Merchant Terms of Service
Partially LLC ("Partially," "we," "us," "our," etc.) operates an online payment plan processing tool known as Partial.ly ("Partial.ly"). These Terms of Service ("Terms" or "Agreement") govern your access to and use of Partial.ly, any related websites, and all content and services thereon (collectively, the "Service(s)"). These Terms constitute a binding agreement between Partially and you ("you," "your," and "User," etc.) individually. Before using the Services, you must read and accept all of the Terms. By accepting this Agreement as you access our Services, you agree that the Terms will apply whenever you use the Services. If you do not accept and agree to these Terms, you are not permitted to use the Services.
Partially reserves the right, in its sole and absolute discretion, to amend, supplement, or otherwise modify these Terms from time to time. Modified Terms will take effect immediately upon posting to the website. Your continued use of the Services after modified Terms have been so posted shall constitute your acceptance of such modified Terms.
The Service is a tool to enable automated, scheduled payment processing from your customers' ("Customer(s)") bank accounts to your Bank Account (as defined herein). Based on your instructions and account information provided to us, the Service gathers, stores, processes, your information, including information about accounts you hold at various third-party financial institutions ("Bank Account(s)"). Once you submit your information to Partial.ly, you authorize and appoint Partially to integrate the information with its proprietary tool to provide Services ("Payment Plan(s)") to you and your Customers. You must register for an account ("Account") by creating a username and password in order to utilize the Services.
2. Authorization for Transactions
3. Consent to Electronic Communication
From time to time we may contact you regarding questions about your experience with the Services, promotional offers, or other announcements. To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all Services provided to you under these Terms and in connection with your relationship with us (collectively, "Communications") that we may otherwise be required to send or provide you in paper form (e.g., by mail). By accepting and agreeing to these Terms electronically, you represent that: (i) you have read and understand this consent to use electronic signatures and to receive Communications electronically; and (ii) your consent will remain in effect until you withdraw your consent as specified herein. You may withdraw your consent to receive further Communications electronically at any time by contacting us at firstname.lastname@example.org. If you withdraw your consent to receive Communications electronically, we may choose to close your Account. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that withdrawal of your consent to receive Communications electronically will not apply to Communications electronically provided by us to you before the withdrawal of your consent becomes effective. In order to ensure that we are able to provide Communications to you electronically, you must notify us of any change in your email address and your mobile device number or other text message address by updating your profile through the Services.
4. Appointment as Agent
5. Eligibility; Availability
You must not use the Services if you are not able to form legally binding contracts or are suspended from using the Services. You must have a valid email address and have an active Stripe ("Stripe") account to use the Service. The Service is available to merchants located in countries where Stripe provides its services, a list of which is available at https://stripe.com/global. All Accounts are associated with individual Users, who must not share Account credentials with others. The individual User associated with each Account shall be held responsible for all actions taken by or through the Account. You may only create one Account for your use of the Services. We may, at our absolute discretion, refuse to register any person or entity as a User. Your Account, including any rights or obligations you have under this Agreement, is yours alone, and cannot be transferred or assigned to any third party without our prior written consent.
You represent and warrant that all Personal Information you provide us from time to time is truthful, accurate, current, and complete, and you agree not to misrepresent your identity or your Personal Information. You agree to promptly notify us of changes to your Personal Information by updating your Account through the Services; provided, however, that you must notify us at least three Business Days before any changes to your Bank Account information, including without limitation the closure of your Bank Account for any reason by emailing email@example.com or by updating your Account through the Services.
For our compliance purposes and in order to provide the Services to you, you hereby authorize us to, directly or through a third-party, obtain, verify, and record information and documentation that helps us verify your identity and Bank Account information. When you register for the Services and from time to time thereafter, we may require you to provide or confirm information and documentation that will allow us to identify you.
6. Links to Other Websites
The Services may contain links to other websites. Partially is not responsible for the content, accuracy, or opinions on such websites, and such websites are not investigated, monitored, or checked for accuracy or completeness by us. No such website is approved or endorsed by Partially. If you or your Customer access these websites, you do so at your own risk and should review such third-parties’ policies for your better understanding.
