Business Member Agreement

July 20, 2015

1. Agreement.

This Business Member Agreement (“Agreement”) is entered into by and between you, the Business Member using the WingCash® Service (“Merchant” or “you”) and WingCash, LLC (“WingCash,”  “we” or “us”). Capitalized terms used in this Agreement without definition have the meanings set forth in the Definitions section below.

This Agreement is a contract between you and WingCash and applies to your use of the WingCash Service and your issuance, distribution, acceptance, redemption or deposit of WingCash Pages. Please read the terms and conditions contained in this agreement carefully. By registering for or using the WingCash Service, you agree to be bound by the terms and conditions of this Agreement. Your use of the WingCash Service indicates your acceptance of these terms and conditions.

This Agreement may be modified by us at any time upon notice to you. Revised versions of this Agreement will be posted on the WingCash Site. You will be deemed to agree to the revised version of this Agreement upon your acceptance of a WingCash Page or other use of the WingCash Service after the posting of the revised Agreement.

2. Merchant’s Business Wallet and Business Profile.

Before using WingCash Services, you agree to create a Business Wallet and to maintain a complete and accurate public profile on the WingCash Site (“Business Profile”), that will include certain required information such as the your business name, business street address, email address, hours of operation, customer service contact number, and a description of your business, goods or services. Each Business Profile on the WingCash Service is assigned a unique, publicly viewable, web address (“Business Profile Address”). When you establish a Business Profile, you agree and acknowledge that certain identifying information may be added to the directory of businesses on the WingCash Site and will be available to the public at the Business Profile Address. You agree to keep the information on the Business Profile current by updating information on the profile not more than 7 days after a change in any identifying information. Merchants may be listed on the WingCash Site, and listings are subject to change at any time.

2.1 Business Wallet Manager

Each Business Wallet will be linked to the personal Wallet of at least one individual Member who will serve as the manager (“Manager”) of the Business Wallet on the WingCash Service (“Linked Wallet,” and together with the Business Wallet, “Wallets”). Only a Manager of the Business Wallet is authorized to request that another Personal Wallet also be linked as Manager of the Business Wallet. Each Manager of the Business Wallet will use the login credentials associated with his or her Personal Wallet to access the Business Wallet. It is the responsibility of the Business Wallet Manager to request the addition or removal of a Personal Wallet as a Manager of the Business Wallet. The Business Wallet Manager is responsible to keep his or her login credentials secure. Each Business Wallet Manager agrees not to disclose or share his or her Personal Wallet login credentials with any other person. The individuals with a Linked Wallet will at all times have the authority to act on behalf of Merchant with respect to the service. You agree that WingCash is not responsible for any funds that may be misappropriated by a your Business Wallet Managers. Your misrepresentation of any information in any Business Wallet, or failure to respond to a request for proof of business existence or authority of the Business Wallet Manager and the signatory to this Agreement within five (5) business days, may result in the suspension or cancellation of such Business Wallet and the WingCash Service.

2.2 Deposit Account

You are permitted to link one or more business checking accounts (“Account” or “Accounts”) to a Business Wallet, provided that:

  1. each linked Account is held in the Merchant’s name with a state or federally chartered financial institution, and
  2. you enter the routing and account number for each Account on the WingCash Site.

Before the Account can be linked to the Business Wallet, it must be validated. To validate the Account, you must send one dollar ($1) from the Business Wallet to the Account. The dollar will be split into two random amounts and deposited into the Account. The Merchant will complete the validation by confirming the amounts deposited into the Account on the WingCash Site. Only WingCash Pages denominated in United States Dollars and issued by a Financial Institution may be deposited to an Account.  There is a $0.25 deposit fee (per deposit) to transfer the funds associated with WingCash Pages by ACH to a linked Account. You authorize us to deduct the deposit fee from the amount to be deposited or from your Business Wallet. We will process deposit requests to the the Account within one (1) business day following such request or according to the automatic Deposit Schedule you choose for your Account. Bank transfer charges, if any, will be the responsibility of Merchant. We reserve the right to correct or reverse any ACH entries made in error. We may refuse to deposit the transfer amount if we reasonably suspect that you are offering or carrying out any illegal services, such as any illegal betting or gambling, internal cigarette sales, illegal marketing activities or illegal adult content, or you are acting as an agent for other providers of illegal services, or if we have reasonable suspicion of money laundering or fraud.

