Merchant Agreement (Shop Pay Installments)
Affirm, Inc. Order Form No. 1 (“Order Form No. 1”)
1. Merchant Legal Name: Such entity or other business organization that agrees to the terms and conditions hereof (“Merchant”)
2. Launch Date: The launch date means the date on which Merchant makes the Services available on the Merchant Site.
3. Term: This Order Form No. 1 will remain in effect throughout the Term of the Agreement, unless terminated in accordance with the Agreement.
4. Merchant URL(s) (each, a “Merchant Site”): The Merchant Site means the URL provided by Merchant and any other web address (each, a “URL”) approved by Affirm in writing to display the Services during the Term.
5. Affirm Product:
(a) 0% APR Product; Installments Product
(b) As of the Effective Date, Affirm, Inc. (“Affirm”), itself or through its affiliates or bank partners pursuant to Section 1.2, will offer to Customers (i) a customer installment payment product with 0% interest to the Customer, which will be repaid by such Customer either (a) in four (4) bi-weekly installments over an eight (8)-week loan term, or (b) subject to Customer’s payment of applicable Partial Payments, in three (3) bi-weekly installments over a six (6)-week loan term (the “0% APR Product”); and/or (ii) a customer installment payment product with 0% or 10-30% APR with various loan terms (the “Installments Product”). Customers may be dynamically offered personalized payment options for each transaction, which may include the 0% APR Product, the Installments Product, or both (such configuration, “Adaptive Checkout").
6. Merchant Fees to Affirm: With respect to each Successful Transaction during the Term, Merchant will pay to Affirm a fee equal to (a) the applicable percentage (as set forth in Shopify’s merchant portal on Shopify’s website, which are incorporated herein by reference) of the gross dollar amount of such Successful Transaction (including any Partial Payments paid by Customer) (each, a “Merchant Discount Rate” or “MDR”), plus (b) $0.30 for such Successful Transaction (the “Transaction Fee” and together with the MDR, the “Fees”). All Fees incurred under this Order Form No. 1 will be payable in accordance with Section 3.1 of the Agreement and subject to adjustment in accordance with Section 3.1(a) of the Agreement.
This Order Form No. 1 is entered into by and between Affirm and you (herein referred to as “Merchant”) as of the Launch Date (the “Effective Date”) and is incorporated by reference into and be governed by the terms and conditions attached hereto as Exhibit A (the “Terms”). In the event of any conflict between the terms of this Order Form No. 1 and the Terms, the terms of this Order Form No. 1 will govern with respect to the subject matter herein.
I hereby represent that I am an authorized representative of the entity named in Order Form No. 1 and have read, understood, and agree to be bound by the terms of this Order Form No. 1 and the Merchant Agreement.
TERMS & CONDITIONS
Last Updated: April 27, 2022
These terms and conditions (“Terms”) are effective as of the Effective Date set forth in the Order Form No. 1, entered into by and between Merchant and Affirm (each, a “Party” and collectively, the “Parties”). Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Order Form No. 1.
The terms and conditions set forth in any attachments referenced herein (including any terms, conditions, information, and materials in the Affirm Policies) are hereby incorporated by reference into these Terms, and these Terms will apply to and govern Affirm’s provision of and Merchant’s access to and use of any Services agreed upon by the Parties, any order form entered into by the Parties for the provision and receipt of services (each, an “Order Form”), including Order Form No. 1, and any other writing agreed upon by the Parties, which may be provided electronically or through the Merchant Portal (collectively, the “Agreement”).
1.1 Relationship between Merchant and Shopify. As of the Effective Date, Merchant and Shopify Inc. (or its affiliates) (collectively, “Shopify”), are party to an agreement pursuant to which Shopify’s platform (the “Shopify Platform”) hosts Merchant Sites and allows customers to purchase Merchant goods and services (each, a “Merchant Product”) through Merchant Sites.
1.2 Services. Affirm (a) itself or through its affiliates, is authorized to offer certain consumer financing options (“Affirm Products”), including closed-end installment loans and payment deferral options, and, as applicable, (b) has entered into a loan program agreement with one or more state-chartered banks or other FDIC-insured institutions (each, an “Originating Bank”), which Affirm has authorized to offer certain Affirm Products, as identified in the applicable Order Form, in each case, through Affirm’s proprietary financial platform and related application programming interfaces (“APIs” and together with Affirm’s proprietary financial platform, the “Services”). Affirm will determine, in its sole discretion, the Affirm Products that may be marketed and offered by Merchant and whether Affirm or an Originating Bank will offer such Affirm Products to potential Customers. A “Customer” is a person, qualified by Affirm, who uses the Services to purchase Merchant Products.
1.3 Merchant’s Use of the Services. Merchant desires to market and offer the Affirm Products to its customers to enable its customers to finance the purchase of Merchant Products. In the event that Affirm offers an Affirm Product in accordance with Section 1.2(a), Affirm Loan Services, LLC (an affiliate of Affirm) will be the creditor at origination for any resulting Successful Transaction, and Affirm Loan Services, LLC will cause payment to be made directly to Merchant in accordance with Section 3.1(c). In the event that an Originating Bank offers an Affirm Product in accordance with Section 1.2(b): (a) the Originating Bank, and not Affirm, will be the Customer’s creditor at origination for a resulting Successful Transaction; (b) Affirm will notify the Originating Bank of such Successful Transaction; and (c) the Originating Bank will send applicable Payouts to Merchant in accordance with Section 3.1(c). In all cases, the use of the Services is limited to those territories set forth in the applicable Affirm Policies (as defined in Section 4.1) (the “Territory”). Merchant may offer the Affirm Products and Services only on Merchant Sites and not through any other channels (such as physical retail locations or telesales systems).
