Merchant Agreement
This Merchant Agreement and the rights and obligations contained in it are in addition to and incorporated into our Terms of Use. Nothing in this Merchant Agreement will be interpreted to limit, change, or waive any terms of the Terms of Use or our Privacy Policy. However, if there is any inconsistency between the Terms of Use and this Merchant Agreement, this Merchant Agreement will control. Capitalized terms that are not defined in this Merchant Agreement have the definition provided in the Terms of Use.
Please read this entire Merchant Agreement and our Terms of Use carefully, as they may affect your rights. This Merchant Agreement contains important information regarding our services, payments, refunds, and restricted events, and the Terms of Use captain provisions for dispute resolution, including binding arbitration and a class action waiver, that apply to this Merchant Agreement.
1. Who We Are
1.1. About Us.
Welcome to Mobile Engage Pro, a product of Engagement Mobile Strategies! We are a global marketplace for live events, bringing people together through in-person, hybrid, and virtual experiences. Our platform serves both event creators and attendees.
Engagement Mobile Strategies is a Virginia-based company, with its principal place of business located at 42871 Littlehales Terrace, Ashburn, VA 20148. Throughout this Merchant Agreement, references to “Engagement Mobile Strategies,” “the Company,” “we,” “us,” or “our” refer to Engagement Mobile Strategies and its officers, directors, agents, partners, and employees.
1.2. Services.
Here’s a summary of our services.
Organizer Services: In this Merchant Agreement, “Organizer Services” refers to the Registration Services (as defined below). For clarity, Organizer Services are also included under the broader term “Services” in the Terms of Use.
Registration Services: We offer you and other Organizers access to Mobile Engage Pro (the “Product”), a platform that enables the sale of event registrations and the processing of payments for your events (the “Registration Services”).
2. Our Merchant Agreement
This Merchant Agreement sets the terms and conditions for your use of the Organizer Services. Users of our Organizer Services may be collectively referred to in this Merchant Agreement as “you” and “your.”
By using the Organizer Services or registering as an Organizer, you are agreeing to the terms and conditions of this Merchant Agreement, the Terms of Use, and our Privacy Policy, without modification, and entering into a binding contract with us that governs your use of the Organizer Services. Do not use the Organizer Services or register as an Organizer if you do not agree to the terms and conditions of this Merchant Agreement, the Terms of Use, and our Privacy Policy.
3. Eligibility for Organizer Services
3.1. Eligibility
To use the Organizer Services, you must: (a) have the authority to enter into this Merchant Agreement on your own behalf or on behalf of the entity using the Organizer Services and (b) comply with our Terms of Use and all applicable laws.
All information you submit must be truthful, accurate, and complete, and you must promptly notify us of any changes.
We can approve or deny your registration for the Organizer Services, limit, suspend, or terminate your access to the Organizer Services, and/or place transactional limits on payouts at any time, for any reason, with or without notice. We can also change these eligibility requirements at any time.
3.2 Additional Registration Data.
After registering for the Organizer Services, we may require you to provide additional information about yourself, the entity you represent (if any), and the principals/beneficial owners of the entity you represent (if any) (collectively, "Additional Registration Data"). As an example, Additional Registration Data may include current address, doing business as (DBA) names, description of products, website address, bank account or other payment account information, tax identification numbers, date of birth, passport or drivers license number, country of origin, copies of government identification documents, and other personal information.
We may use this information to verify your identity, the validity and/or legality of your transactions, and/or whether you qualify to use the Organizer Services. You must: (a) promptly provide accurate and complete information and (b) regularly and quickly update this information to make sure it remains accurate and complete.
3.3 Disclosure Authorization.
We may share Registration Data, Additional Registration Data, and information about events and use of the Services with our Payment Processor Partners, the Card Schemes and Alternative Payment Frameworks (as each are defined below), and with your bank or other financial institution, if the Services involve these third parties. You also authorize us to verify your Registration Data and Additional Registration Data and conduct due diligence on you through third parties, including third-party credit reporting agencies.
3.4 Failure to Provide.
To maintain access to our services and receive your payouts, you must provide all requested information. You are not entitled to any payments from registrations, or other items sold through us or our Payment Processor Partners unless you provide full and accurate Registration Data and Additional Registration Data.
We reserve the right to suspend or terminate your Mobile Engage Pro account and/or your access to the Organizer Services if we determine that your Registration Data or Additional Registration Data is inaccurate or incomplete. Additionally, we may withhold any payments due to you until the necessary information is provided.
3.5 Prohibited Merchants; Prohibited Events; Prohibited Transactions.
We can’t do business with certain people and entities.
