Updated October October 24th, 2022
ARBITRATION AND WAIVER OF CLASS ACTION NOTICE. THESE TERMS CONTAIN IMPORTANT PROVISIONS INCLUDING AN ARBITRATION PROVISION THAT REQUIRES ALL DISPUTES TO BE RESOLVED BY BINDING ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND A WAIVER OF RIGHTS TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE SEE SECTION 22 (DISPUTE RESOLUTION AND ARBITRATION) AND SECTION 23 (WAIVER OF CLASS ARBITRATION OR ACTIONS) BELOW.
2. Eligibility. By agreeing to these Terms, You represent and warrant to us that if You are an individual: (a) You are at least 18 years old; (b) You are not currently and have not previously been suspended or otherwise removed from the Service; and (c) Your registration and Your use of the Service is and will remain in compliance with any and all applicable laws and regulations at all times. If You are an entity, organization, or company, the individual accepting these Terms on Your behalf represents and warrants that they have authority to agree and bind You to these Terms.
3.1 "Affiliates" means an entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party of this Agreement, by way of majority voting equity ownership. Affiliates DO NOT include clients of PAYWHIRL who have signed up for the Partner Program.
3.2 "Subscriber Data" means all electronic data or information submitted by the Merchant, or its Subscribers or Affiliates to, and stored by, the Hosted Service.
3.3 "Documentation" means the reference, administrative and user manuals which are published by PAYWHIRL and provided by PAYWHIRL to Merchant with the Hosted Service, which may be updated from time-to-time, but excluding any sales or marketing materials.
3.4 "Electronic Communications" means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Hosted Service.
3.5 "Initial Term" means the first month, excluding any renewal terms.
3.6 "Registration Process" means the process in which Subscriber creates an account by providing Subscriber's information and login information on the PAYWHIRL website and clicking the "Create my account" button at the bottom of the page.
3.7 "Plan" means the collection of Hosted Services chosen at an agreed upon price through the Registration Process.
3.8 "Term" means the Initial Term of one month and any renewal terms.
3.9 "3rd Party Applications" means online, Web-based applications or services and offline software products that are provided by 3rd parties, and interoperate with the Hosted Service.
3.10 "Payment Gateway Service Provider" means the 3rd Party Application that connects to the Hosted Service for the purpose of credit card payment processing. PAYWHIRL utilizes the services of Stripe, Braintree, Authorize.Net and/or Spreedly as necessary 3rd Party Applications for the processing of all credit card transactions made through the Hosted Service.
3.11 “Subscriber” means any individual person, persons or business entity that purchases products or services from the Merchant and utilizes the Hosted Service to facilitate payment to the Merchant.
3.12 “Monthly Fees” means the set fee that the Merchant agreed to pay each month by completing the Registration Process. The Monthly Fee is charged each month regardless of the number of transactions made by the Merchant.
3.13 “Transaction Fees” means the fee that is accumulated based on each transaction made on behalf of the Merchant and charged as a percentage of those transactions. The specific rate charged on each transaction is the rate agreed to by the Merchant at the completion of the Registration Process.
4. General Terms of Access to the Hosted Service.
4.1 PAYWHIRL Service Overview. PAYWHIRL provides You, as a store merchant, with certain hosted software to manage subscription payments and orders, recurring billing, and related services. You are solely responsible for all of the terms and conditions of the transactions conducted with Your Subscribers, including, without limitation, terms regarding payment, subscriptions, returns, warranties, shipping, handling, transportation, storage, insurance, fees, applicable taxes, text messaging (if applicable), title and licenses, all of which must be in accordance with applicable law.
4.2 Limited License. Subject to the terms of this Agreement and payment of the applicable fees, you are granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (as defined in Section 3.8 - Term) to use the Hosted Service subject to the terms, conditions and restrictions set forth in these Terms and any other restrictions stipulated to you in the Agreement or by us in writing. Except and solely to the extent such a restriction is impermissible under applicable law, You may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service, except as expressly permitted or directed by PAYWHIRL; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. For the avoidance of doubt, if You are prohibited under applicable law from using the Service, You may not use it.
4.3 Commencement of Term and Registration. The Term of this Agreement shall commence as of the date you first register for, access or use the Hosted Service, and shall continue until terminated as set forth in Section 14 - Termination With or Without Cause, Expiration. When You register for an account, You will be required to provide us with information about Yourself, such as Your name, email address, store URL, or other contact information. You agree that the information You provide to us is accurate, current, and complete and that You will keep it accurate, current, and complete at all times. When You register, You will be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password, and You accept responsibility for all activities that occur under Your account. If You believe that Your account is no longer secure, then You must immediately contact us.
