2.1 "Affiliates" means an entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party of this Agreement, by way of majority voting equity ownership. Affiliates DO NOT include clients of PAYWHIRL who have signed up for the Partner Program.
2.2 "Customer Data" means all electronic data or information submitted by the Business, or its Customers or Affiliates to, and stored by, the Hosted Service.
2.3 "Documentation" means the reference, administrative and user manuals which are published by PAYWHIRL and provided by PAYWHIRL to Business with the Hosted Service, which may be updated from time-to-time, but excluding any sales or marketing materials.
2.4 "Electronic Communications" means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Hosted Service.
2.5 "Initial Term" means the first month, excluding any renewal terms.
2.6 "Registration Process" means the process in which Customer creates an account by providing Customer's information and login information on the PAYWHIRL website and clicking the "Create my account" button at the bottom of the page.
2.7 "Plan" means the collection of Hosted Services chosen at an agreed upon price through the Registration Process.
2.8 "Term" means the Initial Term of one month and any renewal terms.
2.9 "3rd Party Applications" means online, Web-based applications or services and offline software products that are provided by 3rd parties, and interoperate with the Hosted Service.
2.10 "Payment Gateway Service Provider" means the 3rd Party Application that connects to the Hosted Service for the purpose of credit card payment processing. PAYWHIRL utilizes the services of Stripe, Braintree, Authorize.Net and/or Spreedly as necessary 3rd Party Applications for the processing of all credit card transactions made through the Hosted Service.
2.11 “Customer” means any individual person, persons or business entity that purchases products or services from the Business and utilizes the Hosted Service to facilitate payment to the Business.
2.12 “Monthly Fees” means the set fee that the Business agreed to pay each month by completing the Registration Process. The Monthly Fee is charged each month regardless of the number of transactions made by the Business.
2.13 “Transaction Fees” means the fee that is accumulated based on each transaction made on behalf of the Business and charged as a percentage of those transactions. The specific rate charged on each transaction is the rate agreed to by the Business at the completion of the Registration Process.
3. General Terms of Access to the Hosted Service.
3.1 License. Subject to the terms of this Agreement and payment of the applicable fees, you are granted a nonexclusive, nontransferable right during the Term (as defined in Section 2.8 - Term) to use the Hosted Service subject to the terms, conditions and restrictions set forth in these Terms and any other restrictions stipulated to you in the Agreement or by us in writing.
3.2 Commencement of Term. The Term of this Agreement shall commence as of the date you first register for, access or use the Hosted Service, and shall continue until terminated as set forth in Section 13 - Termination With or Without Cause, Expiration.
3.3 Business Must Have Internet Access. DSL, cable or another high-speed Internet connection is required for proper transmission of the Hosted Service. You are responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect your network to the Hosted Service, including, but not limited to, "browser" software that supports protocols utilized by the Hosted Service. PAYWHIRL assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by PAYWHIRL.
3.4 Accuracy of Business's Contact Information. You shall provide PAYWHIRL with accurate, current and complete information on your legal business name, address, email address, and phone number, and, throughout your subscription, you shall maintain and promptly update this information if it should change. The Business shall provide verification of the information provided, both initially and with any update to that information. The Business’s failure to provide accurate and updated contact information and to verify that information may result in a freeze placed on the Business’s account by PAYWHIRL. In the event that PAYWHIRL must impose a freeze on the Business’s account under the circumstances stated in this provision, PAYWHIRL shall not be held liable for any resulting damages to the Business or any of its Customers resulting from the Business’s account being frozen.
3.5 Businesses: Passwords, Access, and Notifications. Your login information may be reassigned between employees of the Business as needed. Business shall use commercially reasonable efforts to prevent unauthorized access to or use of the Hosted Service and any loss or theft or unauthorized use of any Business password or name and/or the Hosted Service account numbers. PAYWHIRL is not liable for any harm caused by or related to the theft of Your IDs, Your disclosure of your IDs, or your authorization to allow another person to access and use the Hosted Service using your IDs. Also, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Hosted Service. You agree to immediately notify PAYWHIRL of any unauthorized use of your account or any breach of security known to You. You acknowledge that the complete privacy of your data and messages transmitted while using the Hosted Service cannot be guaranteed.