1. Prohibited Merchants. By registering for the Organizer Services and accepting this Merchant Agreement, you represent and warrant that:
A. you are not located in, and you are not a national or resident of, any country for which the United States, United Kingdom, European Union, or Canada has embargoed goods and/or services similar to our Services ("Restricted Countries");
B. you are not a person or entity or under the control of or affiliated with a person or entity that
i. appears on the U.S. Office of Foreign Assets Control's Specially Designated Nationals List, Foreign Sanctions Evaders List or Palestinian Legislative Council List;
ii. appears on the U.S. Department of State's Terrorist Exclusion List;
iii. appears on the Bureau of Industry and Security's Denied Persons List;
iv. appears on the Consolidated List of Targets published by the U.K. HM Treasury;
v. appears on the Consolidated List published by the A.U. Department of Foreign Affairs and Trade; or
vi. is subject to sanctions in any other country; and
2. you are not listed in the MasterCard MATCH terminated merchant database or Visa terminated merchant file and your right to access each Card Scheme and each Alternative Payment Framework is not revoked or suspended.
If we determine that you fall into any of the categories above, you are a "Prohibited Merchant."
3. Prohibited Events. You may not post events to the Product or engage in activities through the Organizer Services that:
A. violate or help violate any applicable local, state, provincial, national or other law, rule or regulation;
B. are prohibited under the Payment Scheme Rules;
C. contain any Content that violates the Terms of Use or our Community Guidelines; or
D. take place in Restricted Countries or restricted regions, which include (but are not limited to) Iran, North Korea, Syria, Crimea, Donetsk People’s Republic, and Luhansk People’s Republic. Also, you must have our prior written approval to post events in Cuba or Russia because additional licensing requirements may apply.
If we determine that an event falls into any of the categories above, it is a “Prohibited Event.”
4. Prohibited Transactions. You may not process any of the following transactions, and you represent and warrant that you will not submit for processing any of the following:
A. any transaction that violates or is considered “high risk” (or another restricted category) by the Payment Scheme Rules, including any transaction involving certain adult content or activities, illegal goods or services (including cannabis), paraphernalia associated with any illegal goods or service, crypto-currency purchases, raffles, sweepstakes, or gambling;
B. any fraudulent or criminal transaction;
C. any transaction that would be a “restricted transaction”; or
D. any transaction that is unrelated to your events on the Product.
If we determine that a transaction falls into any of the categories above, it is a "Prohibited Transaction."
4. Suspension and Termination of Organizer Services; Survival of Obligations.
4.1 Suspension and Termination.
We may limit, suspend, or terminate your access to the Organizer Services and/or your ability to receive payments at any time and for any reason, including if:
1. You become ineligible for the Services or violate any provision of this Merchant Agreement, the Terms of Use, or any other Engagement Mobile Strategies policy applicable to you;
2. You fail to pay when due any Mobile Engage Pro Fees (defined below), including instances in which your credit card is declined or you fail to provide accurate and updated Payment Information (defined below);
3. Our Payment Processor Partners or Card Schemes refuse to facilitate payments to you or to engage in services involving you;
4. We are served with a legal process seeking to attach or garnish any of your funds or property in our possession;
5. We learn that you have granted a right to assignment of payments to any party, for any reason; or
6. You are a Prohibited Merchant, have organized Prohibited Events, and/or process or submit Prohibited Transactions.
4.2 Account Deletion.
You may choose to stop participating as an Organizer at any time by deleting your account in accordance with the Terms of Use. However, even if you delete your account, you will remain bound by this Merchant Agreement, any other applicable Engagement Mobile Strategies policies, and any other written agreements you have with us.
4.3 Effect of Termination.
If your account is terminated, we (through our Payment Processor Partners) will pay any amounts owed to you within a reasonable time, as long as such payments are permitted by applicable laws, regulations, and orders. We may hold funds owed to you, in accordance with Section 7.2 "Deductions, Setoffs, and Reserves," to ensure that there are no Chargebacks, refunds, credits, balances owed to us, or other deductions. Aside from these, we will have no further payment obligations to you.
Upon termination of your account, our obligation to perform the Organizer Services will immediately expire. However, you will still owe all Mobile Engage Pro Fees related to the terminated services, and all outstanding fees will become immediately due and payable, even if the services have not been fully performed.
4.4. Continued Obligations.
Certain provisions of this Merchant Agreement that, by their nature, should survive the termination of your account and/or the termination of the Organizer Services will continue to be effective. This includes, but is not limited to, your obligations related to refunds, payments, and Chargebacks.
5. Payment Processing.
5.1. Payment Processor Partners.
To facilitate transactions, we partner with third-party payment processors and/or merchant acquirers ("Payment Processor Partners"). These tools help you sell registrations.
