Ok. Well I cannot tell you for certain who would be responsible. I can tell you that it will come down to the issue of whether this was teh fault of the user or the software.
I know nothing about this software, but if it is true that the user would have a reasonable expectation that the transactions should have settled automatically, you could argue that the software company is responsible for the loss.
Otherwise, the consumer is responsible. Even if it is the fault of the user and/or the software, teh consumer is still responsible. Just because there is a cc processing error, regardless of fault, the consumer still owes the debt, as they have the benefit of the service.
If you have been unsuccessful collecting from the consumer, you could try laying fault on the software, but it would require a lawsuit.
I see. I assumed you were the software user. My mistake.
It is a question of fact, only a jury or judge can answer the question, and the answer could be different every time you litigate it, which is why I cannot answer you definatively.
So the issue boils down to whether the merchant was negligent or whether the software was faulty. I don't have the answer because it is a question of fact.
But it is probable that the merchant's own negligence would have at least contributed to the problem. In some State's that completely precludes them from recovery. But in a majority of States, the award would be split according to the assignable negligence of each party.
So if $100k was lost, and it was 25% the fault of the merchant, the award would be $75k.
I cannot assign a fault percentage, but it does sound like the merchant had a great deal of control over this, and will end up carrying a large portion of the blame.
Which State is the merchant in? Or was there a forum selection clause in the contract?
You can ask follow ups after you accept. I will still be able to see and I will still respond.
I am in Indiana, it is a comparative negligence State, which means the award is divided by fault (the merchant's negligence is NOT an absolute bar to recovery).
Florida is also a comparative negligence state.
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