By agreeing to these Customer Terms of Service, you agree to the following:
- You are 18 years or older and capable of entering into a legal agreement; or
- You are under 18 years of age and have received parental consent to create an account.
- You are authorized to sign legal documents on behalf of the person or entity named on the account setup pages.
1. Getting Started with @Pay
Users of the @Pay technology that are not merchants will be automatically registered with @Pay by completing a transaction on a website that uses the @Pay API or through an @Pay hosted payment page. Registration occurs when the user performs a typical online checkout by entering payment information and agreeing to have their information stored for future use. The @Pay account is verified when the payment information is processed during the completion of a transaction.
The information you provide will be used to determine your eligibility and use of the service.
B. Access. Subject to strict compliance with these Terms of Service, @Pay will permit End Users to use the @Pay Technology as an email transaction payment method. In its sole discretion and subject to availability, @Pay will automatically make any new @Pay Technology versions available to its End Users. @Pay reserves the right to add, remove, or suspend any @Pay Technology at its sole discretion.
C. Grant of Licenses
i. Licensed Technology. @Pay grants to its users a limited, nonexclusive, non-transferable, worldwide license to use the Licensed Technology (see definitions below) in connection with @Pay’s Email Payment Gateway system.
ii. Use of Marks; Brands. Each of @Pay and the End User shall strictly comply with all trademark standards and brand guidelines with respect to the use of the other party’s marks. All uses of other party’s marks shall inure to the benefit of the party owning such mark.
D. Third Party Agreement. You acknowledge and agree that you are entering into an agreement only with @Pay and not with any third party. Your use of the @Pay services and Licensed Technology may require that you to enter into a separate agreement or terms and conditions with third party providers. By agreeing to these Terms of Service, you also agree to any terms that apply to third parties through @Pay.
A. Purchaser. No fees are charged by @Pay to End Users availing themselves of the @Pay Licensed Technology.
B. Returns; Chargebacks. The Merchant is solely responsible for all product returns and all processes associated with returns of products or items. All chargebacks, credits, or other customer charge disputes are the sole responsibility of the Merchant. @Pay will not refund any transaction fee associated with failed transactions, chargebacks or returns.
C. Taxes. @Pay is not responsible for determining if taxes apply to your transactions, or for collecting or reporting any tax information. It is the Merchant’s responsibility to determine what, if any, taxes apply to the payments received, and to collect, report and remit the correct tax to the appropriate authority.
D. Change in Fees. Fees are subject to change from time to time. @Pay will endeavor to provide not less than 30 days’ notice via an update to these Terms of Service for changes in fees.
3. Term and Termination of Service
This Agreement commences on the Effective Date and continues until terminated by you. You may close your account or cease using the Licensed Technology at any time. You must contact @Pay customer service at email@example.com to close your account.
We may, in our sole discretion without liability to you or any third party, terminate your use of the @Pay service for any reason, including without limitation inactivity or violation of these Terms of Service or other policies we may establish from time to time.
Upon termination, we have the right to prohibit your access to the @Pay service or Licensed Technology by deactivating your account or using other such methods, and to refuse future access by you or if a business entity, its parent, affiliates or subsidiaries or its or their successors.
4. Limitations on Use of Service
@Pay may establish general limitations, not described elsewhere in these Terms of Service, regarding the use of the @Pay services and/or Licensed Technology. This includes individual or mass transaction payment limits and number of transactions. Additionally, @Pay reserves the right to alter, suspend, or close an account without notice and liability. @Pay may (or may request that a third party intermediary) hold, decline, cancel or reverse the processing of a transaction if a user makes a claim for a refund or reversal or if @Pay suspects that the transaction is illegal, invalid, involves fraud, or is in violation of these terms of Service.
5. Merchant Obligations
Except as expressly set forth in these Terms of Service, the Merchant acknowledges and agrees that it will not act as a payment intermediary, aggregator, or service bureau or otherwise resell the @Pay Licensed Technology to any third parties without the prior written consent of @Pay, which may be withheld for any or no reason.