2. General Terms and Conditions.
2.1 Prohibited Businesses. Merchant agrees that the categories of businesses, and businesses engaging in the sale of certain goods or certain business practices, described in greater detail in the Affirm Prohibited Businesses Policy (as may be updated from time to time by Affirm in its sole discretion with prior notice to Merchant, each, a “Prohibited Business”) located on the Affirm Site, are ineligible for the Services and Merchant will not allow the Services to be used in connection with Prohibited Businesses. In addition, Merchant will not market or offer the Services, or allow the Services to be used, in connection with any Merchant Product that is subject to delayed fulfillment (e.g., preorders or backorders), unless Merchant (a) clearly discloses on the product and checkout pages that such Merchant Product is subject to such delayed fulfillment, and (b) Merchant does not Capture Customer payments for such Merchant Product until Merchant ships such Merchant Product or otherwise make such Merchant Product available to the Customer.
2.2 Exclusivity. Except for the Services, during the Term, Merchant will not integrate, market, offer, sell, or promote any consumer financing products or services that are similar to the 0% APR Product or the Installments Product unless otherwise approved. Merchant will not be prohibited under this Section 2.2 from accepting generally accepted multi-purpose credit, charge cards, or debit or secured cards (e.g., MasterCard or Visa cards).
2.3 No Surcharge or Other Disparate Treatment. Merchant will not impose on any of its customers any surcharge, fee, or other amount because such customers used or wish to use the Services in connection with a purchase of Merchant Products. Merchant will not discriminate against or disadvantage customers using the Services in connection with a purchase of Merchant Products (relative to Merchant’s transactions involving other methods of payment) in any way, including by excluding such customers from receiving or participating in any discounts, rebates, savings, offers, incentives, loyalty program benefits, points, or rewards, or otherwise acting in a manner that would violate Regulation Z, 12 C.F.R. § 1026.
2.4 Shipping & Fulfillment. Merchant will maintain and comply with (a) its stated shipping and service fulfillment practices and (b) any requirements set forth in Merchant’s agreements with the applicable Customers. Merchant will provide Affirm with shipping carrier and tracking information, if applicable, upon request so that Affirm may determine proof of delivery in the event of a dispute between a Customer and either Party (each, a “Customer Dispute”).
2.5 Liens. In the event that any encumbrance, debt, mortgage, attachment, pledge, charge, claim, lien or other security interest, including any filing authorized by Merchant of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction (each, a “Lien”), is created, incurred, assumed, or otherwise suffered to exist upon any Merchant Product, including inventory, assets, or any other property of Merchant, that is the subject of a transaction between Merchant and a Customer, (a) Merchant will promptly notify Affirm in writing of any such Lien, and (b) upon becoming aware of such Lien, either through notice by Merchant or by other means, Affirm may immediately suspend or terminate the Services or terminate this Agreement.
2.6 Merchant Portal. Commencing on the Launch Date and continuing until Shopify’s implementation of a Services portal for the benefit of its affiliated merchants (the “Shopify Portal”), Affirm will provide Merchant’s employees access to and use of Affirm’s online merchant interface (the “Merchant Portal”), which may be used by Merchant solely for the purpose of fulfilling its obligations under this Agreement. Merchant will not provide access to or use of the Merchant Portal to any person who is not an employee of Merchant without Affirm’s written consent. Merchant’s access and use of the Merchant Portal will be subject to applicable Affirm Policies. In the event Merchant reasonably believes unauthorized access to the Merchant Portal or a password to the Merchant Portal has occurred, Merchant will immediately notify Affirm in writing. Merchant will be solely liable for all activity arising from its access to, use of, or any other act or omission with respect to the Merchant Portal, whether or not authorized by Merchant. Affirm may change any feature or functionality of the Merchant Portal at any time in its sole discretion. Merchant acknowledges and agrees that Shopify will be solely responsible for implementing, providing and maintaining access to the Shopify Portal and Affirm will have no obligation to answer questions or resolve issues related to the Shopify Portal.
2.7 Applicable Law. Merchant will comply, and will offer the Services in a manner that complies, with the laws, regulations, rules, requests by governmental or regulatory authority, and court orders (collectively, the "Applicable Law") applicable to Merchant’s business, the marketing and offering of the Services, and Merchant’s use of Affirm IP. Affirm will comply with the laws, regulations, rules, requests by governmental authority, and court orders applicable to its provision of the Services.
2.8 Affirm Disclosures. Merchant will, in accordance with Affirm’s instructions, promptly display on the Merchant Sites any disclosures related to the Services that Affirm provides in writing from time to time, as required by law, regulation, or to reasonably prevent customer complaints. Affirm may review Merchant’s compliance with Affirm’s directions under this Section 2.8, and, upon receipt of written notice by Affirm, Merchant will modify such disclosures in accordance with Affirm’s instructions.
3. Payments, Returns, and Refunds.
3.1 Fees and Payouts.
(a) Fees for Successful Transactions. A “Successful Transaction” is a sale of a Merchant Product to a Customer that is Captured by Merchant. “Captured” means Merchant has pre-authorized the projected gross transaction total, agreed to fulfill the pending transaction, and shipped or otherwise made the Merchant Product available to the Customer. The Fees for Successful Transactions are defined in the applicable Order Form and will be due and payable by Merchant immediately upon the applicable Capture. Such Fees will be paid to Affirm in accordance with Section 3.1(c), Section 3.1(d) or Section 3.1(e), as applicable. Affirm may revise the Fees defined in an Order Form upon thirty (30) days’ written notice to Merchant by Affirm when reasonably justified by regulatory, economic, or merchant risk changes. Fees will not be refundable to Merchant.
