Payment Services Agreement
Lumina Homes, Inc Payment Services Agreement
This Lumina Homes, Inc Services Agreement, and the agreements, policies, and documents incorporated herein, (this “Agreement”), is entered into by and between ______________ (as defined herein) (“Lumina Homes, Inc,” “Lumina Homes, Inc” “we,” or “our”) and the entity or individual who enters into this Agreement (“Merchant” or “you”). This Agreement sets out the terms and conditions under which you may utilize the Lumina Homes, Inc Payment Services.
This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (the “Effective Date”): (i) Create an account on the Lumina Homes, Inc website; (ii) Accept this Agreement online; or (iii) Begin using the Lumina Homes, Inc Payment Services.
Please be advised that if you are domiciled in the United States, this Agreement contains provisions on Arbitration (“Agreement to Arbitrate”) which will govern how claims will be resolved, with limited exception. Under this Agreement to Arbitrate, parties shall be required to submit claims their respective claims arbitration, the result of which shall be binding and final upon the parties, and furthermore, the parties will (1) only be permitted to pursue claims against each other on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
Section 1 — Lumina Homes, Inc Payment Services
1.01 “Lumina Homes, Inc Payment Service(s)” means the Payment Processing Services or Gateway Services defined as follows:
Section 2 — Fees and Taxes
In exchange for us providing you with the Lumina Homes, Inc./PesoPay Payment Services, you agree to pay us the fees, including applicable transaction, multi-currency and Chargeback fees, as listed in the fee schedule, available at (website), and incorporated herein by reference. We reserve the right to revise our fees at any time, subject to a thirty (30) day notice period to you prior to the new fees taking effect. Interest shall accrue at the lower rate of 1.5% per month, or the maximum amount permitted by law, on all overdue amounts. In the event that you have a good faith and valid dispute as to the amounts due, you agree to pay the undisputed amounts on or before the due date. Interest shall not accrue on any disputed amounts so long as you pay such amounts within thirty (30) calendar days after resolution of the dispute.
2.02 Payment of Fees, Payouts, and Right to Set-off
Subject to the terms of this Agreement, Lumina Homes, Inc/PesoPay will send to your Bank Account all amounts due to you from your Transactions, minus any fees, Reversals, Invalidated Payments, Chargebacks, Refunds or other amounts that you owe to Lumina Homes, Inc under this Agreement. If the Payout is not sufficient to cover the amounts due, you agree that we may debit from your Bank Account all applicable amounts, and/or set-off the applicable amounts against future Payouts. For this purpose, you agree to provide Lumina Homes, Inc with all necessary bank account routing and related information and grant Lumina Homes, Inc permission to debit amounts due from your Bank Account.
Merchant shall pay, indemnify, and hold Lumina Homes, Inc free and harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Lumina Homes, Inc’ income, and (ii) all government permit fees, customs fees and similar fees which Lumina Homes, Inc may incur with respect to this Agreement. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to Lumina Homes, Inc hereunder.
Section 3 —Restricted Activities, Representations and Warranties
3.01 Restricted activities
In connection with your use of the Lumina Homes, Inc Payment Services, you must comply with the Lumina Homes, Inc Acceptable Use Policy, as follows:
You agree that you will not:
3.02 Representations and Warranties by Merchant
Merchant has the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Merchant and no provision requiring Merchant’s performance is in conflict with its/his/her obligations under any agreement to which Merchant is a party.
If corporation, Merchant is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Merchant’s business operates.
Section 4 — Liability for Invalidated Payments and other Liabilities
You are liable for all claims, expenses, fines and liability we incur arising out of:
In the event of an Invalidated Payment or other liability, we may deduct the amounts due to Lumina Homes, Inc from your Payouts.
Section 5 — Actions We May Take
5.01 Credit Report Authorization and Verification of Information
You authorize Lumina Homes, Inc, directly or through third parties, to make any inquiries or take any actions we consider necessary to validate your identity, evaluate your creditworthiness, and verify information that you have provided to us. You authorize Lumina Homes, Inc to obtain financial and credit information, such as pulling your personal credit report, or the credit report for your directors, officers, and principals. By completing your application to become a Lumina Homes, Inc customer, you are providing Lumina Homes, Inc with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain such financial information or credit reports.
In the event that we are unsuccessful in receiving satisfactory information for us to verify your identity or determine that you are creditworthy, Lumina Homes, Inc reserves the right to terminate this Agreement with immediate notice to you, cease to provide access to the Lumina Homes, Inc Payment Services, and refuse or rescind any payment by your customers.
