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Biller Genie License and User Agreement

Scope of This Policy — Effective 07/26/2018

Version 1.1

Biller Genie, LLC, hereinafter referred to as “Biller Genie”, offers merchants various products and services. In order for you, on behalf of your company, to obtain or continue using the transaction processing services, payment gateway services, email and sms messaging services, and other value-added products and services, as set forth in this Agreement and more fully described at www.billergenie.com as such descriptions may be changed from time to time (the “Products and Services”), you must agree to, accept and be bound by the terms and conditions of this agreement (the “Agreement”). This Agreement sets out the terms and conditions under which you may utilize the Products and Services. Please read this Agreement carefully. It is important that you understand that upon your acceptance of this Agreement, by continuing to use any of the Products and Services and/or by clicking on the “I AGREE” button at the end of this Agreement, it becomes a legally binding contract.

 

By using any of the Products and Services and/or by clicking on the “I AGREE” button you represent that you have reviewed and understand the Agreement and agree to be legally bound by all its terms and conditions (including the terms and conditions stated on web pages incorporated by reference herein). If you do not agree or are not willing to be bound by the terms and conditions of this Agreement, please do not click on the “I AGREE” button and do not seek to obtain or continue using the Products and Services.

 

You, your company, and all of your affiliates, representatives, agents, employees or other third parties operating on your behalf (“You” or “Your”) agree as follows:

 

1.            DEFINITIONS:

 

“AAA” has the meaning set forth in Section 15.7.

 

“Acquirer” or “Acquiring Bank” means the financial institution supplying You with the ability to accept credit cards for payments. The financial institution will charge You Fees for providing these services.

 

“ACH” means an electronic network that allows the exchange and settlement of electronic payments between financial institutions.

 

“Affiliate Partner” means any third party through whom Biller Genie may offer the Products and Services to You.

 

“Agreement” has the meaning set forth in the introductory paragraph.

 

“Card Association” for the purposes of this Agreement means a network of Issuing Banks and Acquiring Banks that process payment cards of a specific brand. Without limiting the foregoing definition, American Express, Discover Financial Services, JCB International, MasterCard International Inc., Visa Inc., Visa International Inc., and any other payment card company belong to the Card Association.

 

“Confidential Information” means any information, data, trade secrets, know-how, directly, or indirectly, in writing or orally or by inspection of samples, equipment or facilities, including but not limited to past, present and future research, products, product plans, services, services documentation (in whatever form or media provided) customers, customer lists, user data, revenue, markets, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration, marketing, marketing materials, financial or other business information, or the financial terms of this Agreement.

 

“Data” has the meaning set forth in Section 5.

 

“Disclosing Party” has the meaning set forth in Section 11.1(a).

 

“Effective Date” means the earlier of the date You agree to the terms and conditions of the Agreement by (i) clicking the “I AGREE” button associated with the Agreement; or (ii) by using Products and Services or (iii) acknowledging Your acceptance of the Agreement by any other method, including without limitation execution of a Merchant Account Application that incorporates the Agreement by reference.

 

“Fees” means all fees payable by You pursuant to this Agreement, as set forth in the Fee Schedule, or as otherwise payable by You to the Acquirer or other third party.  All Fees set forth in this Agreement are in addition to, and not in lieu of, any fees you may owe your Acquirer or other third party for processing electronic payment transactions.

 

“Fee Schedule” means a list of fees and charges that is accepted by You and paid by you to Biller Genie.

 

“Force Majeure Event” has the meaning set forth in Section 15.9.

 

“Indemnitee” has the meaning set forth in Section 14.3.

 

“Indemnitor” has the meaning set forth in Section 14.3.

 

“Issuing Bank” means the financial institution that issues Card Association branded payment cards directly to consumers.

 

Merchant Account Application” means the application and agreement entered into by You and an Acquirer to enable you to process payment Transactions with Your customers.

 

“Biller Genie” has the meaning set forth in the introductory paragraph.

 

“Biller Genie Marks” has the meaning set forth in Section 6.1(c).

 

“Products and Services” has the meaning set forth in the introductory paragraph.

