PaymentVision® Online Portal Terms of Service

Revised: 07/22/2015

Thank you for your business and for your confidence in PaymentVision. This Terms of Service agreement (this “TOS” or this “Agreement”) is an agreement between PaymentVision and your organization or entity (the “Client,” “you” or “your”).

Autoscribe Corporation, a Maryland corporation doing business as PaymentVision (“PaymentVision” or “our”), offers online payment processing and information services (referred to either individually or collectively as the “Service”). The PaymentVision web pages, information and processes provided, the coordination and arrangement of the Service, and the procedures and documentation for using the Service are all “Proprietary Information”. The Service and the Proprietary Information constitute the “Licensed Service” under this Agreement.

You are not forced to accept these terms. Our standard Service, as defined in this TOS, is a cost-effective solution that meets the needs of most organizations. If our standard Service under this TOS does not meet your organization’s needs, PaymentVision does offer custom license agreements with negotiated terms. PaymentVision’s fees for custom licenses are higher than fees for our standard products, due to increased origination and administrative costs.

THIS TOS DEFINES IMPORTANT RIGHTS, RESPONSIBILITIES AND LIMITATIONS. IF YOUR ORGANIZATION DOES NOT AGREE TO ALL OF THESE TERMS, DO NOT SIGN THE SERVICE ORDER OR CLICK TO ACCEPT (AS APPLICABLE), AND DO NOT USE THE LICENSED SERVICE.

By signing the Service Order, clicking on the “accept” button, installing, or by otherwise receiving and using the Licensed Service, your organization agrees as follows:

  1. When this TOS Applies. Unless one of the two exceptions below applies, this TOS is binding on both PaymentVision and Client. Client’s authorized representative will also accept a “Service Order” that contains certain terms, specifications and pricing for the Service. In case of any conflict between the terms of the Service Order and this TOS, the TOS terms take precedence unless the Service Order specifically states that one of its terms applies “despite the contrary provision in the TOS.”
    This TOS does not apply if another agreement with PaymentVision activates one of these exceptions:

    1. Legacy Licenses. For clients that contracted for use of the Licensed Service under a written agreement executed prior to September 1, 2011 (a “Legacy License”): the Legacy License agreement will continue in force for its remaining term, unless otherwise terminated under its provisions, and this TOS does not apply.
    2. Custom Licenses. For clients that obtained a custom service contract executed after September 1, 2011 that expressly references this TOS and expressly provides that the terms of the TOS shall have no effect, the terms of that custom agreement will govern the provision of the Service and this TOS does not apply.
  2. License Grant. Conditioned on Client’s acceptance and compliance with the terms of this TOS and the Service Order and payment of the specified fees, PaymentVision grants to Client a limited, non-exclusive, non-transferable license to use the Licensed Service. The Licensed Service shall be used for Client’s own internal business operations, in compliance with any further use restrictions stated on the Service Order, and for no other purpose.
  3. Business Terms and Termination.
    1. Payment. Client will pay the fees stated on the Service Order. On or about the fifth (5th) business day of each calendar month PaymentVision will send to Client a detailed invoice for all charges incurred during the previous month. Unless contrary invoicing provisions are specifically set forth in the Service Order, PaymentVision will debit Client’s bank account in accordance with Client’s ACH Debit Authorization, if applicable, on or about the tenth (10th) day of each month. If an invoice is not paid by the tenth (10th) day of the month, or the balance of Client’s bank account is insufficient to cover PaymentVision’s presentment, Client shall pay the amount due within one (1) business day of PaymentVision’s notice requesting payment or Service may be interrupted. Invoices not paid when due, unless legitimately disputed in the manner prescribed below, shall accrue service charges at the rate of one and one half percent (1.5%) per month. Such service charge will begin to accrue the day after which payment is due. Invoices submitted by PaymentVision shall be considered accurate unless Client details its dispute by written notice within fifteen (15) days of the invoice date. The fees stated in the Service Order shall be increased by no greater than five percent (5%) annually on the anniversary of the Effective Date.
    2. Taxes. Each Party shall pay any taxes resulting from its performance under this Agreement, including without limitation, any sales, use and excise taxes on any services provided by that Party under this Agreement, but not including taxes on the other Party’s net income.
    3. TOS and Other Terms. The Licensed Service is provided under the terms of this TOS. By using the Service, Client expressly accepts and is bound by the then-current version of the TOS. Additional obligations may be imposed by specific third-party services offered through the PaymentVision portal; when Client uses these third party services, Client also accepts and is bound by their posted terms.
    4. Access and Equipment. Client is responsible for providing all hardware, software, and connections needed for Client’s access to the Service via the Internet or otherwise. Client is responsible for securing its login information (username and password) and may be held responsible for services used via Client’s login information.
