Merchant Agreement

1 Our Merchant Agreement

1.1 Application

The following policy sets forth the terms and conditions upon which Organizers can use the Services to create, promote and/or collect sales proceeds for an event selling tickets and/or registrations (this “Merchant Agreement”). By accepting the Terms of Service, you agree to the terms of this Merchant Agreement without modification and enter into a binding contract with Topi, which will be applicable when and if you use the Services to create, promote and/or collect sales proceeds for an event selling tickets and/or registrations.

1.2 Incorporation By Reference

This Merchant Agreement and the rights and obligations contained in this Merchant Agreement are in addition to and are incorporated into the Terms of Service by reference. Nothing in this Merchant Agreement shall be deemed to modify, waive, amend or rescind any other term of the Terms of Service.

2 Additional Registration Information

2.1 Additional Information

As part of the creation of a paid event or at any time following such creation, you may be required by Topi to provide additional information (beyond the information required to register for the Services) 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, the 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. This information may be used to verify your identity, the validity and/or legality of your transactions and/or whether you qualify to use the Services for paid events. You agree to: (a) provide this information in a timely, accurate and complete manner and (b) maintain and promptly update this information in a timely manner to ensure it remains accurate and complete at all times.

2.2 Disclosure Authorization

Organizer agrees that Topi is permitted to share Registration Data (as defined in the Terms of Use), Additional Registration Data and information relating to your events and transactions on the Services with our Payment Processing Partners (as defined below), the Card Schemes (as defined below) and Alternative Form of Payment Frameworks (as defined below) and with your bank or other financial institution, in each case to the extent your transactions or events involve such third parties. In addition, you authorize Topi to verify your Registration Data and Additional Registration Data and conduct due diligence on you through third parties, including third party credit reporting agencies.

2.3 Failure to Provide

We reserve the right to suspend your Topi account or to withhold any amounts due to you in the event that we reasonably believe that your Registration Data or Additional Registration Data is inaccurate or if you fail to provide all Registration Data or Additional Registration Data within the timeframes requested.

3 Payment Methods; Payment Process

3.1 Overview

  1. Payment Methods Topi will act as Organizer’s limited payment collection agent for the purpose of collecting all sales proceeds from ticket, registration and merchandise sales and donations solicited via the Services (collectively, “Event Registration Fees”) using Payment Processing Partners (as defined below).

  2. Topi’s Role For the avoidance of doubt, Topi does not and will not provide banking, deposit taking, stored value, insurance or any other financial services to an Organizer other than serving as a limited payment collection agent as set forth below. Topi utilizes third party gateways, payment processors, merchant acquirers and/or merchant acquiring banks with which we have relationships (collectively, “Payment Processing Partners”) and both Organizers and Topi are subject to the rules and regulations of such Payment Processing Partners. For convenience, Topi shows you a balance of proceeds for your events in your Topi account, however, that balance merely reflects the amount of Event Registration Fees collected by our Payment Processing Partners (EPP), and represents only a general unsecured claim against Topi and not a store of value or a deposit/current account.

  3. Confirmations Upon an order being placed by an Attendee and confirmed through Topi, Topi generates a confirmation message and issues a unique confirmation number for such Attendee’s order. Organizer agrees to unconditionally accept, honor and fulfill all ticketing, registration, merchandise and donation commitments that have been confirmed by Topi through the Services, and it is Organizer’s responsibility to verify an Attendee’s confirmation number and/or any event restrictions prior to the applicable event.

  4. Fees Organizer agrees to pay Topi all applicable service fees for each ticket, registration or other item sold or donation solicited via the Services (the Topi Service Fee”). Organizer also agrees to pay Topi the additional Topi Payment Processing fee (the “Topi Payment Processing Fee”) for each ticket, registration or other item sold or donation solicited via the Services. Note that these fees are subject to change from time to time with respect to transactions that occur following the change. In addition, Organizer may from time to time request additional Services from Topi, including without limitation, marketing and promotion services, equipment leasing, on-site services, and dedicated account management, which Topi may provide at its discretion. Fees for such ancillary Services (the “Ancillary Fees”) will be disclosed to Organizer prior to Organizer’s acceptance of such Services. The Topi Service Fee, the Topi Payment Processing Fee and the Ancillary Fees are referred to herein as the “Fees.”