3.6 Use of the Hosted Service. Business is responsible for all activities conducted by its employees, its employees’ Electronic Communications and for its employees' compliance with this Agreement, including the content of all Customer Data.
3.8 Agreement to Pay Fees. You agree to pay for the Hosted Service in accordance with our service fees, as further set forth below in Section 7 - Payment Terms; Taxes, and your Plan.
3.9 Billing Data Retention. Following any termination or expiration of this Agreement or your PAYWHIRL account, PAYWHIRL will retain a copy of your billing data for a period of thirty (30) days. You acknowledge and agree that (i) you are solely responsible for exporting a copy of your billing data prior to any such termination or expiration and (ii) if you require access to such data following any such termination or expiration, you may be required to pay professional service fees to PAYWHIRL to retrieve such data.
3.10 Test Gateway and Sandbox Server. Business agrees to use PAYWHIRL’s Test Gateway and Sandbox Server to determine functionality of Business’s chosen settings prior to providing Customers with access to, and use of, the Hosted Service. Business agrees to use PAYWHIRL’s Test Gateway and Sandbox Server to determine functionality of any subsequent additions and/or modifications from Business’s initial settings and prior to implementing those additions and/or modifications. Any loss of functionality of PAYWHIRL’s Hosted Service and resulting losses to Business or its Customers resulting from a failure to use the Test Gateway and Sandbox Server to test functionality in accordance with this provision shall be the sole responsibility of Business and PAYWHIRL shall not be held liable for said losses occurring as a result of noncompliance. Business’s utilization of PAYWHIRL’s technical support shall not override this provision.
3.11 Second Payment Services Directive (“PSD2”) and Strong Customer Authentication (“SCA”) Requirements. This provision applies solely to Businesses who have one or more Customers located within the European Economic Area and, therefore, may have transactions requiring compliance with the PSD2 and SCA requirements. Business has the sole responsibility to verify that Business’s Customers’ transactions are being processed correctly and that said transactions are not rejected due to noncompliance with the PSD2 and SCA requirements. PAYWHIRL takes measures to facilitate and simplify Business’s and Customers’ compliance with any regulations, including the PSD2 and SCA requirements. Due to the nature of the PSD2 and its SCA requirements, it is not possible for PAYWHIRL to ensure that every transaction is authorized by each individual banking institution because of the level of discretion that each banking institution has to authorize individual transactions. When a Customer saves a credit card for recurring payments on the Hosted Service, PAYWHIRL and Business’s selected Payment Gateway Service Provider will at times be able to verify that PSD2 and SCA requirements apply and will direct Customers through SCA at that time; however, PAYWHIRL does not make any affirmations that any SCA requirements will be satisfied at the time Customers’ credit cards are stored for recurring payments. In the circumstances where PAYWHIRL and Customers’ selected Payment Gateway Service Provider cannot determine that the PSD2 and SCA requirements apply to Customer at the time Customers’ credit cards are stored on the Hosted Service, PAYWHIRL’s Hosted Service will automatically generate an email to the email address provided by that specific Customer that informs Customer the transaction has been rejected and directs Customer to complete SCA in order to authorize the transaction. PAYWHIRL and Customer’s selected Payment Gateway Service Provider will file any subsequent recurring transactions under the applicable exemption to SCA requirements. However, the banking institutions’ discretion provides the possibility that any request for exemption may be rejected. If an exemption is rejected by a banking institution, PAYWHIRL’s Hosted Service and Customer’s selected Payment Gateway Service Provider will automatically generate an email to the email address provided by that specific Customer that provides notice to Customer that the transaction has been rejected and directs Customer to complete SCA in order to authorize the transaction.
Business and Customers maintain sole responsibility for ensuring compliance with the PSD2 and SCA requirements in accordance with its local application, interpretation and enforcement. PAYWHIRL provides sample text for Business to use when creating notifications for Customers regarding the PSD2 and SCA. PAYWHIRL does not certify that said text is appropriate to satisfy the legal requirements of the PSD2 or SCA requirements in Business’s, or Customer’s, location.
For more information regarding the PSD2 and SCA requirements and how the Hosted Service helps to facilitate regulated transactions, please visit https://docs.paywhirl.com/PayWhirl/en/articles/3294560-does-paywhirl-support-strong-customer-authentication-sca-and-3d-secure-psd2.
