Last Modified: June 11, 2018
As a current or prospective customer of the merchant(s) with whom You (“You”, “Your” or Customer”) have conducted or plan to conduct business (the “Merchant” or, if more than one, the “Merchants”) and that directed You to this website, (including paysimple.com, mypaysimple.com, and any other website where these Buyer Terms are posted the “Sites”), You have the option to use certain PaySimple services, which may include PaySimple’s invoicing service (the "Invoice Services"), PaySimple’s Appointment service (the Appointment Services”) and PaySimple's payment service, including any mobile device application created by PaySimple, our web-based payment application located at mypaysimple.com, and any other payment service that links hereto (the “Payment Services”). The Payment Services, together with the Sites, Appointment Services and Invoice Services, are referred to as our “Services”. As a condition of your use of any of these Services, you must agree to these Buyer Terms of Service, (the “Buyer Terms”)
1. DESCRIPTION OF SERVICE
The Services may include an online invoicing, payments, scheduling, and related services to assist the Merchant in its business. The Services may allow You to electronically receive invoices via email from the Merchant, and allow You to make electronic payment on such invoices, or to process other payments to a Merchant, using one of the electronic payment methods made available to You by the Merchant (for example, via payment card or automated clearing house (“ACH”)) or through our online portal. In either case, the payment will be charged to the payment card or bank account for which You provide account information and will be deposited into the bank account selected by the Merchant. From time to time, PaySimple may develop and incorporate other features into the Services. Your use of such additional features, if any, is governed by these Buyer Terms.
2. REPRESENTATIONS AND WARRANTIES; ACKNOWLEDGEMENTS
You represent and warrant to PaySimple and the Merchant, and You covenant, that: (a) the person who has applied to use the Services on Your behalf or on behalf of any company, organization or entity for whom You are using the Services to pay an invoice or process a payment, as applicable, has the power and authority to accept and enter into these Buyer Terms on Your behalf or on behalf of any company, organization or entity for whom You are using the Services to pay an invoice or process a payment, as applicable; (b) the Services or content contained on or available through the Services are not an endorsement of the Merchant by PaySimple; and (c) PaySimple is not responsible for any repercussions arising from Your use of the Services and You shall seek remedies arising from disputes in connection with invoices delivered to You, the amounts you are charged, and Your payment thereof, solely from the Merchant.
If You access the Sites to use the Services, You further represent and warrant to PaySimple, and covenant, that: (i) You are willing and capable of electronically receiving, reviewing, printing and saving all invoices, bills, receipts, materials, disclosures, terms or other content delivered to You through the Services and consent to the disclosure by the Merchant of the information and invoice details required to create and distribute invoices to, and receive payment from, You; (ii) You will provide Your complete and accurate information regarding payment information; (iii) Your liability for any payment You make through the Payment Services using a credit or debit card or ACH will be governed by the agreement for the credit or debit card company or bank You use.
3. INTERNATIONAL TRANSACTIONS AND CUSTOMER DATA
Generally. PaySimple, in its sole discretion, may accept and process payments and personal data which originate from certain customers and/or accounts located outside the United States. You acknowledge and agree that:
- PaySimple is located in the United States and Your personal information may be transferred to or processed in the United States;
- Using the system delete function to remove any of your personal data from PaySimple merely prevents you or the Merchant from viewing or utilizing that data for any system function. It does not delete the data from PaySimple systems. To have your personal data deleted from PaySimple systems, you must contact the Merchant or Merchants with which you conduct business via PaySimple and have the Merchant(s) make a written delete request to PaySimple.
- You may not provide information that you are not authorized to provide us under laws applicable to you in your jurisdiction;
- PaySimple may, at any time and without prior notice to You, cease processing transactions from and/or data relating to customers located in any country other than the United States.