You and we must comply with the rules and regulations set by our Payment Processor Partners. In some cases, you may be required to enter into separate agreements with our partners ("Payment Processor Agreements") in order to receive payments.
5.2. Mobile Engage Pro Payment Processing
This payment processing method is the standard option for most Organizers on our platform to collect proceeds from registrations, and other items. When you use Mobile Engage Pro Payment Processing, we act as your limited payment agent to facilitate transactions with our Payment Processor Partners. As a limited agent, we process the total value of registrations, and other items purchased by Consumers for your events ("Event Proceeds").
Payouts: No later than five (5) business days after the event concludes, Organizers using Mobile Engage Pro Payment Processing will receive their Event Proceeds, minus Mobile Engage Pro Fees, Taxes, and any applicable Deductions or Setoffs. The Payment Processing Partners will facilitate the payout to your preferred payout method. We are not liable for delayed, rejected, or missed payouts due to issues caused by you, a Payment Processor Partner, or any third-party provider.
Payout Methods: Mobile Engage Pro Payment Processing users can receive payouts via:
1. ACH transfer to a bank account in the Organizer’s name.
2. For Organizers with Event Proceeds in USD currency only, a check may be issued, but this requires prior written approval from Engagement Mobile Strategies. (This option is limited.)
Our Payment Processor Partners may also allow payments through card-based networks (e.g., Visa®, MasterCard®, American Express®, Discover®) or alternative payment methods like direct debit.
We and our Payment Processor Partners rely on the information you provide. If any account or card details are incorrect, you must reimburse, indemnify, and hold us and our Payment Processor Partners harmless for any losses or expenses incurred due to reliance on incorrect information.
If a check is issued to you, it is your responsibility to secure and control it. Notify us within 24 hours if the check is lost, stolen, or fraudulently obtained.
You are responsible for all losses if a check is lost, stolen, or fraudulently obtained.
We are entitled to pay any check issued to you, regardless of who presents it or if it’s lost or stolen.
You must reimburse us for any claims, losses, costs, or damages related to a check, including cases where the check is cashed or deposited more than once as a duplicate payment.
Transaction Limits: For risk management and security, or to meet the requirements of our Payment Processor Partners, we may impose transaction limits on the amount of any given transaction processed through Mobile Engage Pro Payment Processing. You authorize us to reject any transaction exceeding this limit.
Qualification: If we determine that you are not qualified to use Mobile Engage Pro Payment Processing but are qualified for Organizer Services, we will notify you and may offer Facilitated Payment Processing (defined below) as an alternative method.
5.3 Chargebacks and Reversals.
As an Organizer, you are fully responsible for any credit card chargebacks or transaction reversals (collectively, “Chargebacks”) related to your event. This includes situations where a Consumer disputes a transaction with a Card Scheme or Alternative Payment Framework. You are required to promptly reimburse us for any Chargebacks, including all associated fees such as credit card association fees, payment processing fees, re-presentment fees, penalty fees, and any other related costs (collectively referred to as “Chargeback Costs”). These costs may be incurred by us, our Payment Processor Partners, or other partners in connection with Chargebacks.
As your agent, we will use commercially reasonable efforts to manage and dispute Chargebacks on your behalf. You authorize us to act in this capacity, and you agree to cooperate with us during the re-presentment process. However, we are not obligated to dispute or represent any Chargebacks in the following circumstances:
1. We determine that we are more likely than not to lose the dispute;
2. The Chargeback should be refunded in accordance with your event’s refund policy; or
3. The Chargeback should be refunded as part of a Specified Refund, as outlined in Section 8.3.
Please note that the rules of the Card Schemes and Alternative Payment Frameworks (the “Payment Scheme Rules”) provide discretion in managing Chargebacks. If we lose a Chargeback dispute initiated on your behalf, you are still obligated to reimburse us for the Chargeback Costs.
5.4 Payment Scheme Rules.
You must comply with the rules and regulations set by the Card Schemes and Alternative Payment Frameworks (collectively, “Payment Scheme Rules”) when using Mobile Engage Pro Payment Processing. These rules may vary depending on the payment methods you choose.
Key obligations under the Payment Scheme Rules include:
1. Submitting only legitimate transactions;
2. Limiting the use of Card Scheme logos and trademarks; and
3. Authorizing the Card Scheme and its affiliates to use your name, address, and URL to indicate your participation.
The Payment Scheme Rules are publicly available and may change periodically. It is your responsibility to review and adhere to these rules.
5.5 Roles and Relationships.
Your Obligations to Consumers: When a Consumer makes a payment through our Payment Processor Partners, you must treat the payment as if it were made directly to you. This means you are responsible for providing the Consumer with all advertised goods and services, regardless of whether you have received the Event Proceeds.