4.1 Confidential Information. For purposes of this Agreement, "Confidential Information" shall include Customer Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Hosted Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which:
(1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a 3rd party not bound by nondisclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party's Confidential Information; or (6) is aggregate data regarding use of PAYWHIRL's products and services that does not contain any personally identifiable, Business-specific or Customer-specific information.
4.2 Non-Disclosure Obligations. Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a degree of care in the protection of such Confidential Information) and (d) to make Confidential Information available to authorized persons only on a "need-to-know" basis. Either party may disclose Confidential Information on a "need-to-know" basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
7. Payment Terms; Taxes.
7.1 Payment Terms. If you subscribe to the Hosted Service, for all charges associated with the Hosted Service, PAYWHIRL will bill the credit card or bank account that you provided for such purpose. You agree to provide PAYWHIRL with accurate and complete billing information, including valid credit card or bank account information, your name, address and telephone number, and to provide us with any changes in such information within 30 days of said change taking effect. PAYWHIRL will submit your Customers' payment information to your selected Payment Gateway Service Provider and will charge you a fee based on the dollar amount of the transactions processed by the Hosted Service. Monthly charges for the Hosted Service will be at the rates set forth by Hosted Service type and agreed upon by you in the Registration Process when you select your preferred Plan. Unless otherwise specified on the Hosted Service, any fees which are calculated as a percentage of Customer billings shall be calculated based on gross billings (i.e., following the addition of any sales or similar taxes that are applicable to such billings). Such charges may be modified by PAYWHIRL upon thirty (30) days prior written notice. Payments reflecting subscription fees for the prior month's use of the Hosted Service will be billed by PAYWHIRL and deducted from your authorized credit card or bank account promptly following the end of your Initial Term and every 30 days after your Initial Term until your use of the Hosted Service is terminated, or shall otherwise be due and payable in accordance with PAYWHIRL's then-current payment policies. Prices established in the Agreement, and in any schedule, exhibit or related agreement hereto, are exclusive of taxes and other fees which may be imposed on PAYWHIRL or you for the provision or use of the Hosted Service. You agree that until your subscription to the Hosted Service is terminated, you will continue to accrue charges for which you remain responsible, even if you do not use the Hosted Service.
7.2 Credit Card Company/Banking Institution Refusal to Pay. If, for any reason, your credit card company or banking institution refuses to pay the amount billed for the Hosted Service, you agree that we may, at our option, suspend or terminate your subscription to the Hosted Service and require you to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts.
7.3 Merchant Bank Account Fees. If you are using the Hosted Service to conduct credit card transactions through a 3rd Party Application connected through PAYWHIRL, as set forth in Section 2.10 - Payment Gateway Service Provider, you shall set up and maintain an account that is capable of receiving funds through a merchant bank account ("Merchant Bank Account"). You are responsible for your own Merchant Bank Account fees in addition to fees set forth hereunder. PAYWHIRL may help you apply for a Merchant Bank Account or you may bring an existing Merchant Bank Account, but any fees associated with such Merchant Bank Account are your responsibility and are not included in PAYWHIRL's fees. All fees associated with your chosen Payment Gateway Service Provider are also separate and not included in PAYWHIRL's fees. Without limiting any remedy available to PAYWHIRL, if you fail to pay any fees due hereunder, PAYWHIRL may suspend your access to the Hosted Service.
7.4 Liability for Cost of Collection. In the event legal action is necessary to collect on balances due, you agree to reimburse PAYWHIRL for all expenses incurred to recover sums due, including, but not limited to, attorney fees and other legal expenses.
7.5 Timing of Transaction Fee Charges. The different Payment Gateway Service Providers that PAYWHIRL utilizes for the purpose of credit card processing, as set forth in Section 2.10 - Payment Gateway Service Provider, maintain their own rules as to the timing that the TRANSACTION FEE CHARGES are due. The date that the Business’s TRANSACTION FEE CHARGES are collected is determined by Business's chosen Payment Gateway Service Provider at the time of registration for the Hosted Service. TRANSACTION FEE CHARGES accrued during a Business’s use of the trial period shall be charged to the Business in the same manner as any other TRANSACTION FEE CHARGES and that trial period shall have no effect on the timing of the TRANSACTION FEE CHARGES. The timing at which each Payment Gateway Service Provider collects its TRANSACTION FEE CHARGES is provided as follows, but is subject to change at any time:
7.6 Liability for Fraudulent Actions. PAYWHIRL is not liable for any losses relating to fraudulent charges by you or your Customers that are deceptive or fraudulent ("Fraudulent Actions"). By using the Hosted Service, you hereby release PAYWHIRL from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify PAYWHIRL of any Fraudulent Actions which may affect the Hosted Service. PAYWHIRL reserves the right, in its sole discretion, to terminate your account if you engage in, or permit any of the Business’s Customers to engage in, Fraudulent Actions.