4.4 Merchant Must Have Internet Access. DSL, cable or another high-speed Internet connection is required for proper transmission of the Hosted Service. You are responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect your network to the Hosted Service, including, but not limited to, "browser" software that supports protocols utilized by the Hosted Service. PAYWHIRL assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by PAYWHIRL.
4.5 Accuracy of Merchant's Contact Information. You shall provide PAYWHIRL with accurate, current and complete information on your legal business name, address, email address, and phone number, and, throughout your subscription, you shall maintain and promptly update this information if it should change. The Merchant shall provide verification of the information provided, both initially and with any update to that information. The Merchant’s failure to provide accurate and updated contact information and to verify that information may result in a freeze placed on the Merchant’s account by PAYWHIRL. In the event that PAYWHIRL must impose a freeze on the Merchant’s account under the circumstances stated in this provision, PAYWHIRL shall not be held liable for any resulting damages to the Merchant or any of its Subscribers resulting from the Merchant’s account being frozen.
4.6 Merchants: Passwords, Access, and Notifications. Your login information may be reassigned between employees of the Merchant as needed. The Merchant shall use commercially reasonable efforts to prevent unauthorized access to or use of the Hosted Service and any loss, theft, or unauthorized use of any Merchant password or name and/or the Hosted Service account numbers. PAYWHIRL is not liable for any harm caused by or related to the theft of Your IDs, Your disclosure of your IDs, or your authorization to allow another person to access and use the Hosted Service using your IDs. Also, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Hosted Service. You agree to immediately notify PAYWHIRL of any unauthorized use of your account or any breach of security known to You. You acknowledge that the complete privacy of your data and messages transmitted while using the Hosted Service cannot be guaranteed.
4.7 Use of the Hosted Service. The Merchant is responsible for all activities conducted by its employees, its employees’ Electronic Communications and for its employees' compliance with this Agreement, including the content of all Subscriber Data.
4.9 Agreement to Pay Fees. You agree to pay for the Hosted Service in accordance with our service fees, as further set forth below in Section 8 - Payment Terms; Taxes, and your Plan.
4.10 Billing Data Retention. Following any termination or expiration of this Agreement or your PAYWHIRL account, PAYWHIRL will retain a copy of your billing data for a period of thirty (30) days. You acknowledge and agree that (i) you are solely responsible for exporting a copy of your billing data prior to any such termination or expiration and (ii) if you require access to such data following any such termination or expiration, you may be required to pay professional service fees to PAYWHIRL to retrieve such data.
4.11 Test Gateway and Sandbox Server. The Merchant agrees to use PAYWHIRL’s Test Gateway and Sandbox Server to determine functionality of the Merchant’s chosen settings prior to providing Subscribers with access to, and use of, the Hosted Service. The Merchant agrees to use PAYWHIRL’s Test Gateway and Sandbox Server to determine functionality of any subsequent additions and/or modifications from the Merchant’s initial settings and prior to implementing those additions and/or modifications. Any loss of functionality of PAYWHIRL’s Hosted Service and resulting losses to the Merchant or its Subscribers resulting from a failure to use the Test Gateway and Sandbox Server to test functionality in accordance with this provision shall be the sole responsibility of the Merchant and PAYWHIRL shall not be held liable for said losses occurring as a result of noncompliance. The Merchant’s utilization of PAYWHIRL’s technical support shall not override this provision.
4.12 Second Payment Services Directive (“PSD2”) and Strong Customer Authentication (“SCA”) Requirements. This provision applies solely to Merchants who have one or more Subscribers located within the European Economic Area and, therefore, may have transactions requiring compliance with the PSD2 and SCA requirements. The Merchant has the sole responsibility to verify that his/her Subscribers’ transactions are being processed correctly and that said transactions are not rejected due to non-compliance with the PSD2 and SCA requirements. PAYWHIRL takes measures to facilitate and simplify the Merchant’s and Subscribers’ compliance with any regulations, including the PSD2 and SCA requirements. Due to the nature of the PSD2 and its SCA requirements, it is not possible for PAYWHIRL to ensure that every transaction is authorized by each individual banking institution because of the level of discretion that each banking institution has to authorize individual transactions. When a Subscriber saves a credit card for recurring payments on the Hosted Service, PAYWHIRL and the Merchant’s selected Payment Gateway Service Provider will at times be able to verify that PSD2 and SCA requirements apply and will direct Subscribers through SCA at that time; however, PAYWHIRL does not make any affirmations that any SCA requirements will be satisfied at the time Subscribers’ credit cards are stored for recurring payments. In the circumstances where PAYWHIRL and Subscribers’ selected Payment Gateway Service Provider cannot determine that the PSD2 and SCA requirements apply to Subscriber at the time Subscribers’ credit cards are stored on the Hosted Service, PAYWHIRL’s Hosted Service will automatically generate an email to the email address provided by that specific Subscriber that informs Subscriber the transaction has been rejected and directs Subscriber to complete SCA in order to authorize the transaction. PAYWHIRL and Subscriber’s selected Payment Gateway Service Provider will file any subsequent recurring transactions under the applicable exemption to SCA requirements. However, the banking institutions’ discretion provides the possibility that any request for exemption may be rejected. If an exemption is rejected by a banking institution, PAYWHIRL’s Hosted Service and Subscriber’s selected Payment Gateway Service Provider will automatically generate an email to the email address provided by that specific Subscriber that provides notice to Subscriber that the transaction has been rejected and directs Subscriber to complete SCA in order to authorize the transaction.
