Last Modified: August 16, 2019
EverCommerce Solutions Inc. DBA PaySimple, Inc ("PaySimple") requires You, including any entity on whose behalf You enter these Terms of Service (each, "You" or "Your") to agree and adhere to the following terms and conditions of Service ("Terms of Service") in connection with Your purchase and use of PaySimple’s services and user accounts (such services and user accounts referred to collectively as the “Service”). Certain sections of these Terms of Service apply specifically to certain features offered by PaySimple. Those sections do not apply to You unless You sign up for the specific Service to which they relate. By accessing or otherwise using the Service, You represent and warrant that You have the requisite capacity and authority to enter into these Terms of Service and indicate Your agreement, acknowledgment and acceptance of the Terms of Service and You agree and covenant to comply with all applicable laws, rules and regulations governing Your use of the Service.
- 1. DESCRIPTION OF SERVICE
- 2. REPRESENTATIONS AND WARRANTIES
- 3. INVOICE SERVICE AND PAYMENT SERVICE SPECIFIC TERMS
- 4. RESPONSIBILITY FOR DISCLOSURE OF BUYER TERMS OF SERVICE
- 5. LAWS AND REGULATIONS
- 6. CHANGES TO THESE TERMS OF SERVICE
- 7. ENROLLMENT; ONLINE ORDERS
- 8. LICENSE AND USE OF THE SITE
- 9. PRICING & PAYMENTS
- 10. TERM AND CANCELLATION
- 11. PROPERTY RIGHTS
- 12. NO WARRANTIES
- 13. LIMITATION OF LIABILITY
- 14. INDEMNIFICATION
- 15. VIOLATIONS OF SERVICE TERMS - TERMINATION
- 16. GOVERNING LAW
- 17. ARBITRATION
- 18. PRIVACY; ACCEPTABLE USE
- 19. DATA SECURITY, DATA USE AND DATA DELETION
- 20. INTERNATIONAL TRANSACTIONS AND CUSTOMER DATA
- 21. EXPORT COMPLIANCE & GOVERNMENT USE
- 22. FORCE MAJEURE
- 23. ENTIRE AGREEMENT/SEVERABILITY/WAIVER
- 24. NOTICES
- 25. GENERAL
1. DESCRIPTION OF SERVICE
The Service may include online invoicing, payment, scheduling, and related software services to assist in the management of Your business. The Service allows You to electronically generate and transmit invoices via email to Your customers ("Invoice Service"). If You have subscribed to that portion of the Service that provides for the collection of payments (the "Payment Service"), Your customers will be allowed to make, and You will be able to receive, electronic payments via various system features enabled by PaySimple (click-to-pay from system generated invoices, web page payment forms, manual entry, etc…) using one of the electronic payment methods enabled by a third party payment processor (for example, without limitation, via credit card or automated clearing house ("ACH") payments). The payment received by You will be credited to the bank account number that You provide (if You have subscribed to the Payment Service). PaySimple is a software services provider and not a payment processor. Any payment processing in connection with the Payment Service is provided by the applicable third party payment processor. From time to time, PaySimple may develop and incorporate other features into the Service, either in connection with existing features or on a stand-alone basis. Your use of such additional features, if any, is governed by these Terms of Service.
As part of the Service, PaySimple may make available to You additional features that allow You to integrate or use the Service with products and services provided by third-parties ("Add-On Features"). Add-On Features may be provided for a fee or at no charge. You agree that You will pay all applicable fees for the Add-On Features that You sign up for. PaySimple is not responsible for and does not endorse any third party products or services that You use in connection with the Service or an Add-On Feature. You understand that Add-On Features may impact Your use of the third products or services with which they integrate, and PaySimple is not responsible for, and shall have no liability in connection with such impact. All Add-On Features are provided "as-is" and are subject to those warranty disclaimers set forth in Section 12 of these Terms of Service and those limitations of liability set forth in Section 13 of these Terms of Service.
2. GENERAL REPRESENTATIONS AND WARRANTIES
You represent and warrant to PaySimple, and You covenant, that: (a) the person who has applied for the Service on Your behalf is at least eighteen (18) years old; (b) the person who has applied for the Service on Your behalf will access PaySimple’s website and/or mobile application (collectively the "Site") from a computer (and/or mobile device) with a U.S. IP address (and/or U.S. network connection) and is a U.S. citizen; and (c) the person who has applied for the Service on Your behalf is Your owner and has the full power and authority to enter into these Terms of Service on Your behalf.