7.7 Liability for Chargebacks Not Resulting from Fraudulent Actions. PAYWHIRL is not liable for any losses relating to chargebacks or otherwise invalid transactions. By using the Hosted Service, you hereby release PAYWHIRL from any liability arising from chargebacks or otherwise invalid transactions. You will also use best efforts to promptly notify PAYWHIRL of any chargebacks or otherwise invalid transactions which may affect the Hosted Service.
7.8 Taxes. All fees payable under the applicable Plan are exclusive of and do not include taxes or duties of any kind. You will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or your receipt or use of the Hosted Service, excluding taxes based on PAYWHIRL's gross or net income. If Business is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Business will provide PAYWHIRL with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
8. Hosted Service Use and Limitations.
8.1 Continuation of Hosted Service. We will make reasonable efforts to keep the Hosted Service operational 24 hours a day for 7 days a week, except for planned downtime (of which we will use reasonable efforts to provide at least 72 hours prior notice).
8.2 Payment Gateway Service Provider Availability. We will be sending information to your Payment Gateway Service Provider; however, we make no representation as to the availability of your Payment Gateway Service Provider and are not responsible for any downtime or system outage of your Payment Gateway Service Provider.
8.3 Access to Funds Collected from Subscription Fees. PAYWHIRL is a subscription management and billing software service. You acknowledge and agree that: (i) We are not a bank or other chartered depository institution; and (ii) we will not be holding any monies for you or your Customers. Accordingly, you agree that we will not be responsible or liable for any amounts related to any credit card or payment transaction and we are not responsible for retaining or handling any funds in relation to credit card or payment transactions to satisfy an obligation to a 3rd party that you have assigned those rights to.
8.4 Affirmation of Legal Use of the Hosted Service. You represent, warrant and agree that you will only use the Hosted Service in compliance with all applicable laws and regulations, and that you will not use the Hosted Service to violate, infringe or misappropriate any intellectual property or other proprietary right of any 3rd party (including, without limitation, any rights of privacy or publicity).
9. 3rd Party Products & Services. The Hosted Service may provide you with access to, be integrated with, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by 3rd parties (collectively, "3rd Party Products or Services"). 3rd Party Products or Services are not under PAYWHIRL's control, and you acknowledge that PAYWHIRL is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such 3rd Party Products or Services. You shall comply with all 3rd party terms, and shall indemnify and hold PAYWHIRL harmless from all damages, costs, settlements, attorneys' fees and expenses arising from or related to your breach of any 3rd party terms. Any provision by PAYWHIRL of 3rd Party Products or Services, and any exchange of data between you and any 3rd party provider of 3rd Party Products or Services, is solely between you and the applicable 3rd party provider. If you install or enable 3rd Party Products or Services for use with the Hosted Service, you agree that PAYWHIRL may allow such 3rd Party Products or Services to access Customer Data as required for the interoperation of such 3rd Party Products or Services with the Hosted Service, and any exchange of data or other interaction between you and a 3rd party provider is between you and such 3rd party provider. The continued availability of the 3rd Party Products or Services is subject to the continued effectiveness and terms of the contract between PAYWHIRL and the 3rd party provider.
Please note that these terms, or the links thereto, are subject to change at any time at the discretion of the Payment Gateway Service Providers.
10. Disclaimer of Warranties.
10.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE HOSTED SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PAYWHIRL AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.2 PAYWHIRL MAKES NO WARRANTY THAT (I) THE HOSTED SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE HOSTED SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THAT ANY DEFECTS IN THE HOSTED SERVICE WILL BE CORRECTED, OR (IV) THAT THE HOSTED SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE HOSTED SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
10.3 YOU UNDERSTAND THAT IN USING THE HOSTED SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH 3rd PARTY INFRASTRUCTURES WHICH ARE NOT UNDER PAYWHIRL'S CONTROL (SUCH AS A 3rd PARTY'S SERVERS). PAYWHIRL MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH 3rd PARTY INFRASTRUCTURES.