The Merchant and Subscribers maintain sole responsibility for ensuring compliance with the PSD2 and SCA requirements in accordance with its local application, interpretation and enforcement. PAYWHIRL provides sample text for the Merchant to use when creating notifications for Subscribers regarding the PSD2 and SCA. PAYWHIRL does not certify that said text is appropriate to satisfy the legal requirements of the PSD2 or SCA requirements in the Merchant’s, or Subscriber’s, location.
For more information regarding the PSD2 and SCA requirements and how the Hosted Service helps to facilitate regulated transactions, please visit https://docs.paywhirl.com/PayWhirl/en/articles/3294560-does-paywhirl-support-strong-customer-authentication-sca-and-3d-secure-psd2.
5.1 Confidential Information. For purposes of this Agreement, "Confidential Information" shall include Subscriber Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Hosted Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which:
(1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a 3rd party not bound by nondisclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party's Confidential Information; or (6) is aggregate data regarding use of PAYWHIRL's products and services that does not contain any personally identifiable, Merchant-specific or Subscriber-specific information.
5.2 Non-Disclosure Obligations. Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a degree of care in the protection of such Confidential Information) and (d) to make Confidential Information available to authorized persons only on a "need-to-know" basis. Either party may disclose Confidential Information on a "need-to-know" basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
8. Payment Terms; Taxes.
8.1 Payment Terms. If you subscribe to the Hosted Service, for all charges associated with the Hosted Service, PAYWHIRL or the relevant e-commerce platform hosting Your store(s) will bill the credit card or bank account that you provided for such purpose. You agree to provide PAYWHIRL with accurate and complete billing information, including valid credit card or bank account information, your name, address and telephone number, and to provide us with any changes in such information within 30 days of said change taking effect. PAYWHIRL will submit your Subscribers' payment information to your selected Payment Gateway Service Provider and will charge you a fee based on the dollar amount of the transactions processed by the Hosted Service. Monthly charges for the Hosted Service will be at the rates set forth by Hosted Service type and agreed upon by you in the Registration Process when you select your preferred Plan. Unless otherwise specified on the Hosted Service, any fees which are calculated as a percentage of Subscriber billings shall be calculated based on gross billings (i.e., following the addition of any sales or similar taxes that are applicable to such billings). Such charges may be modified by PAYWHIRL upon thirty (30) days prior written notice. Payments reflecting subscription fees for the prior month's use of the Hosted Service will be billed by PAYWHIRL and deducted from your authorized credit card or bank account promptly following the end of your Initial Term and every 30 days after your Initial Term until your use of the Hosted Service is terminated, or shall otherwise be due and payable in accordance with PAYWHIRL's then-current payment policies. Prices established in the Agreement, and in any schedule, exhibit or related agreement hereto, are exclusive of taxes and other fees which may be imposed on PAYWHIRL or you for the provision or use of the Hosted Service. You agree that until your subscription to the Hosted Service is terminated, you will continue to accrue charges for which you remain responsible, even if you do not use the Hosted Service.
8.2 Credit Card Company/Banking Institution Refusal to Pay. If, for any reason, your credit card company or banking institution refuses to pay the amount billed for the Hosted Service, you agree that we may, at our option, suspend or terminate your subscription to the Hosted Service and require you to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts.
8.3 Merchant Bank Account Fees. If you are using the Hosted Service to conduct credit card transactions through a 3rd Party Application connected through PAYWHIRL, as set forth in Section 3.10 - Payment Gateway Service Provider, you shall set up and maintain an account that is capable of receiving funds through a merchant bank account ("Merchant Bank Account"). You are responsible for your own Merchant Bank Account fees in addition to fees set forth hereunder. PAYWHIRL may help you apply for a Merchant Bank Account or you may bring an existing Merchant Bank Account, but any fees associated with such Merchant Bank Account are your responsibility and are not included in PAYWHIRL's fees. All fees associated with your chosen Payment Gateway Service Provider are also separate and not included in PAYWHIRL's fees. Without limiting any remedy available to PAYWHIRL, if you fail to pay any fees due hereunder, PAYWHIRL may suspend your access to the Hosted Service.
