HelloPayments Gateway Terms
THESE GATEWAY TERMS (this “Agreement”) is made and entered into on the date of the corresponding Service Order incorporating these terms or the date otherwise entered into by Merchant (the “Effective Date”) by and between Monarch Payment Advisors, LLC d/b/a HelloPayments, an Indiana limited liability company, with its principal place of business located at 3247 Kinnard Springs Road, Franklin, TN 37064 (“HelloPayments”), and the Merchant agreeing to these terms pursuant to an applicable Service Order or otherwise (“Merchant”).
The purpose of this Agreement is to set forth the terms and conditions under which Merchant may use (i) any current or future service(s) provided by HelloPayments, including the Gateway Services; and (ii) any associated information, products, software and/or features made available to Merchant by HelloPayments. Capitalized terms not otherwise defined below have the meanings set forth in Schedule 1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Gateway Services.
- Provision of Gateway Services; License. HelloPayments shall make the Gateway Services available to Merchant and its Users pursuant to this Agreement and all Service Orders during the applicable subscription term thereof. Subject to the terms and conditions of this Agreement and Merchant’s compliance therewith, HelloPayments grants to Merchant, and Merchant accepts, a nonexclusive, nontransferable license for it and its Users to access and use the Gateway Services for their internal business purposes in accordance with the Documentation.
- Service Delivery. HelloPayments may provide the Gateway Services from any facility and may from time to time transfer any or all of the Gateway Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing the Gateway Services. HelloPayments’ obligations to provide Gateway Services are subject to and conditioned upon Merchant’s compliance with this Agreement in all material respects. HelloPayments shall be authorized to change and adjust the content of its Gateway Services, including, without limitation, technological, user-interface or content enhancements, provided that the agreed functionalities are not restricted or materially impaired.
- Additional Locations. Subscriptions may be accessed by designated Users within a specific Location. Unless otherwise specified in the relevant Service Order, (i) the term of any additional Location subscriptions shall be coterminous with the expiration of the subscription term in effect at the time the additional Locations are added; and (ii) pricing for the additional Location subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional Locations are added. The Locations contemplated to be accessing the Gateway Services are set forth in the applicable Service Order.
- Professional Services. HelloPayments or its third-party providers shall provide any consulting, implementation, integration, development or other professional services described in a Service Order (“Professional Services”). Unless otherwise expressly set forth in the corresponding Service Order, as between the parties, HelloPayments will own any improvements, enhancements, configurations, derivative works and other Work Product made by or on behalf of HelloPayments or its third-party providers in connection with the Professional Services.
- Support Services; Service Levels. HelloPayments shall provide support services, and use commercially reasonable efforts to provide the Gateway Services. SLA is available upon request.
- Merchant Responsibilities. For all User accounts established by or for Merchant, Merchant is responsible for all activities by Users that occur in such Users’ accounts and for Users’ compliance with this Agreement. Merchant will be responsible for maintaining the security of Merchant’s account(s), passwords (including but not limited to administrative and user passwords) and files, and for all uses of Merchant’s account(s) with or without Merchant’s knowledge or consent, other than to the extent any unauthorized use of the account results from HelloPayments’ negligence or more culpable behavior. Merchant shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Merchant Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Gateway Services, and notify HelloPayments promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Gateway Merchant represents and warrants that the Merchant Data does not infringe any intellectual property rights of any third party. Merchant will need certain equipment, software, and Internet access to be able to access the Gateway Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Merchant’s responsibility. HelloPayments neither represents nor warrants that the Gateway Services will be accessible through all web browser releases.
- Third Party Products and Services. Merchant’s use of third party products and services, whether or not integrated with the Gateway Services, are not the responsibility of HelloPayments, do not constitute “Gateway Services”, and may be governed by and subject to separate third-party service, product, software, and/or license agreements. HelloPayments will not be a party to such third-party agreements and does not warrant or guarantee any third-party product or service.
- Hardware. Merchant may use certain point-of-sale and other hardware (“Hardware”) in connection with the Gateway Services, which may or may not be purchased or otherwise obtained from or through HelloPayments. Merchant shall follow any and all reasonable instructions in relation to the operation of the Hardware. HelloPayments shall not be responsible for any misuse, neglect or abuse of, tampering with or any external forces affecting the Hardware. Merchant shall be responsible for the purchase, installation and maintenance of any and all Hardware necessary for the provision of Gateway Services. The Hardware shall be subject to a manufacturer’s warranty as between Merchant and the device manufacturer as administered by the manufacturer. HelloPayments does not provide any warranties of any kind for the Hardware. If purchased from or through HelloPayments, title and risk of loss of to the Hardware shall pass to Merchant upon shipment. Merchant shall be responsible for all costs of insurance, taxes, storage, and transportation. To the extent applicable, HelloPayments shall assign to Merchant any third party warranties for the Hardware. Merchant’s sole and exclusive remedy for the breach of any such third party obligations shall be against the applicable third party manufacturer or vendor, and not against HelloPayments. The procurement of Hardware from HelloPayments may be subject to additional terms included in the applicable Service Order.
- Use Guidelines; Restrictions. Merchant shall use the Gateway Services solely for its internal business purposes as contemplated by this Agreement and shall not: (i) make any Gateway Service available to, or use any Gateway Service for the benefit of, anyone other than Merchant or Users; (ii) lease, license, sell, sublicense or otherwise transfer its access to or use of the Gateway Services, or include any Gateway Service in a service bureau or outsourcing offering; (iii) interfere with or disrupt the integrity or performance of any Gateway Service; (iv) attempt to gain unauthorized access to any Gateway Service; (v) permit direct or indirect access to or use of any Gateway Service in a way that circumvents a usage limit; (vi) copy a Gateway Service or any part, feature, function, or user interface thereof; (vii) copy any Gateway Service except as permitted herein or in a Service Order or the documentation provided by HelloPayments; (viii) frame or mirror any part of any Gateway Service; (ix) access any Gateway Service in order to build a competitive product or service; or (x) reverse engineer any Gateway Service (to the extent this restriction is permitted by law). Merchant shall not (a) defame, abuse, harass, stalk, threaten any individual or infringe or otherwise violate the legal rights (such as rights of privacy, publicity and intellectual property) of others or HelloPayments; (b) distribute any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, or otherwise objectionable material or information (including any unsolicited commercial communications); (c) engage in or encourage any conduct that could constitute a criminal offense or give rise to civil liability for HelloPayments; (d) misrepresent or in any other way falsely identify Merchant’s identity or affiliation, including through impersonation or altering any technical information in communications using the Gateway Services; (e) transmit or upload any material through the Gateway Services that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing HelloPayments’, or any other person’s or entity’s, network, computer system, or other equipment; (f) interfere with or disrupt the Gateway Services, networks or servers connected to the HelloPayments systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Gateway Services; (g) attempt to gain unauthorized access to the Gateway Services, other HelloPayments customers’ computer systems or networks using the Gateway Services through any means; or (h) interfere with another person’s use of the Gateway Services. HelloPayments has no obligation to monitor Merchant’s use of the Gateway Services. However, HelloPayments reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
- Retention of Rights. No rights are granted to Merchant hereunder other than as expressly set forth herein. Subject to the limited rights expressly granted hereunder, HelloPayments reserves all rights, title and interest in and to the Work Product, HelloPayments Information, Gateway Services, and other HelloPayments intellectual property, including, but not limiting to HelloPayments trademarks, copyrights and any other intellectual property rights associated with the HelloPayments products and/or services.