(b) Partial Payment Collection. Affirm Loan Services, LLC may, in its sole discretion, require a Customer to make an immediate, one-time partial payment of the purchase price (a “Partial Payment”) of a Merchant Product. Merchant hereby appoints Affirm Loan Services, LLC as its payment collection agent solely for the purpose of accepting Partial Payments from Customers on behalf of Merchant. Merchant agrees that a Partial Payment made by a Customer to Affirm Loan Services, LLC will be considered the same as a payment made directly to Merchant. Merchant understands that Affirm Loan Services, LLC’s obligation to transmit a Partial Payment to Merchant is subject to and conditional upon successful receipt of the associated Partial Payment from Customer. In accepting appointment as the limited payment collection agent of Merchant, Affirm Loan Services, LLC assumes no liability for any acts or omissions of the Merchant or for any fraud or chargebacks associated with such Partial Payments. Merchant is responsible for reimbursing Affirm Loan Services, LLC for any loss incurred by Affirm Loan Services, LLC arising from fraud or chargebacks with respect to Partial Payments.
(c) Payouts to Merchant. Merchant will establish and maintain a U.S. depository account in good standing (the “Bank Account”). Merchant will notify Affirm in writing at least five (5) business days prior to any change of the Bank Account. Subject to Section 3.1(d), Merchant will receive disbursements from Affirm (itself or its affiliates) or an Originating Bank, as applicable (each, a “Payout”), equal to the total dollar amount of Successful Transactions, including any Partial Payments, less: (i) any amounts already paid to Merchant by Affirm or an Originating Bank; (ii) accrued but unpaid Fees; (iii) amounts relating to Customer Disputes; (iv) Fees that are disputed by Affirm in good faith; and (v) undisputed amounts owed by Merchant to Affirm, which may include amounts resulting from Customer refunds and amounts withheld or limited in accordance with Section 3.3. Payouts will be initiated within three (3) business days of the applicable Successful Transaction. For Successful Transactions involving Affirm Products offered in accordance with Section 1.2(a), Affirm will initiate the transfer of applicable Payouts to the Bank Account. For Successful Transactions involving Affirm Products offered in accordance with Section 1.2(b), Affirm will notify the Originating Bank of Successful Transactions and the Originating Bank will initiate the transfer of applicable Payouts to Merchant’s Bank Account. Merchant hereby authorizes Affirm to debit Merchant’s Bank Account for unpaid Fees or other amounts due and payable under this Agreement. Upon request by Affirm, Merchant will enter into an ACH authorization form for the benefit of Affirm in a form reasonably required by Affirm. Upon written notice to Merchant, Affirm may modify its billing processes, provided that such modifications do not adversely disrupt Payouts. In the event that Merchant disputes the calculation of any amount payable under this Agreement, Merchant may invoke the dispute resolution process in Article 15.
(d) Payouts to Shopify. Commencing upon notice by Affirm or Shopify to Merchant (a “Revised Payout Process Notice”), Affirm (itself or its affiliates) and Originating Bank, as applicable, will disburse Payouts payable under Section 3.1(c) directly to Shopify and not to Merchant. Merchant acknowledges and agrees that, following delivery of the Revised Payout Process Notice to Merchant, Shopify will be solely responsible for disbursing Payouts to Merchant and that Affirm will have no liability with respect to such Payouts. Merchant will address all inquiries and disputes regarding such Payouts, including with respect to tax reporting requirements, solely to Shopify and Affirm will have no obligation to answer such inquiries or resolve such disputes.
(e) Past Due Amounts. If Payout amounts are insufficient to net out Fees or other amounts due and payable to Affirm under this Agreement, such outstanding Fees and other amounts will be considered past due if not immediately paid to Affirm by Merchant (“Past Due Amounts”). At the end of each month, or more frequently if deemed necessary by Affirm, Affirm may issue an invoice to Merchant for any outstanding Past Due Amounts.
3.2 Returned Products; Refunds. Merchant will maintain and comply with its refund and return policy, as set forth in applicable Merchant Policies. Such policy must be clearly and conspicuously displayed on Merchant Sites or otherwise easily accessible by Customers prior to each Customer’s completion of checkout. In the event that a Merchant Product is returned to Merchant by a Customer following a Successful Transaction, Merchant will (a) accept the return only if it is compliant with Merchant’s return policy, as set forth in the applicable Merchant Policies; (b) issue full or partial refunds and not store credit; and (c) promptly process such refund owed to the Customer and provide the applicable refund amounts to Affirm so that Affirm may credit the Customer’s outstanding balance accordingly. Upon issuance of a refund to a Customer, reimbursement by Merchant for such refund amount is immediately due and will be withheld from Payouts, debited by Affirm in accordance with Section 3.1(c), or invoiced by Affirm in accordance with Section 3.1(e), as applicable. In the case of partial refunds, Merchant will determine the amount of such refund, in its sole discretion, and be solely liable for any Customer Dispute relating thereto. Neither Merchant nor Customer may use the Services to pay for any fees, including restocking fees, charged by Merchant in connection with the return of a Merchant Product associated with a Successful Transaction.