8.4 Liability for Cost of Collection. In the event legal action is necessary to collect on balances due, you agree to reimburse PAYWHIRL for all expenses incurred to recover sums due, including, but not limited to, attorney fees and other legal expenses.
8.5 Timing of Transaction Fee Charges. The different Payment Gateway Service Providers that PAYWHIRL utilizes for the purpose of credit card processing, as set forth in Section 3.10 - Payment Gateway Service Provider, maintain their own rules as to the timing that the TRANSACTION FEE CHARGES are due. The date that the the Merchant’s TRANSACTION FEE CHARGES are collected is determined by the Merchant's chosen Payment Gateway Service Provider at the time of registration for the Hosted Service. TRANSACTION FEE CHARGES accrued during the Merchant’s use of the trial period shall be charged to the Merchant in the same manner as any other TRANSACTION FEE CHARGES and that trial period shall have no effect on the timing of the TRANSACTION FEE CHARGES. The timing at which each Payment Gateway Service Provider collects its TRANSACTION FEE CHARGES is provided as follows, but is subject to change at any time:
8.6 Liability for Fraudulent Actions. PAYWHIRL is not liable for any losses relating to fraudulent charges by you or your Subscribers that are deceptive or fraudulent ("Fraudulent Actions"). By using the Hosted Service, you hereby release PAYWHIRL from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify PAYWHIRL of any Fraudulent Actions which may affect the Hosted Service. PAYWHIRL reserves the right, in its sole discretion, to terminate your account if you engage in, or permit any of the Merchant’s Subscribers to engage in, Fraudulent Actions.
8.7 Liability for Chargebacks Not Resulting from Fraudulent Actions. PAYWHIRL is not liable for any losses relating to chargebacks or otherwise invalid transactions. By using the Hosted Service, you hereby release PAYWHIRL from any liability arising from chargebacks or otherwise invalid transactions. You will also use best efforts to promptly notify PAYWHIRL of any chargebacks or otherwise invalid transactions which may affect the Hosted Service.
8.8 Taxes. All fees payable under the applicable Plan are exclusive of and do not include taxes or duties of any kind. You will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or your receipt or use of the Hosted Service, excluding taxes based on PAYWHIRL's gross or net income. If the Merchant is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, the Merchant will provide PAYWHIRL with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
9. Hosted Service Use and Limitations.
9.1 Continuation of Hosted Service. We will make reasonable efforts to keep the Hosted Service operational 24 hours a day for 7 days a week, except for planned downtime (of which we will use reasonable efforts to provide at least 72 hours prior notice).
9.2 Payment Gateway Service Provider Availability. We will be sending information to your Payment Gateway Service Provider; however, we make no representation as to the availability of your Payment Gateway Service Provider and are not responsible for any downtime or system outage of your Payment Gateway Service Provider.
9.3 Access to Funds Collected from Subscription Fees. PAYWHIRL is a subscription management and billing software service. You acknowledge and agree that: (i) We are not a bank or other chartered depository institution; and (ii) we will not be holding any monies for you or your Subscribers. Accordingly, you agree that we will not be responsible or liable for any amounts related to any credit card or payment transaction and we are not responsible for retaining or handling any funds in relation to credit card or payment transactions to satisfy an obligation to a 3rd party that you have assigned those rights to.
9.4 Affirmation of Legal Use of the Hosted Service. You represent, warrant and agree that you will only use the Hosted Service in compliance with all applicable laws and regulations, and that you will not use the Hosted Service to violate, infringe or misappropriate any intellectual property or other proprietary right of any 3rd party (including, without limitation, any rights of privacy or publicity).
10. 3rd Party Products & Services. The Hosted Service may provide you with access to, be integrated with, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by 3rd parties (collectively, "3rd Party Products or Services"). 3rd Party Products or Services are not under PAYWHIRL's control, and you acknowledge that PAYWHIRL is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such 3rd Party Products or Services. You shall comply with all 3rd party terms, and shall indemnify and hold PAYWHIRL harmless from all damages, costs, settlements, attorneys' fees and expenses arising from or related to your breach of any 3rd party terms. Any provision by PAYWHIRL of 3rd Party Products or Services, and any exchange of data between you and any 3rd party provider of 3rd Party Products or Services, is solely between you and the applicable 3rd party provider. If you install or enable 3rd Party Products or Services for use with the Hosted Service, you agree that PAYWHIRL may allow such 3rd Party Products or Services to access Subscriber Data as required for the interoperation of such 3rd Party Products or Services with the Hosted Service, and any exchange of data or other interaction between you and a 3rd party provider is between you and such 3rd party provider. The continued availability of the 3rd Party Products or Services is subject to the continued effectiveness and terms of the contract between PAYWHIRL and the 3rd party provider.