 

“PCI DSS” means Payment Card Industry Data Security Standard.

 

“Receiving Party” has the meaning set forth in Section 11.1(a)

 

“Return Payment Fee” is a fee charged to You by Biller Genie on each occurrence when Biller Genie is unable to collect Fees on Your bank account for any reason, including but not limited to insufficient funds, closed account, or any other negative response.

 

“Third Party Service Provider” for purposes of this Agreement means an entity that provides services to You or on Your behalf with regard to your participation in and use of the Products and Services including, but not limited to, billing, invoice presentment, reporting, customer service, authorization, settlement, ACH and clearing services.

 

“Trademark(s)” means all common law or registered trademark(s), service mark(s), trade name(s) and trade dress rights and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America whether existing now or hereafter adopted.

 

“Transaction(s)” means any billable occurrence completed or submitted under Your account including but not limited to sale, void, refund, credit, offline force, capture, authorization, validate, update or settlement regardless of whether approved or declined.

 

“VAR” means any third-party vendor that enhances or modifies existing hardware or software, adding value to the services provided by the processor or Acquirer.

 

“Your Faults” has the meaning set forth in Section 14.1(b).

 

“Your Marks” has the meaning set forth in Section 6.1(c).

 

2.            TERM: The term of the Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated pursuant to Section 10.

 

3.            LEGAL: By accepting the terms and conditions of this Agreement, You represent and warrant that (i) You have the legal authority to accept the terms and conditions of this Agreement on behalf of Your company and that such acceptance will be binding on Your company, (ii) all information You have provided to Biller Genie is true and correct in all respects, and (iii) You will update Biller Genie in writing with any changes to information You have previously supplied. In furtherance of Your representations, Biller Genie reserves its right to refuse to provide You with any Products and Services and terminate this Agreement, with or without notice, if You have supplied any information which is misleading, untrue, inaccurate or incomplete.

 

4.            USE OF PRODUCTS AND SERVICES: You are hereby granted a non-exclusive right to use the Products and Services during the term of this Agreement so long as You are current in paying all applicable Fes as referenced in this Agreement, subject to the restrictions contained herein and restrictions communicated to You in the future by Biller Genie. Biller Genie shall provide the Products and Services to You in all material respects in accordance with the terms and conditions of this Agreement and Your rights are granted solely for the purposes contained herein and for no other purpose. Your use of the Products and Services shall be restricted to You. You shall not submit Data or Transaction data to Biller Genie or otherwise process orders on behalf of any other entity or individual. Any attempt by You to use the Products and Services on behalf of another entity or individual may result in Your obligation to pay to Biller Genie additional Fees and charges and/or Biller Genie may revoke Your right to use the Products and Services and terminate this Agreement. In connection with the exercise of Your rights and obligations under this Agreement including, without limitation, any related to individual privacy, You will comply, at Your own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction and  you will not use any Products and Services for or in connection with any illegal purpose. You shall not use the Products and Services in any manner, or in furtherance of any activity that may cause Biller Genie to be subject to investigation, prosecution, or legal action, and you agree to indemnify, defend and hold Biller Genie harmless if any such instances arise. Biller Genie reserves the right to amend, modify or change its policies, procedures, and guidelines and You shall comply with all then current policies, procedures, and guidelines of Biller Genie governing the Products and Services. You agree not to engage in any of the prohibited activities set forth Appendix A to this Agreement.

 