3.3 Risk Evaluation. Affirm will, upon Merchant’s acceptance of this Agreement and for a period of up to three (3) business days, review and re-evaluate Merchant’s eligibility to offer the Services in its sole discretion (Affirm’s “Initial Risk Review”) and may perform such review and evaluation from time to time. Merchant will promptly furnish to Affirm all information requested by Affirm under this Section 3.3, which may include reviews of Merchant’s general business operations (including bank account statements, financial statements and processor statements), directors, principals, and officers, and any other public information, which Affirm shall keep confidential and, upon request, return to Merchant or destroy upon termination of this Agreement. Affirm may, in its sole discretion, apply a limit with respect to the total Payout amount to Merchant in a certain time period or the total Payout amount for each Successful Transaction, including during the Initial Risk Review. Based on Affirm’s periodic evaluation of Merchant, Affirm may, at any time, increase or decrease the limits applicable to Merchant with respect to such total Payout amounts. If Affirm terminates this Agreement during the Initial Risk Review, (i) Affirm may, in its sole discretion, void any Customer loans and retain all withheld Payout amounts; and (ii) Affirm will not be liable for any loss incurred by Merchant relating to such voided Customer loans or withheld Payout amounts. If Affirm terminates this Agreement as a result of a risk-based evaluation after the Initial Risk Review, (iii) Affirm may, in its sole discretion, forgive Customer loans used to purchase a Merchant Product in connection with a Prohibited Business; and (iv) Affirm will not be liable for any loss incurred by Merchant relating to any such forgiven Customer loans.
3.4 Books and Records. Merchant will keep complete and accurate books and records pertaining to its receipt and handling of transactions processed through the Services (the “Books and Records”).
3.5 Reserve Account. Affirm has the right to establish a reserve that Merchant must maintain in a separate reserve account controlled by Affirm (the “Reserve Account”) to secure the performance of Merchant’s obligations under this Agreement. If Affirm elects to establish the Reserve Account, Affirm will give Merchant written notice, and within three (3) business days of Merchant’s receipt of such notice, Merchant will submit a wire transfer of the full amount required by Affirm to the Reserve Account, or Affirm may withhold such required amount from Payouts in order to establish the Reserve Account. In the event Affirm establishes the Reserve Account based on a suspicion of fraudulent transactions, Affirm may establish the Reserve Account by withholding the amount from Payouts. Affirm may make withdrawals or debits from the Reserve Account to collect any amounts owed by Merchant to Affirm.
4. Policies and Procedures.
4.1 Affirm Policies and Procedures. The Affirm policies, standards, processes, procedures, and controls applicable to the Services (collectively, the “Affirm Policies”) are located at https://www.affirm.com/ terms/shop-pay-installments-policies (the “Affirm Site”) and may be modified by Affirm at any time by posting a revised version on the Affirm Site or by notifying Merchant in accordance with Article 19. Merchant will comply with the Affirm Policies in its offering and use of the Services.
4.2 Merchant Policies. Merchant will maintain and comply with its own policies, including policies for shipping and fulfillment of customer orders, privacy of customer information, customer refunds and returns, and customer dispute resolution (collectively, “Merchant Policies”).
4.3 Disputes between Customer and Merchant. All Customer Disputes will be first directed to Merchant for Merchant to resolve in accordance with applicable Merchant Policies. Merchant will work in good faith to resolve each Customer Dispute in a timely manner. If Merchant is unable to resolve a Customer Dispute, Affirm will help facilitate resolution of the Customer Dispute. Merchant will comply with any reasonable requests from Affirm with respect to such Customer Disputes and will resolve escalated Customer Disputes in a manner compliant with the customer dispute resolution procedures described in the Affirm Policies.
5.1 Suspension of Services. In addition to and without limiting any other remedies that Affirm may have under this Agreement, immediately or from such other date as determined by Affirm, upon written notice to Merchant, Affirm may suspend the Services or the Payouts in the event that: (a) Merchant breaches, or Affirm reasonably suspects that Merchant has breached, any provision of this Agreement; (b) Merchant is involved in excessive Customer Disputes, including chargebacks related to Partial Payments; (c) Affirm reasonably determines that such suspension is necessary to comply with Applicable Law; (d) there are any outstanding Past Due Amounts payable under this Agreement; (e) a Lien has been created, incurred, assumed, or otherwise suffered to exist upon any Merchant Product, including inventory, assets, or any other property of Merchant, that is the subject of a transaction between Merchant and a Customer; (f) Affirm has a reasonable suspicion of fraudulent transactions or other suspicious activity, including excessive chargebacks of Partial Payments, related to the Services; or (g) in Affirm's reasonable discretion, Merchant engages in conduct that could damage or disparage the reputation or goodwill of Affirm, its personnel, or the Services or otherwise harms or causes a loss of business or revenue to Affirm.
5.2 Restoration of Services. Affirm may continue any suspension until Affirm is satisfied, in its sole discretion, that the basis of such suspension has been remediated by Merchant or no longer applies. Affirm will not be liable for any damages arising in connection with its suspension of the Services.
6. Fraudulent Transactions.
The Parties will work together to prevent fraudulent Customer transactions and minimize the risk of loss associated with such fraudulent transactions, including by implementing and performing the processes and procedures set forth in Affirm Policies applicable to fraudulent transactions. Except as stated in this Agreement, Affirm assumes the risk of loss resulting from fraud by Customers with respect to Successful Transactions. Merchant assumes the risk of loss resulting from fraud (a) by Customers related to Partial Payments, or (b) caused by Merchant, or Merchant’s employees, contractors, representatives, or agents. Merchant will provide Affirm with appropriate Merchant contact information for fraud matters related to this Agreement. If Affirm informs Shopify that a transaction is fraudulent or likely fraudulent before the sale is Captured, and Merchant subsequently ships the applicable goods or provides the applicable services despite such information, Merchant will be liable for any losses resulting from such transaction. If Affirm discovers that a Successful Transaction is fraudulent after the applicable sale is Captured, but before the applicable Merchant Products are delivered or rendered to Customer, Merchant will use best efforts to communicate with the carrier or other third party to recall the shipment, or as applicable for Merchant’s sale of services or electronically delivered goods or services, cancel the provision of the applicable Merchant Products. Merchant will use commercially reasonable efforts to identify suspicious shipping address changes and to notify Affirm of such suspicious changes by email to Affirm at firstname.lastname@example.org. Affirm may modify Affirm Policies or this Agreement related to shipping address changes at any time during the Term.