10.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HOSTED SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
10.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PAYWHIRL OR THROUGH OR FROM THE HOSTED SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11. Limitation of Liability.
11.1 Except in circumstances where the Business refunds individual transactions to Customers, your exclusive remedy and our entire liability, if any, for any claims arising out of the Agreement and your use of the Hosted Service shall be limited to the amount you paid us in Monthly Fees for the Hosted Service during the ONE-MONTH PERIOD prior to the act giving rise to the liability. Under no circumstances will our liability be greater than the Monthly Fees associated with that SINGLE MONTH, except where the Business refunds transactions to the Customer, in which case, the Business may seek the amount of Transaction Fees charged that specifically relate to the refunded transactions. TRANSACTION FEES ARE NONREFUNDABLE UNDER ANY OTHER CIRCUMSTANCES.
11.2 EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. Modification and/or Amendment and Suspension of Hosted Service.
12.1 Modification/Amendment of Hosted Service. We reserve the right to either modify or amend the Hosted Service, including any features therein, at any time WITHOUT NOTICE to you. We shall not be liable to you or any 3rd party should we exercise such rights. If you don't agree with the modified and/or amended Agreement, you have the right to reject it; however, such a rejection shall constitute an immediate termination of the Agreement as well as your right to continued use of the Hosted Service. If you use the Hosted Service in any way subsequent to a modification and/or amendment to this Agreement having become effective, such use constitutes your agreement to all modifications and/or amendments. Except for modifications or amendments to this Agreement made by PAYWHIRL in accordance with this Section, no other modification or amendment of this Agreement shall be effective unless in writing and signed by both you and PAYWHIRL.
12.2 Suspension of Hosted Service. PAYWHIRL may suspend all or any part of the Hosted Service at any time, with or without reason, including, without limitation, for failure to make a timely payment for the Hosted Service in accordance with this Agreement. You acknowledge that the operation of the Hosted Service may encounter technical or other problems on occasion and may not necessarily continue uninterrupted or without technical or other errors. PAYWHIRL shall not be liable to you or others for any such interruptions, errors or problems or an outright discontinuance of the Hosted Service. PAYWHIRL has no obligation to continue producing or releasing new versions of the Hosted Service. You agree to use the Hosted Service only through your website or software application that you own and control (the "Site") and we reserve approval authority as to the implementation and use of the Hosted Service on the Site. We may suspend or rate limit the Hosted Service in the event we find any implementation issues with the Site. Such suspension or limitation shall remain in effect until you correct any issues specified by PAYWHIRL and a suspension or rate limitation shall not relieve you of your payment obligations under the Agreement.
13. Termination With or Without Cause, Expiration. PAYWHIRL may terminate this Agreement at any time, in whole or in part, for any reason (including, without limitation, for your breach of this Agreement, violation of applicable law, violation of card association rules or regulations, or the threatening or filing of a lawsuit against PAYWHIRL) upon notice to the Business. The Business may terminate this Agreement at any time, in whole or in part, for any reason, UPON NOTICE TO PAYWHIRL. Upon any termination of this Agreement, any amounts owed to PAYWHIRL which accrued prior to such termination will become immediately due and payable, and, in the case of ANNUAL CONTRACTS BILLED MONTHLY, any early termination fee equal to three (3) times the monthly fee specified in the applicable Plan. In addition, either party may immediately terminate this Agreement issued hereunder in the event the other party commits a material breach of any provision of this Agreement and that breach is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed material breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to PayWhirl, Inc. at 9452 Telephone Rd., #140, Ventura, CA 93004 (or such other address that may be provided pursuant to this Agreement) ("Notice"). Upon termination or expiration of this Agreement for any reason, the Business shall have no rights to continue use of the Hosted Service. If this Agreement is terminated as a result of Business's material breach of this Agreement, PAYWHIRL shall be entitled to all of the Fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of PAYWHIRL's material breach of this Agreement, then the Business shall be entitled to a refund of the pro rata portion of any prepaid subscription fees (NOT INCLUDING ANY TRANSACTION FEES) paid by the Business to PAYWHIRL under this Agreement for the remaining terminated portion of the Term.