2.3 Deposit Account Limits

The Business Wallet has limits restricting the amount that can be deposited from the Business Wallet to linked Accounts. The limits apply to the each linked Account separately. The initial limits are set at twenty five hundred dollars ($2,500) per day for a total of ten thousand dollars ($10,000) per month; however, you may request an increase to these limits at any time by completing a deposit account limit increase request form and emailing it to support@wingcash.com.

2.4 Automatic Deposit

After linking an Account to the Business Wallet, you can turn on Automatic Deposit. The default option is set to no automatic deposit. You can choose to have United States Dollars automatically deposited to one Account linked to the Business Wallet. In addition to selecting the Account to deposit to, you also designate how frequently the automatic deposit will occur (the “Deposit Schedule”).  

2.5 Custom Name for the Business Profile Address

After creating your Business Profile, you can add a custom name to the URL/URI address for your Business Profile. Custom names are allocated in the order that they were requested. A custom name must be at least four characters long and unique throughout the WingCash Site. If the custom name you desire is already in use, you may petition the user of that name and ask him or her to release it to you. After a custom name has been released to you, we may assist you with the transfer of the custom name to your Business Profile Address. WingCash in its sole discretion may approve or deny the request for a custom name or the transfer thereof. A custom name may be removed from the Business Profile Address if it infringes the intellectual property of another party.

2.6 Basic Features

The Business Wallet has a set of basic features that are activated for all Merchants when the information required to create a Business Wallet is entered correctly on the WingCash Site. The Business Wallet basic features include the following:

  1. reports, including transfer history, page groups, provider liabilities, distribution and redemption, and received and receivable;
  2. preferred and additional currency selection;
  3. a simple, browser-based point of sale to confirm receipt of payment; and
  4. security settings.

The Business Wallet security settings allow you to see a list of the devices, and their associated permissions, that have been granted access to the Business Wallet. You are responsible for managing the list of devices that have access to the Business Wallet. You may remove a device from this list at any time.

2.7 Additional Features

Additional features, also referred to as “Premium Features,” are available and can be activated upon request and with the payment of the appropriate Upgrade Fee. The Premium Features include the ability to:

  1. have WingCash Pages that you create, brand, issue, distribute and set as redeemable within a closed-loop network that you administrate,
  2. create, publish, distribute, track and manage offers,
  3. create, manage and track campaigns using offers,
  4. develop and manage connected apps, and
  5. create and manage activity feeds.

3. The WingCash Service.

WingCash is not a Financial Institution and does not offer deposit or other banking services. WingCash is a developer of the freely available open source software operatated by WingCash and provided as a service on the wingcash.com website (the “WingCash Service”). The WingCash Service is a means for Members and Merchants to transfer value using WingCash Pages.

3.1 WingCash Pages

A WingCash Page is a web page (“Page”) with each Page having a unique, public, web address. Each Page, at a minimum, is assigned a standard monetary value (e.g., from $0.01 to $100), is denominated in any one national or sovereign currency (e.g., USD, EUR, JPY), shows the name of the Provider of the Page, and shows the current holder of the Page. The Page may also show a other information, if applicable, including the expiration of the Page, whether or not the Page is transferable and the Page’s possession history. Each Page may have one and only one holder at a time. Only the current holder of the Page is allowed to transfer possession of the Page to another Member or Merchant. The transfer of possession of a WingCash Page is similar to the change in possession of a ten dollar ($10) bill. For this reason, transfers made using the WingCash Service are not reversible by WingCash or refundable or otherwise subject to refunds, chargebacks, reversals or other claims through WingCash. The change of possession of a WingCash Page constitutes a payment. WingCash does not charge fees to Members or Merchants to transfer the possession of Pages on the WingCash Site. Therefore, EXCEPT WITH RESPECT TO PROCESSING ERRORS CAUSED BY US, YOU ARE SOLELY RESPONSIBLE FOR RESOLVING AND SETTLING DISPUTES WITH MEMBERS, OTHER PARTICIPATING MERCHANTS OR OTHER THIRD PARTIES.