7. Independent Contractors.
The Parties are independent contractors. Nothing in this Agreement will be construed to create a joint venture, partnership, franchise, or agency relationship between the Parties. Neither Party has the authority, without the other Party’s approval, to bind or commit the other Party in any capacity.
8. License Grants; Intellectual Property.
8.1 API License. Upon the terms and subject to the conditions of this Agreement, Affirm hereby grants Merchant a limited, revocable, non-exclusive, non-transferable license to integrate and access the APIs for the sole purpose of providing and displaying the Services in the Territory and enabling Customers to access and use the Services in the Territory during the Term.
8.2 Trademark License. Upon the terms and subject to the conditions of this Agreement, each Party hereby grants to the other Party a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute, and transmit its name, logo, and any other trademarks, trade names, service marks, photographs, graphics, brand imagery, text, and other content, provided by such Party in any and all media formats, whether registered or unregistered (with respect to each Party, the “Marks”), in connection with the use and marketing of the Services during the Term. Use of a Party’s Marks does not create in the other Party’s favor any right, title, or interest in such Marks. Neither Party will register or apply for registration of the other Party’s Marks (or any similar trademarks, service marks, or logos).
8.3 Marketing. To the extent that Merchant markets Affirm Products or Services, Merchant must do so in accordance with Applicable Law and any guidelines provided by Affirm and Shopify as applicable.
8.4 Intellectual Property. As between the Parties, Affirm retains exclusive ownership of all right, title, and interest in and to all IP owned by Affirm and relating to or embodied in the Services and any Confidential Information provided to Merchant. All IP existing prior to the Effective Date belongs to the party that owned such rights immediately prior to the Effective Date and neither Party will, by virtue of this Agreement, gain any rights of ownership of copyrights, patents, trade secrets, trademarks, or other intellectual property rights owned by the other party. “IP” means all worldwide rights in and to intellectual, industrial, and other property, whether exclusive or non-exclusive, including, without limitation, rights to inventions, all trademarks, trade names, trade dress, service marks, logos, brand names, trade secrets, know-how, technology, research tools, data, software, improvements, processes, designs, techniques, and rights of authorship and attribution, whether or not protected by patents or copyrights, the Marks, patent applications, patents, copyrights, moral rights, all other rights pertaining to intellectual property owned or controlled by a party, and all goodwill associated therewith. If Merchant develops any technology, modifications, corrections, enhancements, derivatives, or extensions of or relating to the Services, Affirm IP, or Affirm Marks, then, as between the Parties, all rights, title, and interest in and to all IP therein will be owned exclusively by Affirm, unless expressly waived by Affirm in writing.
8.5 Open Source Software. The Services may include software subject to “open source” or “free software” licenses (“Open Source Software”). Affirm provides no, and expressly disclaims any and all, representations, warranties, and conditions concerning any Open Source Software. Nothing in this Agreement grants Merchant rights that supersede the terms and conditions of any applicable Open Source Software license.
8.6 Restrictions on Use of the Services. Merchant will not: (a) offer for sale or lease, or sell, resell, or lease, or in any way transfer the Services; (b) attempt to create a substitute or similar service through use of, or access to, the Services; or (c) access or use the Services in a way intended to avoid incurring Fees, misrepresent usage or performance data, misrepresent transaction amounts or item data, misrepresent user information, or knowingly permit Customers and third parties to engage in actions that are prohibited under the Agreement. In addition, Merchant will not, nor will Merchant allow any third party to (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, Affirm IP, (ii) make unauthorized copies of Affirm IP, (iii) modify or remove any proprietary notices, disclosures, disclaimers, or Affirm Marks from the Services or Affirm IP, or (iv) use the Services or Affirm IP in any manner or for any purpose other than for which the Services or Affirm IP have been provided or incorporated.
9. Representations and Warranties.
Each Party represents and warrants that: (a) it is duly formed, validly existing, and in good standing under the laws of its state of incorporation or formation; (b) it has the right, power, and authority to enter into this Agreement; (c) this Agreement has been duly and validly executed and delivered and constitutes legal, valid, and binding obligations of each Party; (d) it is in compliance with all Applicable Law in connection with carrying out its obligations under this Agreement; (e) there is no pending or, to such Party’s knowledge, threatened litigation, arbitration matter, or other dispute to which such Party or any of its affiliates is a party that would reasonably be expected to, individually or in the aggregate, have a material adverse effect on such Party’s ability to fulfill its obligations under this Agreement; and (f) the execution and delivery of this Agreement will not conflict with, or result in a violation or breach of, any of the terms, conditions or provisions of such Party’s organizational documents or any legal restriction or any agreement or instrument to which such Party is now a party or by which it is bound, or require the consent of any person or entity not subject to this Agreement. Merchant represents, warrants, and covenants that it will convey good and valid title to the Merchant Products delivered to a Customer as a result of any Successful Transaction, free and clear of all encumbrances, debts, mortgages, attachments, pledges, charges, claims, and liens of any kind.
10. Confidential Information.
10.1 Confidential Information. In connection with this Agreement, including the negotiation of this Agreement, a Party (“Recipient”) may receive or have access to confidential or proprietary information of the other Party or its affiliates (“Discloser”), whether received or disclosed by such Parties or their respective personnel, representatives, or other agents (collectively “Representatives”). As used in this Agreement, “Confidential Information” means the information exchanged by the Parties that should be reasonably understood to be confidential or proprietary in nature, regardless of whether such information was provided subject to a nondisclosure agreement between the Parties, the terms and conditions of this Agreement, any proprietary information, technical data, demographic information, Customer data, Personal Information, trade secrets, or know-how, including research, product plans, products, services, customers, customer lists, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by either Party either directly or indirectly in any form but excluding information that: (a) was lawfully, and not otherwise as a result of any violation of confidentiality obligations, in Recipient’s possession before receiving it from Discloser; (b) is rightfully received by Recipient from a third party without restriction, and to Recipient’s knowledge, without a breach of a confidentiality obligation imposed on such third party; (c) is or becomes generally available to the public other than through a breach of this Agreement; or (d) was or is independently developed by Recipient without use of or reference to any Confidential Information. For the avoidance of doubt, Affirm’s proprietary financial platform, including any solution designs, specifications, enhancements, or improvements made thereto, is Affirm’s Confidential Information. The identity and list of Customers, as defined in Section 1.2, is Merchant’s Confidential Information.