3.2 Topi Payment Processing

  1. Payment Process Payment processing occurs directly through our Payment Processing Partners. Within five (5) business days after the successful completion of an event, Topi will cause our Payment Processing Partners to pass along all Event Registration Fees related to such event that have been collected by our Payment Processing Partners, subject to (i) deduction of all applicable Fees then due; (ii) any other deductions authorized pursuant to this Merchant Agreement; and (iii) any reserves established as set forth in subsection (f) below. Such payouts will be made only to the payout information designated by Organizer on the Services under “Payment Options.” Payouts are made by ACH. Our Payment Processing Partners may allow you to accept payments from card based payment networks, such as Visa®, MasterCard®, American Express® and Discover® (collectively, the “Card Schemes”), and non card based payment networks such as direct debit and other alternative forms of payment (the “Alternative Form of Payment Frameworks”).

  2. Appointment as Agent Organizer hereby appoints Topi as Organizer’s limited payment collection agent solely for the purpose of collecting payments made by Attendees for such events through our Payment Processing Partners. Organizer agrees that a payment made by an Attendee to Topi shall be considered the same as a payment made by an Attendee directly to Organizer and Organizer will sell or provide all advertised goods and services to the Attendee as if Organizer had directly received the Event Registration Fees from such Attendee, regardless of whether the Event Registration Fees have yet to be received from Topi. Organizer agrees that in its role as limited agent, Topi is authorized to (i) enable Attendees to transfer or upgrade a ticket and/or registration (if such transfers are permitted by Organizer during the event registration process); (ii) hold, disburse and retain proceeds on Organizer’s behalf pursuant to this Merchant Agreement; (iii) issue refunds to Attendees as set forth in section below; and (iv) manage credit card chargebacks as set forth in subsection below. In accepting appointment as the limited agent of Organizer, Topi assumes no liability for any acts or omissions of Organizer and Organizer understands that Topi’s obligation to pay Organizer is subject to and conditional upon receipt of the associated Event Registration Fees from Attendees. Organizer further authorizes Topi to delegate its obligations under this Merchant Agreement to certain of its affiliated entities both within and outside the United States, provided, that Topi will remain liable for the discharge of its obligations under this Merchant Agreement by such affiliated entities.

  3. Cancellations; Nonperformance No payments shall be made to Organizer with respect to any event that is cancelled or with respect to which Topi believes there is a risk of cancellation or nonperformance, unless Topi receives adequate security (as determined by Topi in its discretion) for Organizer’s obligations under this Merchant Agreement. In addition, no Event Registration Fees for a given event shall be earned until that event is successfully completed. If payments have already been made to an Organizer for a cancelled event, Organizer will immediately refund to a payment address designated by Topi all such payments upon cancellation of such event for the purpose of effecting refunds if refunds are being made.

  4. Reserves Topi reserves the right to retain a certain percentage of Event Registration Fees (with such percentage being determined by Topi in its discretion) to fund a reserve (i) at any time as we determine in our discretion to be necessary based upon the level (or expected level) of refunds, disputed charges, chargebacks, customer complaints, allegations of fraud or changes in Organizer’s credit profile or the underlying event(s)’ risk profile; and (ii) as otherwise necessary to secure the performance of your obligations under the Terms of Service, including this Merchant Agreement. Topi’s right to hold a reserve shall continue following the applicable event(s) and until either (A) Organizer has discharged all obligations under the Terms of Service and the applicable periods for refunds, disputed charges, chargebacks, and complaints have passed or (B) Organizer has otherwise provided Topi with adequate security (as determined by Topi in its discretion) for its obligations under the Terms of Service, whether matured or unmatured, contingent or non-contingent, or liquidated or unliquidated.