Our Role: We do not offer banking, deposit-taking, or other financial services, other than acting as a limited payments agent when you use Mobile Engage Pro Payment Processing. Although we may show a balance of Event Proceeds in your account, it’s simply for reporting purposes and does not constitute a deposit or obligation. You do not have ownership or rights to this balance until funds are paid out to you.
We, acting as your agent, are authorized to:
Hold, retain and pay out Event Proceeds to you using our Payment Processor Partners;
Transfer or upgrade a Consumer’s registration (if those transfers are permitted by you in your event registration process);
Issue refunds to Consumers as set forth in this Merchant Agreement and any other Payment Processor Agreement;
Manage and dispute Chargebacks; and
Delegate our obligations to certain of our affiliated entities and/or partners within and outside the United States, provided that we remain liable to fulfill our obligations under this Merchant Agreement.
We are not liable for any of your acts or omissions, and any obligation to pay you is conditional on you complying with this Merchant Agreement, the Terms of Use, and Consumers’ actual payment of Event Proceeds.
5.6 Confirmations.
When a Consumer places an order and it is confirmed through Mobile Engage Pro, a confirmation message with a unique number is generated. You must accept, honor, and fulfill all registration commitments confirmed through the Services. It is your responsibility to verify the Consumer's confirmation number and any event restrictions before the event.
5.7 Escheatment.
Payouts will be made to the payment method on file. If we cannot process a payout due to outdated or incorrect payment details, and you fail to provide an updated method within the required time, we will be required to escheat the amount to the relevant government authority in accordance with applicable unclaimed property laws.
6. Subscriptions and Payment Information
6.1 Subscriptions
You can simplify your budgeting and planning by utilizing our Subscription Services.
To access certain features of the Organizer Services, you may be required to purchase an annual or monthly subscription (referred to as a "Subscription" or "Pro Plan"). If you choose to purchase a Subscription, you will be charged an annual or monthly Subscription fee ("Subscription Fee") at the start of your Subscription and annually or monthly thereafter, in advance of the applicable billing period, at the then-current rate. Subscription Fees are listed on our Site.
If you select an annual Subscription, we (or our Payment Processor Partners) will automatically charge you on the anniversary of the start of your Subscription using the Payment Information you provided. If you select a monthly Subscription, we (or our Payment Processor Partners) will automatically charge you each month on the calendar day corresponding to the start of your Subscription, using the Payment Information you provided. If your Subscription began on a day that does not exist in a given month, your payment method will be charged on a different day within that month, or another day we deem appropriate. For example, if your Subscription began on January 31st, your next payment will likely occur on February 28th. We reserve the right to deduct Subscription Fees from your Event Proceeds. In such cases, you will still be required to pay any additional charges billed to you in connection with your Subscription.
Your Subscription involves recurring payments, and you are responsible for all recurring payment obligations until you or we cancel your Subscription, or we terminate your access to the Organizer Services or Subscription in accordance with this Merchant Agreement or the Terms of Use.
We may offer a paid Subscription or other Organizer Services on a free trial basis ("Free Trial") for a specified period. If we offer a Free Trial, the specific terms will be provided at signup or in the promotional materials, and your use of the Free Trial will be subject to those terms. Free Trials may not be combined with any other offer. Unless otherwise specified, Free Trials are only available to users who have not previously accessed the Subscription or other Organizer Services for which the Free Trial is offered. By accepting a Free Trial, you also agree to sign up for a paid Subscription. Unless you cancel your Subscription before the Free Trial ends, we (or our Payment Processor Partners) will begin charging your payment method on a recurring basis for the Subscription Fee, including any applicable taxes and other charges, until you cancel. Instructions for canceling your Subscription are provided in the “Canceling Subscriptions” section below. We reserve the right to modify or terminate Free Trials at any time, without notice, at our sole discretion.
Canceling Subscriptions. You may cancel your Subscription at any time. However, all sales are final, and you will not receive a refund for any portion of the Subscription Fee paid for the current Subscription period unless required by law. To cancel, you can either (i) initiate cancellation through your Mobile Engage Pro account settings, or (ii) contact our support team for instructions. You will be responsible for all Subscription Fees (including taxes and any other applicable charges) for the current Subscription period. To avoid being charged for a Subscription renewal, you must cancel at least one day before the renewal date. If you cancel, you will retain access to the Subscription Services until the end of the period for which you’ve already paid, after which your access will be terminated. Canceling your Subscription does not delete your Mobile Engage Pro account. For information on deleting your Mobile Engage Pro account, refer to the Terms of Use.