10.2 Nondisclosure of Confidential Information. Recipient will: (a) keep the Confidential Information of Discloser confidential and not use or copy such Confidential Information other than as expressly authorized by Discloser and as permitted under this Agreement; (b) protect the Confidential Information of Discloser from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid such unauthorized use or disclosure of its own Confidential Information, but in no event any less than reasonable care; and (c) limit access to Confidential Information to those of its Representatives who need such access for purposes consistent with this Agreement and will be liable for any breach of this Section 10 by such Representatives. It is understood that Discloser’s Confidential Information will remain the sole property of Discloser. In the event that Recipient or any of its Representatives are legally compelled by law, rule, regulation, subpoena, or similar court process to disclose any Confidential Information of Discloser, Recipient will, to the extent legally permissible, provide Discloser with notice of such circumstances and will limit such disclosure to only what legal counsel for Recipient advises is specifically required by Applicable Law, subpoena, or similar court process. This provision will supersede any previous agreement, whether written or oral, between the Parties hereto regarding Confidential Information.
10.3 Disclosures to Shopify. Merchant acknowledges and agrees that Affirm will disclose Merchant Confidential Information to Shopify, and Affirm will not be liable for any use, disclosure or other act or omission by Shopify related to such Merchant Confidential Information.
11. Privacy; Data Security.
11.1 Privacy. In the performance of its obligations under this Agreement, each Party may create, receive, or have access to information regarding customers of the other Party or the other Party’s affiliates of a personal, sensitive, or confidential nature relating to a living person who can be identified from such information alone or when used in conjunction with other information available to such Party (“Personal Information”). Personal Information will be subject to the ownership interests of the Parties as described in Section 11.2. Merchant will collect, store, transmit, process, and use Personal Information in accordance with Applicable Law.
11.2 Ownership of Personal Information. “Affirm Personal Information” means Personal Information collected from a third party by Affirm or by a third party on behalf of Affirm in connection with Affirm’s provision of the Services. “Merchant Personal Information” means Personal Information collected from a third party by Merchant or by a third party on behalf of Merchant in connection with Merchant’s receipt of the Services. As between the Parties, Affirm owns all right, title, and interest in and to Affirm Personal Information, and Merchant owns all right, title, and interest in and to Merchant Personal Information. The Parties acknowledge and agree that some of the same data elements (e.g., a Customer’s name) may be both Affirm Personal Information and Merchant Personal Information, and Affirm shall only use Merchant Personal Information to perform its obligations under this Agreement. Each Party acknowledges that (a) each Party maintains information about Customers derived from numerous sources (including directly from the Customer); (b) information about Customers developed or maintained by one Party may be identical to information that the other Party has developed or maintains; (c) each Party has a proprietary interest in such information about Customers; and (d) to the extent a Party provides such information about a Customer to the other Party, it will do so in compliance with its own privacy policies and Applicable Law, and in the case of Affirm, in accordance with the agreement governing the relationship between Shopify and Affirm in connection with the offering of the Services on the Shopify Platform (the “Program Agreement”).
11.3 Data Security.
(a) In addition to any other data security requirements in the Agreement, Affirm will maintain adequate data security measures consistent with Applicable Law and industry standards to protect Merchant's Confidential Information from disclosure, destruction, misuse, loss, acquisition or alteration by an unauthorized third party.
(b) In addition to any other data security requirements in the Agreement, Merchant will maintain adequate data security measures consistent with Applicable Law and industry standards to protect Affirm's Confidential Information from disclosure, destruction, misuse, loss, acquisition, or alteration by an unauthorized third party.
(c) In the event that Merchant suffers or learns of any confirmed disclosure, destruction, loss, misuse, acquisition or alteration by an unauthorized third party of Affirm's Confidential Information (a “Security Breach”), Merchant will: (a) promptly (but in no event later than 48 hours following confirmation of the Security Breach) notify Affirm and Shopify in writing of such Security Breach and furnish Affirm with the details of such Security Breach; and (b) cooperate in any reasonable effort, action, or proceeding to protect all Confidential Information subject to such Security Breach and to reasonably mitigate and/or remediate the impact of the Security Breach; and (c) comply with Applicable Law.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AFFIRM MAKES NO OTHER WARRANTY OF ANY KIND REGARDING THE SERVICES, AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
13.1 Indemnification. Merchant will defend, indemnify, and hold harmless Affirm, its affiliates, and their respective officers, directors, agents, employees, successors, and assigns, as well as Shopify, its affiliates, and their respective officers, directors, agents, employees, successors, and assigns (each, an “Indemnified Party” and collectively, the “Indemnified Parties”), from and against all penalties, damages, losses, or expenses (including reasonable attorney’s fees) (collectively, “Losses”) suffered, incurred, or sustained by any Indemnified Party resulting from, arising out of, or relating to any claim relating to: (a) Merchant’s breach of an obligation under this Agreement, including fines or penalties arising from such breach; (b) personal injury (including death) or property damage resulting from Merchant’s acts or omissions; (c) Merchant’s breach of its obligations with respect to the offering, marketing, sale, or distribution of goods or services that are Prohibited Businesses; (d) the goods or services provided by Merchant, including any claims for false advertising, unfair business practices, discrimination, or product defects; (e) any amounts, including taxes, interest, and penalties, assessed against Merchant by any governmental authority arising from Customers’ purchases of Merchant Products; (f) Merchant’s violation, misappropriation, or infringement of a patent, copyright, trademark, trade secret or other proprietary rights of a third party; or (g)fraud, gross negligence, or willful misconduct of Merchant.