Merchant agrees to take all reasonable precautions to prevent the unauthorized use, disclosure or transmission of all information and data relating to an end user (including, without limitation, full or partial card account numbers, email addresses, physical addresses or phone numbers) used in connection with a Merchant transaction. In the event that Merchant’s system is breached and an unauthorized third party has access to or use of and such end user data or merchant has reason to believe that such breach has occurred, Merchant shall immediately notify @Pay of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. You should immediately notify @Pay in writing (email is acceptable) if you believe the following:
- There has been unauthorized access or transactions on your Account.
- There is an error in your Account statement.
- Your password has been compromised.
- You need more information about a transaction listed in your Account.
Upon receipt of notification, we will investigate the issue and respond to you with our findings within 10 business days. Except for the express obligations of @Pay set forth in these Terms of Service, the merchant is solely responsible for all activities required by or otherwise related to the development, production, delivery, and promotion of merchant’s products, transactions, and services and for all fees, costs, taxes or other expenses related to such activities, including the taking and fulfillment of orders from its customers. Merchant is solely responsible for all service issues relating to merchant’s products and services, including pricing, order fulfillment, order cancellation, returns, refunds and adjustments, chargebacks, rebates, functionality and warranty, and technical and consumer support.
Merchant agrees to abide by all laws, statutes, ordinances and regulations in conducting business operations involving the @Pay technology. Merchant agrees to not breach these Terms of Service; create an account with temporary or falsified personal information; use an anonymous proxy; use the account in a manner that @Pay, VISA, MasterCard or any other card services believe to be an abuse of the credit card system or a violation of the associated credit card rules; or use the @Pay technology in connection with the sale of any illegal drugs or drug paraphernalia, stolen or counterfeit goods, obscene items, weapons or knives regulated under applicable law, or items that encourage or facilitate illegal activity.
A. Company Warranties. @Pay represents and warrants that @Pay will use its commercially reasonable efforts to maintain compliance with the industry standards governing physical security of End User data, to the extent that @Pay possesses such information.
The preceding warranties will not apply if: (A) any products, services or deliverable provided hereunder are used in material variation with these Terms of Service or the applicable API Documentation; (B) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of @Pay; (C) defect in any products, services, or deliverables provided hereunder has been caused by any of Merchant’s malfunctioning equipment or third party software; or (D) any purpose or use of the @Pay services is deemed illegal in the jurisdiction in which any products, services and/or deliverables are sold or used.
This site is provided by @Pay on an “as is” and “as available” basis. @Pay disclaims all warranties, express or implied, with respect to the Licensed Technology, including, without limitation, any implied warranties of merchantability, fitness for any particular purpose, non-infringement, and title.
B. Merchant Warranties. Merchant will comply with all applicable laws, rules, regulations and ordinances governing Merchant’s use or license of the @Pay services, including any Licensed Technology, and the security, privacy collection, retention and use by Merchant of end user data. Merchant shall maintain and adhere to all reasonable industry standards for data security to protect its systems and the data contained therein; and none of Merchant’s services constitute, support, encourage, or otherwise contribute to a transaction that Merchant knows or reasonably should know to be fraudulent or in violation of any and all laws, rules, or regulations applicable to Merchant.
7. Intellectual Property Rights
All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of @Pay or its content suppliers and protected by international copyright laws. The compilation of all content on this site is the exclusive property of @Pay, with copyright authorship for this collection by @Pay, and protected by international copyright laws. @Pay grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of @Pay. This license does not include any resale or commercial use of this site or its contents: any collection and use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information; or any use of data mining, robots, or similar data gathering and extraction tools. This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of @Pay. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of @Pay and our associates without express written consent. You may not use any meta tags or any other “hidden text” utilizing @Pay’s name or trademarks without the express written consent of @Pay. Any unauthorized use terminates the permission or license granted by @Pay.
