PROTECTPAY® SERVICE FOR PROPAY ACCOUNT ONLINE TERMINALS AND PROPAY CARD READER END USER LICENSE AGREEMENT
PROPAY (AS DETERMINED IN SECTION 21), ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT, IS WILLING TO PROVIDE THE PROTECTPAY SERVICE FOR PROPAY ACCOUNT ONLINE TERMINALS AND, IF APPLICABLE, LICENSE THE APPLICABLE PROPAY CARD READER SOFTWARE TO YOU. This legally binding agreement ("Agreement") is between you (either an individual end-user or an entity) and ProPay. By clicking the "I Agree" button below, or registering for or using this software, you are agreeing to be bound by the terms and conditions of this Agreement.
1. What the Agreement Covers. ProPay (as determined in Section 21) may be referred to as "ProPay," "we," "us," or "our.” This Agreement applies to the ProtectPay service for your ProPay Account online terminals (for more information see www.ProPay.com) and, if applicable, the ProPay Card Reader software application (for more information see www.ProPay.com) or other ProPay software or services, including updates, that reference or link to this Agreement and that you use while this Agreement is in force. All of the software, including updates, provided by ProPay and all services under this Agreement are referred to in this Agreement as the "Service."
Please note that we do not provide warranties for the Service (see Section 11). This Agreement also limits our liability (see Section 12). We ask you to read these provisions carefully.
2. The Service. The Service is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Service. These laws include restrictions on destinations, end users, and end use. We reserve all rights to the Service not expressly granted to you in this Agreement.
2.1. License Grant. Paid Subscription. For each paid subscription to the Service you have purchased, we grant you a non-exclusive, non-transferable, and non-assignable right to download, install, and use the software in object code form during your Subscription Term on any personal computers that you own or control and for which the subscription has been paid, to access your ProPay Account. Trial Use. If you are a trial user, then we grant you a non-exclusive, non-transferable, and non-assignable right to download, install, and use one copy of the software in object code form on one personal computer during your Trial Period, to try out the Service. At the end of your Trial Period, your license automatically expires, and all copies of the software must be removed from your computer. To continue using the Service, you may purchase a paid subscription.
2.2. Term. Paid Subscriptions. The "Subscription Term" for paid subscriptions begins on the date that you purchase the Service, and ends on the date corresponding to the number of subscription months that you have purchased (e.g., month-to-month or 12 months). You must renew and keep your subscription current and paid in full to continue using the Service. We may disable the software after the end date of the Subscription Term. Renewals may require additional or different license terms. Unless we notify you otherwise, your license to use the Service will end on the end date of the Subscription Term or Renewal. Trial Use. The "Trial Period" for trial use begins on the date that you install the Software and ends on the date corresponding to the length of the trial offer (e.g., 90 days later). We may disable the software after the end date of the Trial Period.
2.3. Updates. The Service may require updates from time to time to work effectively. You agree that we may automatically check your version of the Software and download software updates to your computer or device to update, enhance, or further develop the Service. Updates are available for download, installation, and use only during your Subscription Term or Trial Period. Updates may also require additional or different license terms that must be accepted before download, installation, or use.
2.4. Technical Support. Paid Subscriptions. During the Subscription Term, paid subscribers are entitled to technical support, which may include web-, email-, and telephone-based technical support. Trial Use. Trial users may receive web- and e-mail-based technical support during the Trial Period. For details about ProPay technical support, see the Frequently Asked Questions at www.ProPay.com.
2.5. Back Up Your Data. Upon termination or cancellation of the Service by you or by us for any reason, ProPay may delete your data permanently from our servers. You are responsible for taking all necessary steps to back up your data.
2.6. Exclusive Ownership. Any and all intellectual property (“IP”) rights in the Service, any ProPay website, and any ProPay promotional materials are and will remain the exclusive property of ProPay and/or its licensors. Nothing in this Agreement intends to transfer any IP rights to you, or to vest in you, any IP rights. You will not take any action to jeopardize, limit, or interfere with ProPay’s IP rights. Any unauthorized use of ProPay’s IP rights is a violation of this Agreement as well as a violation of IP laws and treaties, including without limitation copyright and trademark laws.