You understand and acknowledge that the Internet is an inherently insecure medium and the reliability of hosting services, Internet intermediaries, Your Internet service provider and other service providers cannot be assured. When You use the Service, You represent, warrant and covenant that You accept these risks and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
3. INVOICE SERVICE AND PAYMENT SERVICE SPECIFIC TERMS
This Section 3 applies only if You have signed up for the Invoice Service or Payment Service or are in the process of signing up for the same. If You subsequently sign up for the Invoice Service or Payment Service, this Section 3 shall automatically apply to You and Your use of the Service.
3.1 Accuracy and Timeliness of Invoices. Invoices to be sent to Your customers created using the Service will be prepared using information that is provided by You. You are responsible for the customization of invoices created using the Service and the accuracy and completeness of all information on which invoices to Your customers are based, including, without limitation, the identity of, and contact information for, Your customers who are being invoiced, the transactions for which You are invoicing them, and the cost thereof, including applicable discounts. PaySimple will not entertain or handle disputes about the information provided by You on which invoices are based. You will be responsible for promptly handling any and all disputes with Your customers. It is solely Your obligation to inform PaySimple as to any errors contained in any invoices created using the Service. It is also solely Your obligation for determining the schedule on which invoices will be created and distributed. You must ensure that the schedule of invoicing that You select reflects the payment terms to which You have agreed with Your customers.
3.2 Enrollment and Online Orders. Enrollment to use the Invoice Service or Payment Service is not automatic. PaySimple reserves the right to reject any enrollment for any reason including, but not limited to, Your inability to meet applicable underwriting criteria. In the event You are not approved to open an account with PaySimple’s primary payment processor(s) (if You have subscribed to the Payment Service), or such payment processor(s) at anytime becomes unwilling to process payments with respect to Your account, PaySimple may submit Your signed application(s) and supporting documents to an alternate processor(s) for secondary review. Additionally, PaySimple reserves the right to change its primary processor(s) for credit card. ACH and/or other electronic payment processing at any time in its sole discretion. Upon approval by PaySimple’s alternate processor(s), or the change by PaySimple of its primary processor(s), You shall be provided an electronic copy of the terms and conditions applicable to the services provided by such processor(s), which shall be binding on You upon Your first electronic transaction processed by each such processor(s) (if You have subscribed to the Payment Service). Additional fees may apply.
3.3 Invoice Service and Payment Service Representations and Warranties. You represent and warrant to PaySimple, and You covenant, that: (a) You will provide complete and accurate information on which invoices issued in connection with the Invoice Service and Payment Service will be based and You will timely resolve any disputes in connection therewith; (b) the schedule that You select for invoicing reflects the payment terms to which You have agreed with Your customers; and (c) each of Your customers with respect to whom You utilize the Invoice Service or Payment Service have consented to receiving electronically all invoices, materials, disclosures, terms and other content delivered to them through such Services, are willing and capable of receiving, reviewing, printing and saving all such invoices, materials, disclosures, terms and other content, have consented to Your disclosure in connection with the Invoice Service and Payment Service of the information required to create and distribute invoices to Your customers, have consented to making payments through the Payment Service (if You have subscribed to the Payment Service), and have agreed to the Customer Terms of Service (as described below) prior to making a payment using the Payment Service (if You have subscribed to the Payment Service).
3.4 Fees. Set-up fees (if applicable) and monthly subscription fees may be charged for the Invoice Service and Payment Service. Transactional and merchant account fees may be charged in connection with transactions made using the payment acceptance options You selected when You applied for the Invoice Service and/or Payment Service, as such were provided in the enrollment materials, or in the payment acceptance agreement to which You are a party (if You have subscribed to the Payment Service). Set-up fees, transaction fees and the monthly subscription fees are subject to change without notice. Transactional and merchant account fees are subject to the terms and conditions contained in the applicable payment acceptance agreement(s) to which You are a party (if You have subscribed to the Payment Service). Unless otherwise stated on Your Merchant/Service Application (if You have subscribed to the Payment Service), any price quotation stated on Your Merchant/Service Application that is not accepted by You will expire thirty (30) days from the date of issuance. Additionally, You are subject to all fees pursuant to the terms of the applicable third-party payment acceptance agreements (if You have subscribed to the Payment Service).