5.02 Actions by Lumina Homes, Inc
If we believe that your Transactions pose an unacceptable level of risk, that you have breached the terms of this Agreement, or that your account has been compromised, we may take various actions to avoid liability. The actions we may take include, but are not limited to, suspending or limiting your ability to use the Lumina Homes, Inc Payment Services, refusing to process any Transaction, reversing a Transaction, holding your Payouts, and contacting your customers to verify Transactions and reduce potential fraud and disputes. If possible, we will provide you with advance notice of our actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.
Lumina Homes, Inc, in its sole discretion, may place a Reserve on a portion of your Payouts in the event that we believe that there is a high level of risk associated with your business. If we place a Reserve on your Payouts, we will provide you with notice specifying the terms of the Reserve. The terms of the Reserve may require that a certain percentage of your Payouts are held for a certain period of time, that a fixed amount of your Payouts are withheld from payout to you, or such other restrictions that Lumina Homes, Inc determines in its sole discretion. Lumina Homes, Inc may change the terms of the Reserve at any time by providing you with notice of the new terms.
Lumina Homes, Inc may hold a Reserve as long as it deems necessary, in its sole discretion, to mitigate any risks related to your Transactions. You agree that you will remain liable for all obligations related to your Transactions even after the release of any Reserve. In addition, we may require you to keep your Bank Account available for any open settlements, Chargebacks and other adjustments.
5.04 Security Interest
To secure your performance of this Agreement, you grant to Lumina Homes, Inc a legal claim to the funds held in the Reserve. This is known in legal terms as a “lien” on and “security interest” in these amounts.
Section 6 – Account Security, Data, Intellectual Property and Publicity
6.01 Security of your access
You agree to:
6.02 Data Security Compliance
Merchant agrees to comply with applicable data privacy and security requirements under the Payment Card Industry Data Security Standard (“Association PCI DSS Requirements”) with regards to Merchant’s use, access, and storage of certain credit card non-public personal information on behalf of Lumina Homes, Inc. Additionally, Merchant agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.
6.03 Ownership of Data
All Customer Data are owned and shall be owned by Merchant and Merchant hereby grants Lumina Homes, Inc a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the Lumina Homes, Inc Payment Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; (iv) any other purpose for which consent has been provided by the Customer and (v) for the purposes of re-marketing of products.
6.04 Software License
Lumina Homes, Inc grants you a revocable, non-exclusive, non-transferable license to use Lumina Homes, Inc’s APIs, developer’s toolkit, and other software applications (the “Software”) in accordance with the documentation accompanying the Software. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the Lumina Homes, Inc Payment Services. If you do not comply with the documentation and any other requirements provided by Lumina Homes, Inc, then you will be liable for all resulting damages suffered by you, Lumina Homes, Inc and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.
6.05 Trademark License
Lumina Homes, Inc grants you a revocable, non-exclusive, non-transferable license to use Lumina Homes, Inc’ trademarks used to identify the Lumina Homes, Inc Payment Service (the “Trademarks”) solely in conjunction with the use of the Lumina Homes, Inc Payment Service. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Lumina Homes, Inc (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks.
6.06 Intellectual Property
Other than the express licenses granted by this Agreement, Lumina Homes, Inc grants no right or license by implication, estoppel or otherwise to the Lumina Homes, Inc Payment Service or any Intellectual Property Rights of Lumina Homes, Inc. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Lumina Homes, Inc, in the Lumina Homes, Inc Payment Service) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.
Merchant hereby grants Lumina Homes, Inc permissions to use Merchant’s name and logo in its marketing materials including, but not limited to use on Lumina Homes, Inc website, in customer listings, in interviews and in press releases.
6.08 Confidential Information
The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Lumina Homes, Inc Payment Services and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.
Section 7 - Indemnification, Limitation of Liability, Disclaimer of Warranties
Merchant agrees to indemnify, defend, and hold harmless Lumina Homes, Inc, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with Lumina Homes, Inc or its suppliers in relation to your use of the Lumina Homes, Inc Payment Services; (ii) your use of the Lumina Homes, Inc Payment Services; and/or (iii) your violation of any applicable law, regulation, or Association Rules and requirements.
7.02 LIMITATION OF LIABILITY
Lumina Homes, Inc SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE Lumina Homes, Inc PAYMENT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF Lumina Homes, Inc HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.03 Disclaimer of Warranties
THE Lumina Homes, Inc PAYMENT SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. Lumina Homes, Inc DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Lumina Homes, Inc OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF Lumina Homes, Inc OBLIGATIONS.
