Terms of Service
BEFORE YOU USE THE SERVICE SUBJECT TO THESE TERMS OF SERVICE (THE "AGREEMENT"), PLEASE READ THIS DOCUMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN PAYWHIRL, INC. ("OUR", "US", "WE", THE "COMPANY" OR "PAYWHIRL"), AND YOU ("YOU", "YOUR" OR "YOURSELF") WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED SUBSCRIPTION MANAGEMENT AND BILLING SOFTWARE SERVICE. YOUR USE OF THE SERVICE (AS DEFINED BELOW) IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY THAT YOU REPRESENT ("YOU", "YOUR", OR "CUSTOMER") AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS OF SERVICE (TOGETHER WITH ANY ADDITIONAL TERMS ON SUCH ORDER FORM, THE "AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. PAYWHIRL Service
A. You are granted a nonexclusive right during the Term (as defined below) to use the PAYWHIRL Service (the "Service") subject to the terms, conditions and restrictions set forth in this Agreement and any other restrictions stipulated to you by us in writing.
B. You agree to pay for the Service in accordance with our service fees, as further set forth below.
C. PAYWHIRL may revise its fees upon 30 days prior notice.
D. PAYWHIRL uses a 3rd party service named Stripe to store a protected copy of credit card numbers of your users. This billing data belongs to you (and your customers) and by utilizing the Service, you grant PAYWHIRL a license to use this data for the purposes of fulfilling our Service obligations to you and PAYWHIRL shall otherwise use commercially reasonable efforts to keep such information confidential and secure in accordance with general industry standards. PAYWHIRL has and will continue to use PCI compliant processing provided by Stripe.
E. 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.
2. Term and Termination
The term of this Agreement (the "Term") shall commence as of the date you first register for, access or use of the Service, and shall continue until terminated as set forth below. You may terminate this Agreement at any time by notifying PAYWHIRL that you wish to terminate your account. PAYWHIRL may terminate this Agreement at any time, for any reason or no reason (including, without limitation, for your breach of this Agreement, violation of applicable law, or violation of card association rules or regulations). Upon any termination of this Agreement, any amounts owed to PAYWHIRL which accrued prior to such termination will become immediately due and payable.
3. Modifications to Agreement or Service
PAYWHIRL reserves the right to amend or modify this Agreement at any time, but if we do, we will bring it to your attention by placing a notice on the Service, by sending you an email and/or by some other means. If you don’t agree with the amended or modified Agreement, you are free to reject it; but you will no longer be able to use the Services. If you use the Services in any way after a change to this Agreement is effective, that means you agree to all of the changes. Except for changes to this Agreement made by PAYWHIRL in accordance with this section, no other amendment or modification of this Agreement will be effective unless in writing and signed by both you and PAYWHIRL.
PAYWHIRL may change, suspend, or discontinue all or any part of the Service at any time, with or without reason (including, without limitation, for any nonpayment of any fees due hereunder). You acknowledge that the operation of the Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and PAYWHIRL shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. PAYWHIRL has no obligation to continue producing or releasing new versions of the Service.
4. Service Implementation, Registration and Payment Terms.
A. You agree to use the 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 Service on the Site. We may suspend or rate limit the 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.
B. You agree to provide us with current, complete and accurate registration information as prompted by the Service registration process and to maintain and properly update such information ("Registration Data"). If you are using the Service to conduct credit card transactions through the PAYWHIRL Payment Gateway, you shall set up and maintain an account that is capable of receiving funds through a merchant bank account ("Merchant Bank Account"). Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as "IDs"). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. We are 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 Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
C. PAYWHIRL will submit your customers’ payment information to the Stripe gateway and will charge you a fee based on the dollar amount of the transactions processed by the Service. Monthly charges for the Service will be at the rates set forth by Service type and agreed upon by you in the Registration process. Unless otherwise specified on the Services, any fees which are calculated as a percentage of customer 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 charges for the prior month’s use of the Service will be billed by PAYWHIRL and deducted from your authorized credit card promptly following the end of each calendar month, or shall otherwise be due and payable in accordance with PAYWHIRL’s then-current payment policies. Prices established in this 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 Service. You will be responsible for such taxes and other fees. Tax exempt status will be granted to you upon presentation of a satisfactory certificate of exemption. 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 are also separate and not included in PAYWHIRL’s fees. Without limiting any remedy available to PAYWHIRL, PAYWHIRL if you fail to pay any fees due hereunder, PAYWHIRL may suspend your access to the Service.
D. PAYWHIRL is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by you or your customers that are deceptive, fraudulent or otherwise invalid ("Fraudulent Actions"). By using the 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 Service. PAYWHIRL reserves the right, in its sole discretion, to terminate your account if you engage in, or permit any other user or customer to engage in, Fraudulent Actions.
5. Service Use and Limitations.
A. We will make reasonable efforts to keep the Service operational 24 hours a day/7 days a week, except for: (i) planned downtime (of which we will use reasonable efforts to provide at least 72 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
B. 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 (Stripe).
C. 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 customers. Accordingly, you agree that we will not be responsible or liable for any amounts related to any credit-card or payment transaction.
D. You represent, warrant and agree that you will only use the Service in compliance with all applicable laws and regulations, and that you will not use the Service to violate, infringe, or misappropriate any intellectual property or other proprietary right of any third party (including, without limitation, any rights of privacy or publicity).
6. Third Party Products & Services (Stripe - https://stripe.com/us/terms)
The 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 third parties (collectively, "Third Party Products or Services”). Third Party Products 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 Third Party Products. You shall comply with all Third 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 Third Party Terms. Any provision by PAYWHIRL of Third Party Products, and any exchange of data between you and any third-party provider of a Third Party Product, is solely between you and the applicable third-party provider.