3.2 WingCash Page Features

WingCash Pages have distinct features and attributes that depend upon the Provider of the Page. WingCash Pages provided by Merchants have no cash value and may be redeemed by the holder in exchange for goods and services only with the Merchants participating in the Network administered by you. WingCash Pages provided by Financial Institutions are associated with funds held on deposit at one or more FDIC-insured institutions for the benefit of Members and Merchants. WingCash Pages may be used as follows:

  1. to receive payment from Members and other participating Merchants for the purchase of personal, family and household goods and/or services;
  2. by Merchants for business-to-business transfers; and
  3. for the transfer of value between Members and Merchants (collectively, “Transfers”).

If you attempt a transfer using the WingCash Service to a person or business that does not participate in the WingCash Services (an “Invitation”), you may retract the transfer any time before it is accepted by the recipient. No other transfers may be retracted using the WingCash Service. You are responsible for retracting transfers made by you prior to acceptance by the recipient. We are not liable to you or any other person for any damages associated with a retracted transfers. We will notify you by email when the Invitation has been accepted by the recipient. WingCash will use commercially reasonable efforts to conduct any Transfer made between you and Members and other Merchants with WingCash Pages through the WingCash Service in accordance with this Agreement.

3.3 WingCash Pages You Hold

You may, but are not required to, hold WingCash Pages in your Business Wallet. When you hold WingCash Pages in your Business Wallet, your name is shown publically on the WingCash Pages as the current holder. When you hold WingCash Pages in your Business Wallet issued by a Financial Institution, the funds associated with your WingCash Pages will be aggregated with funds associated with the WingCash Pages of Members and other Merchants and held in one or more pooled accounts at one or more FDIC-insured depository institutions. All funds associated with a single WingCash Page in your Business Wallet will be held in a single pooled deposit account for your benefit at a single FDIC-insured depository institution together with the funds associated with other WingCash Pages. Funds associated with WingCash Pages in your Business Wallet are eligible for FDIC deposit insurance for the benefit of the Merchant named on the Business Wallet up to the maximum limit set by the Federal Deposit Insurance Act and its implementing regulations.  The maximum limit for FDIC deposit insurance is $250,000 for all deposits held by a depositor in the same ownership right and capacity maintained at the same insured depository institution, subject to the regulations and interpretations of the FDIC.  You are responsible for determining whether all deposits you hold in the same ownership right and capacity at any FDIC-insured depository institution including the WingCash Pages you hold in your Business Wallet exceed the maximum FDIC insurance available for such deposits. To determine the identity of the FDIC-insured depository institution where the funds associated with a single WingCash Page in your Business Wallet are held, the identity of which may change from time to time without notice to you, click the link on the WingCash Page labeled “Provider.”  You will not receive interest or any other earnings on any funds associated with WingCash Pages that are held in any pooled account.

3.4 WingCash Pages You Provide

You may purchase an upgrade for the Business Wallet that allows you to be a provider WingCash Pages. WingCash Pages you provide are also called “Brand Cash.” You are required to select a “Cash Design” for the Brand Cash provided by you. Brand Cash you provide is held in the wallets of Members or other Merchants.  WingCash Pages provided by you and held by you are held in your “Vault.” WingCash Pages in your Vault are available for distribution to Members or other Merchants. You agree to honor at face value the WingCash Pages you provide. You also agree to give not less than sixty (60) days advance notice to Members or other Merchants holding your Brand Cash before canceling your Business Wallet or discontinuing to honor the Brand Cash provided by you. Each Cash Design has its own network (“Network”). Each member of the Network (“Network Member”) is another Merchant on the WingCash Service and must be approved by the administrator of the Network (“Network Administrator”) to join the Network.  

You agree to allow a Network Member to terminate its membership in the Network at any time and for any reason. You also agree to enter into an agreement with each member of the Network specifying the terms and conditions of membership in the Network, including the member’s roles and responsibilities.

3.5. Branding WingCash Pages You Provide

You are required to select an image or images for upload to be placed on the WingCash Pages provided by you. You agree to only upload images with the copyright owned by you or images with copyright allowing such upload. You agree to be solely responsible for any infringement of copyright for images upload and displayed on WingCash Pages provided by you.