3.5 Other Agreements. If You subscribe to the Payment Service, You will be required to accept and abide by terms presented to You by the applicable third party payment processor. These may include, without limitation, card acceptance agreements, ACH acceptance agreements or other electronic payment method agreements (collectively, “Payment Processor Terms”). The Payment Processor Terms are a legal agreement between You and the applicable payment processor only, and PaySimple is not subject to, or responsible for, the Payment Processor Terms.
4. RESPONSIBILITY FOR DISCLOSURE OF BUYER TERMS OF SERVICE
5. LAWS AND REGULATIONS
Your access to and use of the Service and the Site are subject to all applicable international, federal, state, and local laws and regulations. You may not use the Service or the Site, or any information, data or content available at or through the Service or the Site (collectively, "Content"), in violation of, or to violate, any law, rule or regulation. PaySimple does not make, and hereby disclaims, any representation that the Content is appropriate or available for use in any particular location, and access to Content from territories where the Content may be illegal is prohibited. Those who choose to access or use the Site and the Service do so at their own initiative and risk and are responsible for compliance with all applicable laws.
6. CHANGES TO THESE TERMS OF SERVICE
PaySimple reserves the right to revise, modify and supplement the content of the Site and these Terms of Service (and all other documents related hereto or described herein) at any time in PaySimple’s sole discretion. The latest Terms of Service or other applicable document will be posted to the Site and the date indicated as "Last Modified" at the beginning of these Terms of Service or with respect to any other modified document will be updated to reflect the date as of which the last of any such revisions, modifications and supplementation occurred. Your continued use of the Site and the Service from the date the modified version is posted to the Site shall be deemed to constitute Your affirmative acknowledgment of, and agreement to abide and be bound by, the modified terms, conditions and obligations therein. Therefore, You should regularly check the Site for updates and/or changes. If You object to any of these revisions, modifications or supplementations or become dissatisfied with the Service in any way, Your sole recourse is to immediately discontinue Your use of the Service and the Site.
PaySimple reserves the right to revise, modify and supplement the Customer Terms of Service at any time in PaySimple’s sole discretion. PaySimple will notify You of any such change to the Customer Terms of Service, and You shall promptly notify Your customers who are subject to the Customer Terms of Service of the change.
7. ENROLLMENT; ONLINE ORDERS
PaySimple reserves the right to reject any enrollment in the Service, or any portion thereof, for any reason. Your enrollment information must be accurate and complete, and You shall update enrollment information as necessary to keep it accurate and complete. You shall not misrepresent Your ownership, Your identity, the identities of Your authorized users of the Service or those whom You have authorized to act on Your Behalf, or any other enrollment information or information provided by You subsequent to the enrollment. Failure to provide accurate and complete information may result in the termination of Your ability to use the Service and result in errors.
PaySimple is not responsible or liable for any processing delays or damages which may result from any delays in the Service or Your enrollment therein. Enrollment is activated upon the earlier to occur of (a) Your receipt of the enrollment confirmation email including Your log-in information or (b) the time at which You first log into the password protected portion of the Site. The username and password provided in the enrollment confirmation email will be that which is assigned to the Primary Administrator for Your account (the "Primary Administrator").
You, the Primary Administrator and all other authorized users shall have a unique username and password. You, the Primary Administrator and any other authorized user of Your account, shall not use a username or password that PaySimple, in its sole discretion, deems offensive or inappropriate. You are solely responsible for maintaining the confidentiality and security of usernames and passwords for Your account, and assume all liability for sharing or disclosing such usernames and passwords. You agree to immediately contact PaySimple at email@example.com or 1-800-466-0992 if You become aware that the security of the usernames and/or passwords for Your account may have been compromised or if there has been unauthorized access to Your account or Your data. You are solely responsible for all activity occurring under the usernames and passwords for Your account. Access to and use of password-protected and secure areas of the Site and the Service is restricted to authorized users only.
8. LICENSE AND USE OF THE SITE
You are hereby granted a limited license during the portion of the Term (as described below) to utilize, including incidental copies arising from the operation of Your browser, the Service and Content solely as expressly permitted by PaySimple. You may only use the Service, the Site and the Content as directed in the tutorials on the Site. You may not resell or sublicense the Service, the Content, or any other services provided by PaySimple to any other person or entity. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works from, decompiling, reverse engineering, disassembling, transferring, or using the Service or the Content, or any other materials available on or through the Site for any purposes, except You may make print copies of the Content for Your own benefit and internal business use, but not for distribution to others. You agree that Your use of the Site is voluntary, non-assignable and non-transferable.