13.2 Indemnification Procedure. With respect to claims subject to indemnification under this Agreement: (a) Affirm will provide written notice within a reasonable period of time to Merchant and to Shopify after Affirm’s receipt of the assertion or the commencement of any action, proceeding, or other claim with respect to which Affirm will seek indemnification under this Agreement; (b) Merchant shall have the right to control the investigation, preparation, defense, and settlement thereof (provided, however, that Merchant will not, without the prior consent of Affirm (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment with respect to any indemnified claim), and (c) Affirm will cooperate, at Merchant’s reasonable request, in Merchant’s defense of the indemnified claim. Affirm will have the right to participate in the defense of the indemnified claim.
14. Limitation of Liability.
IN NO EVENT WILL AFFIRM BE LIABLE OR OBLIGATED TO MERCHANT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER IN CONTRACT OR TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY) AND AFFIRM’S LIABILITY TO MERCHANT FOR ANY LOSSES ARISING OUT OF OR RELATING TO AFFIRM’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT WILL BE LIMITED, IN THE AGGREGATE, TO AN AMOUNT EQUAL TO THE TOTAL FEES PAYABLE TO AFFIRM UNDER THE APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTHS PRIOR TO THE MONTH IN WHICH THE MOST RECENT EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. ALL CLAIMS FOR ANY LOSSES ARISING OUT OF OR RELATING TO AFFIRM’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT MUST BE FILED WITHIN TWO (2) YEARS FROM THE DATE GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
15. Dispute Resolution.
15.1 Informal Dispute Resolution. Prior to the initiation of arbitration, the Parties will first attempt to resolve their Dispute informally, as set forth in this Section 15.1 (the “Informal Dispute Resolution Process”). Either Party may initiate the Informal Dispute Resolution Process by giving written notice of a Dispute to the other Party (the “Notice of Dispute”), which will include a reasonably detailed statement of the Dispute. During the Informal Dispute Resolution Process, each Party will honor all reasonable requests made by the other Party for non-privileged information reasonably related to the Dispute. All negotiations and proceedings pursuant to this Section 15.1 will be confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
15.2 Formal Dispute Resolution. Either Party may seek formal resolution of a Dispute upon the earliest to occur of the following: (a) thirty (30) days have elapsed from the delivery of the Notice of Dispute; (b) commencement of arbitration is appropriate to avoid the expiration of an applicable limitations period or to preserve a superior position with respect to other creditors; and (c) a Party makes a good faith determination that a breach of this Agreement by the other Party is such that injunctive relief is necessary.
15.3 Arbitration. Except with respect to the specific aspect of any Dispute that reasonably requires injunctive relief as a remedy (in which case, the applicable Party may seek injunctive relief from a court of competent jurisdiction located in the Northern District of California or a California state court located in San Francisco), the Parties agree that any Dispute will be determined by final and binding arbitration conducted by JAMS according to the rules and procedures in effect at the time the arbitration is commenced. Disputes with amounts claimed greater than $250,000 will apply the JAMS Comprehensive Arbitration Rules and Procedures, and Disputes with amounts claimed less than or equal to $250,000 will apply the JAMS Streamlined Arbitration Rules. The arbitration will be conducted before a single neutral arbitrator in San Francisco, California. Judgment on the award may be entered in any court of competent jurisdiction. This clause will not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In all arbitrations, each Party will bear the expense of its own counsel, experts, witnesses, administrative fees and expenses, and preparation and presentation of evidence at the arbitration. Arbitration proceedings and information related to them will be deemed and maintained as Confidential Information of each Party, including the nature and details of the Dispute, evidence produced, testimony given, and the outcome of the Dispute, unless agreed otherwise or such information was already in the public domain or was independently obtained. Merchant and Affirm, and all witnesses, advisors, and arbitrators will only share such information as necessary to prepare for or conduct arbitration or other legal proceeding, or enforcement of the outcome, unless additional disclosure is required by law. If for any reason this arbitration clause is deemed inapplicable or invalid, both Merchant and Affirm waive, to the fullest extent allowed by law, any right to a trial by jury.
15.4 Governing Law. This Agreement and performance under this Agreement will be governed by and construed in accordance with the laws of the State of California notwithstanding any conflict of law rules; provided, however, that the Parties acknowledge that transactions under this Agreement may involve matters of interstate commerce, and notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern the agreement to arbitrate. To the fullest extent permitted by Applicable Law, each of the Parties agrees that any dispute, claim, or controversy arising out of relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including whether any claim is arbitrable ("Dispute") arising out of or in connection with 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.
16. Force Majeure.
16.1 Force Majeure Event. Except for each Party’s payment obligations, neither Party will be liable for any failure or delay in performance of its obligations under this Agreement if and to the extent such failure or delay is caused, in whole or in part, directly or indirectly, by fire, storm, earthquake, flood or other weather, terrorism, epidemic, pandemic (other than the COVID-19 pandemic), unavailability of necessary utilities or raw materials, unavailability of components, war, riot, elements of nature or acts of God, regulation, ordinance, instructions of government or other public authorities, any other event that is traditionally recognized by California courts as an event of force majeure, or any other cause beyond the reasonable control of such Party, provided that the nonperforming Party is without fault in causing such failure or delay, and such failure or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the nonperforming Party through the use of alternate sources, workaround plans, or other means.