The parties acknowledge that the Lumina Homes, Inc Payment Service is a computer network based service which may be subject to outages and delay occurrences. As such, Lumina Homes, Inc does not guarantee continuous or uninterrupted access to the Lumina Homes, Inc Payment Services. Merchant further acknowledges that access to the Lumina Homes, Inc website or to the Lumina Homes, Inc Payment Services may be restricted for maintenance. Lumina Homes, Inc will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, Lumina Homes, Inc will not be liable for any interruption, outage, or failure to provide the Lumina Homes, Inc Payment Services.
Section 8 - Term and Termination, Data Portability
8.01 Term and Termination
The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. You may terminate this Agreement, without cause, by providing Lumina Homes, Inc with notice of your intent to terminate, or by ceasing to use the Lumina Homes, Inc Payment Services.
Lumina Homes, Inc may terminate this Agreement or suspend services to you if any of the following occurs: (1) we are required by the Associations, the acquiring bank, or an order from a regulatory body to cease providing services to you; (2) we believe that you have breached this Agreement, or are likely to do so; (3) if we determine that your use of the Lumina Homes, Inc Payment Services carries an unacceptable amount of risk, including credit or fraud risk; or (4) any other legal, reputational, or risk-based reason exists, in Lumina Homes, Inc sole discretion. In the event that Lumina Homes, Inc must terminate this Agreement, Lumina Homes, Inc shall provide you with written notice as soon as reasonably practicable.
After termination by either party as described above, Merchant shall no longer have access to, and shall cease all use of the Lumina Homes, Inc Payment Services. Any termination of this Agreement does not relieve Merchant of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by you to us as provided under this Agreement, whether accrued prior to or after termination.
Section 9 – General Provisions
9.01 Independent Contractors
The relationship of Lumina Homes, Inc and Merchant is that of independent contractors. Neither Merchant nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Lumina Homes, Inc nor do they have any authority to bind Lumina Homes, Inc by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for, any different or subsequent breach.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Merchant may not assign this Agreement without the written consent of Lumina Homes, Inc. Lumina Homes, Inc may assign this Agreement in its sole discretion without the written consent of Merchant.
We may amend this Agreement at any time by posting a revised version of it on our website under the “Legal” section of our website. The revised version will be effective as of the time of posting. If the revised version includes substantial change, we will notify you 30 days prior to the effectivity thereof by posting notice under the “Policy Updates” section contained in the “Legal” section of our website. If you do not agree to the updated terms, you can terminate the Agreement by providing us with notice in the manner indicated below in Section 9.09. If you provide us with termination notice within 30 days after the date of update, then the original terms and conditions (or the terms and conditions prior to revision) shall apply during this 30-day notice period.
9.06 Entire Agreement
This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
Sections 2 (Fees and Tax), 4 (Liability for Chargebacks, Invalidated Payments and other Liabilities), 5 (Actions We May Take), 6.08 (Confidential Information), 7 (Indemnification, Limitation of Liability, Disclaimer of Warranties), 8 (Term and Termination, Data Portability), 9 (General Provisions), and Exhibit “A” (Definitions), as well as any other terms which by their nature should survive, will survive the termination of this Agreement.
9.08 Communication; Recording Calls; and Availability of Contractual Documents
You consent to receive autodialed or prerecorded calls and text messages from Lumina Homes, Inc at any telephone number that you have provided us or that we have otherwise obtained to (i) notify you regarding your account; (ii) collect a debt; (iii) resolve a dispute; (iv) contact you about exclusive offers; or (v) as otherwise necessary to service your account or enforce the Agreement. Standard telephone minute and text charges may apply.
We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the Agreement, our policies, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.
Lumina Homes, Inc may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Lumina Homes, Inc or its agents for quality control and training purposes or for its own protection.
If you have a question or complaint relating to the Lumina Homes, Inc Payment Services or your Transactions, please contact the Lumina Homes, Inc customer support as defined in the “Contact” tab of the Lumina Homes, Inc website.
The general terms and conditions for the Lumina Homes, Inc Payment Services will be available at all times on www.Lumina Homes, Inc payments.com in the “Legal” tab, and/or be made available during signup process as an electronic copy per e-mail. You may request at any time free of charge electronic copy of your contractual documents.
9.09 Notices, Contracting Entity, Governing Law, and Jurisdiction
Address for Notice to Peso Pay
Unit 32-C, 32nd Floor, Rufino Pacific Tower, 6784, Ayala Avenue, Makati, 1226 Metro Manila
Unit 32-C, 32nd Floor, Rufino Pacific Tower, 6784, Ayala Avenue, Makati, 1226 Metro Manila
EXHIBIT A – Definitions
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