Merchant Terms of Service

SecondSwype Inc. · Wyoming, USA · Effective date: [Insert Date]

1. Definitions

Capitalized terms used in these Terms have the meanings given below or as otherwise defined in these Terms or the Order Form.

Acceptable Use Policy or AUP: SecondSwype's Acceptable Use Policy, available at secondswype.com/legal/acceptable-use.html, as updated from time to time.
Applicable Law: All federal, state, provincial, and local laws, statutes, regulations, rules, and orders that apply to a party or to the Services, including consumer-protection laws, anti-money-laundering and sanctions laws, and Card Network rules.
Card Networks: Visa, Mastercard, American Express, Discover, and any other payment card network through which SecondSwype processes Recovery Transactions.
Chargeback: A reversal, dispute, or return of funds initiated by a cardholder, issuing bank, or Card Network with respect to a Recovery Transaction, including any chargeback, dispute, cardholder credit, or refund attributable to the underlying sale.
Merchant: The entity identified as Merchant on the Order Form.
Order Form: The SecondSwype Order Form executed by Merchant, which sets out the commercial terms of the Services and incorporates these Terms by reference.
Recovery Transaction: A bona fide transaction originally initiated or otherwise authorized by a cardholder in connection with Merchant's sale of a lawful product or service, submitted to SecondSwype following an unsuccessful authorization attempt, selected by SecondSwype for recovery, and successfully authorized and processed through SecondSwype's designated recovery processing infrastructure.
Recovered Proceeds: The gross funds received by SecondSwype from processing Recovery Transactions.
Reserve: The rolling reserve maintained by SecondSwype pursuant to Section 7, held to cover anticipated refunds, Chargebacks, reversals, offsets, fines, assessments, and other contingent liabilities associated with Recovery Transactions.
S2 Engine: SecondSwype's proprietary evaluation and routing technology used to determine whether a submitted declined transaction is recoverable and, if so, to select a recovery path.
Services: The transaction recovery services described in Section 3 and any related services provided by SecondSwype under these Terms and the Order Form.
Sites: The merchant websites, checkout funnels, and sales channels operated by Merchant and disclosed on the Order Form and in the KYC & Onboarding Declaration.

2. Acceptance of Terms

By executing an Order Form that incorporates these Terms, or by otherwise accessing or using the Services, Merchant agrees to be bound by these Terms. If the individual accepting these Terms does so on behalf of an entity, that individual represents and warrants that they have authority to bind the entity. These Terms, together with the Order Form and the other agreements incorporated by reference in the Order Form, constitute the entire agreement between Merchant and SecondSwype regarding the Services.

3. Description of Services

SecondSwype operates a payment recovery service. Merchant submits declined card-not-present transactions to SecondSwype in real time via the documented integration. SecondSwype evaluates each submitted transaction and, where a transaction is selected as recoverable, SecondSwype processes that transaction as merchant of record through its own merchant accounts and recovery infrastructure. Transactions successfully processed under this Section 3 are Recovery Transactions.

SecondSwype operates on tokenized payment data via VGS and does not store raw Primary Account Numbers within its environment.

4. Appointment and Authorization

4.1 Merchant appoints SecondSwype as merchant of record and recovery processor for Recovery Transactions, and authorizes SecondSwype to: (a) receive declined-transaction data submitted through the integration; (b) evaluate that data via the S2 Engine; (c) process recoverable transactions through SecondSwype's recovery rails as merchant of record; and (d) receive Recovered Proceeds, apply the deductions described in Section 7, and settle net proceeds to Merchant.

4.2 SecondSwype determines, in its sole discretion, which submitted transactions are eligible for recovery. Hard declines, suspected fraud, and transactions SecondSwype elects not to process are excluded.

5. Merchant Obligations

5.1 Integration. Merchant must route declined transactions to SecondSwype via the documented integration and maintain that integration in working order.

5.2 Underlying Sale. Merchant is solely responsible for the original sale associated with each submitted transaction, including the underlying product or service, its pricing, offer terms, fulfillment, delivery, and customer support, including with respect to any Recovery Transaction.

5.3 Consumer Consents and Disclosures. Merchant is responsible for obtaining and maintaining all consumer consents, disclosures, and authorizations required for the original transaction and for the submission of declined transactions to SecondSwype for recovery, in compliance with Applicable Law and Card Network rules. Merchant will deploy the SecondSwype consumer disclosure language on the checkout pages of each Site as required by the Order Form.

5.4 Accurate Information. Merchant must maintain accurate KYC and onboarding information, notify SecondSwype promptly of any material change, and ensure its use of the Services complies with its agreements with its own payment processors, acquirers, and the Card Networks.

5.5 Compliance. Merchant will comply with the AUP, Applicable Law, and Card Network rules at all times in connection with its use of the Services.