  5. Chargebacks; Reversals Any credit card chargebacks or other transaction reversals initiated against Topi or its affiliates for any reason (except to the extent they are caused solely by Topi’s negligence or willful misconduct) with respect to an Organizer’s event and all related credit card association, payment processing, re-presentment, penalty and other fees and expenses incurred by Topi or its affiliates in connection with such chargebacks shall ultimately be the responsibility of Organizer, and Organizer agrees to promptly and fully reimburse Topi for such amounts on demand. As part of Topi’s limited payment collection agency, Topi will use commercially reasonable efforts to manage the re-presentment of such chargebacks and reversals on behalf of Organizer and Organizer hereby authorizes Topi to do so and agrees to use reasonable efforts to cooperate with Topi in such re-presentment. However, Topi shall have no obligation to re-present any chargeback that it believes in its discretion it is more likely than not to lose or that relates to a transaction that should be refunded in accordance with the Organizer’s refund policy or the provisions below. Understanding the nature of the Payment Scheme Rules (as defined below) and the discretion that they provide to the Card Schemes and Alternative Form of Payment Frameworks, both parties agree that Topi’s loss of any chargeback that has been re-presented by Topi shall not in any way limit Organizer’s obligation to reimburse Topi and its affiliates under this paragraph.

  6. Currencies Topi does not provide currency conversion services. Finally different payment options or payment methods may be available to you depending on the currency in which you collect Event Registration Fees and your location as detailed here.

  7. Payment Scheme Rules The Card Schemes and Alternative Form of Payment Frameworks require that you comply with all applicable bylaws, rules and regulations published by them from time to time (collectively, the “Payment Scheme Rules”). We may be required to change this Merchant Agreement in connection with amendments to the Payment Scheme Rules. Depending on what payment methods you elect to use in EPP, you may be subject to different Payment Scheme Rules. You agree to comply with any applicable Payment Scheme Rules as in effect from time to time. These Payment Scheme Rules, include without limitation, a requirement to submit only bona fide transactions, limits on how you use the Card Scheme logos and trademarks and authorization to use certain of your information to show that you participate in the Card Schemes. The Payment Scheme Rules are publicly available from the websites of the related Card Schemes and Alternative Form of Payment Frameworks.

3.3 Refunds

3.3.1 Refund Policy and Process

Organizer agrees to communicate a refund policy to Attendees with respect to each event posted on the Services that meets the requirements of the Attendee Refund Policy Requirements available here and to administer such policy in accordance with its terms and the Attendee Refund Policy Requirements. The Attendee Refund Policy Requirements are incorporated by reference into this Merchant Agreement. All refunds must be processed through Topi, unless otherwise agreed by Topi. Organizer can issue refunds to Attendees directly through the Services within certain windows permitted by our Payment Processing Partners. If the refund is outside such windows, then it will need to be processed manually by Topi. Topi may determine in its discretion not to process any refunds which are manual, in which case they will be processed directly by Organizer.

3.3.2 Refund Disputes

Regardless of what payment method is selected, all disputes regarding refunds are between Organizer and its Attendees. In the event of a dispute, Topi may try to mediate, but ultimately it is Organizer’s obligation to settle the dispute. Notwithstanding the foregoing, Topi shall have the right to make refunds on Organizer’s behalf as set forth in subsection below.

3.3.3 Mandatory Refunds

Notwithstanding the foregoing, Organizer authorizes Topi to make refunds in the following situations (i) Organizer specifically authorizes the refunds at the time; (ii) Topi believes in its discretion that specific orders should be refunded under the Organizer’s posted refund policy or the Attendee Refund Policy Requirements, including without limitation, that they are required by applicable local, state, provincial, national or other law, rule or regulation or the Payment Scheme Rules; (iii) Topi believes in its discretion that the refund request, if not granted, will lead to a chargeback that Topi is more likely than not to lose; (iv) Organizer failed to list a refund policy on the applicable event page and Topi believes in its discretion that a refund would be reasonable under the circumstances; (v) Topi believes in its discretion that specific orders are fraudulent (e.g., made with stolen credit cards or otherwise not bona fide transactions); or (vi) Topi believes in its discretion that the order is a duplicate. Organizer also authorizes Topi to make refunds of any and all orders (including those for unrelated events) if (A) Topi believes in its discretion that Organizer has engaged in any fraudulent activity or made any misrepresentations; (B) Topi believes in its discretion that there is substantial risk of nonperformance by Organizer with respect to the applicable event or future events; (C) Topi believes in its discretion that it is likely to receive complaints, refund requests, transaction reversals and/or chargebacks with respect to a substantial amount of orders; or (D) Topi believes in its discretion that Organizer is a Prohibited Merchant, has used the Services to process Prohibited Transactions or to manage Prohibited Events or that failing to make the refunds would otherwise expose Topi to legal liability. Because all sales are ultimately made by Organizers, Organizer hereby agrees to promptly and fully reimburse Topi and its affiliates upon demand for refunds that Topi makes pursuant to this Merchant Agreement, other than to the extent that the necessity for such refunds are caused by Topi’s negligence or willful misconduct. Organizer acknowledges and agrees that chargebacks will result in losses to Topi in excess of the amount of the underlying transaction and that by refunding transactions in advance of a chargeback Topi is mitigating such losses and its damages with respect to Organizer’s breach of this Merchant Agreement.