5.            DATA SECURITY, COLLECTION, TRANSFER AND RETENTION: You understand Biller Genie will collect, retain, use and share information and data collected from You and your customers in accordance with Biller Genie’s then current privacy policies. You hereby consent, as a condition of Your enrollment in and use of the Products and Services, to the collection, use, processing and transfer of personal data as described in Section 5 and Biller Genie’s privacy policies. You understand that Biller Genie may collect and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number, e-mail address, social security number and/or tax identification number and payment data as well as Your customers' names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases (“Data”) for the purpose of considering eligibility for the Products and Services and for the purpose of providing You and your customers with the Products and Services. You also understand and agree that Biller Genie, its subsidiaries, Affiliate Partners, Third Party Service Providers, suppliers and/or their agents and/or contractors may transfer Data among themselves as necessary for the purpose of the provision and management of the Products and Services and that Biller Genie may further transfer Data (i) with non-affiliated entities that assist Biller Genie in providing products and services that You have requested; (ii) with companies that provide support services to Biller Genie; (iii) with companies that provide marketing services on behalf of Biller Genie; or (iv) as otherwise provided by law. You further understand that in evaluating Your eligibility for, provision of, administration and management of the Products and Services, that Biller Genie may obtain various consumer reports regarding You from third parties, run a credit check or obtain other personal or credit information about You, and You shall defend, indemnify, and hold Biller Genie harmless from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, costs or expenses arising out of or relating to such evaluations. You further understand that while Biller Genie uses commercially reasonable efforts to safeguard Data and Transaction data transmitted while using Products and Services, Biller Genie does not warrant that Data and Transaction data will be transported without unauthorized interception or modification or that Data or Transaction data will not be accessed or compromised by any unauthorized third parties. With respect to the Products and Services, at all times while this Agreement is in effect, Biller Genie will maintain compliance with PCI DSS. You agree that you will comply at all times with all applicable and then-current legal obligations and security measures including without limitation those issued by the United States Government, Federal, State and Municipal laws and ordinances, Card Association, the Federal Trade Commission, PCI DSS and any other governing body. You agree that you will comply with all Biller Genie security protocols, notices and safeguards in effect during the term of this Agreement. You warrant that You have taken such precautions as are necessary to ensure that Your data and Your customer data is protected and that Your electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed Data or Transaction data, You shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify Biller Genie of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach. You are solely responsible for the security of data residing on server(s) owned or operated by You, Third Party Service Provider, or a third party designated by You (e.g., a web hosting company, processor, or other service provider), including credit card numbers and any other personal data. You shall comply with all applicable laws and regulations governing the collection, retention and use by You of credit card and other financial information and agree to provide notice to your customers on Your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. You agree that You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Biller Genie associated with Your account and verifying that all corresponding funds are accurately processed. You acknowledge that the Fees associated with any and all Transactions processed through Your account are earned by Biller Genie and shall not be reimbursed. You acknowledge that Biller Genie shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Your account, Data or Transaction data, regardless of fault or negligence. Biller Genie’s liability for unauthorized Transactions or improperly processed Transactions solely attributable to the negligence of Biller Genie is limited pursuant to this Agreement. You agree not to use, disclose, sell or disseminate any customer, client or other third party information obtained in connection with a Transaction except for purposes of completing or settlement of a Transaction and/or resolving chargebacks, retrievals or similar issues involving a Transaction unless required to do so by court order or governmental agency request, subpoena or order. You agree that You are solely responsible for compiling and retaining permanent records of all Data and Transaction data for Your reference. Except as otherwise provided herein, Biller Genie shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Biller Genie. You acknowledge that upon termination of this Agreement, Biller Genie shall have no obligation to provide You with any Data or Transaction data. You agree that You shall use proper controls for and limit access to all Data or Transaction data. Prior to discard You shall render all Data or Transaction data unreadable and abide by any laws or regulations imposed on You for Data or Transaction data destruction and/or disposal. In connection with Your rights described herein, Biller Genie or Affiliate Partner will issue to You, or permit You to use a user name and password, to enable You and/or Your employees and agents to access Your gateway account and use the Products and Services. You will restrict access to such user name, password, and account to Your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement and any recommendations and notices regarding such use and access. You are solely responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that are issued to You by Biller Genie or Affiliate Partner or selected by You, for purposes of giving You access to the Products and Services. Biller Genie shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You.