6. Merchant Representations and Warranties

Merchant continuously represents and warrants to SecondSwype that:

6.1 Merchant is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation, and has full power and authority to enter into and perform these Terms and the Order Form.

6.2 All information provided by Merchant to SecondSwype, including on the Order Form and in the KYC & Onboarding Declaration, is true, accurate, and complete, and Merchant will promptly notify SecondSwype of any material change.

6.3 All transactions submitted to SecondSwype are bona fide, arise from genuine sales of lawful products and services, and are not prohibited by Applicable Law, Card Network rules, or the AUP.

6.4 Merchant is not, and none of its principals or ultimate beneficial owners is, listed on any sanctions list maintained by the U.S. Office of Foreign Assets Control (OFAC), the U.N., the U.K., the E.U., or any other jurisdiction with authority over Merchant or SecondSwype.

6.5 Merchant has all consents, licenses, and rights necessary to conduct its business, to submit transaction data to SecondSwype, and to authorize the processing of Recovery Transactions as merchant of record.

6.6 Merchant's Sites, offers, marketing materials, and recurring-billing and negative-option disclosures comply with Applicable Law and Card Network rules, including any requirements for clear and conspicuous disclosure of terms, cancellation rights, and recurring billing.

7. Fees, Settlement, Reserves, and Offsets

7.1 Settlement. SecondSwype settles net Recovered Proceeds to Merchant on a monthly statement cycle. Each statement itemizes gross Recovered Proceeds and all deductions for the period. Statement and payment cadence are set out in the Order Form.

7.2 Fees. SecondSwype's fees are charged only on successful Recovery Transactions, at the rates set out in the Order Form.

7.3 Deductions and Offsets. From gross Recovered Proceeds, SecondSwype deducts, in addition to fees: refunds, Chargebacks, disputes, reversals, processor and Card Network fees and fines attributable to Merchant's transactions, Reserves, and any other permitted offsets. SecondSwype may offset such amounts against current or future Recovered Proceeds, the Reserve, or invoice Merchant, at SecondSwype's election.

7.4 Reserve. SecondSwype holds a rolling Reserve, at the rate and release schedule set out in the Order Form, to cover anticipated refunds, Chargebacks, reversals, offsets, fines, assessments, and contingent liabilities. Notwithstanding any release schedule, SecondSwype may increase the Reserve percentage, extend the Reserve release period, or establish additional reserves where reasonably necessary based on dispute performance, refund exposure, processor or acquirer requirements, Card Network monitoring, suspected fraud, material changes in Merchant's business, or other material risk factors, upon written notice to Merchant.

7.5 Statement Dispute Window. Merchant must notify SecondSwype in writing of any dispute regarding a statement or deduction within thirty (30) days of the statement date. Amounts not disputed within that period are deemed final and correct.

7.6 Negative Balances. If deductions and offsets exceed Recovered Proceeds in any period, the resulting negative balance carries forward and may be recovered from subsequent Recovered Proceeds, from the Reserve, or invoiced to Merchant, at SecondSwype's election. Merchant remains responsible for negative balances.

7.7 Order of Precedence. In the event of any conflict between the Order Form and these Terms, the Order Form controls with respect to commercial terms (including fees, Reserve percentages and release periods, settlement cadence, and Site coverage). In the event of any conflict between these Terms and any other agreement incorporated by reference in the Order Form, these Terms control, except as expressly provided otherwise.

8. Intellectual Property

SecondSwype retains all rights, title, and interest in the S2 Engine, routing models, platform software, documentation, and any improvements or derivatives of the foregoing, including all intellectual property rights therein. Merchant retains ownership of its transaction data and grants SecondSwype a non-exclusive, worldwide, royalty-free license to use, process, and analyze that data (a) to provide the Services, (b) to improve the S2 Engine and SecondSwype's models and Services, and (c) to create de-identified and aggregated data that does not identify Merchant or any cardholder.

9. Confidentiality

9.1 Confidential Information. "Confidential Information" means non-public information disclosed by one party ("Discloser") to the other ("Recipient") in connection with the Services, whether marked confidential or reasonably understood to be confidential, including business plans, pricing, transaction data, technical information, and the S2 Engine.

9.2 Obligations. Recipient will (a) use Confidential Information solely to perform its obligations or exercise its rights under these Terms; (b) protect Confidential Information using at least the same care it uses for its own confidential information (and no less than reasonable care); and (c) not disclose Confidential Information to any third party except to its personnel, advisors, or subcontractors bound by confidentiality obligations at least as protective as those in this Section 9.

9.3 Exceptions. Confidentiality obligations do not apply to information that is or becomes public through no fault of Recipient, was known to Recipient without confidentiality obligations before disclosure, is independently developed by Recipient without use of Discloser's Confidential Information, or is rightfully received from a third party without confidentiality obligations.

