These Terms of Service (this “Agreement”) are accepted, acknowledged and agreed as of the effective date that an account is approved by @PAY LLC, a Delaware limited liability company having offices at 5600 Wyoming Blvd NE, Ste. 270, Albuquerque, NM 87109 (“@Pay”) and shall be binding on the person or entity that made application for the use of the @Pay Products (as defined hereinafter) (“Customer”) through the secured @Pay web site.
Foundation of the Business Relationship
@Pay has developed an “Email Payment Gateway,” which is @Pay’s exclusive intellectual property covered under one or more of @Pay’s U.S. patents, patent applications, trademarks, trade secrets or copyrights, currently-existing or future-developed; and
Customer desires to utilize @Pay’s proprietary Email Payment Gateway technologies in connection with its business activities; and
@Pay desires to authorize Customer, and Customer desires to be so authorized, to use @Pay’s Email Payment Gateway technology in connection with its business activities.
Therefore, in consideration of the following conditions set forth in this Agreement, the parties agree to the following.
All undefined capitalized terms used in this Agreement shall be defined in the section of this Agreement identified as Schedule A.
1.Terms of Agreement.
Subject to the terms and conditions of this Agreement, @Pay grants to Customer a non-exclusive license to use the @Pay Products in the regular course of Customer’s businesses. Sale, resale, or sublicensing of @Pay Products by Customer to any third party is strictly prohibited without the prior written consent of @Pay.
Exclusivity. During the term of this Agreement, Customer agrees that @Pay shall be the sole provider of Email Payment Gateway services to Customer and Customer agrees not to use, market, sell, or promote any other payment system that incorporates an Email Payment Gateway feature. It is acknowledged by each party hereto that @Pay has intellectual property rights in the @Pay Products, including the Email Payment Gateway, and that, during the term of this Agreement, @Pay shall be the sole and exclusive provider of such technology to Customer. Nothing in this Agreement is intended to preclude Customer from sending emails and collecting monies through a traditional website.
Customer shall pay to @Pay those fees and charges selected by Customer on the preceding account sign pages for the use of the @Pay Products. Such schedule of @Pay Fees shall be made a part of this Agreement as if the full text of such selection(s) was reproduced herein.
License Fees. Customer shall pay to @Pay all License Fees and any one-time set up fees within 30 days of the date of @Pay’s invoice for such charges.
Transaction Fees. Not later than 10 days following the last day of each calendar month, @Pay shall collect all Transaction Fees in the amounts agreed upon by and between @Pay and Customer. In addition, Customer shall pay to @Pay any one-time set up fees within 30 days of the date of @Pay’s invoice for such charges.
Customer must notify @Pay in writing of any dispute regarding any @Pay Fees within 30 days of its receipt of any invoice for the same.
@Pay shall never be responsible for any disputes or returns (or processes associated with returns) of products or items from customers of Merchants, including with respect to any chargebacks, credits, or other customer charge disputes. In the event @Pay suffers any loss, liability or damage relating to the actions of Reseller or Reseller’s Merchants, @Pay may charge Reseller’s account or withhold amounts due to Reseller under this Agreement until @Pay has fully recovered the amount of such loss(es). @Pay shall not be responsible for the payment of any applicable sales, use, excise or VAT taxes on fees collected by or paid to Reseller. All such amounts shall be the sole responsibility of Reseller.
@Pay shall have the right, at any time, to change, alter, or amend its fee schedule upon 60 days’ written notice to Customer. Any such changes shall be prospective only. In the event that Customer is under an annual or multi-year contract with @Pay, any change in @Pay Fees shall take effect at the commencement of any renewal term and shall not be changed within a contract term.
3. Customer’s Obligations.
Good Faith Usage of the @Pay Products. Because @Pay expends significant efforts to onboard new technology customers, Customer agrees to use its commercially reasonable efforts to utilize the @Pay Products in connection with its business activities.
Use of Trademarks and Proprietary Notices. During the term of this Agreement, each party hereto may use the trademarks, trade names, logos, designations, graphics, text, and other content used by the other party solely in connection with the advertisement and promotion of the @Pay Products in accordance with each party’s then-current mark usage policies. Each party shall have the right (but not the obligation) to approve any use of such party’s marks by the other party, except that @Pay shall have the right to identify Customer as an end-user of the @Pay products during the term of this Agreement. Neither party may remove or destroy any copyright notices, trademarks, or other proprietary markings on the products or materials of the other party.
Customer will comply with all applicable laws, rules, regulations and ordinances governing Customer’s usage of the @Pay Products, and the security, privacy collection, retention and use by Customer of any personally identifiable information or data collected or captured by Customer in connection with Customer’s use of the @Pay Products.