    5. Effective Date. This Agreement takes effect on the Effective Date specified on the Service Order, or if no Effective Date is stated, on the date Client first signs into the Licensed Service portal.
    6. Term. This Agreement has an Initial Term as stated on the Service Order, and renews automatically for additional one (1) year Renewal Terms unless (i) a Party gives written notice of termination at least ninety (90) days prior to the expiration of the current Term, or (ii) the Agreement is otherwise terminated as provided herein.
    7. Default Termination. A Party may terminate this Agreement by written notice upon the default of the other Party (the “Defaulting Party”) in the event that (a) the Defaulting Party materially breaches a term of this Agreement, which if remediable, has not been corrected within thirty (30) calendar days after written notice by the non-defaulting Party, or (b) the Defaulting Party suffers from a Business Failure. A “Business Failure”, subject to applicable law, means when: (1) a Defaulting Party files a voluntary petition in bankruptcy provided that such petition is not withdrawn or dismissed within sixty (60) days of filing; (2) any pleading seeking any reorganization, liquidation, or dissolution under any law is filed against the Defaulting Party and the Defaulting Party admits or fails to contest the material allegations of any such pleading filed against it; (3) an order for relief is entered against the Defaulting Party under the U.S. Bankruptcy Code; (4) a receiver is appointed for a substantial part of the assets of the Defaulting Party; (5) an assignment for the benefit of creditors or similar disposition of assets of the Defaulting Party is made; or (6) the Defaulting Party ceases to conduct business operations generally.
      1. Notwithstanding the foregoing, if any Service provided hereunder, Client’s use of such Service or any fee being charged is found to violate any state or federal statute, rule or regulation, or rule or requirement of the National Automated Clearing House Association (NACHA) or the Credit Card Associations, PaymentVision may immediately terminate this Agreement as to the violating Service upon notice to Client, without further obligation.
    8. Effect of Termination. Upon termination of this Agreement:
      1. Client shall immediately discontinue use of the Licensed Service, destroy or delete all materials, software and any backup databases or other information provided to Client in connection with this Agreement
      2. PaymentVision will either:
        1. promptly destroy or delete all of Client’s Confidential Information, including customer information, held by PaymentVision; or
        2. upon Client’s written request, provided no later than sixty (60) days from the notice of termination, once Client’s account is deemed paid in full (including full payment of all termination fees as agreed to below), PaymentVision will deliver in a reasonable amount of time all of Client’s information to a service provider designated by Client, which service provider is certified no less than a Level I PCI Certified service provider. Client agrees that it will be responsible for any professional fees incurred to complete such transfer.
      3. Notwithstanding the foregoing, each Party may maintain a secured, archival copy of relevant records for a period pursuant to the Party’s documentation retention policy, deemed reasonably necessary for forensic, regulatory and evidentiary purposes.
      4. Termination Fee. Upon early termination of this Agreement by Client (excluding termination for PaymentVisions’s default of this Agreement as provided for in Section 3.g.), or by PaymentVision should Client breach any of the terms of this Agreement during the Initial Term or any Renewal Term and not cure said breach within the cure period allowed for under this Agreement, Client shall pay to PaymentVision an Early Termination Fee in the form of liquidated damages which fee will be determined by the level of customization as provided in the Client’s Service Order.
        1. The Early Termination Fee for Client’s with Standard Customization will be equal to the greater of:
          1. $1,000.00,
          2. a total of twelve (12) months minimum payments or
          3. the total of the three (3) calendar months in which such Client billing was the highest during the preceding twelve (12) calendar months, or such shorter period if this Agreement has not been in effect for twelve (12) months.
        2. The Early Termination Fee for Client’s with Complex Customization will be equal to the greater of:
          1. $5,000.00 or
          2. the average of the three (3) calendar months in which such Client billing was the highest during the preceding twelve (12) calendar months, or such shorter period if this Agreement has not been in effect for twelve (12) months, multiplied by the months remaining the then current term.
      5. In addition to the Early Termination Fee, Client shall pay any fees, fines, third party costs or penalties which PaymentVision may be assessed due to Client’s breach of this Agreement and/or early termination. To the extent that applicable state law mandates lesser termination fees, the Early Termination Fee shall be the maximum allowed by applicable law. Client will not owe the Early Termination Fee if Client elects not to renew the Agreement upon the expiration of the then current term by providing written notice in accordance with Section 3.f. above. All rights and obligations of the Parties existing as of the effective time of termination will survive termination.
      6. If Client continues to use the Licensed Service after an agreed termination date, Client will be responsible for five (5) times the standard fee for the unauthorized use of the Licensed Service.
  4. Intellectual Property Rights.
    1. “Intellectual Property” shall mean any Party-owned or licensed logos, trademarks, service marks, trade dress, copyrights, databases, utility designs, patents, patent applications, artwork, audio files, video files and foreign equivalents of the foregoing and all any and all other intellectual property rights of such Party recognized by applicable law.