- Unmatched Credit Acknowledgment. In the event that Merchant requests HelloPayments to process credit transactions that do not correspond to identified sales transactions in the same amount and at the same merchant (“Unmatched Credits”), this Section shall apply. Merchant understands that initiating Unmatched Credits removes the verification check that otherwise would be present if such credit transaction could be matched to a sales transaction, and that HelloPayments advises not to initiate such Unmatched Credit transactions. Therefore, Merchant agrees to assume all risk of loss on and liability arising out of Unmatched Credits incurred by HelloPayments or by Merchant or by anyone on whose behalf Merchant is authorizing HelloPayments to initiate Unmatched Credits. Merchant represents and warrants that it is authorized to make such request for the subject Unmatched Credit. Notwithstanding anything to the contrary contained in this Agreement, to the maximum extent permitted by law, Merchant will defend, hold harmless and indemnify HelloPayments and its employees and agents from and against any claim, threat of claim, liabilities, fines, losses, costs, and expenses (including but not limited to attorney’s fees and costs) incurred by HelloPayments or brought by any third party against HelloPayments arising out of any Unmatched Credit initiated by Merchant or on Merchant’s behalf.
- Unmasked Sensitive Processor Information Acknowledgment. In the event Merchant requests HelloPayments to unmask certain sensitive processor information, including but not limited to merchant identification numbers, vital numbers, terminal identification numbers, and passwords (collectively, “Processor Information”), that HelloPayments routinely truncates in order to protect such information from fraudulent use, Merchant understands that revealing Processor Information in the clear removes the protection afforded such information that otherwise would be present if Processor Information as masked, and that HelloPayments advises not to unmask such Processor Information. Therefore, Merchant agrees to assume all risk of loss on and liability incurred by it or by anyone on Merchant’s behalf is requesting HelloPayments unmask Processor Information. Merchant represents and warrants that it is authorized to make such request for the subject Processor Information. Merchant will defend, indemnify and hold harmless HelloPayments from and against any claim, threat of claim, liabilities, fines, losses, costs, and expenses (including but not limited to attorney’s fees and costs) incurred by HelloPayments or brought by any third party against HelloPayments arising out of any complying with Merchant’s request to unmask Processor Information.
- Fees; Payment.
- Usage Fees. Merchant shall pay all fees specified on the applicable Service Order(s). Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified, fees are based on the option selected by the Merchant during the implementation of this Agreement and subsequent change requests as discussed and agreed upon in writing. In the event Merchant does not begin using the Gateway Services within ninety (90) days of the Effective Date, HelloPayments reserves the right to revise the fees set forth in the Service Order(s). HelloPayments reserves the right to increase the fees annually by providing at least thirty (30) days’ advance written notice of such changes.
- Invoicing; Payment. Fees for the Gateway Services will be debited from the Merchant’s designated account (“Merchant’s Account”) on a monthly basis and statements shall be provided electronically. Merchant is responsible for maintaining complete and accurate billing and contact information. Merchant hereby grants HelloPayments the right to debit Merchant’s Account for the payment of the fees on a monthly basis, on or about the 4th day of each month, for the immediately preceding calendar month. HelloPayments failure to so debit Merchant’s Account during any given month shall not be considered a waiver of its right to such month’s fees.
- Overdue Payments. Any payment not received from Merchant by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at HelloPayments discretion, late charges at the rate of 1.5% of the outstanding balance per month. or the maximum rate permitted by law. whichever is lower, from the date such payment was due until the date paid.
- Taxes. Except as otherwise specified herein or in another writing agreed to by the parties, HelloPayments fees do not include any Taxes. Merchant is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on HelloPayments net income or property. If HelloPayments has the legal obligation to pay or collect Taxes for which Merchant is responsible under this Section, the appropriate amount shall be invoiced to and paid by Merchant, unless Merchant provides HelloPayments with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Suspension of Gateway Service. If Merchant’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute, in which case Gateway Services cannot be suspended unless Merchant’s account is sixty (60) days overdue), in addition to any of its other rights or remedies, HelloPayments reserves the right to suspend the Gateway Services provided to Merchant, without liability to Merchant, until such amounts are paid in full.
- Term; Termination.
- Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of five (5) years, which term shall automatically renew for successive annual periods unless terminated by either party upon at least ninety (90) days written notice prior to the end of any term.
- Termination. Each party hereto shall have the right to terminate this Agreement: (i) as a result of a material breach by the other party after giving thirty (30) days prior written notice specifying the breach to the party in default and provided that the party in default has not cured its default prior to the end of the thirty (30) day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Merchant, HelloPayments shall refund Merchant any prepaid fees covering the remainder of the subscription term after the date of termination.
- Termination for Failure to Pay. Merchant shall have the right to dispute invoices and until such dispute is settled may withhold payment of those disputed amounts, provided: (i) such disputes are made in good faith, (ii) written notice of such disputes are provided by Merchant to HelloPayments in a timely manner, and (iii) any undisputed amounts shall be paid by Merchant to HelloPayments. The parties shall attempt to settle such disputes promptly and negotiate in good faith. In addition to the termination rights set forth in this Section 3, HelloPayments may terminate this Agreement immediately if Merchant fails to pay any undisputed amount payable under this Agreement when due and fails to cure such default within thirty (30) days after receipt of written notice indicating the amount overdue.
- Liquidated Damages. If Merchant terminates the Agreement prior to the expiration of the term other than as set forth above, Merchant will reimburse HelloPayments for all past due, unpaid and future invoices for services rendered by HelloPayments in connection with this Agreement. All amounts due pursuant to this Section shall be immediately due and payable by the Merchant upon demand.
- Effect of Termination. Termination shall not relieve Merchant of the obligation to pay any fees accrued or payable to HelloPayments prior to the effective date of termination. Within thirty (30) days of the termination or expiration of this Agreement, each party will return all Confidential Information (as defined below) of the other party in its possession at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. Sections 7 through 1.13, 2, 3.4, 3.5, 4.3, 5, 7, 8 and 11 of this Agreement will survive the expiration or termination of this Agreement.
- Representations and Warranties; Disclaimer.
- By HelloPayments. HelloPayments represents and warrants that:
- it will provide the Gateway Services and professional services in a manner consistent with general industry standards reasonably applicable to the provision thereof and in compliance with applicable laws and regulations;
- the functionality of the Gateway Services will not be materially decreased during a subscription term;
- the Gateway Services shall perform substantially in accordance with the Documentation;
- it owns or otherwise has sufficient rights in the Work Product, HelloPayments Information and Gateway Services to grant to Merchant the rights granted herein.
- By HelloPayments. HelloPayments represents and warrants that:
Merchant acknowledges and agrees that Merchant’s sole and exclusive remedy, and HelloPayments sole and exclusive liability, in the event of a breach of this Section 4.1 by HelloPayments is for HelloPayments to repair, replace, or re-perform, as applicable, the unsatisfactory Gateway Service, or in the event none of the foregoing are reasonably feasible, refund any prepaid and unused amounts for the corresponding Gateway Service.
- By Merchant. Merchant represents and warrants to HelloPayments that:
- All representations and statements made by Merchant herein, or in any other document relating hereto by Merchant or on Merchant’s behalf, are true, accurate and complete in all material respects. Merchant hereby authorizes HelloPayments to investigate and confirm the information submitted by Merchant, whether directly or indirectly, through credit bureau reporting agencies and/or its own agents.
- Merchant is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all jurisdictions in which Merchant conducts business.
- Merchant acknowledges that HelloPayments shall bear no responsibility for any matter between Merchant, Merchant’s customer(s) or Merchant’s bank, including, but not limited to, (i) any incomplete, fraudulent, inaccurate or duplicate information submitted, or transactions/authorizations effectuated by Merchant or Merchant’s customer(s), (ii) the use of stolen or fraudulently obatined credit cards or payment information by Merchant or anyone else, or (iii) any damages, including cardholder chargebacks, resulting to Merchant from any of the foregoing.
- Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, HELLOPAYMENTS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, HELLOPAYMENTS EXPRESSLY DISCLAIMS, AND MERCHANT EXPRESSLY WAIVES, ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT, SHALL CONSTITUTE WARRANTIES OF ANY KIND.
- Definitions. “Confidential Information” means information disclosed by a party to the other party that is designated as confidential or that reasonably should be considered confidential given the nature of the information and the circumstances of disclosure. Confidential Information of HelloPayments includes, but is not limited to, the Gateway Services and Documentation and the terms and conditions of this Agreement and all Service Orders (including pricing). Confidential Information does not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information. “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents. “Recipient” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
- Requirement of Confidentiality. The Recipient agrees that it will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates’, officers, employees, consultants and legal advisors who have a need to know, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 5; and (b) use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under this Agreement. The Recipient will promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 5 will survive termination and continue for so long as the applicable information constitutes Confidential Information.
- Compelled Disclosure. The Recipient may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Recipient gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.
- Equitable Relief. If the Recipient discloses or uses (or permits or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
- Marks. Subject to the terms of this Agreement, HelloPayments grants to Merchant a non-exclusive, royalty-free, limited license for the duration of the term to use, reproduce, publish and display the trademarks, service marks, and logos of HelloPayments on Merchant’s website(s), stationary and marketing/advertising materials in connection with the development, use, adaption, publication, display and performance of the HelloPayments services provided for under this Agreement and in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about and/or related to any of HelloPayments’ services; provided however, that in use of such license, Merchant may not indicate or imply, directly or indirectly, that HelloPayments endorses Merchant’s products or services in any way. Merchant agrees that it will use any such marks of HelloPayments or its affiliates only in the manner authorized in writing by HelloPayments, and will display such marks as reasonably directed by HelloPayments. Subject to the terms of this Agreement, Merchant hereby grants HelloPayments a non-exclusive, royalty-free, worldwide license to use Merchant’s proprietary trademarks, service marks and logos for sole purposes set forth in this Agreement and for marketing and promotion purposes. HelloPayments agrees that it will use any such marks of Merchant or its affiliates only in the manner authorized by Merchant.
- Indemnification. Merchant shall indemnify, defend and hold HelloPayments, its officers, partners, employees, agents and consultants harmless, from and against any and all liabilities, losses, damages, claims, causes of action and expenses (including reasonable attorneys’ fees) resulting from third-party claims, whenever arising or incurred, that are caused or asserted to have been caused, directly or indirectly, by or as a result of (i) the performance or failure to perform or material breach of this Agreement by Merchant or its Users or other employees or agents; or (ii) any negligence or willful misconduct by Merchant or its agents or employees.
- Indemnification Procedure. Neither party shall be liable to the other party under its indemnification obligations herein unless the indemnified party: (a) promptly gives written notice of the indemnified claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of such claim through counsel chosen and paid for by the indemnifying party (provided that the indemnifying party may not settle or defend any such claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance.
- Disclaimer; Limitation of Liability.
- Damages; Limitation of Damages. Except for liability arising out of Sections 6, 1.9, OR 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE AGGREGATE LIABILITY OF HELLOPAYMENTS FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL BE LIMITED TO THE TOTAL FEES PAID OR OWED TO HELLOPAYMENTS BY MERCHANT UNDER THIS AGREEMENT FOR THE 6 MONTHS PRIOR TO THE TIME THE LIABILITY AROSE.
- Limitation Period. No lawsuit or other action may be brought by Merchant on any claim or controversy based upon or arising in any way out of this Agreement after one (1) year from the date of the occurrence allegedly giving rise to the action.
- Compliance with Laws, Rules and Other Regulations. Each party, at its sole expense will comply with all applicable federal, state and local employment and other laws, government regulations and orders and Credit Card Network rules. Additionally, the parties agree that HelloPayments may modify or otherwise change the Gateway Services (including fees charged therefor) as necessary or appropriate to comply with applicable laws, government regulations and orders and Credit Card Network operating rules and other applicable requirements.
- Security; Retention. The Gateway Services and the related data transmission shall be provided in accordance with the applicable requirements set by the Payment Card Industry Data Security Standards (“PCI-DSS”). Additionally, HelloPayments shall maintain appropriate technical and organization measures to secure Merchant Data from accidental loss and from unauthorized access, use, alteration, or disclosure. HelloPayments acknowledges that it is responsible for the security of cardholder data that HelloPayments possesses, stores, processes or transmits on behalf of Merchant. Merchant will provide security measures in accordance with best industry practices for all data residing on the devices owned, controlled or operated by Merchant. HelloPayments shall not be liable for any improperly processed transaction or third party, illegal or fraudulent access to Merchant’s accounts, IDs, passwords, data, personal information, transaction data or Merchant Data. If there is a security breach of Merchant’s system and/or unauthorized access to Merchant Data or transaction data, Merchant shall notify HelloPayments promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future, as required by HelloPayments. Merchant is solely responsible for the security of Merchant Data residing on servers owned or operated by Merchant, or any third party designated by Merchant (e.g., a hosting services provider, processor, or other service provider), including credit card numbers and any other Merchant Data. Merchant shall comply with all applicable laws and regulations governing the collection, retention and use by Merchant of credit card, Merchant Data and other financial information and agrees to provide all legally required notice to Merchant that discloses how and why personal and financial information is collected and used. Merchant shall use proper controls for, and limit access to, all Merchant Data or transaction data. Prior to discard, Merchant shall render all Merchant Data or transaction data unreadable and abide by any laws or regulations imposed on Merchant for Merchant Data or transaction data destruction and/or disposal. Merchant shall be solely responsible for compiling and retaining permanent records of all Merchant Data and transaction data for its reference.
- Entire Agreement. All schedules, annexes and exhibits attached to this Agreement are hereby made a part of this Agreement for all purposes. This Agreement represents the entire understanding between the parties hereto with respect to the matters contained herein and, except as otherwise provided in the Agreement, it may be amended only by an instrument in writing signed by both parties hereto.
- No Partnership or Agency. Nothing in this Agreement shall be deemed to constitute a partnership, association or joint venture between the parties hereto, nor shall either party be deemed to constitute an agent of the other party for any purpose whatsoever.
- No Waiver; Cumulative Remedies. The failure of either party hereto to exercise in any respect or on any occasion any right provided for by this Agreement shall not constitute or be deemed to constitute a waiver of any other right provided for by this Agreement or otherwise. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Assignment. Neither party may assign this Agreement or any obligation, right or interest hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that HelloPayments may assign this Agreement to its parent, a subsidiary, affiliate or an entity that buys HelloPayments or substantially all of its assets.
- Governing Law; Venue. This Agreement and the transactions contemplated hereby shall be governed by and construed under the law of the State of Tennessee, U.S.A. and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Merchant agrees that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts of Nashville, Each party hereby consents to the exclusive jurisdiction of such courts. The prevailing party shall be entitled to recover costs and attorneys’ fees. This Agreement shall be interpreted and construed in the English language, which is the language of the official text of this Agreement. Each party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- Notice. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing by certified mail, return receipt requested; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
- Force Majeure. Notwithstanding any other provision of this Agreement, neither party shall be liable for any failure, inability to perform, or delay in performance hereunder, if such failure, inability, or delay be due to acts of God, war, civil commotion, governmental action, fire, explosion, strikes, other industrial disturbances, equipment malfunction that is beyond its reasonable control, or any other cause that is beyond its reasonable control.