Please note that these terms, or the links thereto, are subject to change at any time at the discretion of the Payment Gateway Service Providers.
11. Disclaimer of Warranties.
11.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE HOSTED SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PAYWHIRL AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11.2 PAYWHIRL MAKES NO WARRANTY THAT (I) THE HOSTED SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE HOSTED SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THAT ANY DEFECTS IN THE HOSTED SERVICE WILL BE CORRECTED, OR (IV) THAT THE HOSTED SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE HOSTED SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.3 YOU UNDERSTAND THAT IN USING THE HOSTED SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH 3rd PARTY INFRASTRUCTURES WHICH ARE NOT UNDER PAYWHIRL'S CONTROL (SUCH AS A 3rd PARTY'S SERVERS). PAYWHIRL MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH 3rd PARTY INFRASTRUCTURES.
11.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HOSTED SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
11.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PAYWHIRL OR THROUGH OR FROM THE HOSTED SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. Limitation of Liability.
12.1 Except in circumstances where the Merchant refunds individual transactions to Subscribers, your exclusive remedy and our entire liability, if any, for any claims arising out of the Agreement and your use of the Hosted Service shall be limited to the amount you paid us in Monthly Fees for the Hosted Service during the ONE-MONTH PERIOD prior to the act giving rise to the liability. Under no circumstances will our liability be greater than the Monthly Fees associated with that SINGLE MONTH, except where the Merchant refunds transactions to the Subscriber, in which case, the Merchant may seek the amount of Transaction Fees charged that specifically relate to the refunded transactions. TRANSACTION FEES ARE NONREFUNDABLE UNDER ANY OTHER CIRCUMSTANCES.
12.2 EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13. Modification and/or Amendment and Suspension of Hosted Service.
13.1 Modification/Amendment of Hosted Service. We reserve the right to either modify or amend the Hosted Service, including any features therein, at any time WITHOUT NOTICE to you. We shall not be liable to you or any 3rd party should we exercise such rights. If you don't agree with the modified and/or amended Agreement, you have the right to reject it; however, such a rejection shall constitute an immediate termination of the Agreement as well as your right to continued use of the Hosted Service. If you use the Hosted Service in any way subsequent to a modification and/or amendment to this Agreement having become effective, such use constitutes your agreement to all modifications and/or amendments. Except for modifications or amendments to this Agreement made by PAYWHIRL in accordance with this Section, no other modification or amendment of this Agreement shall be effective unless in writing and signed by both you and PAYWHIRL.
13.2 Suspension of Hosted Service. PAYWHIRL may suspend all or any part of the Hosted Service at any time, with or without reason, including, without limitation, for failure to make a timely payment for the Hosted Service in accordance with this Agreement. You acknowledge that the operation of the Hosted Service may encounter technical or other problems on occasion and may not necessarily continue uninterrupted or without technical or other errors. PAYWHIRL shall not be liable to you or others for any such interruptions, errors or problems or an outright discontinuance of the Hosted Service. PAYWHIRL has no obligation to continue producing or releasing new versions of the Hosted Service. You agree to use the Hosted Service only through your website or software application that you own and control (the "Site") and we reserve approval authority as to the implementation and use of the Hosted Service on the Site. We may suspend or rate limit the Hosted Service in the event we find any implementation issues with the Site. Such suspension or limitation shall remain in effect until you correct any issues specified by PAYWHIRL and a suspension or rate limitation shall not relieve you of your payment obligations under the Agreement.
14. Termination With or Without Cause, Expiration. PAYWHIRL may terminate this Agreement at any time, in whole or in part, for any reason (including, without limitation, for your breach of this Agreement, violation of applicable law, violation of card association rules or regulations, or the threatening or filing of a lawsuit against PAYWHIRL) upon notice to the Merchant. The Merchant may terminate this Agreement at any time, in whole or in part, for any reason, UPON NOTICE TO PAYWHIRL. Upon any termination of this Agreement, any amounts owed to PAYWHIRL which accrued prior to such termination will become immediately due and payable, and, in the case of ANNUAL CONTRACTS BILLED MONTHLY, any early termination fee equal to three (3) times the monthly fee specified in the applicable Plan. In addition, either party may immediately terminate this Agreement issued hereunder in the event the other party commits a material breach of any provision of this Agreement and that breach is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed material breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to PayWhirl, Inc. at 9452 Telephone Rd., #140, Ventura, CA 93004 (or such other address that may be provided pursuant to this Agreement) ("Notice"). Upon termination or expiration of this Agreement for any reason, the Merchant shall have no rights to continue use of the Hosted Service. If this Agreement is terminated as a result of the Merchant's material breach of this Agreement, PAYWHIRL shall be entitled to all of the Fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of PAYWHIRL's material breach of this Agreement, then the Merchant shall be entitled to a refund of the pro rata portion of any prepaid subscription fees (NOT INCLUDING ANY TRANSACTION FEES) paid by the Merchant to PAYWHIRL under this Agreement for the remaining terminated portion of the Term.