    2. No Intellectual Property Rights Conveyed. The Licensed Service is licensed, not sold, and is the Intellectual Property of PaymentVision. Client shall secure the Licensed Service in a manner consistent with industry norms for similar licensed information and shall use reasonable efforts to keep PaymentVision’s rights in the Licensed Service in good stead. Any Intellectual Property which is owned or controlled by either Party prior to the Effective Date of this Agreement or which is acquired by a Party independently of this Agreement shall at all times continue to be owned and/or controlled by said Party.
    3. No Further Licenses Granted. Other than the limited licensed use explicitly permitted herein, this TOS does not provide any express or implied rights in PaymentVision’s Intellectual Property. Client shall not attempt to copy, create derivative works, reverse engineer, download or otherwise duplicate or modify the Intellectual Property.
    4. Press Release and Logo. Client authorizes PaymentVision: (i) to use Client’s name and logo to promote PaymentVision’s business on PaymentVision’s website and in marketing materials, and (ii) to issue a press release announcing this Agreement, in both cases subject to Client’s review and reasonable approval.
  5. Confidentiality.
    1. Definitions. “Confidential Information” includes any proprietary or confidential information of a Party, disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), in whatever form provided. Confidential Information includes, without limitation, the Disclosing Party’s business plans, scientific knowledge, Intellectual Property, know-how, designs, samples, processes, inventions, techniques, formulae, products, equipment, computer data, plans, business operations, vendor and customer lists, pricing and profitability information, sales and marketing plans, financial information, and other information of business importance to the Disclosing Party. Confidential Information does not include information and documentation that:
      1. is or becomes publicly available other than through a breach of this Agreement by the Receiving Party or any wrongful act by any other Party;
      2. the Receiving Party can show it already knew or had possession of at the time of disclosure;
      3. is lawfully received by the Receiving Party from a third party without misappropriation or breach of this Agreement or any other agreement, provided that the Receiving Party is not obligated to hold such information in confidence;
      4. is independently developed by or for the Receiving Party by persons who have not had access to or received any Confidential Information under this Agreement; or
      5. the Receiving Party has received written permission from the other Party to disclose
    2. Treatment of Confidential Information. All Confidential Information shall remain solely the property of the Disclosing Party, and the recipient shall maintain and protect such Confidential Information with the same degree of care used to protect its own confidential and proprietary information, but in any event, no less than a reasonable degree of care. Each Party shall also cause its agents, contractors, employees and any other persons who come into contact with the Confidential Information to maintain it in strictest confidence and use it only as permitted under this Agreement.
    3. Non-Public Information. In providing Services hereunder, PaymentVision, its affiliates, employees, agents, and contractors, and/or third parties may come into contact with Client’s customer’s Non-Public Information as defined in the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., which may also be subject to the “Identity Theft” provisions of the Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act. Names, addresses and other individually identifiable information or non-public personal information as defined by 12 CFR 40.3 that PaymentVision, its affiliates, employees, agents, and contractors may come into contact with as the result of providing Services hereunder will be treated as confidential by PaymentVision, its affiliates, employees, agents, and contractors, except where necessary to carry out the terms and conditions of this Agreement or to comply with law or legal process.
    4. HIPPA Compliance. The Parties agree to comply with all applicable laws and regulations, including HIPAA and the HITECH Act, in meeting their obligations under this Agreement.
    5. Required Disclosures. Nothing contained herein will prevent either Party from complying with any applicable law, regulation or court order, provided that prior to any required disclosure in accordance with such applicable law, regulation or court order, written notice will be provided to the Party whose Confidential Information may be disclosed. Such notice shall be given as soon as possible but in no event less than five (5) business days before disclosure of such Confidential Information. The Party making such disclosure shall disclose only such Confidential Information as is required by such law, regulation or court order and shall use commercially reasonable efforts to obtain confidential treatment for such Confidential Information from such court, regulatory agency or other governmental body.
  6. Restrictions and Special Terms.
    1. General. Except as explicitly permitted by this Agreement, Client may not do, or permit others to do, any of the following:
      1. Make copies of all or part of the Licensed Service, except as required for installation. However, Client can make a backup copy of the Licensed Service for system recovery purposes.
      2. Provide access to, disclose, sell, lease, license, lend, distribute, assign, or otherwise transfer or allow the transfer of the Licensed Service, any part thereof, or any copies thereof to any third party.
      3. Use all or part of the Licensed Service to earn income or otherwise receive benefits in a third-party service capacity, or market any part of the Service in an information providing capacity.
      4. Modify, translate, or create a derivative work of part or all of the Licensed Service.
      5. Directly or indirectly attempt to recompile, manipulate, or reverse engineer the Licensed Service, in whole or in part.