EXCEPT TO THE EXTENT OF PAYSIMPLE’S REPRESENTATIONS, WARRANTIES OR COVENANTS EXPRESSLY SET FORTH IN THESE BUYER TERMS, YOUR USE OF THE SERVICE IN NON-US JURISDICTIONS IS AT YOUR OWN RISK AND PAYSIMPLE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO (I) PAYSIMPLE’S COMPLIANCE WITH APPLICABLE NON-US LAW; (II) THE LEGALITY OF THE USE OF THE SERVICE IN ANY NON-US JURISDICTION OR WITH REPECT TO THE INFORMATION OF ANY NON-US CITIZENS AND RESIDENTS; AND (III) THE LEGALITY OF ANY TRANSFER OF INFORMATION FROM ANY NON-US JURISDICTION TO PAYSIMPLE. PAYSIMPLE WILL NOT, DIRECTLY OR INDIRECTLY, BE LIABLE FOR ANY FINES, JUDGEMENTS, CLAIMS, PENALATIES, OR OTHER LIABILITIES (COLLECTIVELY, “LOSSES”) AS A RESULT OF PAYSIMPLE’S NON-COMPLIANCE WITH APPLICABLE LAW.
EU Privacy Laws. To the extent any EU resident’s personal data or personal data otherwise subject to EU law is knowingly processed hereunder (as defined by EU Privacy Laws, “EU Personal Data”), such processing may be subject to and treated in accordance with additional EU and US laws, including without limitation Directive 95/46/EC; Directive 2002/58/EC; the directives, agreements, and regulations comprising the US-EU Privacy Shield Framework; any other laws, regulations, or guidance applicable to each Party’s processing of EU citizens’ EU Personal Data; and as of the date of application, any successor law, directive, regulation (including without limitation Regulation 2016/679), or applicable implementation in an EU Member State of any the foregoing (“EU Privacy Laws”). For purposes of this paragraph, You acknowledge and agree that:
- PaySimple is the data “processor,” and the Merchant is the data “controller;”
- Merchant may be responsible for providing certain notices required under applicable EU Privacy Laws;
- Merchant may provide additional information and may set forth additional terms and conditions, or describe the Merchant’s own privacy practices, in separate agreements between you and the Merchant; and
- You shall not provide any personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and data concerning health or sex life, nor personal data relating to children under the age of 13 or the applicable age of minority in Your jurisdiction.
4. EXPORT COMPLIANCE
You must comply with applicable U.S., foreign, and international laws and regulations, including without limitation the U.S. Export Administration and Treasury Department's Office of Foreign Assets Control (“OFAC”) regulations, and other anti-boycott and import regulations. You acknowledge and agree:
- that the export, re-export, transfer, re-transfer, sale, supply, access to, or use of the Services to or in a country other than the U.S., or to, by, or for a different end user or end use, may require a U.S. or other government license or other authorization; and
- You will not use the Services in or for any sanctioned, embargoed, or prohibited countries, persons, or end uses, each as set forth under U.S. or other applicable law, including without limitation, for or on behalf of any person or entity located, organized, or residing in Cuba, Iran, North Korea, Sudan, or Syria, or any person or any entity otherwise controlled or owned, directly or indirectly, by any person currently included on the List of Specially Designated Nationals and Blocked Persons or the Foreign Sanctions Evaders List maintained by OFAC (collectively, “Prohibited Use“).
You represent and warrant that Your use of the Services does not involve any Prohibited Use, and You shall indemnify PaySimple for any violation by You of any applicable export controls and/or economic sanctions laws and regulations. PaySimple may terminate your access to and use of the Service immediately if PaySimple determines, in its sole discretion, that You have breached, intend to breach, or appear to be imminently breaching any of the provisions in this Section 6.
5. CHANGES TO TERMS OF SERVICE
PaySimple reserves the right to revise these Buyer Terms and the documents referenced herein at any time in its sole discretion and will notify the Merchant that changes to such documents have been made by sending an e-mail message to that effect. Unless you are using our Sites, it is the Merchant’s responsibility, and not that of PaySimple, to notify You of such changes. You may view the current version of the terms governing Your use of the Services by clicking on the appropriate link included in the footer of our Sites. Any changes shall be effective immediately after the time at which such changes are posted on the Sites. Your continued use of the Services after the terms have been changed constitutes Your affirmative acknowledgment of, and agreement to abide and be bound by, the modified terms and conditions.