You may not (a) use the Site, the Content or the Service in any manner that could damage, disable, overburden, or impair the Site, the Content or the Service, nor may You use the Site, the Content or the Service in any manner that could interfere with any other person’s or entity’s use and enjoyment thereof, or (b) use any "robot," "spider" or other automatic device, or a program, algorithm, or methodology having similar processes or functionality, or any manual process to monitor or copy any of the Content or the Service, or any other materials found on the Site.
You hereby covenant and agree that You will not charge Your customers for access to Your invoices using the Service.
9. PRICING & PAYMENTS
All fees due in connection with the Service are non-refundable, whether such fees are set-up fees, transaction fees, monthly subscription fees, or other fees. Set-up fees, if any, are due upon activation of Your PaySimple account. Set-up fees, monthly subscription fee, transaction fees and custom programming fees, and all other fees owed by You to PaySimple, will be automatically debited from the bank account or other electronic payment method for which You have provided applicable account information and You hereby authorize PaySimple to perform all such debits. PaySimple’s prices and fees may include sales, use, service, value-added or like taxes. You shall pay applicable taxes, unless You have provided to PaySimple an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities. All payments must be made in United States dollars.
All sums not paid when due (as a result of non-sufficient funds ("NSF") or for any other reason) shall be subject to the NSF fee stated in Your Merchant/Service Application. Additionally, PaySimple reserves the right to accrue interest daily at the monthly rate of the lesser of 1.50% and the highest rate permissible by law on the unpaid balance until paid in full. In the event You fail to pay any sum when it is due (as a result of NSF or for any other reason), PaySimple reserves the right to disable the username(s) and password(s) for Your account, to cancel Your account and to pursue other collection or legal remedies.
In the event You wish to contest or dispute payment to, or collection by, PaySimple of any sums in connection with the Service, You must provide notice of such contest or dispute to PaySimple within sixty (60) days of the date on which any such sum becomes due.
Both You and PaySimple agree to be bound by NACHA Operating Rules as they pertain to any ACH transactions processed under these Terms of Service. You acknowledge that the origination of ACH transactions to any designated account must comply with the provisions of U.S. law.
10. TERM AND CANCELLATION
These Terms of Service remain in effect until canceled by either party, as provided herein (the "Term"). PaySimple may cancel these Terms of Service or any aspect of the Service at any time upon ten (10) days advance notice for any reason. PaySimple may cancel these Terms of Service with You or any aspect of the Service provided to You immediately if You breach any obligations required of You in these Terms of Service, or any of the documents described herein.
You may cancel or terminate Your account and use of the Service at any time, in which case, You must cease using the Service. Cancellation or termination of Your enrollment or account must be made in writing and/or sent via email to PaySimple at firstname.lastname@example.org or via fax at 303-395-1437. Notwithstanding the foregoing, cancellation of the Invoice Service and/or Payment Service may require Your completion of certain forms designated by the applicable payment processor(s).
11. PROPERTY RIGHTS
You acknowledge that PaySimple, or third parties other than You, as applicable, own all rights, title and interest in and to the Service and the Site, and portions thereof, including, but not limited to, all Intellectual Property Rights, and that the trademarks, logos and service marks ("Marks") displayed on the Site or through the Service are the property of PaySimple or such third parties. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You acknowledge and agree that no title to any Intellectual Property Rights of PaySimple or such third parties is transferred to You, and that You do not obtain any rights, express or implied, in the Site or the Content other than the rights expressly granted in these Terms of Service. The Content is protected by copyright and other Intellectual Property Rights. You are prohibited from using any Marks for any purpose including, without limitation, use as metatags on other pages or sites on the World Wide Web without the written permission of PaySimple or such third party that may own the Marks. You agree not to remove, obscure or alter the copyright notice, trademarks or other proprietary rights notices belonging to PaySimple or such third parties affixed to or contained within or accessed in conjunction with or through the Site. Your use of the Service, the Content or the Site is not an endorsement of You or Your business by PaySimple, and You shall not utilize the trademarks, logos or service marks of PaySimple or such third parties to suggest any endorsement or affiliation to them. You remain owner of all rights, title and interest in and to the Intellectual Property Rights in Your trademarks, logos and service marks. If You upload any trademark, logo or service mark, or other material, You thereby grant PaySimple a limited license to use such in conjunction with Your use of the Service, such as on Your invoices or web page displays generated by the Service, and to identify You as a user of the Service.
You agree that PaySimple’s service providers and suppliers are third-party beneficiaries of the above provisions, with all rights to enforce such provisions as if they were each a party to these Terms of Service.