7. Proprietary Rights
A. The Service contains content and technology of PAYWHIRL that is protected by copyright, trademark, patent, trade secret and other laws. As between the parties, PAYWHIRL owns all intellectual property and other proprietary rights to the Service, including but not limited to the design, artwork, logos, functionality, and documentation relating thereto (collectively, the "PAYWHIRL Property"). You may not: (i) copy, modify, or reverse engineer any part of the Service or any PAYWHIRL Property (except to the extent such restriction is prohibited by applicable law); (ii) rent, sell, lease, distribute, provide on a service bureau basis, or otherwise use the Service for the benefit of any third party; or (iii) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof. The names, logos or trademarks of any third party companies and products mentioned on the Service (including, without limitation, PAYWHIRL Partners and Partner Sites) may be the trademarks of their respective owners.
B. Subject to the terms and conditions hereof, PAYWHIRL hereby grants you a limited, revocable, nonsublicensable license to display the PAYWHIRL Property (excluding any software code) solely for personal, non-commercial use in connection with viewing the Service or other uses which are expressly permitted by PAYWHIRL in writing. Notwithstanding such permitted uses and license, you acknowledge that all derivative designs and artwork which utilize the Service’s logo or other PAYWHIRL Property (collectively, "Derivative Works") are the sole property of PAYWHIRL. No other rights are granted to you with respect to the PAYWHIRL Property other than those rights granted explicitly herein, including with respect to any Derivative Works.
C. Any text, images, or other audiovisual information posted on the Service by a user (collectively, "User Content") shall belong to the user that posted such User Content. You may use any User Content posted by you in any other way without restriction. You may only use User Content posted by others in the ways described in this Agreement.
D. In order to operate the Service, PAYWHIRL needs the right to make certain uses of your publicly posted User Content (for example, you may provide PAYWHIRL with User Content to enable us to send communications on your behalf to your customers regarding their subscription billing). Therefore, when you post User Content on the Service, you agree that PAYWHIRL may use and make available such User Content, solely as reasonably necessary to provide the Service to you. By posting User Content to the Service, you hereby represent and warrant that you have the right to post that User Content and to grant the foregoing rights to PAYWHIRL. In addition, you agree that PAYWHIRL may use your name and logo to identify you as a PAYWHIRL customer on its website or in other sales or marketing materials (provided that PAYWHIRL will not issue any press release regarding your use of the Service without your prior consent). In addition, you acknowledge that PAYWHIRL may (i) internally use (but not disclose) information and data collected by PAYWHIRL regarding your use of the Service to create Aggregated Anonymous Data (as defined below), and (ii) may freely use and make available Aggregated Anonymous Data. "Aggregated Anonymous Data" means merchant-level information and data that is in an aggregated, anonymized form, and which can in no way be specifically linked to you or to any of your customers.
E. PAYWHIRL reserves the right to remove any content (including, without limitation, User Content) from the service, at its sole discretion.
F. PAYWHIRL respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users 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:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
description of where the material that you claim is infringing is located on the site;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.
PAYWHIRL's agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
735 State Street Suite 218
Santa Barbara, California 93101
8. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE 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.
PAYWHIRL MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER PAYWHIRL’S CONTROL (SUCH AS A THIRD PARTY SERVERS). PAYWHIRL MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE 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.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PAYWHIRL OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
PAYWHIRL shall defend, indemnify and hold you harmless from any amounts paid or due to unaffiliated third parties (including reasonable attorney’s fees) which result from a third party claim that the Service infringes any United States patent, copyright, or trademark, or misappropriates any trade secret, provided that you provide PAYWHIRL with (a) prompt written notice of such claim, (b) the option to assume sole control over the defense and settlement of such claim, and (c) reasonable assistance in connection with such defense and settlement (at PAYWHIRL’s expense). Without limiting the foregoing, PAYWHIRL will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to the Service or portions or components thereof to the extent (i) not created by PAYWHIRL, (ii) made in whole or in part in accordance to your specifications, (iii) modified after delivery by PAYWHIRL, (iv) combined with other products, services, processes or materials where the alleged infringement relates to such combination, (v) where you continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where your use of the Service is not strictly in accordance with this Agreement. You will indemnify and hold PAYWHIRL harmless from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to the exclusions set forth in the preceding sentence.
10. Limitation of Liability
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, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID (OR PAYABLE) BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM. 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.
PAYWHIRL may assign these Terms of Service in whole or part at any time.
Any notice required or permitted in this Agreement shall be sent via email (and shall be deemed to have been duly given upon receipt), (i) if to Company, at firstname.lastname@example.org or (ii) if to you, at the email address that you provide when registering your account. Either party may update its email address for notice purposes via a notice delivered in accordance with this paragraph.
Neither party may assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent; provided that either party may assign or transfer all of its rights and obligations under this Agreement without such consent to a successor-in-interest to all or substantially all of such party’s assets, business or equity interests relating to this Agreement (whether effected by merger, acquisition, sale of assets, change of control, or otherwise). PAYWHIRL may subcontract its obligations hereunder (provided that PAYWHIRL shall at all times remain fully responsible for the performance of any subcontractor).
This Agreement and the relationship between you and PAYWHIRL shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and PAYWHIRL agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California.
The provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the parties hereto, and nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof.
The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Any failure of PAYWHIRL to enforce or exercise a right provided in these terms is not a waiver of that right.
Should any provision of these terms be found invalid or unenforceable, such provision shall be limited or deleted to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.