      6. Remove, alter, or tamper with copyright, trademark, patent or other intellectual property markings for the Licensed Service.
      7. Retain, store, compile or aggregate data received from a Licensed Service to (1) create a database or electronic collection of such data or (2) that provides access to data received from a Licensed Service for use in a future decision, determination or other inquiry outside the specific inquiry for which the data was originally provided.
    2. Special Terms for Clients Using Account Verification Service. PaymentVision may permit qualified clients to submit a customer routing and account number (the “Inquiry”) to PaymentVision’s Account Verification Service (“AVS”) that accesses a national bank information database. PaymentVision will provide available data regarding the customer account (“Response”). AVS data is time sensitive and Responses are for use in connection only with the specific Inquiry for which the Response was provided. Client will comply with all provisions herein, and expressly obligate anyone accessing the AVS through Client’s account to comply with these provisions.
      1. Permitted Uses. An Inquiry may be submitted only: (1) regarding a payment presented to Client in exchange for goods or services (these inquiries must specify the actual dollar value of the payment) or (2) to determine whether to allow the customer account to be enrolled for use in connection with future transactions (these inquiries cannot specify a dollar value).
      2. Requirements. Client represents and warrants that:
        1. Each Inquiry shall accurately represent the data obtained by Client in connection with the payment or enrollment.
        2. Client shall accurately report all information associated with each Inquiry and Response.
        3. Client shall not use a Response in a manner that alters the technical accuracy of the Response information.
        4. Client shall not use or rely on the Responses for any purpose other than allowed under “Permitted Uses” above.
        5. Client shall not cache, store, or otherwise retain a Response, in whole or in part, except for use solely as a record of the transaction to which the Response relates, as required by applicable law or as authorized in writing by PaymentVision.
        6. Client shall use each Response solely in accordance with the federal Fair Credit Reporting Act, 15,U.S.C. § 1681 et seq. (“FCRA”), for a permissible purpose under section 604(a) of the FCRA, and in conformance with all other applicable federal, state and local laws, rules, and regulations.
        7. FCRA Notification. Client shall provide PaymentVision’s contact information to consumers with inquiries arising from the decline of a payment or enrollment that was based, in whole or in part on a Response it received from PaymentVision. PaymentVision’s contact information for FCRA customer inquiries is:
          Autoscribe Corporation
          12276 San Jose Blvd
          Suite 624
          Jacksonville, FL 32223
          Phone number: 301-987-8131
          Contact: General Counsel
          Email Address: legal@autoscribe.com
          Fax Number: (301) 987-0133
    3. Special Terms for Clients Using PASSTIME Service. PaymentVision may choose, at its option, to provide clients who have an active service agreement with PASSTIME USA™ (“PassTime”) with access to PaymentVision’s automated interface to notify PassTime of selected payments. PassTime is a third party service and PaymentVision disclaims all responsibility and liability for the service. The PassTime Reporting interface is provided as-is without warranty, subject to availability, and will incur a transaction fee for PassTime Reporting in addition to the regular scheduled fees for processing the payment as specified in the Service Order. PaymentVision is not responsible for any direct, indirect, incidental, or consequential damages arising from failed PassTime Reporting transactions; liability for failed PassTime Reporting transactions is limited to refund of the reporting fee for that transaction.
    4. Special Terms for Clients Using PaymentVision’s Merchant Serviced Convenience Fee Option. PaymentVision may choose, at its option, to allow clients to charge their customers a convenience fee through the PaymentVision’s portal (the “Fee Option”). Client shall use the Fee Option only when approved by PaymentVision’s Compliance Officer and where it is legal under applicable law and complies with applicable ACH and card issuer regulations and policies. PaymentVision may terminate Client’s access to the Fee Option immediately at any time if there is a material negative change in Client’s financial position or, if in any one-month period, chargebacks exceed one percent (1%) of credit card transactions or returned items exceed one percent (1%) of ACH transactions.
    5. Special Terms for Services Including Mailing or other Deliveries. Pricing of PaymentVision services that include delivery of items by U.S. Mail or other third party services may be adjusted to pass through postal rate increases and other delivery cost increases incurred by PaymentVision. PaymentVision will provide the client with sixty (60) days before implementing such increases.
    6. Special Terms for Clients Processing Transactions Through Other Services. Clients have the option of processing transactions generated in the PaymentVision portal themselves, or through other vendors. When clients elect not to process through PaymentVision, (1) PaymentVision will not be responsible for any processing failures that occur; and (2) the service fee on the applicable schedule will be charged for each transaction entered by the client into the PaymentVision system, regardless of whether the transaction is ultimately processed and paid.