6. LICENSE AND USE OF THE SITE
You are hereby granted a limited license to use during the Term (as described below) including making incidental copies arising from the operation of Your browser, the Services, the Sites and the content contained on the Sites solely to receive invoices and make payments. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works from, decompiling, reverse engineering, disassembling, transferring or using the Services or any content available on the Sites for any other purpose. Your license to use the Services is expressly conditioned on your compliance with applicable law, rules, regulations, and orders, and, and you represent and warrant that you comply with all such requirements, and you will not use the Services for any unauthorized and illegal purpose.
7. TERM, CANCELLATION, AND DATA RETENTION
These Buyer Terms, as amended, changed and modified from time to time, remain in effect until the earlier of (a) such time as You no longer use the Services to pay invoices or process payments and (b) such time as it is canceled or terminated, as provided herein (the “Term”). The Merchant and PaySimple each may cancel Your access to, or any aspect of, the Services at any time by providing written notice to You at the most current email address the Merchant or PaySimple, as applicable, has for You. You may discontinue use of the Services at any time by providing written notice to PaySimple via email at email@example.com or via facsimile at 303-395-1437.
8. PROPERTY RIGHTS
PaySimple and other third parties other than You, as applicable, own all rights, title and interest in and to Services and the Sites, and all portions thereof, including, without limitation, all intellectual property rights in connection therewith.
9. NO WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE AND ALL CONTENT MADE AVAILABLE ON OR THROUGH THE SITE OR VIA THE SERVICE ARE PROVIDED TO YOU BY PAYSIMPLE, AT THE REQUEST OF THE MERCHANT, ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. THE MERCHANT AND PAYSIMPLE MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE
THE MERCHANT AND PAYSIMPLE ARE NOT RESPONSIBLE FOR (A) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY INVOICE, OR OTHER BILL, APPOINTMENT, STATEMENT OR OTHER ITEM GENERATED THROUGH THE SERVICE OR (B) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY PAYMENT MADE THROUGH THE SERVICE.
OTHER THAN AS REQUIRED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL THE MERCHANT OR PAYSIMPLE, OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SERVICE OR ON INFORMATION OBTAINED THROUGH THE SERVICE OR THE SITE, OR BY YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE.
THE MERCHANT AND PAYSIMPLE DO NOT WARRANT THAT THE SITE IS COMPATIBLE WITH YOUR EQUIPMENT OR THAT THE SITE IS FREE OF VIRUSES, WORMS, BOTS OR ANY OTHER HARMFUL, INVASIVE OR CORRUPTED FILES.
10. LIMITATION OF LIABILITY
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES, SITES, CONTENT ON THE SITES, AND DESCRIPTIONS OF THE SERVICES PUBLISHED ON THE SITES OR LINKED SITES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND THE MERCHANT AND PAYSIMPLE SPECIFICALLY DISCLAIM ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. THE MERCHANT AND PAYSIMPLE DO NOT WARRANT OR REPRESENT THAT THE CONTENT ON THE SITES IS COMPLETE OR UP-TO-DATE. THE MERCHANT AND PAYSIMPLE ARE UNDER NO OBLIGATION TO UPDATE THE SITES, THE SERVICES OR THE CONTENT ON THE SITES. PAYSIMPLE MAY CHANGE THE SITES, THE SERVICES AND THE CONTENT CONTAINED ON THE SITES, AND MAY MAKE IMPROVEMENTS OR CHANGES THERETO, AT ANY TIME WITHOUT NOTICE.
YOU AGREE THAT THE NEITHER THE MERCHANT NOR PAYSIMPLE, NOR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICES OR LOST OPPORTUNITY) ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF THE SITES, THE SERVICES, THE CONTENT ON THE SITES OR LINKED SITES, OR ARISING OUT OF, OR IN CONNECTION WITH, THE DELAY OR INABILITY TO USE THE SITES OR LINKED SITES, EVEN IF THE MERCHANT OR PAYSIMPLE, OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WERE MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, WITHOUT LIMITATION, THE TRANSMISSION OF ANY VIRUSES THAT MAY INFECT A USER'S EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICES PROVIDER), UNAUTHORIZED ACCESS, THEFT, DATA LOSS, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE EVENT. THE MERCHANT AND PAYSIMPLE CANNOT, AND DO NOT, GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITES, THE SERVICES OR THE CONTENT RELATED THERETO.