3.6 Members Purchase of WingCash Pages You Provide as Gift

If you, or another party, distributes your Brand Cash using the word “Gift” in the title, purpose, or the marketing of the Brand Cash; and Members are purchasing the Brand Cash from you; then you agree to the following:

  1. to only distribute Brand Cash that is fully transferable between Wallets on the WingCash Service, and
  2. to only distribute Brand Cash with an expiration of not less than five years from the date of purchase.

3.7 Co-Branding WingCash Pages

You have the option of co-branding WingCash Pages issued by Financial Institutions with your trademarks and/or logos (each a “Design”) for a fee, as disclosed at the time of purchase. Such Designs are able to be viewed by everyone, including non-Members, such as visitors to the WingCash Site. You hereby acknowledge the following:  

  1. that unless you select the “no expiration” option, the Design will expire and be removed from the WingCash Pages after a certain period of time (as disclosed at the time of purchase), and
  2. prior to expiration, if any, the Design will be transferred with the WingCash Page. You hereby grant WingCash a nonexclusive, perpetual, irrevocable, sublicensable, royalty-free, worldwide license to use any Design uploaded to the WingCash site on WingCash Pages.  

You agree that we can display one or more WingCash Pages bearing your Design on the WingCash Site for marketing purposes. We agree that any goodwill arising out of our use of your Design will inure to the sole benefit of you. If WingCash determines, in its sole discretion, that a Design violates this Business Member Agreement, WingCash may delete the Design and replace it with the default image, regardless of whether the Design has expired.  If at any time you wish to stop, prohibit or limit such use, please provide us with reasonable advance written notice.  Within a reasonable time after such notice, we will cease all use of any of your Designs.

4. WingCash’s Role.

The WingCash Service allows you and the Member or other Merchant (the “Parties”) to maintain privacy when transferring value; however, the Service also allows the Parties to see when a transfer is completed as proof of such payment. However, WingCash is not an identity service and does not guarantee the identity of any Member or other Merchant, nor does WingCash have control of, or liability for, the products or services that are paid for with the WingCash Service. The WingCash Service does not include assisting you with disputes with other Merchants from which you purchase products or services or any other dispute resolution involving third parties and your use of the WingCash Service.

5. Your Obligations with Respect to the WingCash Service.

You will accept the transfer of WingCash Pages as a means of payment in accordance with this Agreement. You must establish all the required technical prerequisites described on the “Settings” page in the Business Wallet to enable the goods and services offered by you to be paid for using WingCash Pages. You agree to the following:

  1. to abide by Applicable Law, in the performance of this Agreement, and
  2. to settle all disputes in connection with the sale of goods or services directly with Members and other Merchants and in accordance with Applicable Law.

6. Participation in the WingCash Service.

In consideration of your Business Membership in the WingCash Service as set forth herein, you agree to the following:

  1. You agree to accept, at face value, as payment from each Member or other Merchant, WingCash Pages for the purchase of goods and services you offer. You agree not to deduct fees or charges for use of the WingCash Page. You may, however, discount the price of goods or services purchased with WingCash Pages at your discretion, except to the extent prohibited by Applicable Law.
  2. You agree that in the event that you have accepted WingCash Pages for the purchase of goods or services from Members or other Merchants, WingCash will not be obligated to pay you any amounts, and your recourse, if any, will be solely between you and the Member or the other Merchant.
  3. You agree to display the WingCash logo (“Logo”) on your shopping cart checkout page and/or other similar page where you display payment options. You may download the Logo from the wingcash.com website. The Logo must be in a location and in a size that suits this purpose and at least in a fashion that is equivalent with respect to quality, position and size to the other payment options you offer.
  4. You, not WingCash, are solely responsible for all refunds of the transfer amount to the Member or other Merchant. Complaints resulting from the delivery of goods or the provision of services by you will be forwarded by WingCash to you and will be your sole responsibility. Excessive Member or other Merchant complaints to WingCash about you may result in the termination of this Agreement and canceling of your Business Wallet.
  5. You hereby assumes sole liability for the provision of the goods and services purchased by Members or other participating Merchants through the WingCash Service and the quality, performance and delivery thereof.
  6. You agree not to distribute any illegal goods and services using the WingCash Service as payment.