12. 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 "AS IS" ON AN "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. PAYSIMPLE MAKES NO WARRANTY THAT (A)THE SERVICE WILL MEET YOUR REQUIREMENTS, OR (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
PAYSIMPLE DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY INVOICE, APPPOINTMENT, STATEMENT, OR OTHER ITEM GENERATED THROUGH THE SERVICE (B) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY INVOICE, OPINION, ADVICE, APPOINTMENT, OR STATEMENT MADE THROUGH THE SERVICE OR THE SITE BY ANY PARTY OTHER THAN PAYSIMPLE, (C) ANY CONTENT PROVIDED ON ANY THIRD PARTY SITE(S) LINKED TO THE SITE, OR (D) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM ANY THIRD PARTY SITE(S) LINKED TO THE SITE.
OTHER THAN AS REQUIRED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL PAYSIMPLE, OR ANY OF ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICE OR THE SITE, OR YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS YOUR SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE OR OBTAINED FROM A THIRD PARTY SITE LINKED TO THE SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE OR OTHER CONTENT.
PAYSIMPLE DOES NOT REPRESENT OR 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. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE UNIFORM COMMERCIAL CODE AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT SHALL NOT APPLY TO THESE TERMS OF SERVICE.
13. LIMITATION OF LIABILITY
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICE, SITE, CONTENT AND DESCRIPTIONS OF THE SERVICE PUBLISHED ON THE SITE OR A LINKED SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND PAYSIMPLE SPECIFICALLY DISCLAIMS ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. PAYSIMPLE DOES NOT REPRESENT OR WARRANT THAT THE CONTENT ON THE SITE IS COMPLETE OR UP-TO-DATE. PAYSIMPLE IS UNDER NO OBLIGATION TO UPDATE THE SITE, THE SERVICE OR THE CONTENT. PAYSIMPLE IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING ANY PAYMENT PROCESSOR. PAYSIMPLE MAY CHANGE THE SITE, THE SERVICE OR THE CONTENT, OR MAY MAKE IMPROVEMENTS OR CHANGES THERETO, AT ANY TIME WITHOUT NOTICE.
YOU AGREE THAT NEITHER PAYSIMPLE, NOR ANY OF ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES, WILL 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 SERVICE OR LOST OPPORTUNITY) ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF THE SITE, THE SERVICE, THE CONTENT OR A LINKED SITE, OR WITH THE DELAY OR INABILITY TO USE THE SITE OR A LINKED SITE, EVEN IF PAYSIMPLE OR ANY SUCH AFFILIATE, AGENT, OFFICER, DIRECTOR OR EMPLOYEE IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, WITHOUT LIMITATION, THE TRANSMISSION OF ANY VIRUSES THAT MAY INFECT YOUR EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G. YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, DATA LOSS, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE. PAYSIMPLE CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE, THE SERVICE OR THE CONTENT.
THE MAXIMUM AGGREGATE LIABILITY OF PAYSIMPLE, AND ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES, WILL BE THE GREATER OF (A) TWENTY DOLLARS ($20) AND (B) THE AMOUNT OF THE MONTHLY SUBSCRIPTION FEES PAID PURSUANT TO SECTION 9 HEREOF IN THE TWO (2) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO THE CLAIM.
You shall defend, indemnify and hold PaySimple, and its agencies, service providers, parent, subsidiaries, affiliates, officers, employees, directors, representatives and agents, harmless from any claim, cause of action or demand, loss, liability or damage (including reasonable attorneys’ fees, accounting fees and costs) made or brought by You or by any third party due to, or arising out of, any of the following: (a) Your use of the Site (or the use of the Site by Your customers), the Content or the Service or any other program offered on or through the Site; (b) the violation by You, or Your customers or anyone using Your computer or Your username and password, of these Terms of Service; (c) any user submission posted by You; or (d) the infringement or violation by You, or Your customers or anyone using the Service or the Site with Your computer or Your username and password, of any Intellectual Property Rights or other right of any person or entity; and (e) Your failure to comply with all data privacy and security laws, rules, regulations and guidance applicable to You or the information provided to You by PaySimple, including without limitation PCI DSS (as defined herein), and any law, rule, regulation, standard or guidance, or other condition or provision identified in Section 20, below. PaySimple reserves the right to exclusively defend and control the defense, settlement and resolution of any and all claims arising from the above causes and any such indemnification matters arising therefrom and You agree that You will fully cooperate with PaySimple in any such defenses and reimburse PaySimple for reasonable fees (including attorney’s fees) and expenses in connection therewith.