11. VIOLATIONS OF SERVICE TERMS
The Merchant or PaySimple may, each in their respective sole discretions, immediately terminate Your use of the Services if it believes that You are violating or have violated these Buyer Terms or the terms and conditions of the other documents referenced herein. Any such termination will be without prejudice to any other rights that PaySimple may have against You arising from a violation of these Buyer Terms or of the other documents referenced herein.
The laws applicable to the use of the Sites and the interpretation of these Buyer Terms shall be the laws of the State of Colorado, United States, and applicable federal law, without regard to any conflict of law provisions.
You, the Merchant and PaySimple agree that any and all disputes, claims or controversies arising out of or related to the use of the Sites, the provision of the Services or these Buyer Terms, including any claims under any statute or regulation (“Disputes”), shall be submitted for binding arbitration. Unless the parties agree otherwise, any arbitration shall take place in the State of Colorado, City and County of Denver, and shall be administered by, and pursuant to the commercial arbitration rules of, the American Arbitration Association.
Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve Disputes and to make awards is limited to Disputes between You, the Merchant and PaySimple alone, and is subject to the limitations of liability set forth in these Buyer Terms. Disputes brought by either You, the Merchant or PaySimple against the other party(ies) may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by You, the Merchant and PaySimple. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this paragraph be stricken from these Buyer Terms or deemed otherwise unenforceable, then the entire section of these Buyer Terms labeled “Arbitration” shall be stricken from these Buyer Terms.
The provisions of the section of these Buyer Terms labeled “Arbitration” and all arbitration awards duly made in connection therewith may be enforced in a court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party(ies) against whom enforcement is ordered. All arbitration awards duly made under these Buyer Terms shall not be subject to review or appeal except as permitted by applicable law. Any provision of these Buyer Terms to the contrary notwithstanding (a) You, the Merchant or PaySimple may seek interim relief from a court located in the State of Colorado, City and County of Denver to protect such party’s rights or property while arbitration is pending, and (b) PaySimple may bypass the aforementioned arbitration process in cases of fraud or other crimes against PaySimple, interference with PaySimple’s technical operations or violations of PaySimple’s rights or property.
You are solely responsible for maintaining the confidentiality and security of the username(s) and password(s) for Your account(s) with the Merchants who use the Services, and You assume all liability for sharing or disclosing such username(s) and password(s). You agree to immediately contact the applicable Merchant if You become aware that the security of the username(s) and password(s) for Your account(s) with such Merchant may have been compromised or if there has been unauthorized access to the username(s) and password(s) for Your account(s) with such Merchant. You are solely responsible for all activity occurring under the username(s) and password(s) for Your account(s) with the Merchants who use the Services. Access to and use of password-protected and/or secure areas of the Sites and Services is restricted to authorized users only.
You acknowledge that this is an online service. A printed version of these electronically presented Buyer Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Buyer Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You agree that regardless of any statute or law to the contrary, any claim or cause of action You bring arising out of or related to Your use of the Services, or these Buyer Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Notwithstanding any cancellation or termination of these Services, or of Your account or Your enrollment, Sections 1-6, and 8-15 of these Buyer Terms shall survive any such cancellation or termination.
Your acceptance of these Buyer Terms and use of the Services do not create a joint venture, partnership, employment or agency relationship between You and PaySimple. You shall not represent in any way that You are in partnership with, are a joint venturer of, or have any employment of agency relationship with PaySimple. You may not assign, delegate or transfer Your rights or obligations under these Buyer Terms and any such prohibited assignment, delegation or transfer shall be null and void.
The section titles in these Buyer Terms are solely used for the convenience of the parties and have no legal or contractual significance.