3. How You May Use the Service. You may use the Service to process and store payment information for card transactions. In using the Service, you must:
• Obey the law;
• Adhere to your ProPay Payment Services Agreement (PSA), which is incorporated by reference;
• Connect or interact with the Service using only a ProPay authorized card reader, the ProPay website, or a third-party integration approved by ProPay;
• Obey any codes of conduct or other notices we provide; and
• Promptly notify us if you learn of a security breach related to the Service.
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4. How You May Not Use the Service. In using the Service, you must not:
• Engage in, facilitate, or further unlawful conduct;
• Use the Service in a way that harms us or our advertisers, affiliates, resellers, distributors, vendors, or any customer of ours or our advertisers, affiliates, resellers, distributors and/or vendors, or your customers;
• Copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service (except and only to the extent that this restriction is prohibited by law);
• Damage, disable, overburden, or impair the Service or the networks connected to the Service, or interfere with anyone's use or enjoyment of the Service; or
• Rent, lease, lend, sell, transfer, redistribute, or sublicense the Service, or any part of the Service, with the exception of its associated hardware.
5. Your ProPay Merchant Account. You understand that the Service is connected to and will only function when associated with your active, fully-paid ProPay Merchant Account. For additional information, see www.ProPay.com. You are responsible for all activity that takes place with your ProPay Merchant Account and the Service. You may not authorize any third party to access or use the Service on your behalf. ProPay is not responsible for any losses arising out of the unauthorized use of the Services. ProPay reserves the right to limit the number and type of payment records and information you store when using the Service.
6. Payments to ProPay.
6.1. Charges. This Section applies in all situations in which you directly pay us. If you pay a company other than us for the Service, then the charges and billing terms are as stated by the other company. Even if you do not pay for the Service, you may still incur charges incidental to using the Service (i.e. device registration fees, merchant account signup fees, or other fees).
6.2. Payment. You may pay for the Service at the time you pay for your ProPay Monthly or Annual Account fee. If you pay for the Service with your ProPay Monthly or Annual Account fee, you will be prompted to renew your Service at the time of your ProPay Account renewal.
If you pay for the Service when the Service is not included with your ProPay Monthly or Annual Account fee, you may choose to pay with funds in your ProPay Account or with a credit or debit card. At the time of renewal, your ProPay Account funds will be the default payment method for the Service. If you chose to pay with a credit or debit card at your initial signup for the Service, that payment method will be used as your secondary payment method in the event there are not sufficient funds in your ProPay Account at the time of renewal. At any time during the term of the Service you may add or edit your secondary payment method. You must be authorized to use the secondary payment method. You authorize us to charge you for the Service using either payment method and for any paid feature of the Service for which you choose to sign-up or use while this Agreement is in force.
You will pay Service charges in advance. We may charge you a different amount than what you approved. If it is a greater amount, we will tell you the amount and the date of the charge at least 10 days before we make the charge. Also, we may charge you up to the amount you have approved, and notify you in advance of the difference. We may bill you for more than one of your prior billing periods together. If we informed you that the Service will be provided indefinitely or automatically renewed, we may automatically renew your Service and charge you for any renewal term.
6.3. Updates to Your Billing Account. You must keep all information in your billing account current, including your billing address, email address and the expiration date of your credit card. You can access your billing account at www.ProPay.com, where you can make changes to your billing account. You may change your payment method at any time. If you tell us to stop using your payment method, we may cancel your Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
6.4. Trial Period Offers. You may have received a limited time of free or discounted Service or some other trial period offer. Unless we notify you otherwise, if you are participating in any trial period offer, you must cancel the Service by the end of the trial period to avoid incurring additional charges. If you do not cancel your Service, and we have informed you that the Service will automatically be converted into a paid subscription at the end of the trial period, then you authorize us to charge your payment method for the Service.
6.5. Prices and Price Increases. The price for the Service excludes all applicable taxes, unless stated otherwise. You are responsible for any taxes that you are obligated to pay or that we may collect from you. You are responsible for all other charges (for example, internet service charges). Currency exchange settlements are based on your agreement with your payment method provider. We may change the price of the Service from time to time, but we will tell you before we do.
If there is a specific time length and price for your Service offer, then that price will remain in force for the time specified. After the offer period ends, your use of the Service will be charged at the new price.