7. Prohibited Activities.

In connection with your use of the WingCash Service or the WingCash Site, you will not engage in any of the following “Prohibited Activities”:

  1. Any breach of this Agreement, including, without limitation, accepting WingCash Pages as a means of payment from a Member located outside of the Approved Jurisdictions;
  2. Receive what you should reasonably believe to be potentially fraudulent funds;
  3. Disclose or distribute a Member’s information to a third party, or use the information for marketing purposes unless you receive the Member’s express consent to do so;
  4. Infringe WingCash’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
  5. Introduce or facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
  6. Use any robot, spider, or other device or manual process to monitor or copy the WingCash Site or any portion thereof without our prior written permission;
  7. Use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with the WingCash Site or the WingCash Service.

If we have reason to believe that you have engaged in any Prohibited Activities set forth above or otherwise breached this Agreement, we may take various actions to protect WingCash, other Members, or other third parties, from any damages. The actions we may take include but are not limited to the following:

  1. We may cancel, suspend, or limit your access to your Business Wallet or the WingCash Service;
  2. We may refuse to provide services to you in the future;
  3. We may hold your funds for up to ninety (90) days if reasonably needed to protect against the risk of our liability or damages to us or others; and
  4. We may take legal action against you.

In addition, WingCash reserves the right to take any of the actions set forth above, to the extent necessary to complete any pending investigation, including but not limited to an investigation regarding potential Prohibited Activities, or as required by Applicable Law or court order or if otherwise requested by law enforcement or any governmental entity. WingCash, in its sole discretion, reserves the right to terminate this Agreement, or the provision of, or your access to, the WingCash Service for any reason and at any time upon notice to you.

8. Privacy.

WingCash and Merchant each hereby agree to comply at all times with the terms of their Privacy Policies linked to on the homepage of their respective websites. In addition, you will use any personal information received about a WingCash Member through the use of WingCash Service solely in connection with the WingCash Service. You may not otherwise disclose or distribute such information to a third party or use such information for marketing purposes unless you receive the Member’s express consent.

9. Data Protection and Security.

You agree to take reasonable steps to safeguard your systems against illicit or accidental destruction, accidental losses, technical errors, theft, illegal use, unauthorized modification, reproduction, accessibility or other unauthorized operations. Login credentials are required to conduct transfers on the WingCash site. You agree to safeguard the login credentials from any unauthorized access by anyone including third parties. You agree to be solely responsible, and indemnify WingCash from any and against all claims of compensation or damages raised by third parties, arising out of your breach of this section.

10. Audit Rights.

You agree that at WingCash’s sole discretion, WingCash, its authorized representatives, or agents and any government entity with regulatory or supervisory authority over WingCash (collectively the “Auditing Party”) reserves the right, at its own expense (except as set forth herein below), to inspect, copy and audit any records of Merchant directly relating to its performance hereunder and the WingCash Pages. Merchant will make all such facilities, records, personnel, books, accounts, data, reports, papers, and computer records available to the Auditing Party for the purpose of conducting such inspections and audits. Any such audit will be conducted at mutually agreed upon times, upon reasonable prior written notice (no less than ten (10) business days), and in a manner designed to minimize any disruption of Merchant’s normal business activities; provided, however, that in agreeing to times for the audit, Merchant will be reasonable in scheduling, and will not delay any audit for more than ten (10) business days from the date first proposed by WingCash. The parties agree that the audit rights hereunder will be exercised during normal business hours and no more than once in any twelve (12) month period.

11. Termination, Canceling A Wallet, or Limited Wallet Access.

We may terminate this Agreement and cancel the Business Wallet for any reason at any time upon thirty days (30) notice to you by electronic mail to the address identified in your Businesses Profile. We also may terminate this Agreement due to your potential engagement in Prohibited Activities (as defined in Section 7 above), as required by Applicable Law or court order, or if otherwise requested by law enforcement or any governmental entity. You may terminate this Agreement at any time by canceling your Business Wallet; however, before you cancel your Business Wallet, you agree allow all Members holding any WingCash Pages provided by you not less than sixty days (60) notice to redeem all outstanding WingCash Pages. WingCash may assist you with termination when you have outstanding WingCash Pages. If you do not use the WingCash Service for six (6) continuous months, we may terminate this Agreement and cancel the Business Wallet.