    7. Special Terms for Clients Using PaymentVision ODFI. PaymentVision may, at its option, offer to initiate ACH transactions on Client’s behalf through PaymentVision’s Originating Depository Financial Institution (ODFI) rather than a Client-established ODFI. If Client elects to use PaymentVision’s ODFI, the following additional terms apply:
      1. Client acknowledges and shall comply with its obligations as an originator of ACH transactions under the NACHA Operating Rules, as they may be amended from time to time. Client shall further comply with any prevention, detection, investigation, and escalation (notification) requirements of any NACHA policies relating to ACH data breach notification requirements.
      2. Client shall comply with the federal Electronic Funds Transfer Act, all federal, state and local laws and regulations applicable to ACH transactions and data breaches, and regulations of the Office of Foreign Assets Control Department (OFAC). Client shall not transact business with nations and individuals appearing on the OFAC specifically designated individuals and corporate entities/nationals and blocked persons list (SDN).
      3. Client warrants that all ACH transactions submitted have been authorized and that an authorization complying with NACHA requirements is of record.
      4. Client shall designate Authorized Representatives to act on Client’s behalf, who shall have the authority to authorize all actions necessary in the preparation and generation of the Client’s entries. PaymentVision shall have no duty to inquire as to the authority or propriety of any instructions given by the Client or its Authorized Representatives and shall be entitled to rely upon all ACH instructions conveyed to PaymentVision, without liability for any loss, cost, expense or other liability arising out of any such instructions.
      5. If any amount transferred from or to Client is dishonored, returned, or reversed for any reason, PaymentVision may: (1) reverse any corresponding transfers issued to Client, Client’s customer, or any other party without liability to Client or any other party, and (2) if Client’s account does not have sufficient funds to reverse the transfer, require Client to wire transfer the deficit to PaymentVision by no later than 2:00 PM Eastern Time the day Client was notified of the return.
      6. Client shall reimburse and pay PaymentVision for any losses arising from Client’s ACH transactions, including costs of collection and attorney’s fees. PaymentVision and its ODFI may set off any amounts due to PaymentVision and its ODFI from available assets of Client. Client authorizes PaymentVision to reimburse itself for all losses, costs, and attorney’s fees by electronically transferring said amounts from the accounts of Client.
      7. PaymentVision, its ODFIs that process Client’s ACH transactions, as well as any government entity with regulatory or supervisory authority over PaymentVision or its ODFIs that process Client’s ACH Transactions (collectively the “Auditing Party”), shall have the right to inspect, audit, and examine all of Clients facilities, records and personnel relating to such Client’s performance under this Agreement at any time during normal business hours after reasonable notice or at any time as a circumstance may demand. The Auditing Party shall have the right to make copies and/or abstracts from Client’s books, accounts, data, reports, papers, and computer records directly pertaining to the subject matter of this Agreement, and Client shall make all such facilities, records, personnel, books, accounts, data, reports, papers, and computer records available to the Auditing Party for the purpose of conducting such inspections and audits. Copies and/or abstracts of any such books, accounts, data, reports, papers and computer records shall be subject at all times to Section 5 above.
  7. Revisions to TOS and Operating Policies. PaymentVision’s goal is to provide state-of-the-art services and satisfy each client. From time to time, in its discretion, PaymentVision may revise element(s) of the TOS and its posted formal operating policies in response to market or regulatory developments. The following procedures and client protections apply to all such revisions:
    1. If PaymentVision determines a change in the TOS is required to comply with a law, regulation, rule, or other government or industry directive, these changes will take effect on a date specified in an e-mail notice to the email designated by the Client on the Order Form. PaymentVision will endeavor to provide as much notice as possible of any change in operations and to minimize the impact of any change on Client’s operations. However, PaymentVision must comply with applicable regulations, regardless of whether we received as much advance notice as we would like.
    2. As service offerings evolve, PaymentVision reserves the right to make other modifications to the TOS with e-mail notice to the email address designated by the Client on the Service Order. If Client objects to such modifications and notifies PaymentVision of its objection, PaymentVision (in its sole absolute discretion) shall work with Client to resolve the change within sixty (60) days of notice of objection, if resolution cannot be made, PaymentVision will either waive such modification until the next renewal date of Client’s contract, or release Client from this Agreement without penalty sixty (60) days after receiving Client’s objection.
  8. Security Compliance.
    1. Autoscribe Corporation d/b/a PaymentVision is a Level I PCI Certified service provider and will maintain this compliance during the Term of this TOS. Controls placed in operation and tests of operating effectiveness were conducted in the current period and approved by independent auditors in accordance with the American Institute of Certified Public Accountants’ Statement on Standards for Attestation Engagements (SSAE) No. 16. Upon request, PaymentVision will provide Client with copies of current compliance certificates.