15. VIOLATIONS OF SERVICE TERMS - TERMINATION
PaySimple reserves the right to seek all remedies available at law and in equity for violations of these Terms of Service, including, without limitation, the right to block access from a particular Internet address to the Site or the Service. In addition, PaySimple may, in its sole discretion, immediately terminate Your use of the Site if it believes You are violating or have violated these Terms of Service or the terms and conditions of other documents described herein. PaySimple reserves the right to terminate the Service and these Terms of Service immediately for any or no reason without notice and without PaySimple incurring any liability. Any such termination will be without prejudice to any other rights that PaySimple may have against You arising from a violation of these Terms of Service or of the documents described herein.
16. GOVERNING LAW
The laws applicable to the use of the Site and the interpretation of these Terms of Service shall be the laws of the State of Colorado, United States, and applicable federal law, without regard to any conflict of law provisions.
You and PaySimple agree that any and all disputes, claims or controversies arising out of or related to the use of the Site, the provision of the Service or these Terms of Service, 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 and PaySimple alone, and is subject to the limitations of liability set forth in these Terms of Service. Disputes brought by either You or PaySimple against the other party may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by You 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 Terms of Service or deemed otherwise unenforceable, then the entire section of these Terms of Service labeled "Arbitration" shall be stricken from these Terms of Service.
The provisions of the section of these Terms of Service 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 against whom enforcement is ordered. All arbitration awards duly made under these Terms of Services shall not be subject to review or appeal except as permitted by applicable law. Any provision of these Terms of Service to the contrary notwithstanding (a) You 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.
18. PRIVACY; ACCEPTABLE USE
By using the Service, You must acknowledge and agree to the terms of:
- (b) the PaySimple Acceptable Use Policy which can be found online at: http://www.paysimple.com/aup.html
- (c) such other documents as required by PaySimple from time to time.
You consent to receive autodialed calls from or on behalf of PaySimple at any number provided to PaySimple, whether such number is directed at a residence, a business, a wireless telephone, or otherwise. You understand that this consent is not a condition of purchasing the products and services offered by PaySimple. If You prefer to use the Service without providing this consent, please contact us using the information provided in Section 25.
You hereby agree that we may share some or all of your Personal Information and PaySimple account status information with a parent company, subsidiaries, joint ventures, or other companies under common control with us (collectively, "Affiliates") and/or other third party referral partners working on behalf of PaySimple, so that these Affiliates and referral partners may offer and provide ancillary services that integrate with or complement PaySimple services. If you would like to opt-out of such sharing, please contact us using the information provided in Section 25.
19. DATA SECURITY, DATA USE, AND DATA DELETION
PaySimple adheres to Payment Card Industry Data Security Standards ("PCI DSS") and will maintain its PCI DSS certification as a service provider. PaySimple protects and secures cardholder data in our possession according to our responsibility under PCI DSS. To the extent that You have signed up for the Invoice Service, the Payment Service, or otherwise store, process, or transmit Cardholder Data (as defined in PCI DSS), You agree, during the Term, to comply with PCI DSS, undergo a yearly self-assessment and submit a yearly "Attestation of Compliance" or complete other certification processes and procedures as required by PCI DSS. You understand that The Service default security settings are configured in a PCI DSS Compliant manner, and that You are wholly responsible for ensuring that any changes You make to these security settings will not result in Your being out of PCI DSS compliance.
Further, to the extent applicable to You or the information disclosed to You by PaySimple, You agree that You will comply with all other applicable state, federal, and international laws, regulations, standards and guidance, relating to information security, including without limitation, Mass. 201 CMR § 17.00 et. seq.
You acknowledge and agree that any information You enter into the Service, including but not limited to customer contact information and financial account information, may be utilized by PaySimple for the sole purpose of providing the Service to You. You represent and warrant that You have all rights to provide any such data to PaySimple and to grant PaySimple the foregoing rights. You have the right, during the Term, to use any system export feature to retrieve data from the Service, but You understand that this export function does not include the ability to export full credit card account numbers or bank account numbers. Should You request export of this financial account information, You acknowledge and agree that PaySimple may provide this service at an additional fee but is under no obligation to do so.