12. Notices.

You agree that WingCash may provide notice to you by posting such notice on the WingCash Site or by emailing it to the email address listed in your Business Profile. By registering for the WingCash Service and accepting the terms of this Agreement, you represent that you can download or print a copy of this Agreement and any related notices or disclosures that you receive by email or on the WingCash Site and affirmatively consent to receive notices electronically from us, including any disclosures or notices that are required by Applicable Law. Any such notice will be deemed received by you at the time it is posted to the WingCash Site or emailed to you unless we receive notice that the email was not delivered, unless required otherwise by Applicable Law. You may request paper copies of notices from us at any time and you may terminate your consent to receive required disclosures through electronic communications by contacting WingCash. WingCash reserves the right to terminate this Agreement and cancel your Business Wallet if you withdraw your consent to receive notices electronically.

All notices to WingCash should be sent to:

WingCash, LLC.
5406 West 11000 North
Suite 103 PMB 101
Highland, UT 84003-8942

support@wingcash.com.

13. Intellectual Property.

“WingCash” and all logos related to the WingCash Service and other trademarks and logos on the WingCash Site are either trademarks or registered trademarks of WingCash or its licensors. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress or the copyrighted works of WingCash or its licensors. You may not copy, imitate or use any such items without WingCash’s prior written consent. All rights, title and interest in and to the WingCash Site, any content thereon, the WingCash Service, the technology related to the WingCash Site or WingCash Service, and any and all technology and any content created or derived from any of the foregoing is the exclusive property of WingCash or its licensors. You hereby grant us a license to use your name and logo in a list of participating merchants that we post on our Website or in other marketing materials that we post or distribute from time to time. We also may enter into promotions with you that we advertise on our Website and you hereby give us permission to use your name and logo in connection with any such promotions. All licenses granted by a party under this Agreement will cease upon termination of this Agreement and all related marketing materials will be revised accordingly in a reasonable timeframe thereafter. Merchant acknowledges WingCash’s rights in such the intellectual property and that it must not be copied, modified, transmitted, or used otherwise, neither for commercial purposes nor for further distribution, except as expressly permitted pursuant to this Agreement.

WingCash hereby grants Merchant a non-exclusive, revocable license to use the software and documentation solely as necessary to implement and use the WingCash Service. WingCash reserves all other rights.

14. Governing Law; Arbitration.

This Agreement will be governed in all respects by the laws of the State of Utah, without regard to conflict of law provisions. You and WingCash agree that any claim, dispute or controversy (“Claim”) by you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement, the WingCash Service or WingCash Pages, including Claims regarding the applicability of this arbitration provision or the enforceability of any part of the Agreement, will be resolved by binding arbitration by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The Claim will be heard before a single arbitrator upon whom we agree, or if we do not agree, an arbitrator who is selected by the AAA. For a copy of AAA’s Commercial Arbitration Rules, or to file a Claim or for other information, contact AAA at any AAA office, which are in most major cities in the United States, or online at www.adr.org, by mail at 335 Madison Avenue, 10th floor, New York, New York 10019, or by at telephone 1-800-778-7879. We will not invoke our right to arbitrate any individual Claim you choose to bring in small claims court or your state’s equivalent court, if any, so long as the Claim is pending only in that court and does not exceed $5,000. If you so request in writing, we will advance you the filing, administrative and hearing fees of the arbitration and allow the arbitrator to rule on which of us will ultimately be required to pay those costs.

The WingCash Service and WingCash Pages may involve interstate commerce, in which case this arbitration agreement will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”). Any arbitration hearing at which you appear will take place in the federal judicial district where you reside. The arbitrator will follow applicable substantive law to the extent consistent with the FAA, will honor applicable statutes of limitations, and will honor claims of privilege recognized at law. If requested by any party, the arbitrator will write an opinion containing the reasons for the award. The arbitrator’s decision will be final and binding except for any appeal rights under the FAA and except that if the amount awarded exceeds $100,000, any party may appeal the award within 30 days to a three-arbitrator panel which will review the award de novo. The costs of such an appeal will be borne by the appealing party regardless of the outcome. Judgment upon any award by the arbitrator may be enforced in any court having jurisdiction.