6.2 Payment Information.
When you purchase Organizer Services, you may be required to provide payment details such as your credit card number, expiration date, and billing address ("Payment Information"). You represent that you have the legal right to use all payment methods provided. By submitting your Payment Information, you authorize us to share it with third parties to complete your transaction and to charge your payment method. You are solely responsible for ensuring your Payment Information is complete, accurate, and up-to-date.
7. Fees, Deductions, and Reserves.
7.1 Fees.
Mobile Engage Pro Fees: You are responsible for paying all fees associated with the Organizer Services, including Registration Fees (transactional service and payment processing fees) and Organizer Fees (for listing and publishing your events). While Registration Fees may be passed to Consumers, you are ultimately responsible for these fees.
Consumer Fees: We may charge separate fees to Consumers for registration, or other services. These fees are determined by us and are not passed on to you.
Delays and Omissions: Our failure to issue a timely invoice does not absolve you of payment responsibilities. You remain responsible for payments even if not listed in a statement or invoice.
Taxes: You are responsible for any applicable taxes related to transactions, which may vary by jurisdiction.
7.2 Deductions, Setoffs, and Reserves.
Deductions and setoffs will be made from your Event Proceeds for Registration Fees, Mobile Engage Pro Fees, applicable Taxes, and any other authorized deductions outlined in the Merchant Agreement. This includes amounts for Chargeback Costs, refunds, returns, discounts, credits, research fees, reserves, and customer complaints costs. We are not responsible for any claims related to these deductions. You will only receive the remaining Event Proceeds after these deductions. Additionally, we may apply setoffs to amounts you owe, whether related to the specific payout or not. If the setoff does not fully cover the amount owed, you will still owe the remaining balance, which can be collected as described in Section 13 of the Merchant Agreement.
Reserves: We may retain a percentage of Event Proceeds to cover refunds, Chargebacks, fraud risks, or any other obligations. Reserves may continue until all obligations are discharged or adequate security is provided.
8. Refunds
8.1 Handling Refunds, Disputes, and Fake Registrations.
You are solely responsible for handling refunds and resolving refund disputes with Consumers. We are not responsible for fake or invalid registrations. All sales are ultimately made by you, and Consumers are your customers. You are responsible for funding and processing refunds. In the event of a dispute, we may try to mediate, but it is your responsibility to resolve it. For transactions using Mobile Engage Pro Payment Processing, we reserve the right to make Specified Refunds (as defined in the Organizer Refund Policy Requirements) on your behalf and at your expense.
You are also responsible for ensuring that your events are registered correctly and that only valid registrations are accepted. We are not liable for any issues related to fake or invalid registrations or the costs of accepting or rejecting them.
8.2 Refund Policy.
You must establish and communicate a refund policy for each event, which must comply with our Organizer Refund Policy Requirements. You are required to apply your refund policy in accordance with these requirements and this Merchant Agreement.
8.3 Specified Refunds.
Even if you have a "no refunds" policy, you may be required to issue refunds in accordance with our Organizer Refund Policy Requirements. As a limited payments agent, we are permitted to make Specified Refunds on your behalf. We may use funds from your account, whether related to your event or not, to process these refunds.
8.4 Reimbursement by You.
You are required to promptly and fully reimburse us for any refunds we issue to Consumers, including Specified Refunds, unless the need for such refunds arises from our negligence or willful misconduct. If you received Scheduled Payouts for an event subject to Specified Refunds, you must refund the advanced payments to us so that we can process the refunds. Chargebacks result in losses that exceed the amount of the underlying transaction. By refunding transactions before a chargeback occurs, we are mitigating these losses, but you are still responsible for reimbursing us.
If you fail to remit funds sufficient to cover Specified Refunds, the shortfall will become due and payable from you, and such amounts will be subject to the provisions of Section 7.2 (Deductions, Setoffs, and Reserves) and Section 13 (Non-Exclusive Remedies and Collections). We also have the right to offset amounts due to us from other payouts related to your events.
8.5 Mobile Engage Pro Fees.
Mobile Engage Pro Fees are generally non-refundable except where required by law. These fees, including Subscriptions, are non-refundable, regardless of the cancellation or performance status of your Mobile Engage Pro Events, or if we reject your Messaging Campaigns, Social Ads, Featured Content, Promotions, or suspend or terminate your access to our services.
We reserve the right to decline refunding Registration Fees. If we decline, we may offer you the option to cover the refund yourself. In some cases, we may refund all or part of the Registration Fees as part of a refund transaction, in which case you must reimburse us for the refunded amount.
If we determine that you are eligible for a refund for certain Subscription Services, we may require you to unpublish your events and refund the Consumers before issuing the refund to you. Any refunds may be reduced pro-rata based on your usage of the services prior to the refund.