16.2 Obligations. In the event of such a force majeure event, the nonperforming Party will give prompt written notice to the Party to whom performance is due that describes at a reasonable level of detail the circumstances causing such failure or delay and the expected period of time the nonperformance will continue. The nonperforming Party will be excused under this Article 16 so long as such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay; however, notwithstanding the foregoing, such delay will not be excused under this Article 16 for more than ninety (90) days.
Neither Party may assign all or part of this Agreement without the prior consent of the other Party. Such consent will not be required in the case of an assignment in connection with the sale or transfer of all or substantially all the Party’s assets. Following any assignment permitted hereunder, the assignee will have the same rights and obligations as the assignor and will agree in writing to be bound by the terms and conditions of this Agreement. Merchant must notify Affirm prior to any change of control of Merchant or any Merchant Site.
18. Term and Termination.
18.1 Term. This Agreement will become effective on the Effective Date of Order Form No. 1 and will continue in full force and effect as long as Merchant uses the Services or until either Party terminates the Agreement (the “Term”).
18.2 Termination. Either Party may terminate this Agreement or any Order Form, without cause at any time or in connection with the termination of the Program Agreement. Affirm may terminate this Agreement or any Order Form by providing written or electronic notice to Merchant, such notice may be sent by Shopify to send to Merchant on Affirm’s behalf. Merchant may terminate this Agreement or any Order Form by providing written or electronic notice to Affirm or Shopify. Any termination by Affirm in accordance with this Agreement will be without cost or penalty.
18.3 Effect of Termination. If this Agreement is terminated for any reason, any Order Form then in effect will automatically be terminated as of the date that this Agreement is terminated, unless expressly agreed otherwise by the Parties in writing.
18.4 Obligations upon Termination. Termination will not release either Party from financial obligations owed to the other Party for services delivered or payments owed for Services delivered prior to or after termination of this Agreement (or applicable Order Form). The Parties will cooperate to complete all outstanding obligations to Customers related to the Services. Upon termination of this Agreement:
(a) All authorizations and licenses granted by either Party will immediately terminate and all rights will revert to the owner, provided that Affirm may continue to use Merchant Marks to the extent necessary to complete all outstanding obligations to Customers related to the Services. Merchant will immediately cease to represent itself as an Affirm partner and cease its use of any of the Affirm Marks.
(b) Upon request, and except as required by applicable law, Merchant will immediately destroy or return to Affirm, and upon request, certify such destruction of, all of Affirm’s materials, documentation, data, and Confidential Information, including all related materials that were derived from such materials, documentation, data, and Confidential Information.
18.5 Survival. Termination of this Agreement will not release either Party from any payment incurred prior to or after termination of this Agreement, including Fees or refunds payable to Affirm with respect to Successful Transactions, or other obligations owed to the other or affect any rights or liabilities of either Party with respect to any breach of this Agreement. Articles 8, 9, 10, 13, 14, 16, and 18 and Section 15.3, as well as any other provision of this Agreement that contemplates performance or compliance subsequent to termination or expiration of this Agreement, will survive termination of this Agreement until all such obligations are completed; provided that Article 10 shall survive for three (3) years following the termination or expiration of this Agreement.
19.1 Notices. All notices or other communications provided pursuant to this Agreement will be in writing and will be deemed duly given when sent via electronic mail: (a) by Merchant, to email@example.com, and (b) by Affirm, to the electronic mail address submitted by Merchant on the most current Order Form. Notices will be deemed received one (1) business day after being sent in accordance with the foregoing.
19.2 No Third-Party Beneficiaries. Except as expressly set forth in this Section 19.2, this Agreement is for the benefit of, and may be enforced only by, Merchant, Affirm and the Indemnified Parties, and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party; provided that (a) Shopify will be a third-party beneficiary under this Agreement, (b) Affirm Loan Services LLC will be a third-party beneficiary under this Agreement, (c) this Agreement confers on Affirm Loan Services LLC the rights and remedies set forth herein, and (d) Affirm Loan Services LLC may perform and enforce any rights and obligations of Affirm hereunder, except as prohibited by applicable law.
19.3 Further Assurances. Each Party will, upon the request of the other Party, promptly execute and deliver such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
19.4 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Where agreement, approval, authorization, acceptance, consent, or similar action by either Party is required under this Agreement, such action will be in writing (which may be made electronically) and, except where expressly provided as being in the discretion of a Party, will not be unreasonably delayed or withheld. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
19.5 Waiver. The failure of any Party to enforce any of the terms and conditions of this Agreement will not constitute a waiver of that Party’s right thereafter to enforce each and every term and condition of this Agreement. Any single or partial exercise of any right hereunder will not preclude further exercise of the same right or the exercise of any other right hereunder by either Party. The waiver by any Party of any default or breach of this Agreement will not constitute a waiver of any other default or breach.
19.6 Entire Agreement; Amendments; Severability. The Agreement, including the Terms, material and information at the Affirm Policies, the attachments hereto, Order Forms, and Amendments, constitutes the entire understanding and contract between the Parties and supersedes all prior agreements (including any prior nondisclosure agreements entered into between the Parties), understandings, arrangements, commitments, or representations, oral or written, between the Parties with respect to the subject matter hereof. Affirm may update, amend and/or change this Agreement (any such update, amendment or change, an “Amendment”). Merchant is advised to check the terms of this Agreement from time to time for any updates or changes that may be of impact. Merchant's continuing use of the Services constitutes Merchant's consent and agreement to such additions, removals and amendments. Except where expressly stated otherwise in a writing executed between the Parties, the Agreement will prevail over any conflicting Affirm Policy or agreement between the Parties for the provision or use of the Services. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.