- Amendments. This Agreement shall not be modified or amended except by a written document executed by each of the parties to this Agreement, and such written modification(s) or amendment(s) shall be attached hereto.
- Additional Documents. HelloPayments and Merchant agree to execute any document or documents that may be requested from time to time by the other party to implement or complete such party’s obligations pursuant to this Agreement.
- Parties In Interest. Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and permitted assigns of the parties to this Agreement. Neither this Agreement nor any other agreement contemplated in this Agreement shall be deemed to confer upon any person not a party to this Agreement any rights or remedies contained in this Agreement.
- Headings; Interpretation. Headings are for convenience only and are not to be used in the interpretation of this Agreement. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.
- Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
- Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
- Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
“Credit Card Network” means any network of issuing banks and acquiring banks that process payment cards of a specific brand, including Visa, MasterCard, American Express, and Discover. For purposes of this Agreement, Credit Card Networks include the (a) Payment Card Industry (PCI) Security Standards Council; and (b) the National Automated Clearing House Association.
“Documentation” means HelloPayments then-current guides and manuals published by HelloPayments and made generally available by HelloPayments for the Gateway Services.
“Gateway Service(s)” means the electronic data processing, storage and transmission services identified in the Service Order(s), and, agreed to in writing by the parties which may be executed and which shall be incorporated by reference into this Agreement. The Gateway Services may be modified, updated or otherwise changed from time to time as authorized by this Agreement.
“HelloPayments Information” means information, including. information created or otherwise owned by HelloPayments or obtained by HelloPayments from third parties, related to the Gateway Services.
“Location” means an individual address for a retail store, a unique website URL, or other similar location.
“Merchant Data” means all electronic data or information submitted by Merchant to the Gateway Services.
“Service Order” means the ordering documents for Merchant’s purchases of Gateway Services from HelloPayments that are executed hereunder by the parties from time to time. Service Orders shall be deemed incorporated herein.
“Taxes” means direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes.
“Users” means individuals who are authorized by Merchant to use the Gateway Services, for whom subscriptions to the Gateway Services have been purchased, and who have been supplied user identifications and passwords by Merchant (or by HelloPayments at Merchant’s request). Users may include but are not limited to employees. consultants, contractors and agents of Merchant or its affiliates.
“Work Product” means all information or materials developed or created by HelloPayments during the course of providing support, implementation, consulting. training or other professional services to Merchant in accordance with this Agreement. Work Product does not include any Merchant Data or Merchant Confidential Information.
Support Service Level Requirements
HelloPayments shall use commercially reasonable efforts to correct all Service Errors and respond to and Resolve all Support Requests in accordance with the required times and other terms and conditions set forth below (“Support Service Level Requirements”).
Merchant shall submit its requests for Service Error corrections and they will be classified in accordance with the descriptions set forth in the chart below (each a “Support Request”). Merchant shall notify HelloPayments of Support Requests by e-mail, telephone or such other means as the parties may hereafter agree to in writing.
|Support Request Classification
Any Service Error Comprising or Causing any of the Following Events or Effects
|Critical Service Error
|· Issue affecting entire system or single critical production function;
· System down or operating in materially degraded state; or
· Widespread access interruptions.
|High Service Error
|· Primary component failure that materially impairs its performance; or
· Data entry or access is materially impaired on a limited basis.
|Medium Service Error
|· Gateway Services are operating with minor issues that can be addressed with a work around.
|Low Service Error
|· Request for assistance, information, services that are routine in nature, or updates that are desired but do not impair system operation or functionality.
Response and Resolution Time Service Levels
Response and Resolution times will be measured from the time HelloPayments receives a Support Request until the respective times HelloPayments has (i) responded to, in the case of response time and (ii) Resolved such Support Request, in the case of Resolution time. “Resolve” (including “Resolved”, “Resolution” and correlative capitalized terms) means that, as to any Service Error, HelloPayments has provided Merchant the corresponding Service Error correction. HelloPayments shall use commercially reasonable efforts to respond to and Resolve all Service Errors within the following times based on the severity of the Service Error:
|Support Request Classification
|Service Level Credits
(For Failure to Respond to any Support Request Within the Corresponding Response Time)
|Service Level Credits
(For Failure to Resolve any Support Request Within the Corresponding Required Resolution Time)
|Critical Service Error
|1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 5% of such monthly Gateway Services fees for each additional 15 minute period or portion thereof that the corresponding Service Error is not responded to within the required response time.
|1% of the fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for the first additional hour or portion thereof that the corresponding Service Error remains un-Resolved, which amount shall thereafter double for each additional 1 hour increment.
|High Service Error
|1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 1 hour period or portion thereof that the corresponding Service Error is not responded to within the required response time.
|1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 4 hour period or portion thereof that the corresponding Service Error remains un-Resolved.
|Medium Service Error
|1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional day or portion thereof that the corresponding Service Error is not responded to within the required response time.
|1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 5 day period thereafter or portion thereof that the corresponding Service Error remains un-Resolved.
|Low Service Error
|1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional day or portion thereof that the corresponding Service Error is not responded to within the required response time.
|1% of the Gateway Services fees for the month in which the initial Service Level Failure begins and 1% of such monthly Gateway Services fees for each additional 30 day period thereafter or portion thereof that the corresponding Service Error remains un-Resolved.
Support Service Level Credits
Failure to achieve any of the Support Service Level Requirements will constitute a Service Level Failure for which HelloPayments shall issue to Merchant the corresponding service credits set forth above (“Service Level Credits”). The parties acknowledge and agree that each of the Service Level Credits assessed: (a) are a reasonable estimate of the diminished value of the Gateway Services and compensation for the anticipated or actual harm to Merchant that may arise from the corresponding Service Level Failure, which would be impossible or very difficult to accurately estimate; and (b) shall be credited or set off against any Gateway Services fees or other charges payable to HelloPayments under this Agreement. No Service Level Credits (together with any Service Level Credits) for any month shall exceed ten percent (10%) of the total amount of Gateway Services fees that would be payable for that month if the Gateway Services were fully provided in accordance with this Agreement. Any Service Level Credit payable to Merchant under this Agreement will be issued to Merchant in the calendar month following the month in which the Service Level Failure occurred. This Section sets forth HelloPayments’ sole obligation and liability and Merchant’s sole remedy for any Service Level Failure.
Corrective Action Plan
If four (4) or more Critical Service Errors occur in any thirty (30) day period during (a) the Term or (b) any additional periods during which HelloPayments does or is required to perform any Gateway Services, HelloPayments shall promptly investigate the root causes of these Service Errors and provide to Merchant within five (5) business days of its receipt of notice of the second such Support Request an analysis of such root causes and a proposed written corrective action plan for Merchant’s review, comment and approval, which, subject to and upon Merchant’s written approval, shall be a part of, and by this reference is incorporated in, this Agreement as the parties’ corrective action plan (the “Corrective Action Plan”). The Corrective Action Plan shall include, at a minimum: (x) HelloPayments’ commitment to Merchant to devote the appropriate time, skilled personnel, systems support and equipment and other resources necessary to Resolve and prevent any further occurrences of the Service Errors giving rise to such Support Requests; (y) a strategy for developing any programming, software updates, fixes, patches, etc. necessary to remedy, and prevent any further occurrences of, such Service Errors; and (z) time frames for implementing the Corrective Action Plan. There will be no additional charge for HelloPayments’ preparation or implementation of the Corrective Action Plan in the time frames and manner set forth therein.
Availability Service Levels.