8.6 Process for Refunds.
Refunds must follow the process below.
Refunds Are Your Responsibility: Even though features of our Services may enable you to process refunds through the Product, you have sole responsibility for all refunds to Consumers associated with your event.
Initiating Refunds: Refunds must be initiated through Mobile Engage Pro.
Primary Refund Sources: You can issue refunds using backup funding sources within the Product, adding funds to your event balance, or using your credit card. Alternatively, you may remit funds back to us so that we can process refunds on your behalf.
Alternative Refund Sources: If we cannot process a refund through the Product (e.g., the Consumer's payment card account is not eligible for a refund), you are solely responsible for processing the refund using another method such as cash, check, or another form described under "Credits and Alternative Accommodations."
Payment Processing Deadlines for Refunds: For Mobile Engage Pro Payment Processing transactions, you must process refunds directly within certain windows allowed by our Payment Processor Partners. If the refund falls outside those windows, it may need to be processed manually by you or us. We may choose not to process manual refunds, in which case, you will handle them directly.
Our Deadlines for Refunds: We reserve the right to set a time period for receiving refund requests for specified reasons. After that time period, we can decline to process refund requests through the Product. We may allow you to refuse refunds for a Canceled Event or other specified reason when the refund requests are received after that period; however, you are still responsible for all Chargeback Costs and refund disputes.
No Offline Refunds: Unless otherwise instructed by us, no refunds will be made outside of the Product (e.g. offline).
No Misuse of Refunds: Mobile Engage Pro Payment Processing refund transactions may only be used for bona fide event refunds, and not for other activity such as money transfers, including cash advance transactions.
Refunds Processed by Mobile Engage Pro: If you choose to remit funds to us for processing refunds on your behalf, you must ensure that the funds are sufficient to cover the refunds within 5 days of event cancellation or nonperformance. You must notify Consumers promptly.
Consumer Contact: You are the primary contact for Consumers with refund requests. You must instruct Consumers to contact you directly, not us, for any refund-related inquiries. If you have a "No Refunds" policy, you must still provide clear instructions and accurate contact information for Consumers to request refunds if necessary, in accordance with the policy and the Organizer Refund Requirements. You are required to respond to all refund requests within 5 business days.
Credits and Alternative Accommodations: If offering credits or other accommodations instead of a refund, such credit must be of equal or greater value to the original registration purchase price, and all terms and conditions related to the credit (including redemption period) must be clearly communicated to Consumers. You are fully responsible for issuing any credit and complying with all applicable laws. If you fail to honor the credit or accommodation, we may take necessary actions, including issuing refunds to affected Consumers.
Credits when Using Mobile Engage Pro Payment Processing: If you offer a credit to Consumers who purchased through Mobile Engage Pro Payment Processing, we will process the credit as part of the final settlement of the event when the credit is used. If the credit is not used within the redemption period, it will be applied to your account and settled with your next scheduled payout.
9. Taxes
In most cases, you are responsible for collecting and remitting all taxes to the appropriate governmental authorities. We may, in certain instances, request information from you and withhold taxes as required by applicable laws.
9.1 Your Tax Responsibility.
You are solely responsible for determining which taxes, including but not limited to sales, use, amusement, value-added, goods and services, consumption, excise, and other taxes (collectively, "Taxes"), apply to your use of the Organizer Services and the sales you make through them. It is your responsibility to collect, remit, and report the correct amount of Taxes to the appropriate tax authorities ("Tax Authorities").
We do not guarantee that any tax tools or calculators ("Tax Tools") we provide will meet all tax requirements applicable to you or ensure the correct collection or remittance of Taxes. Taxes may vary based on factors such as the nature of your event, your tax status, location, and the location of your consumers. You release us from any liability regarding the use of these Tax Tools. Please note that none of the Tax Tools should be considered legal or tax advice.
If you collect Taxes and use Mobile Engage Pro Payment Processing, we will pay the collected amounts to you, subject to Sections 9.2, 9.3, and 9.4, at the same time as the Event Proceeds. However, you remain responsible for remitting the Taxes to the Tax Authorities, including any necessary reporting. If you provide a tax registration number, you represent and warrant that it is accurate and correctly formatted. We cannot offer legal or tax advice, so you should consult your own legal or tax advisor regarding applicable Taxes.
If a Tax Authority requires us to pay any Taxes related to your use of the Organizer Services or sales made through the platform, you agree to promptly reimburse us for such amounts, along with any associated costs, penalties, interest, and expenses.