4. Intellectual Property Rights.
Customer hereby recognizes that @Pay retains all Intellectual Property Rights in the @Pay Products and Confidential Information attributable to @Pay.
Customer shall not: (a) use, reproduce, distribute or permit others to use, reproduce or distribute any of @Pay’s Intellectual Property Rights for any purpose other than as specified in this Agreement; (b) make @Pay’s Intellectual Property Rights available to unauthorized third parties; (c) rent, electronically distribute, timeshare, or market @Pay’s Intellectual Property Rights by interactive cable, remote processing services, service bureau or otherwise; or (d) directly or indirectly modify, reverse engineer, decompile, disassemble, or derive source code from any @Pay’s Intellectual Property Rights except as expressly authorized by @Pay.
Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall be construed as:
(a) a warranty or representation by @Pay as to the validity or scope of any of the @Pay Products; or
(b) a warranty or representation that use of the @Pay Products will be free from infringement of any patents other than those under which licenses have been granted hereunder; or
(c) 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
(d) 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
(e) conferring by implication, estoppel, or otherwise, upon Customer, 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
(f) an obligation to furnish any technical information or know-how related to the @Pay Products.
@Pay disclaims all warranties, express or implied, with respect to the @Pay Products, including, without limitation, any implied warranties of merchantability, fitness for any particular purpose, non-infringement, and title.
The parties hereto each covenant and agree to indemnify and hold harmless the other party, such party’s parent or affiliates, and their respective officers, director, employees and permitted assigns, against any direct liabilities, claims, damages, losses or expenses, arising from any legal action, claim, demand or proceedings brought against the other party as a result of any misrepresentation, breach of warranty or non-fulfillment of a covenant of this Agreement by the other party (collectively a “Claim”); provided, that this provision shall not apply if such claim arises out of (a) an act of fraud, embezzlement or criminal activity by the party claiming indemnity, (b) gross negligence, willful misconduct or bad faith by the party claiming indemnity, or (c) the failure of the party claiming indemnity to comply in any material respect with, or to perform in any material respect its obligations under this Agreement.
Each party shall promptly notify the other of any threat of a claim that such party becomes aware of and that may give rise to a request for indemnification pursuant to this Section.
6. Limitations of Liability. Under no circumstances shall either party hereto be liable to the other party 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, 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 this Agreement, with respect to any subject matter contained in or contemplated by this Agreement under any contract, negligence, strict liability or other legal or equitable theory, exceed lesser of: (x) one hundred thousand dollars ($100,000); and (y) the aggregate fees paid or payable to @Pay by Customer during the twelve-month period immediately prior to the date the cause of action arose.
7. Term and Termination. The term of this Agreement (the “Term”) shall commence on the date first specified above and shall continue in full force and effect for a period of one (1) year. This Agreement shall be automatically renewed for successive one-year terms without any further action of either party hereto unless written notice of intent to terminate this Agreement is given to the other party not less than 30 days prior to the termination date of the then-current term. Either party may terminate this Agreement immediately upon written notice if the other Party is in breach or default of any material obligation contained in this Agreement or any attachment or addendum referenced herein and fails to cure such breach or default within thirty (30) days after the receipt of written notice to that effect. The rights and remedies provided in this Section are not exclusive and are in addition to any other rights and remedies provided by law or this Agreement.
8. Privacy. To the extent that a party hereto has access to personally identifiable information of customers through the use of the @Pay Products, such party shall take commercially reasonable steps to protect the privacy of such customers. Individual customer information will be considered the Confidential Information of the party that has collected such information. @Pay retains the right to share and/or market anonymous and aggregate consumer data that it collects through the use of @Pay Products. @Pay will not sell or distribute personal customer data that identifies or reasonably can be used to identify individual customers or users of @Pay Products.
9. Confidentiality. The parties hereto agree to maintain the confidentiality of all Confidential Information shared by the parties and not generally known to the public.
10. Audit Rights. @Pay shall keep records in accordance with its customary accounting practices, containing information reasonably necessary for the purpose of calculating any @Pay Fees under this Agreement. Such records that relate solely to such purposes shall be made available by @Pay, upon reasonable notice, during the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement. Records will be made available for inspection by an independent certified public accountant selected by Customer or @Pay solely for the purpose of determining any amounts owed hereunder. Customer shall bear all costs in the conduct of any such audit. In no event shall an audit under this Section be requested by Customer more frequently than once every 12 months.