    2. Client shall adopt and implement commercially reasonable policies, procedures and systems to receive, store, transmit and destroy ACH and credit card data (as applicable and to the extent Client possesses such data), in a secure manner and to protect against data breaches; and (ii) implement commercially reasonable policies, procedures and systems to detect the occurrence of a data breach within its organization. Client agrees to provide information on such policies, procedures and systems upon request by PaymentVision.
  9. Warranties, Limitations of Liability, and Indemnification
    1. Malware Prohibited. PaymentVision warrants that no virus, Trojan horse, bomb, back door, worm, or other disabling or harmful device or malicious code designed to alter, erase, or render unusable any computer data, hardware, or software; to purposely disrupt the normal operation of a computer system or designed to permit unauthorized access by third parties, or disable, erase, or otherwise harm the Licensed Service, Client data, other Client software or Client hardware (collectively “Malware”) will be introduced into any Client system or individual computer by the Licensed Service.
    2. Warranties of Parties. Each Party represents and warrants to the other that as of the Effective Date of this Agreement: (i) it is an on-going business operation, duly organized, validly existing and in good standing in the place of its incorporation or recognition; (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement; and (iii) the person(s) signing or accepting the Service Order, this TOS, and any click-through agreements required to access third party services are authorized to bind the Client to the terms and conditions of such agreements. PaymentVision represents and warrants that: (i) the Licensed Service is provided to Client free and clear of claim of ownership by others; and (ii) the provisions of this Agreement do not violate or infringe upon the rights of any third party with regard to copyrights, patent or other intellectual property rights.
    3. Acceptance As-Is. Automated electronic services are, generally, a reliable and cost-effective approach to payment processing. PaymentVision’s goal is to provide the industry’s premier online services and we have an excellent performance record. However, electronic systems operating over the Internet are inherently subject to a range of possible failure modes, many of which cannot be controlled by either PaymentVision or Client. Client accepts the Licensed Service with the knowledge that processing errors may occur.
    4. Warranty Disclaimer. Except for the specific limited warranties stated herein, the Licensed Service is provided “as is” without warranty of any kind, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose or any other warranty with respect to its quality, accuracy, or freedom from error.
    5. Liability not Excluded. Nothing in this Agreement shall limit or exclude either Party’s liability for fraud, death or personal injury caused by negligence or any other liability which by law cannot be excluded.
    6. Disclaimer of Liability. If a transaction fails to process, PaymentVision will credit Client for the applicable transaction fee. However, neither PaymentVision nor any of its employees, directors, contractors, or third party providers, shall be otherwise liable to Client, Client’s employees, contractors, consumers, customers or agents, or to any person claiming any loss or injury, arising out of or caused by Client’s use of the Licensed Service. This Disclaimer applies, without limitation, to the operation of the PassTime Reporting interface. If despite this comprehensive disclaimer, PaymentVision is found liable for damages arising from the Licensed Service, its total liability is limited to PaymentVision’s total invoices to Client for the Service in the three-month period before the claim arose. This provision is a key element in PaymentVision’s pricing, which is set on the assumption that PaymentVision will not have to deal with any legal problems arising from Client’s operations or customer relationships; thus, please do not ask us to change liability provisions.
    7. No Special Damages. EXCEPT FOR DAMAGES ARISING FROM EITHER PARTY’S BREACH OF CONFIDENTIAL INFORMATION OR EITHER PARTY’S OBLIGATIONS UNDER INDEMNIFICATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY FOR ANY LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
    8. Indemnification by Client. Client (i) shall ensure that it employs disclaimers of warranty, damages and liability to its customers (and where applicable, persons transacting through its customers) substantially similar to those set forth in this Agreement, and (ii) shall not use the Licensed Service or permit its customers to use the Licensed Service in a manner which could cause a meaningful loss to any third party and/or generate a claim for damages by a third party against PaymentVision, and (iii) shall not assert or suggest to any customer or third party that PaymentVision is financially responsible for their loss arising out of use of the Licensed Service. If a third party claim arises due to Client’s failure to comply with these provisions (except for claims governed by Paragraphs 9i and 9j), Client shall indemnify and hold PaymentVision and its contractors, agents, officers, directors, and employees harmless from any and all costs, damages, losses, and expenses, including reasonable attorneys’ fees, that they incur as a result of such third party claim.
    9. Indemnification by PaymentVision. Notwithstanding any other provisions of this Agreement, PaymentVision will defend, indemnify and hold Client harmless against any and all claims, actions, costs, losses or expenses (including reasonable attorneys’ fees, court costs and related legal expenses, whether incurred in defending against such claim or enforcing this Section) arising from any third party claim that the Licensed Service infringed, misappropriated or violated a patent right, copyright, trade secret, or other intellectual property right, or a contractual obligation of PaymentVision to a third party licensor of intellectual property rights included in the Licensed Service. The foregoing indemnity obligations shall not apply to the extent such claim arises due to the Licensed Service being modified (or used in a manner inconsistent with this Agreement) by anyone other than PaymentVision, where such claim would not have arisen but for the modification to and/or misuse of the Licensed Service.