9.4 Required Disclosure. Recipient may disclose Confidential Information if required by law or legal process, provided Recipient gives Discloser prompt written notice (where legally permitted) and reasonable cooperation to seek a protective order or limit the scope of disclosure.

10. Service Performance and No Guarantees

10.1 SecondSwype will use commercially reasonable efforts to provide the Services. SecondSwype does not guarantee any recovery rate, authorization rate, processing volume, revenue increase, transaction eligibility, or continued availability of any processor, acquirer, payment rail, or Card Network program.

10.2 SecondSwype may modify, replace, add, suspend, or discontinue processing routes, acquiring partners, gateways, or infrastructure providers, and may adjust the S2 Engine and its routing decisions at any time.

10.3 SecondSwype is not liable for any interruption, degradation, or failure of the Services caused by Card Networks, issuers, acquirers, processors, banking partners, or other third-party payment infrastructure outside SecondSwype's reasonable control.

10.4 Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND SECONDSWYPE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

11. Indemnification

11.1 Merchant Indemnity. Merchant will defend, indemnify, and hold harmless SecondSwype and its affiliates, officers, directors, employees, agents, and processors (collectively, the "SecondSwype Indemnitees") from and against any and all claims, demands, actions, proceedings, losses, damages, liabilities, fines, assessments, penalties, and expenses (including reasonable attorneys' fees and costs) arising out of or relating to:

(a) the underlying product or service sold by Merchant, including its quality, pricing, fulfillment, delivery, or customer support;

(b) any deceptive, false, or misleading advertising, marketing, or offer terms by Merchant;

(d) any violation by Merchant of Applicable Law, Card Network rules, or the AUP;

(e) the content, operation, or availability of any Site;

(f) Merchant's offer terms, including recurring-billing disclosures, negative-option programs, and cancellation procedures;

(g) the absence, inadequacy, or defect of any cardholder consent, disclosure, or authorization for the original transaction or its submission for recovery;

(h) any infringement or misappropriation of a third party's intellectual property rights by Merchant, its Sites, or its products or services;

(i) any transaction data or other information provided by Merchant to SecondSwype that is inaccurate, incomplete, or unauthorized;

(j) any Chargeback attributable to the underlying sale, product, service, offer, or customer relationship;

(k) any fine, assessment, or penalty imposed by a Card Network, acquirer, processor, or regulator arising from Merchant's transactions, business, or conduct;

(l) Merchant's sale, offering, or promotion of any product or service that is prohibited under the AUP or Applicable Law;

(m) any breach by Merchant of sanctions, anti-money-laundering, or export-control laws, or any inaccurate representation by Merchant regarding sanctions status;

(n) any breach by Merchant of its representations, warranties, or obligations under these Terms or the Order Form;

(o) any personal-injury, property-damage, or other third-party claim relating to Merchant's products, services, or operations; and

(p) any negligence, willful misconduct, or fraud by Merchant or its personnel.

11.2 Procedure. SecondSwype will provide Merchant with prompt written notice of any indemnifiable claim, reasonable cooperation in the defense at Merchant's expense, and the right for Merchant to control the defense and settlement, provided that Merchant may not settle any claim that admits liability of, or imposes obligations on, a SecondSwype Indemnitee without that indemnitee's prior written consent. SecondSwype may participate in the defense with counsel of its choosing at its own expense.

12. Limitation of Liability

To the maximum extent permitted by law, SecondSwype's total aggregate liability for any and all claims arising out of or related to these Terms or the Services shall not exceed the fees retained by SecondSwype from Merchant in the three (3) months preceding the event giving rise to the claim. In no event will SecondSwype be liable for indirect, incidental, consequential, special, exemplary, or punitive damages, or for loss of profits, revenue, goodwill, data, or business opportunity, even if advised of the possibility of such damages. The limitations in this Section 12 do not apply to Merchant's indemnification obligations under Section 11, Merchant's payment obligations, or breaches of confidentiality.

13. Rejection, Suspension, and Termination

13.1 Rejection and Suspension. SecondSwype may decline to process any transaction, and may suspend the Services for Merchant in whole or in part, where it reasonably determines that continued processing creates compliance, risk, fraud, dispute-ratio, processor, or Card Network exposure.

13.2 Termination for Convenience. Either party may terminate these Terms upon ninety (90) days' prior written notice to the other party.

13.3 Termination for Cause. SecondSwype may suspend or terminate the Services immediately upon written notice for: (a) Merchant's material breach of these Terms, the Order Form, or the AUP; (b) non-payment or negative balance not cured within ten (10) business days of notice; (c) Merchant's insolvency, bankruptcy, or assignment for the benefit of creditors; or (d) conduct that in SecondSwype's reasonable judgment poses a risk to the platform, to processors, to Card Networks, or to other merchants.