14. Business and Customer Responsibilities. The Business and its Customers will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Hosted Service, including, without limitation, those related to privacy, electronic communications and anti-spam legislation. The Business and its Customers will not:
(a) Sell, lease, license or sublicense the Hosted Service; (b) introduce into or transmit through the Hosted Service any virus, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs; (c) transmit or store infringing material in the Hosted Service; (d) send any Electronic Communication from the Hosted Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Hosted Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. The Business agrees not to access the Hosted Service by any means other than through the interfaces that are provided by PAYWHIRL. The Business shall not do any "mirroring" or "framing" of any part of the Hosted Service, or create Internet links to the Hosted Service which include log-in information, user names, passwords, and/or secure cookies.
As part of the buying and selling process on the Hosted Service, the Business will obtain the email address and/or shipping address of its Customers. By entering into our Agreement, the Business agrees that, with respect to Customers' Confidential Information that the Business obtains through the Hosted Service or through a Hosted Service-related communication or Hosted Service-facilitated transaction, PAYWHIRL hereby grants to the Business a license to use such information only for Hosted Service-related communications that are not unsolicited commercial messages. PAYWHIRL does not tolerate spam. Therefore, without limiting the foregoing, the Business is not licensed to add the name of a Customer to the Business’s mailing list (email or physical mail) without that Customer's express consent.
15. Transmission of Data. The Hosted Service allows the Business to send Electronic Communications directly to PAYWHIRL and to 3rd parties. The Business understands that the technical processing and transmission of the Business's Electronic Communications is fundamentally necessary to use of the Hosted Service. The Business expressly consents to PAYWHIRL's receipt and storage of Electronic Communications and/or Customer Data, and the Business acknowledges and understands that the Business's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by PAYWHIRL. The Business further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. PAYWHIRL uses encryption in various locations and methodologies within the Hosted Service and the infrastructure working behind it. Customer Data is encrypted while in transit to and from the Hosted Service; however, PAYWHIRL is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by PAYWHIRL, including, but not limited to, the Internet and the Business's local network.
16. Implementation. Implementation and training services ordered by the Business, as set forth in the applicable Plan, will be performed in accordance with PAYWHIRL's customary practices for the level of services purchased. PAYWHIRL does not provide dedicated project management for the Business during implementation unless separately purchased. Implementation is performed remotely unless otherwise specified. You agree that PAYWHIRL does not require express permission to access your account for the purpose of implementation. Typically, PAYWHIRL's support team will ask to access your account; however, by entering into this Agreement, PAYWHIRL is not legally required to do so and may access your account at any time in order to facilitate implementation. PAYWHIRL is not responsible, and will not be liable, for the Business's configuration decisions or the Hosted Service's ability to allow the Business to comply with all laws and regulations in the Business's unique circumstances, nor for any delays in implementation caused by the Business, including, but not limited to, the Business’s delays in providing clean and validated data, if needed, or the Business delays in making necessary business decisions with respect to the configuration of the Hosted Service.
17. Intellectual Property Rights.
17.1 PAYWHIRL's and 3rd Party Providers' Intellectual Property. You agree that all rights, title and interest in and to all intellectual property rights in the Hosted Service and Documentation (including all updates, enhancements and derivative works thereof and thereto) are owned exclusively by PAYWHIRL or its licensors. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to you does not convey any rights in the Hosted Service, express or implied, or ownership in the Hosted Service or any intellectual property rights thereto. As between the parties, PAYWHIRL owns all intellectual property and other proprietary rights to the Hosted Service, including, but not limited to, the design, artwork, logos, functionality, and documentation relating thereto (collectively, the "PAYWHIRL Property"). In addition, PAYWHIRL shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Hosted Service any suggestions, enhancement requests, recommendations, or other feedback provided by you, including Customers, relating to the operation of the Hosted Service. Any rights not expressly granted herein are reserved by PAYWHIRL. PAYWHIRL service marks and trademarks, logos and product and service names are marks of PAYWHIRL (the "PAYWHIRL Marks"). You agree not to display or use the PAYWHIRL Marks in any manner without PAYWHIRL's express prior written permission. The trademarks, logos and service marks of 3rd Party Application providers ("Marks") are the property of such 3rd parties. You are not permitted to use these Marks without prior written consent of such 3rd party who may own the Marks.