Notwithstanding anything in these Terms of Service to the contrary, nothing contained in these Terms of Service shall be construed as:
- A warranty or representation by @Pay as to the validity or scope of any of the Licensed Technology; or
- A warranty or representation that use of the Licensed Technology will be free from infringement of any patents other than those under which licenses have been granted hereunder; or or
- An agreement to prosecute actions or suits against third parties for infringement or conferring any right to bring or prosecute actions or suits against third parties for infringement; or
- Conferring any right not expressly set forth herein to use in advertising, publicity, or otherwise, any trademark, trade name, or names, or any contraction, abbreviation, or simulation thereof, of @Pay; or
- Conferring by implication, estoppel, or otherwise, upon a user or merchant, any license or other right under any patent, copyright, mask work, trade secret, trademark, or other intellectual property right except the licenses and rights expressly granted hereunder; or
- An obligation to furnish any technical information or know-how related to the Licensed Technology.
8. Limitations of Liability
Under no circumstances shall @Pay be liable to an End User for indirect, incidental, consequential, special or exemplary damages (even if advised of the possibility of such damages), such as, but not limited to, loss of revenue, profits or business, costs of delay, costs of lost or damaged data or documentation, or such party’s liabilities to third parties arising from any source. Under no circumstances shall the entire liability of @Pay under these Terms of Service, with respect to any subject matter contained in or contemplated by these Terms of Service under any contract, negligence, strict liability or other legal or equitable theory, exceed the aggregate fees paid or payable to @Pay by a user or Merchant for use of the services and/or the Licensed Technology pursuant to these Terms of Service during the three-month period immediately prior to the date the cause of action arose. In addition to and without limiting the previous liabilities, @Pay shall have no liability for any failure or delay resulting from conditions beyond reasonable control of @Pay, including but not limited to governmental action or acts of terrorism, riots, earthquake, fire, flood or other acts of God, labor conditions, power failure, or Internet disturbance.
You agree to defend, indemnify, and hold harmless @Pay and its parent, affiliates, directors, and employees against any claim, demand, charge, loss, damage, liability or dispute made by a third party relating to a breach by Merchant.
Your Liability and Possible Actions. You are responsible for ensuring that your use of @Pay and the Licensed Technology is in compliance with all federal, state, and local laws and regulations.
10. Disclaimers of Warranties and Limitation of Liability
This site is provided by @Pay on an “as is” and “as available” basis. @Pay makes no representations or warranties of any kind, express or implied, as to the operation of this site or the information, content, materials, or products included on this site. You expressly agree that your use of this site is at your sole risk. To the full extent permissible by applicable law, @Pay disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. @Pay does not warrant that this site, its servers, or email sent from @Pay are free of viruses or other harmful components. @Pay will not be liable for any damages of any kind arising from the use of this site, including, but not limited to direct, indirect, incidental, punitive, and consequential damages. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
11. General Provisions
A. Governing Law. These Terms of Service shall be construed and regulated under and by the laws of the United States of America and the State of New Mexico without regard to conflicts of law and principals thereof and shall inure to the benefit of and be binding upon the parties hereto and their heirs, personal representatives, successors and assigns. The exclusive venue for any action arising out of these Terms of Service shall be the federal or state courts located in Albuquerque, New Mexico (and any appellate courts thereof), and each party agrees to submit to the personal jurisdiction of each such court.
B. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall remain in full force and effect.
C. Waiver or Breach. It is agreed that a waiver by any party of a breach of any provision of these Terms of Service shall not operate or be construed as a waiver of any subsequent breach by that same Party.
D. Affiliates. The rights, duties and/or obligations of the parties under these Terms of Service may be exercised and/or performed by any of such party’s affiliates, or any of their subcontractors and/or agents.
E. Assignment. An End User may assign or transfer its obligations under these Terms of Service, attachments hereto and addendums hereto, or any portion thereof, to any third party unless @Pay expressly consents to such assignment in writing. All terms and provisions of these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and each of their permitted transferees, successors and assigns.
F. Further Assurances. The parties agree to execute and deliver all such further instruments and take such other and further action as may be reasonably necessary or appropriate to carry out the provisions of these Terms of Service.
G. Specific Performance. Each User agrees that irreparable damage would be caused to @Pay in the event any provision of these Terms of Service were not performed in accordance with the terms, and @Pay shall be entitled to specific performance of the terms, in addition to any other remedy at law or equity, without the necessity of demonstrating the inadequacy of money damages.