15. Merchant and Subscriber Responsibilities. The Merchant and its Subscribers will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Hosted Service, including, without limitation, those related to privacy, electronic communications and anti-spam legislation. The Merchant and its Subscribers will not:
(a) Sell, lease, license or sublicense the Hosted Service; (b) introduce into or transmit through the Hosted Service any virus, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs; (c) transmit or store infringing material in the Hosted Service; (d) send any Electronic Communication from the Hosted Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Hosted Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. The Merchant agrees not to access the Hosted Service by any means other than through the interfaces that are provided by PAYWHIRL. The Merchant shall not do any "mirroring" or "framing" of any part of the Hosted Service, or create Internet links to the Hosted Service which include log-in information, user names, passwords, and/or secure cookies.
As part of the buying and selling process on the Hosted Service, the Merchant will obtain the email address and/or shipping address of its Subscribers. By entering into our Agreement, the Merchant agrees that, with respect to Subscribers' Confidential Information that the Merchant obtains through the Hosted Service or through a Hosted Service-related communication or Hosted Service-facilitated transaction, PAYWHIRL hereby grants to the Merchant a license to use such information only for Hosted Service-related communications that are not unsolicited commercial messages. PAYWHIRL does not tolerate spam. Therefore, without limiting the foregoing, the Merchant is not licensed to add the name of a Subscriber to the Merchant’s mailing list (email or physical mail) without that Subscriber's express consent.
16. Transmission of Data. The Hosted Service allows the Merchant to send Electronic Communications directly to PAYWHIRL and to 3rd parties. The Merchant understands that the technical processing and transmission of the Merchant's Electronic Communications is fundamentally necessary to use of the Hosted Service. The Merchant expressly consents to PAYWHIRL's receipt and storage of Electronic Communications and/or Subscriber Data, and the Merchant acknowledges and understands that the Merchant's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by PAYWHIRL. The Merchant further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. PAYWHIRL uses encryption in various locations and methodologies within the Hosted Service and the infrastructure working behind it. Subscriber Data is encrypted while in transit to and from the Hosted Service; however, PAYWHIRL is not responsible for any Electronic Communications and/or Subscriber Data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by PAYWHIRL, including, but not limited to, the Internet and the Merchant's local network.
17. Implementation. Implementation and training services ordered by the Merchant, as set forth in the applicable Plan, will be performed in accordance with PAYWHIRL's customary practices for the level of services purchased. PAYWHIRL does not provide dedicated project management for the Merchant during implementation unless separately purchased. Implementation is performed remotely unless otherwise specified. You agree that PAYWHIRL does not require express permission to access your account for the purpose of implementation. Typically, PAYWHIRL's support team will ask to access your account; however, by entering into this Agreement, PAYWHIRL is not legally required to do so and may access your account at any time in order to facilitate implementation. PAYWHIRL is not responsible, and will not be liable, for the Merchant's configuration decisions or the Hosted Service's ability to allow the Merchant to comply with all laws and regulations in the Merchant's unique circumstances, nor for any delays in implementation caused by the Merchant, including, but not limited to, the Merchant’s delays in providing clean and validated data, if needed, or the Merchant delays in making necessary business decisions with respect to the configuration of the Hosted Service.
18. Intellectual Property Rights.
18.1 PAYWHIRL's and 3rd Party Providers' Intellectual Property. You agree that all rights, title and interest in and to all intellectual property rights in the Hosted Service and Documentation (including all updates, enhancements and derivative works thereof and thereto) are owned exclusively by PAYWHIRL or its licensors. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to you does not convey any rights in the Hosted Service, express or implied, or ownership in the Hosted Service or any intellectual property rights thereto. As between the parties, PAYWHIRL owns all intellectual property and other proprietary rights to the Hosted Service, including, but not limited to, the design, artwork, logos, functionality, and documentation relating thereto (collectively, the "PAYWHIRL Property"). In addition, PAYWHIRL shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Hosted Service any suggestions, enhancement requests, recommendations, or other feedback provided by you, including Subscribers, relating to the operation of the Hosted Service. Any rights not expressly granted herein are reserved by PAYWHIRL. PAYWHIRL service marks and trademarks, logos and product and service names are marks of PAYWHIRL (the "PAYWHIRL Marks"). You agree not to display or use the PAYWHIRL Marks in any manner without PAYWHIRL's express prior written permission. The trademarks, logos and service marks of 3rd Party Application providers ("Marks") are the property of such 3rd parties. You are not permitted to use these Marks without prior written consent of such 3rd party who may own the Marks.