If your Service is on a period basis (for example, monthly), with no specific time length, then we will tell you the date of any price change. That date will be not less than 30 days after we tell you of the price change.
If you do not agree to these changes, then you must cancel and stop using the Service before the changes take place.
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6.6. Refund Policies. Unless otherwise provided by law or in connection with any particular Service offer, all charges related to the Service are non-refundable.
6.7. Access to the Service; Payment Device Registration. You may use the Service through the ProPay website, an approved third-party integration, or, if you use the Service with a payment device, you must use a ProPay-supported payment device. Each ProPay-supported payment device that you purchase from ProPay may be initially registered without incurring a registration fee. If you acquire your ProPay-supported payment device through a means other than through ProPay, or if you must re-register your ProPay-supported payment device for any reason, you will be required to pay a registration fee in the amount posted at www.ProPay.com.
6.8. Online Statement; Errors. We will provide you with an online confirmation of payment at the time payment is made. This is the only billing statement that we provide. You must print a copy of this statement at the time it is presented to you. If we make an error on your charges, we will correct it promptly after you tell us and we investigate the charge. You must tell us within 120 days after an error first appears on your statements. You release us from all liability and claims of loss resulting from any error that you do not report to us within 120 days after the error first appears. If you do not tell us within this time, we will not be required to correct the error. Notwithstanding the foregoing, we reserve the right at any time to correct billing errors we independently discover.
6.9. Canceling the Service. You may cancel the Service at any time, with or without cause. Cancellation of services will become immediate upon your notice to ProPay. Go to the “Edit My Profile” page at www.ProPay.com to obtain information on cancellation of your Service, or call the customer service phone number provided to you. Certain Service offers may require cancellation charges, and you will pay all cancellation charges as specified in the materials describing the offer. Cancellation of the Service by you will not alter your obligation to pay all charges made to your billing account. No pro-rata refunds will be available in the event of cancellation during the middle of a term. Cancellation of the Service will result in the immediate disassociation and release of all payment devices or other hardware related to the Service. If you choose to later reinstate your Service, you will be required to re-register each payment device and pay to ProPay the associated registration fee.
6.10. Late Payments and Failure to Pay. Except to the extent prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 5% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts. These costs may include reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
7. Payments to You. Your right to payments associated with the Service shall be governed by the ProPay PSA. If you receive a payment that was not due to you, we may reverse or seek return of the payment and you agree to cooperate with us in our efforts to do this.
9. ProPay PSA. You acknowledge that you have executed the ProPay PSA (http://www.propay.com/legal-agreements/payment-services-agreement/) and that those terms are hereby incorporated and made a part of the Service.
10. How We May Change the Agreement. If we make material changes to this Agreement, then we will tell you at least 30 days before the change takes place. If you do not agree to these changes, then you must cancel and stop using the Service before the change takes place. If you do not stop using the Service, then your use of the Service will continue under the changed Agreement.
11. WE MAKE NO WARRANTY. WE PROVIDE THE SERVICE "AS-IS," "WITH ALL FAULTS" AND "AS AVAILABLE." WE DO NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE SERVICE, NOR DO WE GUARANTEE THE AVAILABILITY OF THE SERVICE ITSELF. WE AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS AND VENDORS (COLLECTIVELY, THE "PROPAY PARTIES") GIVE NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS FOR THE SERVICE. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS AGREEMENT CANNOT CHANGE. WE EXCLUDE ANY IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT.
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12. LIMITATION OF LIABILITY. YOU CAN RECOVER FROM THE PROPAY COMPANIES IN THE AGGREGATE ONLY DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE AMOUNT OF FEES PROPAY RECEIVED FROM YOU DURING THE MONTH IN WHICH THE TRANSACTION OUT OF WHICH THE LIABILITY AROSE ACCRUED AND ANY ASSESSMENTS, CHARGEBACK, AND OFFSETS AGAINST SUCH FEES WHICH AROSE DURING THAT MONTH. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES.
This limitation applies to anything related to:
• the Service,
• content (including code) on third party Internet sites, third party programs or third party conduct,
• viruses or other disabling features that affect your access to or use of the Service,
• incompatibility between the damage, disable, overburden, or impair the Service (or the network(s) connected to the Service) or interfere service and other services, software and hardware,
• delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the Service in an accurate or timely manner, and
• claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort.