Subject to the terms and conditions of this Agreement, HelloPayments will use commercially reasonable efforts to make the Gateway Services Available (as defined below) at least ninety-nine percent (99%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section (the “Availability Requirement”). Support is available by phone or email during 8am-6pm US Pacific Time. Merchant must submit a case by submitting an email to [EMAIL] to initiate the support case and all support will be provided remotely. “Availability Service Level Failure” means a material failure of the Gateway Services to meet the Availability Requirement. “Available” and “Availability” mean the Gateway Services are available for access and use by Merchant and its Users. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither will the Gateway Services be considered un-Available nor any Availability Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Merchant or its Users to access or use the Gateway Services that is due, in whole or in part, to any: (a) access to or use of the Gateway Services by Merchant or its Users, or using Merchant’s or an User’s access credentials, that does not strictly comply with this Agreement; (b) Merchant’s delay in performing, or failure to perform, any of its obligations under this Agreement; (c) Merchant’s or its Users’ Internet connectivity; (d) force majeure event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by HelloPayments pursuant to this Agreement; (f) scheduled downtime on weekends for routine maintenance of which HelloPayments has provided Merchant’s Users at least 48 hours’ prior notice via email or though the Gateway Services; (g) emergency maintenance of which HelloPayments has provided Merchant at least 30 minutes prior notice via email or though the Gateway Services or (h) disabling, suspension or termination of the Services pursuant to the Agreement.
Availability Service Level Failures and Remedies. In the event of a Availability Service Level Failure, HelloPayments will issue a credit to Merchant in the amount set forth in the table below, measured as a percentage of the monthly fees (or pro rata equivalent thereof) for the applicable Gateway Services paid or payable for the Service Period the Availability Service Level Failure occurred (each a “Service Credit”).
|Service Credit (as percentage of monthly fees)
|99.00% – 100%
|97.0% – 98.89%
|95.0% – 96.99%
|90.0% – 94.99%
Notwithstanding the foregoing, HelloPayments has no obligation to issue any Service Credit unless Merchant: (i) reports the Service Failure to HelloPayments immediately upon becoming aware of it, and (ii) requests such Service Credit in writing within 10 days of the Availability Service Level Failure. Additionally, in no event will a Service Credit for any Service Period exceed ten percent (10%) of the total monthly fees (or pro rata equivalent thereof) that would be payable for that Service Period if no Availability Service Level Failure had occurred. Any Service Credit payable to Merchant under this Agreement will be issued to Merchant in the calendar month following the Service Period in which the Availability Service Level Failure occurred. This Section sets forth HelloPayments’ sole obligation and liability and Merchant’s sole remedy for any Availability Service Level Failure.
Effective Date: April 1, 2020
These User Terms (“Terms”) govern your use of the products and services provided by or on behalf of Monarch Payment Advisors, LLC d/b/a HelloPayments (“HelloPayments”, “we”, “our” or “us”), including any content or information provided therewith (collectively, the “Services”).
These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are using the Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity. By accessing, registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in these Terms and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms.
- Overview of Services.
- The Services enable you to manage your wallet (including adding and removing Payment Accounts for use in connection with your HelloPayments Account), review account activity and perform other activities enabled by the Services from time to time in HelloPayments’ sole discretion, including the Transaction Service.
- “Customer” means a person who registers for the Services.
- “HelloPayments Account” means the account assigned to you by HelloPayments when you accept these Terms.
- “Payment Account” means a [credit card, debit card, ACH-enabled checking or savings account, gift card or other prepaid payment method, and/or other financial account] that is registered in a Customer’s HelloPayments Account.
- “Product(s)/Service(s)” means any merchandise, good or service that a Purchaser may purchase using the Services.
- “Purchaser” means a Customer using the Services to purchase goods or services from, or to otherwise make a payment to, a Seller.
- “Seller” means a person or entity who uses the Transaction Service to process Transactions from Purchasers.
- “Transaction” means the processing of a payment that results in the debiting, charging, or other related transaction, of the Transaction Amount to a Purchaser’s Payment Account.
- “Transaction Amount” means the dollar amount of a Transaction to pay for a Product/Service, and any related fees, taxes or shipping charges, as applicable.
- “Transaction Service” means the service by which HelloPayments holds a Purchaser’s registered Payment Account information in Purchaser’s HelloPayments Account and, at the time of Purchaser’s purchase from, or other payment to, a Seller using such Payment Account, HelloPayments provides such information to Seller (or Seller’s card processor, including potentially HelloPayments itself) for processing through a payment network, which Seller, in turn, provides to the issuer of Purchaser’s Payment Account for approval and financial settlement through a payment network to the Seller.
- Establishing a HelloPayments Account.
- When you accept these Terms (for example, when first registering a Payment Account through the Services), you are creating a HelloPayments Account. Depending on the Services you use, you may be asked to provide information such as your name, contact information, Payment Account information (including your bank name, routing number and account number for the account, if applicable), date of birth, and/or your social security number. HelloPayments may verify your registration information with a third-party verification service provider. We may also ask you to answer additional questions to help us verify your identity or provide additional information, such as a copy of your photo ID (e.g. driver’s license or passport). The information you provide will be used to determine if you are eligible to use the Services. In order to use the Transaction Service and make Transactions, you must provide all information required and register a valid Payment Account. You authorize HelloPayments to confirm that your Payment Account is in good standing with the issuing financial institution, including by submitting a request for a payment authorization and/or a low dollar credit and/or debit to the Payment Account in accordance with the relevant card association rules. HelloPayments may refuse to approve, or may terminate existing, registrations for the Transaction Service with or without cause or notice to the extent permitted by applicable law.
- Transaction Service.
- The Transaction Service facilitates a purchase by a Purchaser (using a Payment Account) from a Seller that is registered with, or otherwise enabled by, HelloPayments or its customers or partners to receive certain merchant payment processing services. The Transaction Service stores information from Purchasers, such as their Payment Accounts [and shipping information]. When Purchaser chooses to pay for Products/Services with the Transaction Service, Purchaser authorizes the Seller to submit charges (and, in the case of refunds, credits) to Purchaser’s registered Payment Account. HelloPayments may assist as agent of the Seller in accessing a payment network and processing the Transaction. Once Purchaser’s registered Payment Account is authorized, Purchaser’s payment obligation to Seller shall be deemed completed and discharged (except for Purchaser’s obligations in the event of a chargeback or other reversal). Purchases made through the Transaction Service are also subject to the terms and conditions governing Purchaser’s Payment Account between Purchaser and the issuer of the Payment Account. Purchaser is responsible for any charges and related fees that may be imposed under the Payment Account terms and conditions as a result of Purchaser’s use of a Payment Account. You acknowledge and agree that your purchases of Products/Services are transactions between you and the Seller, and not with HelloPayments. HelloPayments is not a party to your Transaction for the purchase of Products/Services, and HelloPayments is not a Purchaser or a Seller in connection with any Transaction, unless expressly designated as such in the listing of the Product/Service. You also agree that HelloPayments may update your Payment Account information, including expiration date and card number, due to information received under certain account updater programs created by payment networks. Under these programs, enrolled card issuers and merchants can provide and receive up-to-date payment card-related information from payment networks regarding your Payment Accounts stored by HelloPayments. HelloPayments may reflect these changes to your stored Payment Account to prevent payment failure or service termination. You also agree that a Seller and HelloPayments, acting on behalf of the Seller, may resubmit a Transaction for a Product/Service purchase to the payment network for processing one or more times in the event that a prior Transaction is declined or returned by the payment network.
- Transaction Service Fees.
- HelloPayments does not charge a fee to use the Transaction Service as a Purchaser. The financial institution that issues your Payment Account may charge a fee in connection with the debiting or charging of the Payment Account resulting from the Transaction. You should consult the terms and conditions governing your Payment Account for more information about any such fees.