 

6.            TRADEMARKS: Biller Genie hereby grants to You the right to use, reproduce, publish, perform and display the Biller Genie Marks as follows: (a) on Your web site in connection with Your offering of Products and Services to Your customers; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Products and Services. You hereby grant to Biller Genie, its Third Party Service Provider and its Affiliate Partners the right to use, reproduce, publish, perform and display Your Marks as follows: (a) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Products and Services offered and/or accessible through Your web site; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Products and Services. For purposes of this Agreement, “Your Marks” means Your customary name and logo, and such other Trademarks as You may from time to time notify Biller Genie to be Your Marks within the meaning of this Agreement. For purposes of this Agreement, “Biller Genie Marks” means Biller Genie customary name and logo, and such other Trademarks as Biller Genie may from time to time notify You to be Biller Genie Marks within the meaning of this Agreement. Each party shall comply with all standards with respect to the other party's Trademarks which may be furnished by such party from time to time and all uses of the other party's Trademarks in proximity to the trade name, trademark, service name or service mark of any other person or entity shall be consistent with the standards furnished by the other party from time to time. Neither party shall create a combination mark consisting of one or more Trademarks of each party. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Each party hereby acknowledges and agrees that, as between the parties, the other party is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other party pursuant to this Agreement. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party. Either party must include a statement of ownership when displaying or reproducing either parties Trademark. The following statement is acceptable and shall be placed contiguous to the Trademark: “The trademark is the property of its respective owner.” Except as otherwise provided herein, You shall not use, register or attempt to register any Biller Genie Trademarks or marks or domain names that are confusingly similar to any of the Biller Genie Trademarks, marks or domain name(s). Except as authorized in this agreement, You shall not take any actions inconsistent with Biller Genie’s ownership of Biller Genie’s Trademarks and any associated registrations or attack the validity thereof. You shall not use Biller Genie’s Trademarks in any manner that would indicate You are using such Biller Genie Trademarks other than as a licensee nor assist any third party do any of the same.

 

7.            INTELLECTUAL PROPERTY AND PROHIBITION AGAINST REVERSE ENGINEERING: The parties agree that Biller Genie owns and retains all right, title and interest in and to the Products and Services, Trademarks, copyrights, technology and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to You or any other entity or person under this Agreement. You shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of Products and Services or related technology.

 

8.            PAYMENT TERMS: Fees shall begin on the Effective Date and You will be billed on the first business day of each month following the Effective Date for any and all amounts owing under this Agreement. If Fees accrue to more than $50.00 USD at any time in any given month, Biller Genie will bill You the full amount due on a more frequent basis at Biller Genie’s discretion. You hereby authorize Biller Genie to initiate ACH transactions entries to Your bank accounts for the payment of Fees hereunder. This authority is to remain in full force and effect until Biller Genie has collected all Fees due and owing under this Agreement. If Biller Genie is unable to collect amounts owing from your depository account, You hereby agree to pay all Fees then due and payable to Biller Genie immediately upon demand.  You must promptly update Your account information with Biller Genie or Affiliate Partner with current and accurate information. If You fail to provide Biller Genie or Affiliate Partner with current and accurate depository account or credit card account information, Biller Genie may immediately discontinue providing Products and Services to You, without liability, until such information is provided to Biller Genie and/or terminate this Agreement. You acknowledge that any change in account information may not be effective until the month following the month in which Biller Genie receives such notice. Termination of Your authorization shall result in termination of any and all Products and Services.

 