    10. Mutual Indemnification. Notwithstanding any other provisions of this TOS, each Party shall indemnify the other against any and all costs, losses or expenses (including reasonable attorney’s fees) arising from any breach of a Party’s confidentiality obligations under Section 5.
    11. Indemnification Procedures. If either Party claims indemnification pursuant to this TOS, such Party shall promptly notify the other Party in writing and provide full details. If the indemnification claim arises from the claim or demand of a third party, the indemnifying Party shall have the right, with the indemnified Party’s prior consent, not to be unreasonably withheld, to compromise or, if appropriate, conduct and defend at the indemnifying Party’s own cost and through counsel of its own choosing, reasonably acceptable to such indemnified Party, the claim or demand of any third party giving rise to such claim for indemnification. The opportunity to compromise or defend shall be a condition precedent to any asserted indemnification liability. After the assumption of the defense by the indemnifying Party and as long as the indemnifying Party diligently pursues the defense, the indemnifying Party shall be liable only for its own legal expenses, and the indemnified Party may participate at its own expense if desired. Each Party shall reasonably cooperate with the other Party in the defense or compromise of the claim. The indemnifying Party shall not consent to a judgment or settlement that does not unconditionally release the indemnified Party from liability, does not make arrangements reasonably satisfactory to the indemnified Party for performance by the indemnifying Party, or that involves any admission of wrongdoing, payment, or performance by the indemnified Party.
  10. Legal and Regulatory Compliance.
    1. In performing their obligations under the Service Order and TOS, both Parties warrant that they will comply and cause their representatives and permitted contractors to comply with all applicable federal, provincial, state, local, NACHA and credit card association laws, regulations and guidelines, including any licenses, permits or registrations necessary for the Party to fulfill its obligations under the Service Order and TOS, which shall include but is not limited to all privacy laws and data protection laws, regulations and guidelines.
    2. Client shall not use the Licensed Service in connection with any activities that violate applicable federal or state law (including, without limitation, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”) and the Unlawful Internet Gambling Enforcement Act of 2006 (“UIGEA”), as they may be amended or superseded from time to time.
    3. PaymentVision warrants (i) that it will not use confidential information or trade secrets of any other person or entity and (ii) that it has not entered into nor will enter into any agreement in conflict with this Agreement.
    4. PaymentVision shall not employ or subcontract with any person or entity who is a “Specially Designated National” (“SDN”) as defined, from time to time, in regulations issued by the Office of Foreign Asset Control of the United States Department of the Treasury, and Payment Vision represents that it is not an SDN.
    5. PaymentVision warrants that it will not assign to perform services under this Agreement any individual who is an unauthorized alien under the Immigration Reform and Control Act of 1986 or its implementing regulations. In the event any PaymentVision agent is discovered to be an unauthorized alien, PaymentVision will immediately cause such individual to cease performing any services pursuant to this Agreement. PaymentVision will indemnify and hold harmless Client from and against any and all liabilities, damages, losses, claims or expenses, including reasonable attorneys’ fees, arising out of any breach by PaymentVision of this paragraph.
    6. If Client is a chartered financial institution subject to examination by the Office of the Comptroller of the Currency in the United States (“OCC”) and/or other regulatory bodies or agencies (a “Regulatory Body”), the following provisions apply:
      1. The Licensed Service provided under this Agreement, including but not limited to any services provided in conjunction therewith, may be subject to an examination by one or more of Client’s Regulatory Bodies and PaymentVision will cooperate fully with any examination or inquiry by such Regulatory Body.
      2. Pursuant to OCC Bulletin 2001-47 (November 1, 2001 United States), and associated rules and regulations promulgated there under or associated therewith, Client may be required to engage in ongoing oversight of its relationship with PaymentVision, including but not limited to, reviewing: (i) PaymentVision’s financial condition, (ii) compliance with privacy laws and regulations, (iii) insurance coverage, and (iv) performance under this Agreement. PaymentVision will cooperate with Client in required monitoring of PaymentVision and its performance under this Agreement, and will provide Client with relevant information in such form as Client may reasonably request.
  11. Survival and Severability. Any provision, which by its reasonable nature extends beyond this Agreement shall survive the termination or expiration of this Agreement, including any accrued payment obligations of Client; Section 4, Intellectual Property Rights; Section 5, Confidentiality; Section 6, Restrictions; Section 9, Warranties, Limitations of Liability, and Indemnification; Section 10, Regulatory Compliance Provisions; and Section 13, General Provisions. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided, however, that no such severability shall be effective if it materially changes the economic benefit of this Agreement to either Party.