9.2 Request for Information.
In certain jurisdictions, we may be required to collect and remit Taxes on your behalf for sales of registrations or other items made using the Organizer Services. To determine if we must collect Taxes on your behalf, we may request information about your tax-exempt status, the nature of your event, and other relevant details when you create an event. You represent that any information you provide is accurate and complete. If a Tax Authority requires us to pay Taxes based on incorrect information you provide, you must promptly reimburse us for those Taxes, as well as any associated costs, penalties, interest, and expenses.
9.3 Collection by Engagement Mobile Strategies.
In certain jurisdictions, we may be required to collect and remit Taxes on your sales of registrations and other items, including Mobile Engage Pro Fees and Mobile Engage Pro Payment Processing Fees. In such cases, we will collect these Taxes from you and you must pay them. At our discretion, we may invoice you for Taxes on Mobile Engage Pro Fees or withhold the amount of Taxes from the payments we make to you. Except for Taxes on Mobile Engage Pro Fees that we collect under this provision and Taxes collected pursuant to Section 9.2, you remain responsible for collecting and remitting the correct Taxes on your use of the Services and sales made through the platform.
9.4 Obligation to Tay Taxes.
We are required to collect taxes on Mobile Engage Pro Fees for paid registrations and other items sold on or through the Site in jurisdictions where we are obligated to do so and where you, as the customer, have not provided us with a valid Tax Identification Number (“Tax ID”). We will also remit and report any taxes collected to the relevant tax authorities.
If you provide us with your Tax ID, we will not collect taxes on the Mobile Engage Pro Fees, provided this is in compliance with the local requirements of the jurisdiction in which you reside. It is your sole responsibility to ensure that any Tax ID you provide is accurate, complete, and properly formatted. Please be aware that falsification or misrepresentation of information to evade taxes may result in fines and/or criminal prosecution. You agree to promptly and fully reimburse us for any out-of-pocket costs and expenses arising from your falsification or misrepresentation of a Tax ID on the Site.
9.5 Right to Withhold.
We reserve the right to withhold any payments due to you and remit such amounts as required by applicable laws, rules, regulations, judgments, or orders. We may also seek reimbursement from you for any Taxes that were not collected and remitted in relation to your events.
10. Warranty Disclaimers
10.1
THE ORGANIZER SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WE EXPLICITLY DISCLAIM ANY WARRANTIES OF ANY KIND, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE ORGANIZER SERVICES OR THE RESULTS OF THE ORGANIZER SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY AS TO THE USEFULNESS OR THE CAPABILITY OF THE ORGANIZER SERVICES TO MARKET AND PROMOTE YOU OR ANY OTHER PERSON OR YOUR MOBILE ENGAGE PRO EVENTS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT. WE HAVE NO RESPONSIBILITY TO YOU FOR, AND HEREBY DISCLAIM ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY THIRD PARTIES THAT WE REQUIRE TO PROVIDE THE ORGANIZER SERVICES OR THAT YOU CHOOSE TO CONTRACT WITH WHEN USING THE ORGANIZER SERVICES.
10.2
Some jurisdictions do not allow the exclusion of certain warranties or conditions on, or the limitation of liability for, loss or damage caused by willful acts, negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Only those liability and other limitations which are lawful in your jurisdiction (if any) will apply to you, and our liability is limited to the maximum extent permitted by law.
11. Indemnification and Limitation of Liability
11.1 Indemnification.
In addition to any other indemnification obligations you may have (including those in the Terms of Use), you agree to defend, indemnify, and hold harmless the Engagement Mobile Strategies Released Parties from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including reasonable attorneys' and accounting fees) resulting from any Claim relating to or arising out of:
Your breach of this Merchant Agreement or unauthorized use of the Organizer Services;
Your unlawful use of the Organizer Services, including but not limited to your failure to comply with laws relating to unsolicited messages and spam, via email, text or otherwise;
Your Featured Content or the display of your Featured Content in the Content Channels;
The Offerings which are the subject of Featured Content (including any warranty, liability, misrepresentation or false advertising);
An Offering being materially not as described;
Personal injury, property damage, or other damages or losses which are based upon or arise out of your Offerings;
Your Promotion(s);
Your use of any Third Party Content; and/or
Your or our access or use of any Consumer Data from any of your Third Party Accounts.
11.2 Limitation of Liability.
ENGAGEMENT MOBILE STRATEGIES’S TOTAL LIABILITY UNDER THIS MERCHANT AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE MOBILE ENGAGE PRO FEES (NET OF ANY MOBILE ENGAGE PRO PAYMENT PROCESSING FEES AND ANY AMOUNTS PAID TO ANY FULFILLMENT PARTNER) PAID TO US BY YOU FOR THE ORGANIZER SERVICES IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE LIABILITY. IN NO EVENT WILL ENGAGEMENT MOBILE STRATEGIES, OR ANY FULFILLMENT PARTNER, BE LIABLE UNDER THIS MERCHANT AGREEMENT FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) RELATED TO THIS MERCHANT AGREEMENT OR THE USE OR QUALITY OF THE ORGANIZER SERVICES, OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ENGAGEMENT MOBILE STRATEGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS MERCHANT AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12. Representations and Warranties
You promise that you have the authority to agree to these terms.