9.            FEES: You shall pay to Biller Genie the Fees as set forth in the Fee Schedule provided to You by Biller Genie and/or, if applicable Affiliate Partner. The Fee Schedule is hereby incorporated into the terms of this Agreement by reference. Notwithstanding the foregoing, if Your relationship with the Affiliate Partner that offered you the Products and Services expires or terminates and such Affiliate Partner was billing You for certain Fees, then You may continue using the Products and Services. If You elect to continue using the Products and Services, You acknowledge and agree that Biller Genie may begin to bill You for such Fees in the amounts that the Affiliate Partner had been charging You. Biller Genie may amend the Fee Schedule after providing You with thirty (30) days’ notice. You shall incur a late fee in the amount set forth in the Fee Schedule if any amounts due to Biller Genie under this Agreement are not paid on or before the tenth (10th) day following the date when due. In addition, You shall be subject to a finance charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such late fee(s) and finance charge(s) will not excuse or cure any breach or default for late payment. Biller Genie may accept any check or payment from You without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or payment or elsewhere will be construed as an accord or satisfaction. On each occurrence when Biller Genie is unable to collect Fees on Your account for any reason, including but not limited to insufficient funds, closed account, or any other negative response, Biller Genie may charge You a Return Payment Fee in the amount of $25.00 USD, or as set forth in the Fee Schedule. If You have not paid all owing amounts after two (2) days when due, Biller Genie may, in its sole discretion, discontinue providing You with Products and Services. If You have still not paid all owing amounts after thirty (30) days following the date the payment was due, then Biller Genie may, in its sole discretion, immediately terminate this Agreement. Notwithstanding, if You subsequently pay in full all owing Fees, including but not limited to late fees, finance charges and Return Payment Fees, and if Biller Genie has not already terminated this Agreement, then Biller Genie may elect to reactivate the Products and Services and charge You a service reactivation Fee in the amount set forth in the Fee Schedule. You agree to pay all costs and expenses of whatever nature, including attorneys' fees, incurred by or on behalf of Biller Genie in connection with the collection of any unpaid Fees.

 

10.          TERMINATION: You may terminate this Agreement with or without cause, and for any reason, by providing Biller Genie with at least thirty (30) days written notice of Your intent to terminate this Agreement. In the event You are billed by an Affiliate Partner in furtherance of Section 8.2 of this Agreement, you hereby authorize Affiliate Partner to terminate this Agreement on your behalf. Biller Genie may terminate this Agreement and/or terminate Your use of Products and Services immediately, or at any time, without advance notice and with or without cause, for any reason including without limitation to Your breach or default of any obligation set forth in this Agreement or if Biller Genie determines, in its sole discretion, that Your business practices are detrimental to the achievement of Biller Genie’s business objectives. In such event, Biller Genie shall provide You with a written or electronic notice of termination. In the event You are billed by an Affiliate Partner in furtherance of Section 8.2, and if Biller Genie receives notice from such Affiliate Partner that it has terminated or suspended its relationship with You, Biller Genie may suspend and/or terminate Your right to use Products and Services and/or terminate this Agreement without notice and without liability. In the event Biller Genie is notified by a Third Party Service Provider, court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that You are no longer entitled to receive payment data for any reason whatsoever, Biller Genie may suspend and/or terminate Products and Services and/or this Agreement without notice and without liability. Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement shall be extinguished and shall be given no further force nor effect except that i) all accrued payment obligations hereunder shall survive such expiration or termination; and (ii) the rights and obligations of the parties under Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive termination.

 

11.          CONFIDENTIALITY AND NONDISCLOSURE: Each party that receives Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) agrees to use reasonable best efforts to protect all Confidential Information, and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. Each party agrees that the terms and conditions of this Agreement will be Confidential Information, provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business. Each Party agrees not to divulge any Confidential Information, trade secrets or know how or any information derived therefrom to any third person or entity and shall only disclose Confidential Information to employees on a “need to know” basis who have executed a nondisclosure agreement with similar terms and obligations to this Agreement. Each Party shall not make any use whatsoever at any time of such Confidential Information except as contemplated by this Agreement. Each Party shall not copy or reverse engineer any such Confidential Information. The foregoing restrictions will not apply to any information that: (i) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party, (ii) was in or entered the public domain through no fault of the Receiving Party, (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed), or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request of the other party, or in any event upon any termination or expiration of the Term, each party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section.

 

12.          REPRESENTATIONS AND WARRANTIES: You acknowledge that Products and Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Biller Genie makes no warranty, express or implied, with regard to any such third-party software. You may not rely on the representation or warranty regarding Products and Services by any third party in contravention of the foregoing statements, including representations or warranties of any Third Party Service Provider or Affiliate Partner. In the event of a breach of the foregoing warranty, Biller Genie shall use commercially reasonable efforts to repair, or at its option replace, the Products and Services. You acknowledge that Biller Genie does not warrant that such efforts will be successful. If Biller Genie’s efforts are not successful, You may terminate this Agreement in accordance with Section 10.1. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND BILLER GENIE’S SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN BILLER GENIE’S SERVICES. Biller Genie does not warrant the services of any third party, including without limitation Third Party Service Providers, Affiliate Partners, VARS or the Card Association. PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. BILLER GENIE DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS AND SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE PRODUCTS AND SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS OR AFFILIATE PARTNERS. BILLER GENIE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE PRODUCTS AND SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT BILLER GENIE SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD, CHARGEBACKS OR OTHER LOSSES. The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less than five percent (5%) of the total Fees invoiced by Biller Genie for the relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the amount in dispute is greater than five percent (5%) of the total Fees invoiced by Biller Genie for the relevant billing statement, the disputed amount may be withheld until the dispute is resolved. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within thirty (30) days from the billing statement date.