- Except as set forth in these Terms, all Transactions processed through the Transaction Service are non-refundable to Purchaser by HelloPayments and are non-reversible by Purchaser through the Transaction Service. You may have additional refund or charge-back rights under your Payment Account issuer agreement or applicable state and federal laws. You should review your periodic statement received from the issuer of your Payment Account which will reflect all purchase transactions through the Transaction Service.
- Recurring Transactions.
- In the event that the Transaction Service offers you the ability to pay for recurring transactions, your recurring transactions will start when first authorized by you. This is a recurring billing transaction. Unless otherwise stated, your recurring transaction and the relevant billing authorization will continue indefinitely until cancelled by you. In such event, you authorize the applicable Seller to bill your chosen Payment Account each designated billing period for the recurring transaction period at the applicable Transaction Amount. [You further authorize the applicable Seller to charge the applicable Transaction Amount to your alternate Payment Account, if you have selected one in your HelloPayments Account, in the event that the Seller is unable to charge to your designated Payment Account for any reason.] The Transaction Amount will continue to be charged to your Payment Account [or alternate Payment Account (if applicable)] each billing period, until you cancel your recurring transaction. The billing rate is subject to change by the Seller during the recurring transaction period.
- Permissible Transactions.
- You may only use the Transaction Service to process a Transaction for a Product/Service that is purchased from a Seller through a legitimate, bona fide sale of the Product/Service. The Transaction Service may not be used to process a Transaction, or otherwise transfer money between a Purchaser and Seller, that is unrelated to a purchase of a Product/Service. The Transaction Service may not be used to receive cash advances from Sellers or to facilitate the purchase of cash equivalents (travelers checks, prepaid cards, money orders, etc.). You may not use the Transaction Service to purchase any illegal goods or services or for any other underlying illegal transaction. You agree that you will not use the Transaction Service to purchase any Products/Services that violate these Terms, other policies or rules applicable to the Transaction Service, or applicable law. Failure to comply with these limitations may result in suspension or termination of your use of the Transaction Service.
- No Endorsement of Products/Services.
- HelloPayments does not represent or endorse, and shall not be responsible for: (a) the reliability or performance of any Seller, merchant or Third Party Provider; (b) the safety, quality, accuracy, reliability, integrity or legality of any Products/Services; (c) the truth or accuracy of the description of any Product/Service, or of any advice, opinion, offer, proposal, statement, data or other information (collectively, “TP Content”) displayed or distributed, purchased or paid through the Services; or (d) your ability to buy Products/Services using the Services. HelloPayments hereby disclaims any liability or responsibility for errors or omissions in any TP Content in the Services. HelloPayments reserves the right, but shall have no responsibility, to edit, modify, refuse to post or remove any TP Content, in whole or in part, that in its sole and absolute discretion is objectionable, erroneous, illegal, fraudulent or otherwise in violation of these Terms.
- Not a Banking Institution or Issuer.
- HelloPayments is not a bank or other chartered depository institution. HelloPayments is not an issuer of any Payment Account. These Terms do not amend or otherwise modify your agreement with the issuer of your Payment Account, and you are responsible for ensuring your use of the Services complies with such agreements. Use of the Services is not approved by or offered in conjunction with the issuer of your Payment Account. Your Payment Account issuer may impose fees, transaction limits, or other limitations on transactions incurred using the Services. In the event of any inconsistency between these Terms and your agreement with the issuer of your Payment Account, these Terms govern the relationship between you and HelloPayments solely with respect to the Services, and your agreement with the issuer of your Payment Account governs the relationship between you and the issuer of such item. You acknowledge and agree that you are solely responsible for the Payment Account, and any other information you enter or otherwise store in connection with the Services. HelloPayments is not responsible for the accuracy or availability of any information you enter or otherwise store with the Services, including, without limitation, whether such information is current and up-to-date.
- Communication with Issuers.
- By electing to use the Services, you authorize HelloPayments, directly or through such Services, to communicate with the issuer of your Payment Account to provide or obtain any information required by that issuer. In providing this information, an issuer does not endorse and is not responsible for the Services.
- Third Party Providers.
- HelloPayments may have arranged for third party providers to provide Products/Services to you through the Services (“Third Party Providers”). In order to use these Products/Services, you may be required to agree to additional terms and conditions from those Third Party Providers, and may be subject to additional requirements of the Third Party Provider. By agreeing to these Terms or continuing to use the Services, you hereby agree to any Third Party Provider terms that apply to your use of such Products/Services and the Services, which may be updated from time to time. For avoidance of doubt, these Third Party Provider terms are between you and the applicable Third Party Provider, not HelloPayments.
- Sharing Payment Account Details with Third Parties.
- Where requested by you, HelloPayments may pass details of your Payment Account and related information to a third party for that third party to charge the Payment Account for goods or services it will supply to you. You acknowledge and agree that your purchases made are transactions between you and the third party and not with HelloPayments. You should contact the third party or your Payment Account issuer directly regarding any issues with such third-party transactions, including refunds and disputes.
- HELLOPAYMENTS IS NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT ACCOUNT INFORMATION, INCLUDING, WITHOUT LIMITATION, WHETHER SUCH INFORMATION IS CURRENT AND UP-TO-DATE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SUCH INFORMATION IS REPORTED BY THE ISSUER AS OF A PARTICULAR TIME ESTABLISHED BY THE ISSUER AND MAY NOT ACCURATELY REFLECT YOUR CURRENT TRANSACTIONS, AVAILABLE BALANCE, OR OTHER ACCOUNT OR PROGRAM DETAILS AT THE TIME THEY ARE DISPLAYED TO YOU THROUGH THE SERVICES OR AT THE TIME YOU MAKE A PURCHASE. YOU MAY INCUR FEES, SUCH AS OVERDRAFT FEES OR OTHER CHARGES AS A RESULT OF SUCH TRANSACTIONS, PER YOUR AGREEMENT WITH YOUR PAYMENT ACCOUNT ISSUER, OR YOUR ATTEMPT TO MAKE A PURCHASE MAY NOT BE SUCCESSFUL.
- Overview of Services.
- Your Eligibility; Your Responsibility
- To be eligible to use the Services, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Services and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to HelloPayments; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of HelloPayments or a third party.
- You assume all responsibility for your use of, and access to, the Services. Accounts are for a single user, company or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of a company or other legal entity, is prohibited. For example, sharing a login between non-entity individual users is prohibited.
- Personal Information; Your Content; Your Account
- By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. It is your responsibility to keep your account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
- Privacy; Data.
- Your Content.
- As between you and HelloPayments, you own the information, materials, photos, or other content (the “Content”) you provide HelloPayments under this Agreement. Any Content that you upload or otherwise provide to HelloPayments in connection with the Services may be used by HelloPayments in order to provide and promote the Services or HelloPayments’ business. Accordingly, you grant to HelloPayments, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content. Such right to use such Content shall survive the termination of these Terms and termination of the Services. Notwithstanding the foregoing, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and HelloPayments. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Content to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). HelloPayments may also remove or delete your Content from the Services at any time in its sole discretion.
- Interactions with Other Users.
- You are solely responsible for all interactions with other users. You acknowledge and agree that we do not have an obligation to verify any Content or other information provided by users on the Services. HelloPayments is not responsible for another user’s or other third party’s misappropriation or misuse of your Content or other information. You are solely responsible for your interactions with other users. Additionally, HelloPayments is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party. You hereby release HelloPayments from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Services, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Services or were otherwise provided by a user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Services.
- Your Account.