You acknowledge that using the system delete function to remove any data related to your customer (such deleting a Customer Record or deleting a credit card or bank account from a Customer Record), or to remove any personal data about your company or its authorized Users (such as deleting a Staff profile), only restricts viewing that data from any system interface and prevents utilizing that data for any system function. It does not permanently delete the data from PaySimple systems. To have any personal data permanently deleted from PaySimple systems, you must make an official request in writing, to the address provided below or by emailing email@example.com, that includes the specific information that you would like permanently deleted from PaySimple systems. Note that PaySimple will require you to verify your identity prior to executing any request to permanently delete data.
20. INTERNATIONAL TRANSACTIONS AND CUSTOMER DATA
20.1 Generally. PaySimple, in its sole discretion, may accept and process on Your behalf payments and personal data which originate from certain customers and/or accounts located outside the United States. As a condition of our processing of such transactions/data on Your behalf and sharing with You any data collected in the course of those transactions, You acknowledge and agree to comply with all international law, rules, regulations, standards and guidance that are applicable to You and Your processing activities, including without limitation those relating to copyright law, information privacy and security, and any data storage/transfer requirements, and You warrant that any information You provide is compliant with all such applicable requirements. For the avoidance of doubt, you are solely responsible for:
- the provision of any notice and obtaining any individual’s consent if necessary for PaySimple to collect, disclose, transfer, or otherwise process Personal Information in connection with the Service, including without limitation the notice described in Section 20.2 and any consent necessary to allow PaySimple’s processing of relevant information in the United States and retention of full payment account and associated customer account information for an indefinite period.
- the documentation of any consents or other records that may be required to demonstrate Your legal obligations with respect to personal data and transactions processed using the Service.
- ensuring that You do not process Personal Information from individuals whose information cannot be processed using the Services.
- forwarding to PaySimple in writing any request you receive from an individual to delete their personal information from PaySimple systems, and confirming with PaySimple that the deletion has been performed. Note that using the system delete function to remove any data from the PaySimple system only restricts viewing that data from any system interface and prevents utilizing that data for any system function. It does not permanently delete the data from PaySimple systems.
- ensuring the suitability of and implementing any PaySimple-system features, functions, plugins, or tools (if any) made available for the purpose of obtaining customer consent, provided however, PaySimple shall not be required to provide, maintain, or modify any such features, functions, plugins or tools in order for You to process Personal Information hereunder.
EXCEPT TO THE EXTENT OF PAYSIMPLE'S REPRESENTATIONS, WARRANTIES OR COVENANTS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE OR A WRITTEN AGREEMENT BETWEEN YOU AND PAYSIMPLE, 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, AND YOU WILL INDEMNIFY PAYSIMPLE FOR SUCH LOSSES AS SET FORTH IN SECTION 14.
20.3 Marketing. Compliance with any laws relating to the use of personal data for marketing or other commercial purposes is Your responsibility. PaySimple does not collect information on behalf of customers for marketing and commercial purposes and makes no representation or warranty regarding any user's consent to receive any marketing or commercial messages. Your use of any information provided by PaySimple for marketing purposes is at Your own risk and PaySimple shall not be liable for failure to obtain any consents required under applicable law.
20.4 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") , the Parties acknowledge that such processing may be subject to 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 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 Section 20.4, PaySimple shall be the data "processor," and You shall be the data "controller." With respect to any EU Personal Data processed under these Terms of Service, each party represents and warrants that it complies, and shall maintain compliance, with all EU Privacy Laws applicable to the Party in the context of its role as a data processor or controller. To the extent EU Personal Data is processed or transferred outside the European Economic Area, each Party shall ensure that the party receiving or processing such data provides "adequate" protection of EU Personal Data it processes under these Terms of Service, for example, through certification under the EU-U.S. Privacy Shield program or other appropriate "adequacy" mechanism. Notwithstanding anything to the contrary in this paragraph, You are responsible for providing any notices required under applicable EU Privacy Laws, including without limitation notifying EU data subjects that their personal data may be stored indefinitely by PaySimple, and that personal data may be processed in the United States. You shall not transmit or permit to be transmitted to PaySimple any EU Personal Data which has not been collected in compliance with EU Privacy Laws, 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 the data subject's jurisdiction. Each party may process EU Personal Data only as necessary to perform its obligations under these Terms of Service and in accordance with the applicable legitimate basis for processing and applicable EU Privacy Laws. Each party must protect EU Personal Data from unauthorized use, access, disclosure, modification, or deletion, using reasonable and appropriate security measures. In the event a Party intends to transfer EU Personal Data to any third party, prior to the transfer of such EU Personal Data, each party shall ensure that the recipient(s) are obligated in writing to protect and process all EU Personal Data in accordance with these Terms of Service and all applicable EU Privacy Laws. Each party shall cooperate with the other, to the extent necessary in the context of the Party's processing activities, to give effect to data subjects' rights under EU Privacy Laws, including without limitation, applicable data subject rights of access, rectification, deletion, portability, etc. Similarly, each party shall cooperate with the other, to the extent reasonably necessary, in connection with any investigations, actions, claims, inquiries, or other proceedings by relevant EU data protection authorities. In the event a Party (or a third party to whom a Party discloses EU Personal Data) is unable to comply with the protections set forth in this Section 20.4 or the EU Privacy Laws, the Party shall promptly notify the other Party and either (i) promptly take all steps necessary to comply with this Section 20.4 and all applicable EU Privacy Laws, or (ii) cease processing all EU Personal Data.