Nothing in this Agreement will be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.

This arbitration provision applies to all Claims now in existence or that may arise in the future. This arbitration provision will survive the cancellation of your Business Wallet and Business Profile and termination of this Agreement as well as voluntary payment in full by you, any legal proceedings by us to collect a debt owed by you or any bankruptcy by you. IN THE ABSENCE OF THIS ARBITRATION PROVISION, YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT AND TO HAVE A JURY TRIAL, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS. HOWEVER, EXCEPT AS OTHERWISE PROVIDED ABOVE, THIS ARBITRATION PROVISION REQUIRES THAT ALL CLAIMS BE RESOLVED THROUGH ARBITRATION. APPLICABLE ARBITRATION RULES MAY LIMIT PRE-HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS. NEITHER YOU NOR WE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER MEMBERS WITH RESPECT TO OTHER MEMBER OR MERCHANTS, OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

If for any reason the above arbitration provision is deemed to be invalid or unenforceable, then you agree that any claim or dispute you may have against WingCash must be resolved by a court located in Salt Lake County, Utah. You agree to submit to the personal jurisdiction of the courts located within Salt Lake County, Utah, for the purpose of litigating all such claims or disputes.

15. Indemnification.

You agree to defend, indemnify and hold harmless WingCash and its affiliates, agents, contractors, owners, officers, directors, employees and representatives from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that relates to or arises out of your breach of this Agreement and/or your use of the WingCash Service or the WingCash Site and/or your violation or other failure to comply with Applicable Law and for third party intellectual property infringement claims with respect to your Design.

16. Warranties; Disclaimers; Damages Exclusions; Limitations of Liability.

  1. Each of the parties represents and warrants to the other party that:
  1. This Agreement is valid, binding and enforceable against such party in accordance with its terms, except as such enforceability may be limited by Applicable Laws governing creditors’ rights and general principles of equity.
  2. Such party is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified and is properly licensed to do business in each jurisdiction in which the nature of such party’s activities makes such authorization or licensure necessary. Neither the execution of this Agreement nor such party’s performance of its obligations hereunder requires any consent, authorization, approval, notice to, license, or other action by or in respect of, or filing with, any third party or any regulatory authority.
  3. Such party has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement. The provisions of this Agreement and the performance by such party of its obligations under this Agreement are not in conflict with such party’s operative documents or any other agreement, contract, lease or obligation to which such party is a party or by which it is bound.
  4. Such party has not been subject to the following: (i) criminal conviction (except minor traffic offenses and other petty offenses) in the United States of America or in any foreign country; (ii) Federal or state tax lien, or any foreign tax lien; (iii) Administrative or enforcement proceedings commenced by the U.S. Securities and Exchange Commission, any state securities regulatory authority, U.S. Federal Trade Commission, federal or state bank regulator, or any other state or federal regulatory agency in the United States or in any other country; or (iv) restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of such party or any principal thereof.
  5. There is not pending or threatened against such party any litigation or proceeding, judicial, tax or administrative, the outcome of which might materially adversely affect the continuing operations of such party.
  6. You hereby represent and warrant that any Design you provide to WingCash does not and will not infringe any third party’s intellectual property rights.
  1. WARRANTY DISCLAIMERS. WINGCASH AND ITS AFFILIATES, AGENTS, CONTRACTORS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES PROVIDE THE WINGCASH SERVICE AND THE WINGCASH SITE “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND HEREBY SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT THERETO. IF WE DISCOVER AN ERROR IN OUR PROCESSING OF ANY TRANSFER, YOUR SOLE REMEDY AND OUR SOLE LIABILITY WILL BE TO REPROCESS THE TRANSFER FROM THE APPLICABLE WALLETS(S) SOLELY AS NECESSARY TO CORRECT THE ERROR.
  2. DAMAGES EXCLUSIONS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WINGCASH AND ITS AFFILIATES, AGENTS, CONTRACTORS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES HEREBY EXCLUDE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WINGCASH SERVICE, THE WINGCASH SITE, OR ANY SERVICES OR GOODS PURCHASED OR TRANSFERS ENTERED INTO OR THROUGH THE WINGCASH SERVICE.
  3. LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF WINGCASH AND ITS AFFILIATES, AGENTS, CONTRACTORS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSFERS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY, OR OTHERWISE, EXCEED THE LESSER OF THE AMOUNTS PAID BY MERCHANT FOR THE WINGCASH SERVICE DURING THE SIXTY (60) DAY PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM; PROVIDED, HOWEVER, THAT THE CUMULATIVE LIABILITY OF A PARTY WILL NOT EXCEED $50,000. THIS SUBSECTION D, HOWEVER, DOES NOT APPLY TO A PARTY’S INDEMNIFICATION, CONFIDENTIALITY OR PRIVACY OBLIGATIONS HEREUNDER OR IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY.