3.4 Non-Exclusive Remedies; Taxes

3.4.1 Non-Exclusive Remedies

In the event that Organizer fails to pay to Topi any amount owed pursuant to the Terms of Service (including without limitation this Merchant Agreement) when due and following a late payment notice being delivered by Topi, such amount shall bear interest calculated from the date due until paid in full at a rate equal to the lesser of (i) one percent (1%) per month, compounded monthly; and (ii) the maximum amount permitted by applicable local, state, provincial, national or other laws, rules or regulations. In the event any amounts are owed by Organizer to Topi under the Terms of Service (including without limitation this Merchant Agreement), Topi may, without limiting its other rights and remedies and to the extent permitted by applicable local, state, provincial, national or other laws, rules or regulations (A) withhold any amounts due to Organizer, whether for a particular event or for any other event that Organizer lists through the Services and use the withheld amount to setoff the amount owed by Organizer to Topi; and/or (B) send an invoice to Organizer for such amounts to the extent Organizer’s outstanding balance is insufficient to cover these costs, in which case Organizer shall pay Topi such invoiced amounts within thirty (30) days after the date of the invoice. If payment for any amounts due to Topi hereunder is not made by Organizer when due and after receiving a late payment notice from Topi, Topi reserves the right, in its discretion and without limiting its other rights and remedies, to suspend or terminate Organizer’s registration for the Services (including any and all accounts that Organizer may have).

3.4.2 Costs of Collection

Organizer agrees to promptly and fully reimburse Topi upon demand for all out-of-pocket costs and expenses, including without limitation, reasonable attorneys’ fees and expenses, incurred by Topi in collecting past due amounts from Organizer under this Merchant Agreement, the Terms of Service or otherwise.

3.4.3 Taxes

  1. You are solely responsible for determining which, if any, sales, use, amusement, value added, consumption, excise and other taxes, duties, levies and charges (collectively, “Taxes”) apply to your use of the Services and you agree that it is your sole responsibility to, and that you will, collect, remit and report the correct amounts of all such Taxes to the applicable governmental authorities, even if Topi provides you with tax tools or tax calculators that assist you in doing so. Topi does not represent, warrant or guarantee that any tax tools or tax calculators provided to you will meet all tax requirements that may be applicable to you or that such tax tools or tax calculators will result in your collection or remittance of all applicable Taxes, which Taxes may vary based on the nature of your event, the nature of your tax status (individual, entity, business, consumer, etc.), your location, the location of your Attendees, credits and deductions for which you may qualify and other factors, and you hereby release Topi of any and all liability with respect to your use of the tax tools and/or tax calculators. None of such tax tools or tax calculators should be considered legal or tax advice. If you do collect Taxes on the Services, those Taxes will be treated like Event Registration Fees and Topi will pay such amounts to you at the same time as the underlying Event Registration Fees. If you use any tax tools or tax calculators that require you to input a tax registration number, you represent and warrant that such tax registration number is true and correct. Topi cannot give you legal or tax advice, so please be sure to check with your own tax advisor about any applicable Taxes. In the event that a governmental authority requires Topi to pay any Taxes attributable to your use of the Services, you agree to promptly and fully reimburse Topi for such Taxes upon demand and all costs, penalties, interest and expenses related thereto.

  2. In addition, due to IRS regulations, if Topi processes transactions and issues you payouts (A) for more than twenty thousand dollars ($20,000) in gross sales; and (B) for more than two hundred (200) transaction orders, in each case during a given calendar year and in the aggregate across all of your accounts, Topi is required to report to the IRS (i) the gross amount of transactions for which you have been paid in that calendar year and in each month of that calendar year; (ii) your name; (iii) your address; and (iv) your Tax Identification Number (“Your Tax Information”). As part of these IRS regulations, Topi is required to either (A) collect Your Tax Information; or (B) establish that you are a foreign person not subject to US taxes, before your accounts pass the two hundred (200) order transaction threshold in the aggregate. Once your accounts cross the two hundred (200) order transaction threshold, you agree that you will not receive any further payments from Topi until either (A) or (B) above are satisfied.