  12. Assignment. Neither Party may assign or transfer this Agreement (or any rights or obligations hereunder) to a third party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, provided however, that either Party may assign this Agreement to a parent, subsidiary, affiliate, or to an entity that acquires all or substantially all the equity or assets by sale, merger or otherwise upon prior written notice ten (10) days prior to change of ownership, but without the consent of the other Party, provided the assignee agrees in writing to be bound by the terms of this Agreement and demonstrates that it is reasonably capable of performing its obligations under this Agreement. In addition, if Client is not a publicly held corporation, Client will provide PaymentVision with information reasonably requested by PaymentVision to assess Client’s continuing creditworthiness, which may include without limitation name, address, social security number, date of birth and balance sheet of the principals acquiring Client, and PaymentVision may terminate this Agreement or limit in its sole discretion based on its review of such information. Any assignment in violation of this Section is null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties’ respective successors and assigns. No assignment or delegation hereof should relieve the assignor of its obligations under this Agreement.
  13. General Provisions.
    1. Each of the terms and conditions in the Service Order and TOS are material.
    2. Each Party reserves the right to pursue all legal and/or equitable remedies upon a breach or violation of this Agreement.
    3. Any breach of Sections 4, 5, or 6 of this Agreement will cause irreparable injury, for which money damages are an inadequate remedy. Any actual or threatened breach in these Sections shall entitle the injured Party, without waiving any additional rights or remedies, to equitable relief. Each Party waives the posting of a bond for enforcement of injunctive remedies.
    4. This Agreement is not intended to benefit any third party.
    5. For notice purposes, the mailing addresses and e-mail addresses of the Parties are as listed on the Service Order. Any Party hereto may change its mailing or notice e-mail address by giving written notification thereof to the other Party. All notices given pursuant to this Agreement shall be in writing and shall be delivered in person, by registered or certified United States mail return receipt requested, by express courier or by fax with a copy via e-mail transmission. All such notices shall be deemed effectively given and delivered three (3) days after mailing such notice, or when received if delivered personally, by facsimile, or with a read receipt via e-mail. Rejection or other refusal to accept or the inability to deliver because of a changed address for which no notice was given constitutes receipt of the notice. However, a change of address is effective only if received.
    6. Other than for the purposes specifically set forth in this Agreement, neither Party hereto will be deemed to be the agent or legal representative of the other for any purpose whatsoever and each Party will act as an independent contractor with regard to the other in its performance under this Agreement. Nothing herein will authorize either Party to create any obligation or responsibility whatsoever, express or implied, on behalf of the other or to bind the other in any manner, or to make any representation, commitment or warranty on behalf of the other. No partnership, joint venture or other entity shall be deemed to be created by this Agreement or otherwise by the Parties’ actions with respect to the PaymentVision services.
    7. Except as set forth herein, this Agreement may not be amended, modified, superseded or canceled and none of the terms, provisions, covenants, representations, warranties or conditions may be waived, except by a written instrument executed by the Parties, or in the case of waiver, by the Party waiving compliance. No waiver is binding unless written and signed by the Party making the waiver. No waiver of any provision of this Agreement, whether by conduct or otherwise, creates a continuing waiver of the provision or of another provision.
    8. Parties shall make a good faith effort to settle any disputes that may arise with respect to the terms and conditions or any subject matter referred to in or governed by this Agreement within thirty (30) days from the date the dispute is first discussed between the parties.
    9. This Agreement is governed by and will be construed in accordance with the laws of the State of Florida, exclusive of its choice of law provisions. The Parties agree that, unless otherwise agreed-to in writing by the Parties, exclusive venue for any and all disputes arising out of or related to this Agreement or pertaining to any provision herein shall be in Jacksonville, FL. Each party to this Agreement waives any objection it might have to the personal jurisdiction of or venue in any state or federal court located in Duval County, Florida.
    10. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses of litigation, in addition to any other relief granted.
    11. The captions and headings of this Agreement are included for reference only and will be disregarded in interpreting or construing this Agreement.
    12. If the performance of any part of this Agreement by either Party is prevented or delayed by flood, riot, fire, judicial or governmental action, labor disputes, act of God or other causes beyond the control of either Party, that Party shall be excused to the extent that it is prevented or delayed from performance by such causes; provided, however, that a Party subject to any such force majeure shall promptly give the other written notice thereof and shall use reasonable efforts to remove or rectify any such force majeure condition as expeditiously as is commercially reasonable. If a force majeure event prevents performance for more than thirty (30) days, the other Party may elect to terminate immediately upon notice, without penalty.
    13. This TOS, together with the Service Order, constitutes the complete and exclusive statement of the agreement between the Parties with respect to the Service and the Licensed Service, supersedes all other communications, written or oral, between the Parties, and may be amended only in writing.

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