H. Modification of Terms. Please review our other policies posted on this site. These policies also govern your visit to @Pay. We reserve the right to make changes to our site, policies, and these Terms of Service at any time and without notice. It is your responsibility to review these Terms of Service for any changes. Your use of the @Pay services following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms.
I. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
J. Limitation of Action. Any legal action arising out of this Agreement shall be barred unless commenced within one year of the act or omission giving rise to the action.
“@Pay Products” means any and all commercially available technology of @Pay, including @Pay’s proprietary email payment technology, integrating, enhancing, or in any way utilizing @Pay’s Intellectual Property Rights.
“API Documentation” means, collectively, the operational, technical, integration documentation, user manuals, brand guidelines, and help files, including but not limited to API implementation overviews, integration guidelines, and sandbox guidelines, in written or electronic form, and as modified from time to time, that are intended for use in connection with the API Technology.
“API Technology” means @Pay’s proprietary technology provided under these Terms of Service by as more fully described in the API Documentation.
“Confidential Information” shall mean confidential or other proprietary information that is disclosed by one party to the other, including, without limitation, hardware and software code and designs, product specifications and documentation, client names, business and product plans, pricing information, End-User Data, email lists, customer data (including the identity, demographic, reporting and contact information for such customers) and other confidential business information. Confidential Information does not include information that: (i) was in the receiving party’s possession without restrictions of confidentiality prior to receipt from the discloser; (ii) is or becomes public knowledge because of events other than an act or failure to act by the receiving party or anyone under the receiving party’s direct or indirect control; or (iii) is or has been independently developed by the receiving party, provided that such development was accomplished by the receiving party or on its behalf without the use of, or any reference to, the Confidential Information of the disclosing party.
“Email Payment Gateway” means @Pay’s proprietary technology that allows for financial transactions to be completed from the body of an email without the need for a website. This technology is @Pay’s exclusive intellectual property which is covered under one or more of @Pay’s U.S. patents, patent applications, trademarks, trade secrets or copyrights, currently-existing or future-developed.
“End User” means any person that purchases goods or services of Merchant or Merchant’s customers and whose information will be submitted through the @Pay Technology to Merchant during the course of a Transaction.
“End User Data” means all information and data relating to an End User (including, without limitation, full or partial card account numbers, email addresses, physical addresses or phone numbers), provided via the @Pay Technology to a merchant in connection with a Transaction. End User Data does not include data collected by Merchant directly from the End Users.
“Enhancement” means any modification, enhancement, or derivation of the Licensed Technology. An “Enhancement” shall include, but shall not be limited to, any design, redesign, modification, enhancement, or derivation or other connected extension to the Licensed Technology.
“Intellectual Property Rights” means: (i) all right, title, and interest in and to all United States and foreign Letters Patent and all filed, pending, or potential applications for Letters Patent, including any reissue, reexamination, extension, divisional, continuation, or continuation-in-part applications throughout the world now or hereafter filed; (ii) all right, title, and interest in and to all trade secrets, and all trade secret rights and equivalent rights arising under the common law, state law, federal law, and laws of foreign countries; (iii) all right, title, and interest in and to all mask works, copyrights, other literary property, or authors rights, whether or not protected by copyright or as a mask work, under common law, state law, federal law, and laws of foreign countries; and (iv) all right, title, and interest in and to all proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names under common law, state law, federal law, and laws of foreign countries.
“Licensed Technology” means any and all technology of @Pay, including the API Technology, integrating or in any way utilizing @Pay’s Intellectual Property Rights or any Enhancement and used by or for the benefit of a Merchant pursuant to the terms of these Terms of Service, any amendments or addendum, or any other agreement by and between the parties.
“Merchant” means any bona fide seller of goods, services or both, or any non-profit organization collection donations or memberships, that is procured by Reseller on behalf of @Pay and which has entered into a written agreement with @Pay that sets forth the terms and conditions under which @Pay agrees to provide or provide access to @Pay Products, including @Pay’s proprietary Email Payment Gateway.
“Merchant Transaction” means any attempted financial transaction, including the purchase of goods and services, and including non-profit or charitable donations, by a consumer or customer of Merchant called the End User utilizing any @Pay Product, whether or not that transaction succeeds and the End User is charged.