It also applies even if this remedy does not fully compensate you for any losses, or fails of its essential purpose, or ProPay knew or should have known about the possibility of the damages.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. They also may not apply to you because your province or country may not allow the exclusion or limitation of incidental, consequential or other damages.
13. Changes to the Service; If We Cancel the Service. We may change the Service or delete features at any time and for any reason. We may cancel or suspend your Service at any time, without cause, and/or without notice. Upon Service cancellation, your right to use the Service stops immediately. Once the Service is cancelled or suspended, any data you have stored in relation to the Service may not be retrieved later. Our cancellation of the Service will not alter your obligation to pay all charges made to your billing account. If we cancel the Service in its entirety without cause, then we will refund to you on a pro-rata basis the amount of payments that you have made corresponding to the portion of your Service remaining right before the cancellation.
14. Interpreting the Contract. All parts of this Agreement apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this Agreement as written. If this happens, then you and we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this Agreement will not change. This is the entire contract between you and us regarding your use of the Service. It supersedes any prior contract or statements regarding your use of the Service. If you have confidentiality obligations related to the Service, those obligations remain in force (for example, you may have been a beta tester). The section titles in the contract do not limit the other terms of this Agreement.
14.1. Waiver and Amendment. Waiver of any matter shall not be deemed a waiver of the same or any other matter on any future occasion. ProPay reserves the right to modify and amend this Agreement, provided ProPay supplies adequate notice as set forth in this Agreement.
15. Assignment. We may assign any rights under this Agreement, in whole or in part, at any time with or without notice to you. You may not assign any rights under this Agreement, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Service or any part of the Service.
16. No Third Party Beneficiaries. This Agreement is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors and assigns under this Agreement.
17. Claim Must Be Filed Within One Year. Any claim related to this Agreement or the Service may not be brought unless brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed in time, then that claim is permanently barred. This applies to you and your successors. It also applies to us and our successors and assigns.
18. Your Notices to Us. You may notify us as stated in the customer support or "help" area for the Service. We do not accept e-mail notices.
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19. Notices We Send You; Consent Regarding Electronic Information. This Agreement is in electronic form. We have promised to send you certain information in connection with the Service and have the right to send you certain additional information. There may be other information regarding the Service that the law requires us to send you. We may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel your Service. We may provide required information to you:
• by e-mail at the e-mail address you specified when you signed up for your Service;
• by access to a ProPay web site that will be designated in an e-mail notice sent to you at the time the information is available; or
• by access to a ProPay web site that will be generally designated in advance for this purpose.
• Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you can access and use the Service, you have the necessary software and hardware to receive these notices. By agreeing to this Agreement you consent to receive notices electronically. If you do not consent to receive any notices electronically, you must stop using the Service.
20. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Service. Any conflict between this Agreement and the PSA shall be governed by the PSA.
21. Contracting Party, Choice of Law and Location for Resolving Disputes. This Agreement is between you and the ProPay company for your country or region. In this section, find the country or region where you live (if you are signing up for the Service as an individual person) or your business is located (if you are signing up for services for your business) in the subsections below, and in that subsection you will find the ProPay company that is contracting with you and the choice of law and the location for resolving disputes with the ProPay company.
North America Region. If you live or your business is headquartered in the United States of America, then you are contracting with ProPay, Inc., 2675 West 600 North, Lindon, UT 84042, United States, and Georgia state law governs the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your state of residence in the United States, or if you live outside the United States, the laws of the country to which we direct your Service. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Muscogee County, Georgia, USA for all disputes arising out of or relating to this Agreement. If your business is headquartered in Canada then you are contracting with ProPay Financial Solutions Canada, Inc., 2675 West 600 North, Lindon, UT 84042, United States, and Georgia state law governs the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles.
22. Copyright and Trademark Notices. All contents of the Service are copyrighted 2021 by ProPay, Inc. and/or its suppliers, 2675 West 600 North, Lindon, UT 84042, United States, United States. All rights reserved. Copyright and other intellectual property laws and treaties protect any software or content provided as part of the Service. We or our suppliers own the title, copyright, and other intellectual property rights in the software or content.
Revised 13 January, 2021