 

13.          LIMITATION OF LIABILITY: BILLER GENIE EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, WHICH ARISES FROM OR RELATED TO ANY UNAUTHORIZED ACCESS TO YOUR FACILITIES OR TO YOUR DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND BILLER GENIE'S REASONABLE CONTROL. BILLER GENIE EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR ACCOUNT(S); (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S); (III) DISRUPTION OF PRODUCTS AND SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER OR AFFILIATE PARTNER, OR AQUIRING BANK; (V) UNAUTHORIZED ACCESS TO, LOSS OF, OR UNINTENTIONAL DELETION OF, DATA, CUSTOMER DATA (INCLUDING BUT NOT LIMITED TO, CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION), TRANSACTION DATA, PERSONAL INFORMATION BELONGING TO BILLER GENIE, YOU OR ANY THIRD PARTY, OR ANY OTHER DATA OR INFORMATION BELONGING TO YOU, YOUR CUSTOMERS, OR ANY OF YOUR AFFILIATES OR REPRESENTATIVES, AND YOU AGREE TO MAINTAIN YOUR OWN BACKUP FILES OF ALL SUCH DATA AND INFORMATION. BILLER GENIE EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS FOR THE LEGITIMACY OF ORDERS FORWARDED FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN FROM THE DATA PROVIDED BY ANY SERVICES PROVIDED BY BILLER GENIE, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH OR THE LIMITATION OF THE FUNCTIONING OF ANY PRODUCTS AND SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH WHETHER IT IS OWNED BY BILLER GENIE OR OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY. UNDER NO CIRCUMSTANCES WILL BILLER GENIE OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BILLER GENIE’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY BILLER GENIE PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AGGREGATE COMPENSATION BILLER GENIE RECEIVED FOR PROVIDING THE PRODUCTS AND SERVICES TO YOU DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,500.00 USD, WHICHEVER IS LESS.

 

14.          INDEMNIFICATION: Biller Genie shall defend, indemnify and hold You and any of Your officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by You, arising out of or relating to any alleged infringement of a U.S. patent of any other entity or person by Biller Genie. Biller Genie’s obligations in Section 14.1.a do not apply if Products and Services or portions or components thereof (a) are modified by persons or entities other than Biller Genie if the alleged infringement relates to such modification; (b) are combined with other products, processes or materials not supplied or recommended by Biller Genie where the alleged infringement relates to such combination, or (c) continue to be used after Biller Genie has made a non-infringing version available to You (collectively, “Your Faults”). If Products and Services or any component thereof becomes, or in Biller Genie’s opinion is likely to become, the subject of a claim of infringement, then You shall permit Biller Genie, at Biller Genie’s sole option and expense, either to (i) procure for You the right to continue using the Products and Services as permitted in this Agreement, or (ii) replace or modify the affected Products and Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Biller Genie is unable to cure the infringement, either party may terminate this Agreement upon notice to the other, as provided in Section 10. Notwithstanding the above, Biller Genie’s total liability shall not exceed the amount as stated in Section 13. THIS SECTION STATES THE ENTIRE LIABILITY OF BILLER GENIE TO YOU WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY PRODUCTS AND SERVICES. You shall defend, indemnify, and hold harmless Biller Genie and its Affiliate Partners, Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Biller Genie, arising out of or relating to (a) any breach or alleged breach by You of any representation, warranty, or obligation of You set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by You to Biller Genie; (d) payment card Transactions submitted by You to Biller Genie and rejected by Biller Genie or an Issuing Bank; (e) any alleged infringement of a patent, copyright, Trademark or other intellectual property right related directly or indirectly to any of Your products, services, data or intellectual property; (f) claims by Your customers, including, without limitation, claims relating to the disclosure of consumer data; (g) any alleged or actual violation by You of any applicable laws, regulations or rules of (i) the Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof; or (h) any violation of Biller Genie’s then current policies or guidelines. In the event You cause fines and/or penalties to be charged to Biller Genie by the Card Associations or any other entity, you agree to immediately reimburse Biller Genie for said fines and penalties. The obligations of each party (“Indemnitor”) under this Section 14 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way. If You are an agency or instrumentality of a state of the United States and are precluded by the law of Your state from entering into indemnification obligations, then the obligations under this Section shall apply only to the extent permitted by such state law.