- Except for your Content licensed to us as set forth above, the account(s) you create (including your HelloPayment Account) and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
- You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Services or otherwise relating to HelloPayments (“Feedback”) to HelloPayments. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and HelloPayments shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from HelloPayments under any circumstances relating to such Feedback.
- Personal Information; Your Content; Your Account
- Subject to the terms and conditions herein, HelloPayments grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Services through a generally available mobile device, web browser or HelloPayments authorized website to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and you may not resell our Services, permit other users access to our Services through your account, or use the Services to host content for others. You may not copy or download any content from the Services except with the prior written approval of HelloPayments. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and HelloPayments.
- Furthermore, without the prior written approval of HelloPayments, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Services. Any commercial use not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using. The Services provided by HelloPayments are licensed, not sold. The Services, and all copies of the Services, are owned by HelloPayments or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. HelloPayments reserves all rights not expressly granted to you herein. You agree that you have no right to any HelloPayments trademark or service mark and may not use any such mark in any way unless expressly authorized by HelloPayments.
- Making unauthorized copies or distribution of Services content or otherwise violating these Terms may result in the termination of your account, prohibition on use of the Services, and further legal action. HelloPayments reserves the right to limit your use of or access to the Services, in its sole discretion in order to maintain the performance and availability of the Services and to enforce these Terms.
- HelloPayments is not liable for the loss, corruption, alteration or removal of any content transmitted using our Services. By using our Services, you expressly waive the right to seek damages and agree to hold HelloPayments harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Services.
- Fees; Payment Terms; Credits
- If you purchase any Services that we offer for a fee (“Paid Services”), you agree to pay the applicable fees for the Paid Services when due plus all related taxes. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. Unless otherwise denoted, all fees are assessed in U.S. dollars. You also agree that HelloPayments and its third-party service providers providing payment processing services may store your payment information (including Payment Accounts). We may charge your payment information for subsequent charges you authorize, such as account upgrades or other special charges authorized by you. If the payment method you use with us reaches its expiration date and you do not edit the applicable information or cancel such Paid Service, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts. If you purchase a subscription to a Paid Service, you will be billed for your first month immediately upon purchasing or upgrading to a subscription account. Unless otherwise set forth on an applicable ordering document incorporating these Terms, the Services are billed in advance on a monthly basis and are non-refundable. For any upgrade or downgrade in plan level, your payment information will automatically be charged the new rate on your next billing cycle in addition to the prorated change in the amount of your subscription for the remainder of the current billing cycle (downgrading your plan level may cause the loss of features or capacity of your account; HelloPayments does not accept any liability for such loss). Your subscription account shall automatically renew, provided that you may cancel the subscription any time before the end of the current billing period and the cancellation will take effect on the next billing period. You shall retain access to such Paid Services from the time you cancel until the start of the next billing period, but you will not receive a refund or credit for any days remaining in your current billing period. You agree to reimburse us for all collection costs and interest for any overdue amounts.
- HelloPayments may offer certain customers free trials to Paid Services. If you purchase a subscription to a Paid Service that includes a free trial, you will receive free access to such Paid Service for the duration of the free trial period. At the end of the applicable free trial period, you will be charged the price of the subscription for such Paid Service and may continue to be charged until you cancel your subscription. To avoid charges, you must cancel before the end of the free trial period.
- Failure to pay may result in the termination of your subscription. You may cancel or suspend your Paid Services by contacting HelloPayments at [email protected]. Unless expressly stated to the contrary, we do not guarantee refunds for lack of usage, dissatisfaction or any other reason.
- Paid Services may be subject to additional terms, in addition to these Terms, related to the provision of the Paid Service.
- Acceptable Use Policy
- You agree to comply with all applicable laws and regulations in connection with your use of the Services. You may not use our Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
- Acts that may materially and adversely affect the quality of other users’ experience;
- Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
- Introducing malicious programs into HelloPayments’ Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
- Engaging in any monitoring or interception of data not intended for you without authorization;
- Attempting to circumvent authentication or security of any host, network, or account without authorization;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
- Adapt, modify or create derivative works based on the Services, technology underlying the Services, or other users’ content, in whole or part;
- Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on the Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by HelloPayments in writing;
- Using any method, software or program designed to collect identity information, authentication credentials, or other information;
- Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
- Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
- Transmitting, receiving, uploading, using or reusing material that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Falsifying user identification information;
- Using the Services for anything other than lawful purposes including, but not limited to, violating any applicable local, state, national or international law; or
- Impersonating any person or entity, including, but not limited to, a HelloPayments representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
- You agree to comply with all applicable laws and regulations in connection with your use of the Services. You may not use our Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
- Copyright Protected Materials
- HelloPayments respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. HelloPayments has the right, but not the obligation, to remove from the Services any files, material, information, software or other material HelloPayments believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.
- If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: [email protected]
- Right to Restrict or Terminate Access
- HelloPayments may deny or restrict your access to all or part of the Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that HelloPayments in its reasonable discretion believes violates the letter or spirit of any of these Terms. If HelloPayments denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.
- HelloPayments may at any time choose to suspend indefinitely or terminate the Services for any purpose. In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Services and any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, HelloPayments reserves the right to delete all of your Content, data, and other information stored on HelloPayments’ servers. HelloPayments will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by HelloPayments pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, HelloPayments will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Services, or the termination thereof.
- You may terminate these Terms by terminating your use of the Services and any related account. HelloPayments may terminate these Terms or suspend your use or access of the Services at any time upon written notice to you. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. Termination of these Terms or the Services does not relieve you from your obligation to pay HelloPayments any amounts owed to HelloPayments.
- You acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, payment accounts or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to HelloPayments any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords.
- Disclaimer of Warranty
- Actual service coverage, speeds, locations and quality may vary. HelloPayments will attempt to provide the Services at all times, except for limited periods for maintenance and repair. However, the Services may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Services or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users or the Services. The accuracy and timeliness of data received is not guaranteed.
- YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ALL CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. HELLOPAYMENTS DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. HELLOPAYMENTS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
- SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, HELLOPAYMENTS’ WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
- Limitation of Liability
- UNDER NO CIRCUMSTANCES WILL HELLOPAYMENTS, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“HELLOPAYMENTS PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
- A HELLOPAYMENTS PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID HELLOPAYMENTS FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
- SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE HELLOPAYMENTS PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
- EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY HELLOPAYMENTS TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE SECTION ABOVE WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- You agree to defend, indemnify and hold the HelloPayments Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any rights of another; or (iv) your use of the Services. HelloPayments reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
- Dispute Resolution
- Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
- Electronic Notices and Disclosures
- You acknowledge and agree that HelloPayments may provide notices and other disclosures to you electronically by posting such notices or other disclosures on HelloPayments’ website or by emailing it to you at any email address provided to HelloPayments by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
- Changes to the Terms
- We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the website page hosting these Terms. As your next visit to or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account.
- Your use or continued use of the Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.
- Third-Party Terms & Content
- We do not control, and we are not responsible for, any data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not a publisher of third-party content accessed through the Services and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service.
- If you are accessing the Services through an application from the Apple App Store, you and HelloPayments agree to the following additional terms:
- HelloPayments and you acknowledge that these Terms are concluded between you and HelloPayments only, and not with Apple, and HelloPayments, not Apple, is solely responsible for the Services and the content thereof. HelloPayments and you agree to be bound by the App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the App Store Terms of Service) (capitalized terms below have the definitions given to them in the App Store Terms of Service unless otherwise defined herein).