11. General Provisions
Assignment. Neither party may assign, delegate, or transfer this Agreement, or any of its rights or duties hereunder, without the prior written consent of the other party. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Notwithstanding the foregoing, @Pay may assign its rights and duties hereunder in connection with a merger, consolidation, spin-off, corporate reorganization, acquisition, or sale of all or substantially all the assets of @Pay.
Governing Law. This Agreement 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. The exclusive venue for any action arising out of this Agreement 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.
Independent Contractors. In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.
Modification and Waiver. Any waiver of or amendment to the terms of this Agreement will be effective only if made in writing and signed by an authorized and duly empowered representative of each of the parties hereto. No failure to exercise, and no delay in exercising, any right hereunder will operate as a waiver of that right, nor will any single or partial exercise of any right hereunder preclude further exercise of any right hereunder. Notwithstanding the foregoing, @Pay shall have the right to amend or revise this Agreement without Customer’s consent to reflect changes in @Pay’s procedures and policies regarding payment methods, models, or security features, applicable laws, rules or regulations, or the rates charged for the @Pay Products as permitted by this Agreement; provided, that no amendment of this Agreement shall adversely affect in any material way the use of the @Pay Products by Customer without the written consent of Customer, unless such amendment is required by applicable law. For purposes of this Section, an adjustment or change in the @Pay Fees shall not be deemed or construed as an adverse effect hereunder.
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.
Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede any prior agreements between the parties with respect to such subject matter, whether written, oral, or implied.
Expenses. All costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors, and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. In any legal action brought by one party against the other and arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
Severability. The parties hereto intend all provisions of this Agreement to be enforced to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction determine that the scope of any provision is too broad to be enforced as written, the parties hereto intend that the court should reform the provision to such narrower scope as it determines to be enforceable. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision were never a part hereof; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance, except to the extent such remaining provisions constitute obligations of another party to this Agreement corresponding to the unenforceable provision.
Electronic Signature Valid and Binding. By selecting the “I Accept” button, you are signing this Agreement electronically. You agree that your electronic signature is the legal equivalent of your manual signature on this Agreement. By selecting “I Accept” you consent to be legally bound by this Agreement’s terms and conditions. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature, acceptance and agreement as if actually signed by you in writing.
“@Pay” shall mean @Pay LLC, a Delaware corporation.
“@Pay Fees” shall mean all Transaction Fees, License Fees, and one-time setup fees that @Pay charges Customer for the use of @Pay Products.
“@Pay Products” means any and all commercially available technology of @Pay, including @Pay’s proprietary email payment technology, integrating or in any way utilizing @Pay’s Intellectual Property Rights or any Enhancement and used by or for the benefit of Customer or Customer’s customers, donors, or others pursuant to the terms of this Agreement, any amendments or addendum hereto, or any other agreement by and between such parties and @Pay, including any Terms of Service that may be found on @Pay’s web site from time to time.
“Agreement” shall have the meaning set forth in the recitals hereof.
“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, 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: (a) was in the receiving party’s possession without restrictions of confidentiality prior to receipt from the discloser; (b) 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 (c) 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.
“Customer” shall mean the party identified in the recitals hereof.
“Customer Transaction” means any attempted transaction, including, but not limited to, the purchase of goods or services or an electronic transfer of funds for the purpose of donation or otherwise, by a consumer, customer, or donor of Customer utilizing any @Pay Product, whether or not that transaction succeeds and the customer is charged.
“Email Payment Gateway” means @Pay’s proprietary technology that allows for financial transactions to be completed using Simple Mail Transfer Protocol (SMTP).
“Enhancement” means any modification, enhancement, or derivation of the @Pay Products. An “Enhancement” shall include, but shall not be limited to, any design, redesign, modification, enhancement, or derivation of a product or an Integrated Product that would permit such product or Integrated Product to function or operate in a manner similar to or consistent with products or Integrated Products utilizing technology embedded in or comprising the @Pay Products.
“Integrated Product” means any software, solution, database, or other technology created or compiled, or that contains, utilizes, or embodies in any way the technology embedded in or comprising the @Pay Products.
“Intellectual Property Rights” means: (a) 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; (b) 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; (c) 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 (d) 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.
“License Fee” means the annual license fee for the use of the @Pay Products based on the package chosen by Customer.
“Term” shall have the meaning set forth in Section 7 hereof.
“Terms of Service” means this Agreement and any other terms and conditions governing the usage of the @Pay Products, as such may be amended from time to time. The Terms of Service may be viewed at www.atpay.com/TOS.
“Transaction Fee” means the cost per transaction hereto charged for each Customer Transaction.