Program Terms of Service

This Program Terms of Service Agreement (the “Agreement”) is a legal agreement between you (“you,” “your”) and Square Capital LLC, a subsidiary of Square, Inc. (“Square Capital,” “we,” “our” or “us”). In consideration for being able to offer your customers an alternative way to finance a purchase from you while using Square Invoices, Square Capital, will create consumer loan offers that may be appended to your Square Invoices (the “Program”). By participating in the Program you agree to this Agreement, including terms that limit our liability and require individual arbitration for any potential legal dispute.

Upon your customer’s acceptance of a loan from Square Capital, Square Capital, as creditor on the loan, will instruct Square, Inc. to pay to you the amount due on the Square Invoice in accordance with your standard deposit schedule pursuant to the terms of the Square, Inc. General Terms of Service and any applicable Additional Terms.

Program Restrictions. By participating in the Program, you represent and warrant that:

• Your Square Invoice to your customer represents a bona fide sale of goods or services from your business to a third party customer;
• You will not use Square Invoices to send an invoice to, or otherwise bill, yourself (nor to any employee or affiliate of your business);
• You will not use your information, nor commingle your information with your customer’s information, to apply for a Square Capital loan;
• Square Capital will solely determine which, if any, Square Invoices you send will include a loan offer and whether any particular customer qualifies for a loan under the Program;
• Information concerning a loan offer from Square Capital will be as provided by Square Capital, and you will only discuss the Program with your customers in accordance with any policies, materials, and/or instructions provided to you by Square Capital; and
• You will not misrepresent any loan offer or the Program or otherwise induce a customer to fraudulently complete an application for a Square Capital loan.

Consent to Debit. In the event Square Capital, in good faith, determines you are in violation of the terms set forth in this Agreement Square Capital may cancel any affected Loan and require repayment by you of the applicable Square Invoice. Consequently, in addition to any other rights or remedies provided herein or under law, you agree that Square Capital will instruct Square, Inc. to debit your linked bank account or the funds held with Square, Inc. in the affected amount associated with the applicable Square Invoice(s).

Refunds. If your customer is entitled to a refund for a transaction where a loan was issued by Square Capital, or if a chargeback for such transaction is resolved in favor of the customer, pursuant to the Square, Inc. General Terms of Service and any applicable Additional Terms, you will provide such proceeds to Square Capital, either via your Square Account or as otherwise directed by Square Capital.

Modification, Suspension or Cancellation of Program. Square Capital reserves the right to modify, suspend or stop the Program or your participation in the Program (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. You agree that Square Capital shall not be liable to you or any third party for any modification or cessation of the Program. You acknowledge that Square Capital has no express or implied obligation to provide, or continue to provide, the Program, or any part thereof, now or in the future; and in addition, Square Capital may at any time, upon prior notice to you, institute charges or fees for the participation in the Program. If you wish to stop participating in the Program, you may do so by sending written notice to us at installments@squareup.com.

Disclaimer. THE PROGRAM IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, SQUARE CAPITAL SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SQUARE CAPITAL DOES NOT WARRANT OR GUARANTEE THAT THE PROGRAM IS ACCURATE, RELIABLE OR CORRECT; THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS; THAT THE PROGRAM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Indemnity. You will indemnify, defend, and hold us (and our respective employees, directors, agents, affiliates and representatives) harmless 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 arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (b) your wrongful or improper use of the Program; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Program with your unique name, password or other appropriate security code.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SQUARE CAPITAL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, SQUARE CAPITAL WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. UNDER NO CIRCUMSTANCES WILL SQUARE CAPITAL BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PROGRAM.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF SQUARE CAPITAL IS LIMITED TO $500.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SQUARE CAPITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

Arbitration Individual Arbitration. You and Square agree to arbitrate any and all disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST SQUARE CAPITAL. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration so long as their matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county where you reside. Otherwise, any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. We will pay the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Square Capital also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Program. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.

Governing Law. This Agreement and any dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within California, without regard to its choice of law or conflicts of law principles.

Other Provisions. This Agreement is a complete statement of the agreement between you and Square Capital regarding the Program. In the event of a conflict between this Agreement any other Square agreement or Policy, this Agreement will prevail and control the subject matter of such conflict. If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term.

You represent that you have all necessary power and authority to bind business associated with this Square Account to this Agreement.