18.2 PAYWHIRL Marketing and Merchant's Intellectual Property Rights. By completing the Registration Process to use the Hosted Service, the Merchant agrees that PAYWHIRL has the right to use the Merchant's name, trademarks, logos and service marks for any marketing purposes, including, but not limited to, informing the general public of the Merchant's use of the Hosted Service.
18.3 Copyright Infringement. PAYWHIRL respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Merchants who repeatedly infringe others' rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to PAYWHIRL's copyright agent:
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C.A. § 512(c), our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Hosted Service of repeat infringers of copyright or of Merchants about whom repeat claims of copyright infringement are received will be terminated.
Designated Agent for Claimed Infringement:
9452 Telephone Rd. #140
Ventura, CA 93004
17.4 Termination for Copyright Infringement. You acknowledge and agree that, upon receipt of a notice of a claim of copyright infringement, we may immediately cancel your PAYWHIRL account without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
19.1 Subscriber's Indemnity. You agree, at your own expense, to indemnify, defend and hold harmless PAYWHIRL, its licensors and their respective directors, officers, employees and agents from and against all demands, liabilities, losses, claims and expenses, including, but not limited to, attorneys' fees and disbursements, arising out of (i) your or any authorized or unauthorized 3rd party's use of the Hosted Service, (ii) 3rd party claims, actions or allegations of infringement based on information, data or content you submitted in connection with the Hosted Service, (iii) any fraud or manipulation, or other breach of this Agreement by you, (iv) 3rd party claims, actions or allegations brought against PAYWHIRL arising out of your use of the Hosted Service, or (v) for any claim whatsoever resulting from you or your affiliates', employees', contractors' or agents' breach of the Children's Online Privacy Protection Act (COPPA) or the Health Insurance Portability and Accountability Act (HIPAA) or any other state or federal medical privacy or electronic privacy laws. PAYWHIRL reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
19.2 Indemnification Procedures and Survival. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party's compliance with this Section. The indemnification obligations contained in this Section shall survive termination of this Agreement for the later of the conclusion of a Claim or one year.
20. Suspension; Discontinuation of Hosted Service.
20.1 Suspension for Delinquent Account. PAYWHIRL reserves the right to suspend your, and any of your affiliates', access to and/or use of the Hosted Service for any accounts for which payment is due but unpaid without notice. You agree that PAYWHIRL shall not be liable to you or to any of your affiliates or other 3rd party for any suspension of the Hosted Service pursuant to this section.
20.2 Suspension for Ongoing Harm. You agree that PAYWHIRL may suspend access to the Hosted Service at any time and WITHOUT NOTICE if PAYWHIRL reasonably concludes that your use of the Hosted Service: (i) is being used to engage in denial of service attacks, spamming, or illegal activity; or (ii) is causing immediate, material and ongoing harm to PAYWHIRL or others. In the extraordinary event that PAYWHIRL suspends your access to the Hosted Service, PAYWHIRL will use commercially reasonable efforts to resolve the issues causing the suspension of Hosted Service. You further agree that PAYWHIRL will not be liable to you or any 3rd party for any suspension of the Hosted Service under such circumstances as described in this Section.
21. Refunds. PAYWHIRL will provide refunds of the TRANSACTION FEE of any individual transactions where the Merchant provides a refund to a Subscriber. In the case of individual transaction fee refunds, the refunded amount will depend on whether the transaction was refunded to the Subscriber in full or in part. The refunded transaction fee amount will be the total of the TRANSACTION FEE associated with the portion of the individual transaction that is refunded by the Merchant. Under any other circumstances, PAYWHIRL reserves the right, IN IT'S SOLE DISCRETION, to tender a refund to the Merchant. PAYWHIRL will not be obligated to provide a refund under any circumstances, except as provided in the aforementioned circumstance regarding transactions refunded by the Merchant to a Subscriber. Furthermore, under no circumstances will any refund amount provided by PAYWHIRL be in excess of the amount of a SINGLE MONTHLY FEE for the month for which the refund is tendered, except as provided in the aforementioned circumstance regarding transactions refunded by the Merchant to a Subscriber. PAYWHIRL does not provide refunds on annual fees that are paid in its entirety at the beginning of the Term as the aforesaid fees are discounted from the original fee.