7. Restricted Activities
We grant you no rights to our intellectual property or the intellectual property of our affiliates, except as expressly stated herein. We and our third-party affiliates retain all right, title, and interest in and to the Services, and any associated patents, trademarks, copyrights, trade secrets, or other intellectual property rights. While using the Services, you must not:
- violate any local, state, or federal laws or regulations, or any policies that are posted on the Service;
- infringe any third party’s intellectual property rights, privacy rights, publicity rights, or other rights;
- take any action that may undermine the Partially feedback or reputation systems, if any (such as displaying, importing, or exporting feedback information or using it for purposes unrelated to the Service);
- circumvent or manipulate our fee structure, the billing process, or fees owed to Partially;
- transfer, sell, rent, or otherwise offer third-party access to your Account or the Services;
- access or use another User’s account without their express consent;
- distribute viruses, harmful code, phishing scams, or any other content or technologies, or otherwise take any other actions that do or are intended to harm Partially, the Services, any Users or third parties, or their interests or property (including their intellectual property rights, privacy rights, and publicity rights);
- other than through Partially’s approved API, your access to which may be modified or removed at any time in Partially’s sole discretion, “frame,” “mirror,” or otherwise incorporate any part of the Service into any other website, app, or system;
- harvest or otherwise collect information of any type about Users whether for your own use of that of any third party, without the Users’ and Partially’s consent;
- modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by us in connection with the Services;
- copy, modify, or distribute content from the Services or otherwise infringe Partially’s or any other Users’ intellectual property rights;
- use any robot, spider, scraper, or other automated means to access the Services;
- take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- interfere with, damage, manipulate, disrupt, disable, modify, overburden, or impair any device, software system, or network connected to or used (by you or us) in relation to the Services or your Account; or
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services.
8. Fees; Promotions
Partially offers the Services for a fee on a per transaction basis through Stripe, although free trial periods may be offered from time to time in Partially’s sole discretion. Partially may also choose to offer promotional events (for example, temporary discounts) or new services, and such changes are effective when we post a temporary promotional event or new service on the Services, or as notified through promotional correspondence. You agree that Partially, following the expiration of any applicable promotion for which you were eligible and registered, will charge your Account for the fees associated with each transaction ("Fee(s)") on a per transaction basis until you cancel your Account or your Account is terminated for some other reason. Partially will notify you of any change to the Fees by posting such changes on the Services and by direct notification sent to the email address you provided when you created your Account. Fees are non-refundable. Should any Customer dispute a payment processed by us through Stripe on your behalf, you will reimburse Partially for any fees subsequently charged to Partially by Stripe as a result.
9. Right to Refuse Service
We may close, suspend, or limit your access to your Account or cancel or suspend any transaction without reason or for any reason at all including without limitation:
- if you do not respond within a commercially reasonable amount of time to notifications to you of customer service issues, whether from us or from Customers;
- if we determine that you have breached or are threatening to breach this Agreement;
- if we determine that you have infringed any third party’s legal rights, including without limitation intellectual property rights;
- if we determine that you have engaged or are threatening to engage in fraudulent or illegal activities;
- you do not respond to or complete Account verification requests; or
- for other reasons we may select in our sole discretion.
Without limiting our other remedies, to the extent you have breached this Agreement, you must pay us all fees owed to us and reimburse us for all losses, costs, and reasonable expenses (including legal fees) related to investigating such breach and collecting such fees.
If a dispute arises between you and Partially, our goal is to address your concerns promptly and to provide you with a means of resolving the dispute quickly. We strongly encourage you to contact us directly to seek a resolution by emailing us at firstname.lastname@example.org. This Agreement will be governed in all respects by the laws of Florida, without regard to the internal law of Florida regarding conflicts of laws. Other than as provided herein, with respect to any suit, action, or proceeding relating hereto, each party hereby irrevocably submits to the exclusive jurisdiction of the courts of competent jurisdiction located in Hillsborough County, Florida, and waives any objection thereto. Should Partially prevail in any dispute against you, Partially shall be entitled to reimbursement of its fees and costs from the other party including without limitation reasonable attorneys’ fees and costs. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION ARISING HEREUNDER.
Alternatively, for any claim, Partially, in its sole discretion, may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If Partially elects arbitration, such arbitration will be initiated through an established alternative dispute resolution ("ADR") provider, which is to be mutually selected from a panel of ADR providers that Partially will provide to you. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online, or be solely based on written submissions; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
All claims you bring against Partially must be resolved in accordance with these Terms. All claims filed or brought contrary to this Agreement shall be considered improperly filed and a breach of these Terms. You shall not pursue any claims arising under this Agreement on a class action or other representative basis, and will not seek to coordinate or consolidate any arbitration or action hereunder with any other proceeding.
