPS Technology that requires you to take some action, which may include changing your implementation of the Services or CPS Technology.