17.2 PAYWHIRL Marketing and Business's Intellectual Property Rights. By completing the Registration Process to use the Hosted Service, the Business agrees that PAYWHIRL has the right to use the Business's name, trademarks, logos and service marks for any marketing purposes, including, but not limited to, informing the general public of the Business's use of the Hosted Service.
17.3 Copyright Infringement. PAYWHIRL respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Businesses who repeatedly infringe others' rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to PAYWHIRL's copyright agent:
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C.A. § 512(c), our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Hosted Service of repeat infringers of copyright or of Businesses about whom repeat claims of copyright infringement are received will be terminated.
Designated Agent for Claimed Infringement:
9452 Telephone Rd. #140
Ventura, CA 93004
17.4 Termination for Copyright Infringement. You acknowledge and agree that, upon receipt of a notice of a claim of copyright infringement, we may immediately cancel your PAYWHIRL account without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
18.1 Customer's Indemnity. You agree, at your own expense, to indemnify, defend and hold harmless PAYWHIRL, its licensors and their respective directors, officers, employees and agents from and against all demands, liabilities, losses, claims and expenses, including, but not limited to, attorneys' fees and disbursements, arising out of (i) your or any authorized or unauthorized 3rd party's use of the Hosted Service, (ii) 3rd party claims, actions or allegations of infringement based on information, data or content you submitted in connection with the Hosted Service, (iii) any fraud or manipulation, or other breach of this Agreement by you, (iv) 3rd party claims, actions or allegations brought against PAYWHIRL arising out of your use of the Hosted Service, or (v) for any claim whatsoever resulting from you or your affiliates', employees', contractors' or agents' breach of the Children's Online Privacy Protection Act (COPPA) or the Health Insurance Portability and Accountability Act (HIPAA) or any other state or federal medical privacy or electronic privacy laws. PAYWHIRL reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
18.2 Indemnification Procedures and Survival. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party's compliance with this Section. The indemnification obligations contained in this Section shall survive termination of this Agreement for the later of the conclusion of a Claim or one year.
19. Suspension; Discontinuation of Hosted Service.
19.1 Suspension for Delinquent Account. PAYWHIRL reserves the right to suspend your, and any of your affiliates', access to and/or use of the Hosted Service for any accounts for which payment is due but unpaid without notice. You agree that PAYWHIRL shall not be liable to you or to any of your affiliates or other 3rd party for any suspension of the Hosted Service pursuant to this section.
19.2 Suspension for Ongoing Harm. You agree that PAYWHIRL may suspend access to the Hosted Service at any time and WITHOUT NOTICE if PAYWHIRL reasonably concludes that your use of the Hosted Service: (i) is being used to engage in denial of service attacks, spamming, or illegal activity; or (ii) is causing immediate, material and ongoing harm to PAYWHIRL or others. In the extraordinary event that PAYWHIRL suspends your access to the Hosted Service, PAYWHIRL will use commercially reasonable efforts to resolve the issues causing the suspension of Hosted Service. You further agree that PAYWHIRL will not be liable to you or any 3rd party for any suspension of the Hosted Service under such circumstances as described in this Section.
20. Refunds. PAYWHIRL will provide refunds of the TRANSACTION FEE of any individual transactions where the Business provides a refund to a Customer. In the case of individual transaction fee refunds, the refunded amount will depend on whether the transaction was refunded to the Customer in full or in part. The refunded transaction fee amount will be the total of the TRANSACTION FEE associated with the portion of the individual transaction that is refunded by the Business. Under any other circumstances, PAYWHIRL reserves the right, IN IT'S SOLE DISCRETION, to tender a refund to the Business. PAYWHIRL will not be obligated to provide a refund under any circumstances, except as provided in the aforementioned circumstance regarding transactions refunded by the Business to a Customer. Furthermore, under no circumstances will any refund amount provided by PAYWHIRL be in excess of the amount of a SINGLE MONTHLY FEE for the month for which the refund is tendered, except as provided in the aforementioned circumstance regarding transactions refunded by the Business to a Customer. PAYWHIRL does not provide refunds on annual fees that are paid in its entirety at the beginning of the Term as the aforesaid fees are discounted from the original fee.
21. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once on a good faith attempt to resolve the perceived dispute.
22. Export Controls. Services available on or through the Hosted Service are subject to United States Export Controls. The Hosted Service may not be used (a) in (or by a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (b) by anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders. By using the Hosted Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
23. International Use. Although the Hosted Service may be accessible worldwide, PAYWHIRL makes no representation that materials on the Hosted Service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to use the Hosted Service from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any service and/or information made in connection with the Hosted Service is void where prohibited.
24. General Provisions.
24.1 Notices. All notices to a party shall be in writing and shall be made either via email, conventional mail or by posting the notice on the Hosted Service. Notices to us must be sent to email@example.com, if by email, or to PayWhirl, Inc., 9452 Telephone Rd. #140, Ventura, CA 93004, if by conventional mail. Notices to you may be sent either to the email address supplied for your account or to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the Hosted Service to inform you of any changes to the Hosted Service or other matters of importance, and such broadcasts shall constitute notice to you.
Any notices or communication under these Terms will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by confirmed email. Either party may update its address or email address for notice purposes via a notice delivered in accordance with this paragraph.
24.2 Costs and Attorney's Fees. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys' fees.
24.3 Limitation. Any cause of action brought by you against us must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
24.4 Severability. If any part of these Terms is held invalid or unenforceable, the parties agree that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
24.5 Headings. The headings in this Agreement are for your convenience of reference only and have no legal effect.
24.6 No 3rd Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of you and PAYWHIRL, and is not intended to benefit any 3rd party. Only the parties to this Agreement may enforce it.
24.7 Assignment. You may not assign, transfer, or delegate any rights and obligations under this Agreement to any other party without the prior written consent of an authorized representative of PAYWHIRL, except you may assign or transfer all or any portion of your rights or responsibilities under this Agreement by operation of law or otherwise to any other party in connection with a merger, acquisition, reorganization, or a sale of substantially all of your assets without prior notice to PAYWHIRL. Any assignment in violation of this Agreement shall be void and of no force and effect. PAYWHIRL may freely assign its rights and obligations under these Terms. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
24.8 Subcontracting. PAYWHIRL may subcontract its obligations hereunder (provided that PAYWHIRL shall at all times remain fully responsible for the performance of any subcontractor).
24.9 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. This Agreement sets forth the parties' entire liability and exclusive remedies relating to this Agreement and the Hosted Service provided to you under this Agreement.
24.10 Force Majeure. In addition to any excuse provided by applicable law, both parties shall be excused from liability for failure or delay in performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control, whether or not foreseeable by either party, including, but not limited to, labor disturbance, war, fire, riot, flood, accident, adverse weather, natural disaster, governmental act or regulation, internet or telecommunication failures, terrorist acts, or other causes or events beyond such party's reasonable control, whether or not similar to those enumerated above, provided that the nonperforming party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible
24.11 Assent to Agreement. The Business's completion of the Registration Process shall constitute assent to the provisions of the Terms and any additional terms provided in the specific Plan that the Business selects during the Registration Process.
24.13 The Applicable Terms. If PAYWHIRL makes a material change to any applicable contract terms contained in a URL, PAYWHIRL will notify you by either sending an email to the notification email address, sending conventional mail to the physical address that you provided us with or by posting a notice on the Hosted Service. If the change has a material adverse impact on you and you do not agree to the change, you must so notify. If you notify PAYWHIRL as required, then your subscription to the Hosted Service will be terminated immediately upon receipt of the notice from you.
24.14 Governing Law. The Hosted Service is controlled by us from our offices within the State of California, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places may have laws that may differ from those of California, by using the Hosted Service, both of us agree that the statutes and laws of the State of California, without regard to the conflicts of laws principals thereof, will apply to all matters relating to the use of the Hosted Service.
24.15 Jurisdiction and Venue. Each of us agrees and hereby submits to the personal jurisdiction and venue of the Superior Court of San Francisco County and the United States District Court for the Northern District of California with respect to such matters. The parties waive their right to have an action under this Agreement brought or tried elsewhere.
24.16 No Waiver of Rights or Provisions. Any failure of PAYWHIRL to enforce or exercise any provision of the Agreement shall not constitute a waiver of that right or provision.