If any proceeding by or against you is commenced under any provision of any bankruptcy or insolvency law, Partially will be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this Agreement. Should Partially prevail in any other type of claim you file, Partially may recover its legal fees and costs accrued in responding thereto (including without limitation in-house lawyer and paralegal fees).
Partially's failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
11. Survival and Release
If any part of this document is found to be unenforceable, that part will be limited to the minimum extent necessary so that this document will otherwise remain in full force and effect. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. Any invalid or unenforceable provision shall be deemed severed from this Agreement to the extent of its invalidity or unenforceability, and this Agreement shall be construed and enforced as if the Agreement did not contain that particular provision to the extent of its invalidity or unenforceability.
Our failure to enforce any part of this document is not a waiver of any of our rights to later enforce that or any other part of this document. The waiver of any breach of any term, covenant, or condition herein contained, or our failure to seek redress for the violation of, or to insist upon the strict performance of any covenant or condition of this Agreement shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same.
We may assign to third parties any of our rights and obligations under this Agreement from time to time.
If there is a dispute between you and your Customer or any other third party, Partially is under no obligation to become involved. In the event that you have a dispute with any Customer, one or more Users, or other third parties, you release Partially, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and the Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
12. Closing Your Account
You may close your Account at any time. Account closure is subject to your paying any outstanding fees or amounts owing on the Account accrued prior to your closure. We may retain some of your personal information to satisfy regulatory requirements and our own external obligations. Closing your account does not necessarily delete or remove all of the information we hold.
You shall indemnify, defend, and hold harmless Partially (and our officers, directors, agents, managers, members, subsidiaries, lawyers, insurers and employees) from and against any and all claims, liabilities, suits, losses, damages and expenses, including without limitation reasonable attorneys’ fees, due to any claim arising out of your breach of this Agreement or your infringement of any law or the rights of a third party in the course of using the Services.
You must immediately notify us upon becoming aware of any unauthorized access or any other security breach to the Services or your Account and do everything possible to mitigate the unauthorized access or security breach (including preserving evidence and notifying appropriate authorities). Your Account is yours only, and you must not share your password with others. You are solely responsible for securing your password. We will not be liable for any loss or damage arising from unauthorized access of your Account resulting from your failure to secure your password. In the event of an unauthorized access or security breach of any type, notify us in writing at email@example.com.
16. No Warranty or Liability as to Services
Our Services and all content on it are provided on an ‘as is’, ‘with all faults’ and ‘as available’ basis and without warranties of any kind either express or implied. Furthermore, you solely assume the risk associated with defaulted Payment Plans. Without limiting any of the foregoing, and other than as may be expressly set forth herein to the contrary, we make no representation or warranty about:
- the Services;
- the accuracy, reliability, availability, timeliness, or content of the Services;
- whether the Services will be up-to-date, uninterrupted, secure, error-free, or non-misleading;
- whether defects in the Services will be corrected;
- whether any data, content, or material will be preserved or backed up or whether business continuity arrangements are in place with respect to the Services;
- the Services being free of errors or malicious code, being secure, being confidential, performing at any particular standard, or having any particular function.
To every extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, quality, suitability, and non-infringement.
17. Limitation of Liability
In no event shall we, our related entities, our affiliates, or staff be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for any indirect, special, incidental, or consequential damages that may be incurred by you; any loss of income, business, or profits (whether direct or indirect) that may be incurred by you; any claim, damage, or loss that may be incurred by you as a result of any of your transactions involving the Services; or any content or services provided by any third party.
The limitations on our liability to you above shall apply whether or not we, our related entities, our affiliates, or staff have been advised of the possibility of such losses or damages arising.
Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of us and our affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation. Under any applicable law that would prohibit exclusion or limitation, Partially’s total aggregate liability, under or in relation to any warranty or condition implied by law, shall be limited to the aggregate sum total of fees paid to Partially by you in connection with your access to the Services.
In addition to the foregoing, to the extent permitted by law, Partially, its affiliates or its partners, shall not be liable to you (directly or indirectly) for any loss, claim, or damages of whatsoever kind or nature, whether direct, indirect, general, or special, arising out of or relating to the conduct of any User or anyone else in connection with the use of the Services.
Legal notices to you will be served to the email address you provide to Partially during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid or that the email has not been delivered. Alternatively, we may give you legal notice by mail to the address provided by you during the registration process. In such case, notice will be deemed given three days after the date of mailing. Any notices to Partially must be given by registered U.S. Mail to
8 the Green suite A
Dover, DE 19901
Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section.
Last updated: February 25, 2020