- You may only access the Services on an iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
- To the extent set forth herein or required by applicable law, HelloPayments is solely responsible for providing any maintenance and support services with respect to the Services. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
- HelloPayments, not Apple, is solely responsible for any product warranties set forth in these Terms, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be HelloPayments’ sole responsibility, to the extent not disclaimer herein.
- HelloPayments and you acknowledge that HelloPayments, not Apple, is responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Services or your possession and use of the Services infringe any third party’s intellectual property rights.
- If you send SMS messages through Services, you acknowledge that standard text messaging rates or other carrier charges may apply to such use.
- If you authorize HelloPayments to access your Address Book on your iOS product, you acknowledge and agree that HelloPayments may access and use such data to invite share job with your contacts.
- HelloPayments may send you Push Notifications and use your geo-location data if you authorize HelloPayments to do so.
- These Terms, along with any rules, guidelines, or policies published on the HelloPayments homepage constitute the entire agreement between HelloPayments and you with respect to your use of our Services. If there is any conflict between the Terms and any other rules or instructions posted on the Services, the Terms shall control. No amendment to these Terms by you by shall be effective unless acknowledged in writing by HelloPayments. Notwithstanding the foregoing, HelloPayments reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. These Terms shall be governed by, and construed in accordance with, the laws of the state of Tennessee, without reference to its choice of law rules. Subject to the arbitration provisions above, exclusive venue for any action arising out of or in connection with this agreement shall be in Nashville, Tennessee. The parties each hereby consent to the jurisdiction and venue in Nashville, Tennessee and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that HelloPayments shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect. You may not assign your rights or obligations under these Terms without the prior written consent of HelloPayments. HelloPayments’ failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms. These Terms do not limit any rights that HelloPayments may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to HelloPayments, pursuant to this Agreement or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to HelloPayments. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, or any other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services. Except as otherwise expressly set forth herein, there shall exist no right of any person, other than you and HelloPayments, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by this Agreement.
If you have any questions, complaints, or claims, you may contact HelloPayments by:
Send email to: [email protected]
Call us at: 855-69-HELLO
Send mail to our address:
Monarch Payment Advisors, Inc.
3247 Kinnard Springs Rd
Frankling, TN 37064
Acceptable Use Policy
This HelloPayments Acceptable Use Policy (“AUP” or “Policy”) is a legal agreement between Monarch Payment Advisors, LLC d/b/a HelloPayments (“HelloPayments”, “HP”, “us”, “our”, or “we”) and the entity or person (“you”, “your”, or “user”) who registered on the HelloPayments account page to receive certain payment gateway services, data, technology and analytics services, or other services that may be offered by HelloPayments or its affiliates ( “Service(s)”) or is otherwise accessing or using HP’s websites ( “Website(s)”), services or content governed by this Policy. This Policy describes the terms and conditions that apply to the acceptable use of the Services and Websites.
If you do not understand any of the terms of this AUP, please contact us before using the Services.
This Policy explains how the Services are to be used and specifies what actions are prohibited. While this Policy is as complete as possible, no policy can cover every situation, and thus the user is asked additionally to use common sense when using Services. Questions on what constitutes acceptable use should be directed to [email protected].
Since inappropriate use of systems exposes HP and its affiliates and partners to risk, it is important to specify exactly what is permitted and what is prohibited. The purpose of this Policy is to detail the acceptable use of information technology resources for the protection of all parties involved.
The scope of this Policy includes any and all use of the Services or Websites, including but not limited to, computer systems, email, networks, and Internet connections.
The following actions shall constitute unacceptable use of the Services or Websites. This section is not exhaustive, but is included to provide a frame of reference for types of activities that are deemed unacceptable.
The user may not use HP’s Services, Websites, networks or systems to:
- Engage in activity that is illegal under local, state, federal, or international law (see section “Use for Illegal Activities” for more information).
- Engage in any activities that may cause embarrassment, loss of reputation, or other harm to HP or its affiliates or partners.
- Download, store, or distribute violent, perverse, obscene, lewd, or offensive material.
- Disseminate defamatory, discriminatory, vilifying, sexist, racist, abusive, rude, annoying, insulting, threatening, obscene or otherwise inappropriate messages or media.
- Engage in activities that cause an invasion of privacy.
- Engage in activities that cause disruption to the workplace environment or create a hostile workplace.
- Make fraudulent offers for products or services.
- Reveal personal or network usernames or passwords to others, including family, friends, or other members of the household when working from home or remote locations.
Circumvention of Security
Attempting to circumvent any security systems, authentication systems, user-based systems, or the escalation of privileges is expressly prohibited. This includes disabling or tampering with any HP-supplied security software, such as antivirus/anti-malware software or remote access software.
Use for Illegal Activities
No Services, Websites, networks or computer systems may be used for activities that are considered illegal under local, state, federal, or international law. Such actions may include, but are not limited to, the following:
- Unauthorized port scanning.
- Unauthorized network hacking, including: packet sniffing, port scanning, packet spoofing, denial of service, wireless hacking.
- Any act that may be considered an attempt to gain unauthorized access to or escalate privileges on a computer or other electronic system.
- Acts of terrorism.
- Cybercrime, extortion, or identity theft.
- Downloading, storing, or distributing any material prohibited by law.
- Downloading, installing, or distributing unlicensed or “pirated” software.
- Sending unsolicited bulk email or other messages deemed illegal under applicable regulations.
HP may take any actions it deems appropriate to report and prosecute any violations of this Policy.
The Services must not be used to download, upload, or otherwise handle illegal and/or unauthorized copyrighted content. Any of the following activities constitute violations of the AUP, if done without permission of the copyright owner:
- Copying and sharing images, music, movies, or other copyrighted material using P2P file sharing or unlicensed media;
- Posting or plagiarizing copyrighted material; and
- Downloading copyrighted files which has not already legally procured.
This list is not meant to be exhaustive. Copyright law applies to a wide variety of works and applies to much more than is listed above.
Monitoring and Privacy
HP reserves the right to monitor any and all use of the Services and Websites. To ensure compliance with HP policies, this may include the interception and review of any emails or other messages sent or received, as well as the right to monitor:
- transmission and storage of files, data, and messages
- inspection of data stored on personal file directories,
- hard disks,
- removable media;
- Internet/network usage.
Reporting of a Security Incident
If a security incident or breach of any security policies is discovered or suspected, the user must immediately notify HP via [email protected]. Examples of incidents that require notification include:
- Suspected compromise of login credentials (username, password, etc.)
- Suspected virus/malware/Trojan infection
- Loss or theft of any device that contains information
- Loss or theft of ID badge, keycard, or multi-factor authentication token
- Any attempt by any person to obtain a user’s password over the telephone or by email
- Any other suspicious event that may impact HPT’s or its affiliates’ information security
Users must treat a suspected security incident as confidential information, and report the incident immediately to [email protected]. Users must not withhold information relating to a security incident or interfere with an investigation.
Right of Termination
In addition, HP reserves the right to terminate the Services immediately and without advance notice if HP, in its sole discretion, believes that you have violated any of the above restrictions, leaving you responsible for the full charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee and any penalties (if applicable), all of which immediately become due and payable.
Applicability of Other Policies
This document is part of HP’s cohesive set of security policies. Other policies may apply to the topics covered in this document and, as such, the applicable policies should be reviewed as necessary.
HelloPayments reserves the right, in its discretion, to amend this Policy at any time by posting amendments on this Website or through the Services. You are responsible for periodically reviewing the amendments on the Website and through the Services, and you are deemed to be aware of such amendments. If you do not agree to the amended terms and conditions, you shall immediately stop using this Website. Access to this Website or use of this Website or Services after any amendments have been posted shall constitute your acknowledgement and acceptance of the amended terms and conditions.