In addition to the representations and warranties throughout this Merchant Agreement, you represent and warrant to us, on behalf of yourself and the entity you represent (if applicable), that:
The entity you represent is properly organized and in good standing under applicable laws;
You have all the power and authority necessary to enter into this Merchant Agreement and to fulfill your obligations;
Entering into and performing under this Merchant Agreement will not cause you to breach any laws, rules, court orders, or other agreements that you must follow; and
You have the full authority and legal power to bind the entity you represent to this Merchant Agreement.
13. Non-Exclusive Remedies and Collections
13.1 Non-Exclusive Remedies.
If you fail to pay amounts owed under this Merchant Agreement or any related agreement, interest will accrue on the overdue balance from the due date until fully paid. The interest rate will be the lower of 1% per month, compounded monthly, or the maximum rate allowed by applicable law.
If the amount we withhold is insufficient to cover what you owe, we may send you an invoice for the remaining balance. You must pay the invoice within 30 days from the date it is issued.
Our rights and remedies under this Merchant Agreement are cumulative and non-exclusive, meaning we can use any available legal or contractual remedies in addition to those outlined here. A delay or failure to enforce any of these rights will not waive our ability to exercise them in the future.
13.2 Collections; Costs of Recovery.
If you fail to pay amounts due within 30 days of the invoice date, we have the right to pursue collection. We may send collection notices, but doing so is not a requirement before taking legal or other actions to recover overdue sums. Additionally, you will reimburse us for all reasonable out-of-pocket costs, including attorneys' fees, incurred in collecting overdue amounts or any other amounts owed under this Merchant Agreement or any related agreement. If necessary, we can take legal action to recover these amounts, and such actions will not be subject to arbitration provisions in the Terms of Use.
14. Miscellaneous
14.1 Interpretation.
The headings and subheadings throughout this Merchant Agreement, including the bolded, boxed text following each, are for convenience only and will not restrict or affect any provisions, and are not legal guidance. When we say Engagement Mobile Strategies “may,” has the right, is permitted, is authorized, or is allowed to do something in this Merchant Agreement, it means we may, but are not obligated to, exercise the applicable rights or options or take the applicable action, as we determine in our sole discretion. Any determinations, decisions, or beliefs by us under this Merchant Agreement may be made by us in our sole discretion. As used in this Merchant Agreement, “including” means “including, but not limited to.” When this Merchant Agreement says that you “will” take an action, this means that you are agreeing to take the action and that you must take that action. Your obligations, duties, warranties, representations, releases, and waivers throughout this Merchant Agreement are also the obligations, duties, warranties, representations, releases, and waivers of your Affiliates. Any remedies available to us under this Merchant Agreement may also be applied by us against your Affiliates.
14.2 Entire Agreement.
Except as otherwise set forth herein, this Merchant Agreement, along with the Terms of Use and Privacy Policy, constitute the entire and exclusive understanding and agreement between us and you regarding the Organizer Services and supersede and replace any and all prior oral or written proposals, discussions, communications, understandings or agreements between us and you regarding the subject matter of this Merchant Agreement, other than any written agreement for Organizer Services between you and an authorized officer of Engagement Mobile Strategies.
14.3 Force Majeure.
We will not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, epidemics, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.4 No Assignment or Transfer.
You may not use, export, import, or transfer the Organizer Services, including the purchase of any products or service on the Organizer Services, except as authorized by U.S. law, the laws of the jurisdiction in which you used the Organizer Services or purchased any products or services on the Organizer Services, and any other applicable laws. You may not assign or transfer this Merchant Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this Merchant Agreement, without such consent, will be null and void. Subject to the foregoing, this Merchant Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
14.5 No Relationship Created.
No independent contractor, agency, partnership, joint venture or other such relationship is created by this Merchant Agreement.
14.6 Translation.
We may translate this Merchant Agreement into other languages for your convenience. If there is a conflict between the English version and a translated version, the English version will control.
14.7 Applicable Law and Jurisdiction.
For clarity, the Applicable Law and Jurisdiction terms set forth in Section 21 of the Terms of Use apply to this Merchant Agreement.
14.8 Additional Miscellaneous Provisions.
For clarity, the Additional Miscellaneous Provisions set forth in Section 24 of the Terms of Use apply to this Merchant Agreement.