22. Dispute Resolution. In the event of any controversy or claim arising out of or relating to these Terms, or any breach thereof, such controversy or claim shall be determined and finally settled by confidential, binding arbitration, conducted in English, held in Los Angeles County, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Any claimants must file an individual request for arbitration, specifying such claimant’s identity, such claimant’s counsel, and a detailed description of the legal claims being asserted and the requested relief, including a good faith calculation of the specific amount in dispute. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
23. Waiver of Class Arbitration or Actions. Any claims that You or PAYWHIRL assert under these Terms will be brought on an individual basis only and not on a class, consolidated, representative or collective basis. Only individual relief is available for controversies and claims arising out of or relating to these Terms, or any breach thereof, and You and PAYWHIRL agree that class arbitrations and class actions are not permitted under any circumstances. You understand that, by agreeing to these Terms, You and PAYWHIRL are waiving the right to participate in any form of class arbitration and/or class action.
24. Export Controls. Services available on or through the Hosted Service are subject to United States Export Controls. The Hosted Service may not be used (a) in (or by a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (b) by anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders. By using the Hosted Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
25. International Use. Although the Hosted Service may be accessible worldwide, PAYWHIRL makes no representation that materials on the Hosted Service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to use the Hosted Service from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any service and/or information made in connection with the Hosted Service is void where prohibited.
26. General Provisions.
26.1 Notices. All notices to a party shall be in writing and shall be made either via email, conventional mail or by posting the notice on the Hosted Service. Notices to us must be sent to email@example.com, if by email, or to PayWhirl, Inc., 9452 Telephone Rd. #140, Ventura, CA 93004, if by conventional mail. Notices to you may be sent either to the email address supplied for your account or to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the Hosted Service to inform you of any changes to the Hosted Service or other matters of importance, and such broadcasts shall constitute notice to you.
Any notices or communication under these Terms will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by confirmed email. Either party may update its address or email address for notice purposes via a notice delivered in accordance with this paragraph.
26.2 Costs and Attorney's Fees. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys' fees.
26.3 Limitation. Any cause of action brought by you against us must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
26.4 Severability. If any part of these Terms is held invalid or unenforceable, the parties agree that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
26.5 Headings. The headings in this Agreement are for your convenience of reference only and have no legal effect.
26.6 No 3rd Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of you and PAYWHIRL, and is not intended to benefit any 3rd party. Only the parties to this Agreement may enforce it.
26.7 Assignment. You may not assign, transfer, or delegate any rights and obligations under this Agreement to any other party without the prior written consent of an authorized representative of PAYWHIRL, except you may assign or transfer all or any portion of your rights or responsibilities under this Agreement by operation of law or otherwise to any other party in connection with a merger, acquisition, reorganization, or a sale of substantially all of your assets without prior notice to PAYWHIRL. Any assignment in violation of this Agreement shall be void and of no force and effect. PAYWHIRL may freely assign its rights and obligations under these Terms. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
26.8 Subcontracting. PAYWHIRL may subcontract its obligations hereunder (provided that PAYWHIRL shall at all times remain fully responsible for the performance of any subcontractor).
26.9 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. This Agreement sets forth the parties' entire liability and exclusive remedies relating to this Agreement and the Hosted Service provided to you under this Agreement.
26.10 Force Majeure. In addition to any excuse provided by applicable law, both parties shall be excused from liability for failure or delay in performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control, whether or not foreseeable by either party, including, but not limited to, labor disturbance, war, fire, riot, flood, accident, adverse weather, natural disaster, governmental act or regulation, internet or telecommunication failures, terrorist acts, or other causes or events beyond such party's reasonable control, whether or not similar to those enumerated above, provided that the nonperforming party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible
26.11 Assent to Agreement. The Merchant's completion of the Registration Process shall constitute assent to the provisions of the Terms and any additional terms provided in the specific Plan that the Merchant selects during the Registration Process.
26.13 The Applicable Terms. If PAYWHIRL makes a material change to any applicable contract terms contained in a URL, PAYWHIRL will notify you by either sending an email to the notification email address, sending conventional mail to the physical address that you provided us with or by posting a notice on the Hosted Service. If the change has a material adverse impact on you and you do not agree to the change, you must so notify. If you notify PAYWHIRL as required, then your subscription to the Hosted Service will be terminated immediately upon receipt of the notice from you.
26.14 Governing Law. The Hosted Service is controlled by us from our offices within the State of California, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places may have laws that may differ from those of California, by using the Hosted Service, both of us agree that the statutes and laws of the State of California, without regard to the conflicts of laws principals thereof, will apply to all matters relating to the use of the Hosted Service.
26.15 Jurisdiction and Venue. Each of us agrees and hereby submits to the personal jurisdiction and venue of the Superior Court of San Francisco County and the United States District Court for the Northern District of California with respect to such matters. The parties waive their right to have an action under this Agreement brought or tried elsewhere.
26.16 No Waiver of Rights or Provisions. Any failure of PAYWHIRL to enforce or exercise any provision of the Agreement shall not constitute a waiver of that right or provision.
Last updated on October 24th, 2022