  3. Topi reserves the right to withhold the payment of any amounts owed to you hereunder and dispose of them as required by applicable local, state, provincial, national or other law, rule, regulation, judgment or order, in each case as determined by Topi.

3.5 Escheatment

If your account has had no activity for a period of time set forth in applicable unclaimed property (e.g., escheatment) laws and we hold funds related to your account, then we will notify you as required by applicable laws. If you do not claim your unclaimed funds within the timeframe notified to you, then we will escheat them to the applicable governmental authority in accordance with applicable laws.

4 Prohibited Merchants; Prohibited Events; Prohibited Transactions

4.1 Prohibited Merchants

By registering for the Services and accepting this Merchant Agreement, you represent and warrant that:

  1. you are not located in, and you are not a national or resident of, any country to which the United States, United Kingdom, European Union, Australia or Canada has embargoed goods and/or services of the same type as the Services (“Restricted Countries”);

  2. 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

  3. 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 Form of Payment is not presently revoked or suspended.

If you fall into any of the categories set forth above, as determined by Topi in its discretion, you are a “Prohibited Merchant.”

4.2 Prohibited Events

You may not post events to the Services that:

  1. violate or facilitate the violation of any applicable local, state, provincial, national or other law, rule or regulation;

  2. would be prohibited under the Payment Scheme Rules;

  3. take place in Restricted Countries; and

  4. contain any Content (as defined in the Terms of Use) that would violate the Terms of Use.

Any event that falls into any of the categories set forth above, as determined by Topi in its discretion, is a “Prohibited Event.”

4.3 Prohibited Transactions

You may not use Topi to process any of the following transactions and you represent and warrant that you will not submit for processing through the Services:

  1. any transaction that would violate the Payment Scheme Rules;

  2. any transaction that is fraudulent or criminal in nature;

  3. any transaction that would constitute a “restricted transaction” as defined in the Unlawful Gambling Enforcement Act of 2006 or Regulation GG; and

  4. any transaction that would constitute sending money to another party other than for the purchase of bona fide tickets or registrations to, or solicitation of a donation for, events, or sale of items related to such events.

Any transaction that falls into any of the categories set forth above, as determined by Topi in its discretion, is a “Prohibited Transaction.”

4.4 Remedies

In the event that Topi discovers that you are a Prohibited Merchant, that you have posted a Prohibited Event and/or that you have attempted to process or processed a Prohibited Transaction, then Topi may take any or all of the following actions in its discretion in addition to any and all remedies that Topi may have under the law or elsewhere in the Terms of Service:

  1. suspend or terminate your Topi account;

  2. alter, edit, or remove any Prohibited Event or any portion thereof;

  3. block, reverse or refund any or all of your transactions;

  4. hold any and all funds associated with your account to the extent required by applicable local, state, provincial, national or other law, rule, regulation, judgment or order; and

  5. refer you, your events and/or your transactions and information relating to the same to our Payment Processing Partners, the Card Schemes, the Alternative Form of Payment Frameworks and/or applicable law enforcement agencies for further action.

5 Representations And Warranties.

In addition to the representations and warranties contained herein, you represent and warrant to us that (a) if you represent an entity, that entity is duly organized, validly existing and in good standing under the laws of the state, province or country of its formation; (b) you, or the entity you represent (if applicable), have all requisite power and authority to enter into this Agreement and to carry out the transactions contemplated hereby; (c) the entering into and performing of this Agreement by you, or if you represent an entity by the entity you represent, will not result in any breach of, or constitute default under, any applicable local, state, provincial, national or other law, rule, regulation, judgment or order, or other agreement to which you or it is a party, including without limitation, any other agreement for the sale of tickets or registrations; and (d) if you represent an entity, you have the full right, legal power and actual authority to bind such entity to the terms and conditions hereof.

6 Termination

In addition to our right to terminate your use of the Services under the Terms of Use, Topi may terminate this Merchant Agreement and your right to use the Services to create, promote and collect sales proceeds for a paid event if you are in violation or breach of any provision of this Merchant Agreement.

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