 

15.          GENERAL PROVISIONS: Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein. All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Products and Services and/or posted in the Merchant Control Panel of Your Account. Any termination notice to Biller Genie shall be given electronically by sending an e-mail to cancellations@billergenie.com from within the Merchant Control panel of Your account. All other notices to Biller Genie shall be given electronically to support@billergenie.com with a written copy to Biller Genie Legal Department, 9999 NE 2nd Ave Suite 314, Miami Shores, FL 33138 or to 800.958.4250 (fax), Attention: General Counsel. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise. You further recognize that if you contracted for the Products and Services with an Affiliate Partner or Third Party Service Provider, such provider is an authorized reseller of Biller Genie only and is not a joint venturer, partner, or agent of Biller Genie. You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of Biller Genie, including in the case of a merger. Biller Genie will have the right to assign this Agreement to its successors and/or assigns, subsidiaries, affiliates, Affiliate Partners and/or Third Party Service Providers. No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Biller Genie may amend this Agreement at any time upon written or electronic notice or post notice on its Web site located at www.billergenie.com to You of not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of Fees, will become effective upon at least thirty (30) days’ notice. If You do not agree to such amendments, your sole remedy is to immediately terminate this Agreement upon written notice to Biller Genie. The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself. Any dispute or claim arising out of or relating to this Agreement, except claims involving intellectual property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) rules, as modified by this Agreement, and will take place in Miami, Florida, unless the Parties mutually agree to hold the proceedings elsewhere. This Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. An arbitrator may not award relief in excess of or contrary to what this Agreement provides or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither Party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. All administrative fees and expenses will be divided equally between the Parties, but each Party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. IF FOR ANY REASON THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services or other catastrophes or any other occurrences which are beyond such parties' reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event. This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Florida, without reference or giving effect to its conflicts of law principles. You hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Dade County, Florida with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts, except as otherwise provided in above. This Agreement together with all of Biller Genie’s policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects an informed, voluntary allocation between Biller Genie and You of all risks (both known and unknown) associated with Biller Genie Services.

 

Appendix A - Prohibited Activities.

 

You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which: (i) is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Card Association rules, consumer protection laws, unfair competition, antidiscrimination or false advertising; (ii) is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader with images of children less than 18 years old and/or escort services; (iii) infringes on any patent, Trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of Trademarks, pictures, logos, software, articles, musical works and videos; (iv) is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another's privacy, tortuous, or otherwise violate Biller Genie’s rules or policies; (v) victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (vi) impersonates any person or entity; (vii) contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Biller Genie Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party; (viii) violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce; (ix) offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice; (x) is associated with any form of illegal gambling or illegal lottery type services; (xi) is associated with illegal telecommunications or illegal cable television equipment or illegal satellite equipment; (xii) is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type; or (xiii) is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless you are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that Biller Genie believes to be or may become harmful, unlawful, or prohibited. Biller Genie requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and may require you to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, you may not use the Biller Genie Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non-exhaustive list of prohibited goods and services.  You further agree that you will not, during the term of this Agreement or thereafter, make any disparaging, derogatory or defamatory remarks or comments, either verbally or in writing, with regard to Biller Genie or its Products and Services.