20.5 Canada Privacy Laws. If we process on Your behalf any personal data (as defined by applicable law) of individuals located in Canada, You agree to comply with the Canada Anti-Spam Law (CASL), the Personal Information Protection and Electronic Documents Act (PIPEDA) (including any provincial analogues), and all implementing regulations.
21. EXPORT COMPLIANCE & GOVERNMENT USE
You must comply with 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 agree: (i) that the export, re-export, transfer, re-transfer, sale, supply, access to, or use of the Service to or in a country other than the country in which the Service was first provided to You, 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 (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of Service to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other applicable law, including without limitation, to any person or entity located, organized, or residing in Cuba, Iran, North Korea, Sudan, or Syria, or to 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 are responsible for screening for Prohibited Use and obtaining any required licenses or other authorizations and shall indemnify PaySimple for any violation by You of any applicable export controls and/or economic sanctions laws and regulations. PaySimple may terminate the Agreement and License 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 clause.
You agree that the Service and any derivatives thereof are "Commercial Items" as defined in 48 C.F.R. § 2.101, and if You are the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to these Terms of Service and any related agreement(s), as applicable. Accordingly, You will have no rights in or to the Service except as expressly agreed to in writing by You and PaySimple.
22. FORCE MAJEURE
PaySimple shall not be responsible for delays, nonperformance, damages, lost profits or other losses caused directly or indirectly by any Act of God, including, without limitation, fires, earthquakes, tornadoes or hurricanes, as well as wars, labor disputes, communication failures, legal constraints, power outages, data transmission loss, data loss, failure or interception, incorrect data transmission or any other event outside the direct control of PaySimple.
23. ENTIRE AGREEMENT/SEVERABILITY/WAIVER
These Terms of Service, the documents and policies referenced herein, and any other terms and conditions on the Site, constitute the entire agreement between You and PaySimple with respect to the Site and govern Your use of the Site. If any provision(s) of these Terms of Service is found by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of You and PaySimple, and the other provisions of these Terms of Service shall remain in full force and effect. PaySimple’s failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by PaySimple in writing. These terms may not be altered, supplemented, or amended by You without the prior written consent of PaySimple.
You must send any notices or other communications required or permitted under these Terms of Service to PaySimple in writing via email at firstname.lastname@example.org or via facsimile at 303-395-1437. PaySimple may send any notices to You to the most recent e-mail address You have provided to PaySimple or, if You have not provided an e-mail address, to any e-mail or postal address that PaySimple believes is Your address.
You acknowledge this is an online service. A printed version of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You are solely responsible for ensuring that each of Your customers who receives invoices using the Service has consented to, is willing and capable of receiving, reviewing, printing and saving all materials, disclosures, terms or other content You deliver to them through the Service and has consented to Your use and disclosure of the information required to create and distribute invoices to such customer.
Notwithstanding any cancellation or termination of this Service, or of Your account or Your enrollment, Sections 1-5 and 10-24 of these Terms of Service shall survive any such cancellation or termination.
PaySimple reserves the right to modify or discontinue the Site with or without notice to You. PaySimple shall not be liable to You or to any third party in the event that it exercises the right to modify or discontinue the Site.
Your acceptance of these Terms of Service and use of the Site 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 venture of, or have any employment of agency relationship with PaySimple. You may not assign, delegate or transfer Your rights or obligations under these Terms of Service and any such prohibited assignment, delegation or transfer shall be null and void.
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 Site, the provision of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in this Terms of Service are solely used for the convenience of the parties and have no legal or contractual significance.
26. CONTACTING US
3601 Walnut Street, Suite 410
Denver, CO 80205