17. Survival.

All rights and obligations of the parties under this Agreement which by their nature are continuing will survive the expiration or termination of this Agreement for any reason, including without limitation, Sections 2.2, 4, 5, 7-10, and 13-23.

18. Force Majeure.

In no event will we be liable to you for any failure or delay by us (or our agents, contractors, owners, officers, directors, employees, representatives and other applicable third parties) in performing our obligations under this Agreement, regardless of whether the failure or delay is caused by an event or condition beyond our control.

19. Assignment.

You may not assign or transfer any rights or obligations that you have under this Agreement without our prior written consent. Any assignment or transfer in violation of this section will be deemed null and void. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.

20. Severability; No Waiver.

If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and, upon our request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement remains in full force and effect. We will not be deemed to have waived any of rights, power, or remedies hereunder except in writing signed by our authorized agents or representatives. The waiver by us of a breach of any term or provision of this Agreement by you will not be construed as a waiver of any subsequent breach.

21. Entire Agreement.

This Agreement, along with the documents incorporated by reference in this Agreement, constitute the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of you and us in connection with the subject matter of this Agreement.

22. Submissions.

Merchants may download copies of transfer records associated with a Business Wallet.  Otherwise, all  information, documents, photographs and other materials (collectively “Materials”) submitted to WingCash through the WingCash Site will be deemed and remain the property of WingCash and WingCash will be free to use, for any purpose, any such ideas, concepts, know-how, techniques or other information. You hereby assign all right, title and interest, in and to any such Materials to WingCash, including, but not limited to, any intellectual property rights therein.

23. Definitions.

Agreement” means this Business Member Agreement, as amended from time to time.

“Approved Jurisdictions” means individuals domiciled inside and outside of the United States.  

Applicable Law” means applicable federal, state and local laws, rules, regulations and guidances relating to the WingCash Service or Merchant’s implementation or use thereof.

“Business Wallet” means the public, globally unique, web address associated with your Business Profile on the WingCash Site and the WingCash Pages that reference that web address as the current holder.

“Business Profile” means the public, globally unique web address, that displays certain information about your business.  

“Brand Cash” means WingCash Pages branded and provided by the Merchant.

Member” means any natural person using the WingCash Service residing in one of the Approved Jurisdictions.

“Cash Design” means WingCash Pages displaying graphic images upload by you.

“Network” means a group of Merchants that have entered into a common agreement with a Provider to accept the WingCash Pages issued by that Provider.

“Network Member” means another Merchant or another Business Member of the WingCash Service

“Network Administrator” means the entity with responsibility for administering the Network.

Merchant” means a business that has established a Business Wallet and Business Profile and accepts payments for goods and/or services through the WingCash Service.

“Recipient” means the person or business that is not a Member or Business Member of the WingCash Service to whom you attempted a transfer.

“Vault” means the WingCash Pages that are both provided by you and held by you.

WingCash Page” means the electronic representation of cash used primarily for personal, family, or household purposes and issued by either a Merchant or a Financial Institution on the WingCash Site.

WingCash Service” means the payment processing service and any related products and/or services offered on the WingCash Site.

WingCash Site” means the website located at wingcash.com that hosts the WingCash Service.

COPYRIGHT © 2015 WingCash, LLC
ALL RIGHTS RESERVED.