13.4 Post-Termination Reserve. Notwithstanding termination, SecondSwype may continue holding Reserves through the applicable rolling release period and for any longer period reasonably required to resolve pending disputes, Chargebacks, reversals, fines, assessments, or contingent liabilities. Reserves are released only after all such matters are resolved and all amounts owing to SecondSwype are satisfied.

13.5 Survival. The following provisions survive termination: Sections 1 (Definitions), 6 (Representations and Warranties, as to matters arising prior to termination), 7 (Fees, Settlement, Reserves, and Offsets, until all amounts are reconciled and Reserves released), 8 (Intellectual Property), 9 (Confidentiality), 10.4 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13.4 (Post-Termination Reserve), 14 (Dispute Resolution), 15 (General Provisions), and any other provision that by its nature is intended to survive.

14. Dispute Resolution

14.1 Governing Law. These Terms are governed by the laws of the State of Wyoming, USA, without regard to conflict-of-law principles.

14.2 Arbitration. Except as provided in Section 14.5, any dispute, claim, or controversy arising out of or relating to these Terms or the Services will be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration will be conducted by a single arbitrator, in English, and the seat of arbitration will be Cheyenne, Wyoming, USA.

14.3 Class Action Waiver. The parties agree that any dispute will be brought in an individual capacity only, and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. The arbitrator may not consolidate the claims of more than one party or preside over any form of class proceeding.

14.4 Jury Trial Waiver. To the extent any dispute is not subject to arbitration, each party knowingly and voluntarily waives any right to a trial by jury.

14.5 Equitable Relief. Notwithstanding Section 14.2, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights or Confidential Information, without the necessity of posting bond.

14.6 Attorneys' Fees. The prevailing party in any dispute arising under these Terms is entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party.

14.7 Limitations Period. Any claim arising out of or relating to these Terms or the Services must be brought within one (1) year after the claim accrues, or it is permanently barred.

15. General Provisions

15.1 Notices. All notices under these Terms must be in writing and delivered by email to legal@secondswype.com (for SecondSwype) or to the email address designated by Merchant on the Order Form (for Merchant), or by nationally recognized overnight courier to the party's principal address. Notices are deemed given on delivery.

15.2 Assignment. Merchant may not assign or transfer these Terms or the Order Form, in whole or in part, without SecondSwype's prior written consent. SecondSwype may assign these Terms and the Order Form to an affiliate or in connection with a merger, acquisition, reorganization, or sale of assets. Any purported assignment in violation of this Section is void.

15.3 Force Majeure. Neither party is liable for any failure or delay in performance (other than payment obligations) caused by events beyond its reasonable control, including acts of God, war, terrorism, civil unrest, government action, labor disputes, epidemics, pandemics, internet or telecommunications failures, Card Network or processor failures, and cyberattacks.

15.4 Severability. If any provision of these Terms is held invalid or unenforceable, that provision will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions will remain in full force and effect.

15.5 Waiver. No waiver of any provision of these Terms is effective unless in writing and signed by the waiving party. A party's failure to enforce any provision is not a waiver of that provision or of any other right.

15.6 Independent Contractors. The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, franchise, or employment relationship between the parties.

15.7 No Third-Party Beneficiaries. These Terms are for the sole benefit of Merchant and SecondSwype and their permitted successors and assigns. There are no third-party beneficiaries.

15.8 Headings. Section headings are for convenience only and do not affect the interpretation of these Terms.

15.9 Counterparts and Electronic Signatures. The Order Form may be executed in counterparts, each of which is deemed an original and all of which together constitute one agreement. Electronic signatures are deemed original signatures for all purposes.

15.10 Entire Agreement. These Terms, together with the Order Form and the other agreements incorporated by reference in the Order Form, constitute the entire agreement between the parties regarding the Services and supersede all prior or contemporaneous communications, understandings, and agreements (oral or written) on that subject.

15.11 Amendment. Except as provided in Section 16, no amendment to these Terms or the Order Form is effective unless in writing and signed (including by electronic signature) by both parties.

16. Changes to Terms

16.1 Non-Material Changes. SecondSwype may make non-material changes to these Terms from time to time by posting the updated Terms at secondswype.com/legal/merchant-terms.html and updating the effective date. Non-material changes take effect immediately and continued use of the Services constitutes acceptance.

16.2 Material Changes. SecondSwype will provide Merchant with at least thirty (30) days' prior written notice of any material change to these Terms. If Merchant does not agree to the material change, Merchant's exclusive remedy is to terminate these Terms and the Order Form upon written notice within that thirty-day period. Continued use of the Services after the effective date of a material change constitutes acceptance.

17. Contact

For questions about these Terms, contact legal@secondswype.com.