END-USER
LICENSE AGREEMENT
IMPORTANT — READ CAREFULLY
THIS IS A LEGAL DOCUMENT
TO USE THE APPLICATION(S)
YOU MUST AGREE TO THIS END-USER LICENSE AGREEMENT. BY CLICKING “I AGREE” BELOW,
YOU AGREE TO AND WILL BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS
END-USER LICENSE AGREEMENT. IF YOU DO NOT AGREE, YOU WILL NOT BE AUTHORIZED TO
USE THE APPLICATION(S).
SECTION 1 DEFINITIONS
The following defined terms shall
have the meanings set forth below:
“EULA” shall mean this End-User
License Agreement.
“Application(s)” shall mean the
computer software programs offered to you over the Internet or Customer’s
intranet that are accessible by agreeing to this EULA, including any associated
media, printed materials, and online or electronic documentation. Your access
to the Application(s) and the features available (including the ability to make
a payment) will depend on the arrangement between Provider and Customer, as
well as your level of authorized access provided by the Customer’s program
administrator.
“Customer” shall mean the entity
and any of its subsidiaries that entered into agreements with the Financial
Institution for the provision of the Application(s) for use by the Customer, as
an entity, and by its authorized employees, consultants, and/or other users.
“End User” shall mean you,
individually, as the user of the Application(s), as well as the Customer with
which you are associated. Any references in this EULA to “you” or “your” shall
mean the End User.
“Financial Institution” shall mean the entity
that has established a relationship with Customer to issue commercial credit
cards and provide the Application(s), or portions thereof, licensed under this
EULA.
“Information” shall mean any data,
information, statements, or reports provided or displayed by
Provider through the Application(s), but excludes any marketing,
advertising, or notices displayed by the Customer through the Application(s) or
the content of any messages communicated by Customer or End User through the
Application(s).
“Intellectual Property” shall
mean, to the extent that any of the following are recognized anywhere
in the world, intellectual property and/or proprietary
rights, whether registered or unregistered, including without limitation
copyrights, patent rights (including without limitation applications for patent
protection), publicity rights, trade secret rights, and Trademark rights.
“Payment Institution” shall mean
the entity that holds the payment account as specified by the Customer in a
payment authorization.
“Paying Account” shall mean any
account that End User has full authority to make payments against that has been
established by End User to fulfill payment requests made through the
Application(s) and shall include the account specified by the End User for a
payment authorization.
SECTION 2 SCOPE
OF AGREEMENT
This End-User License Agreement
(“EULA”) governs the provision and use of the Application(s) and any Related Services
and Information provided to you, as such may be authorized by your Financial
Institution and as may be modified or enhanced from time to time. To lawfully
use the Application(s), the End User is required to read, acknowledge, and
agree to the terms and conditions of this EULA by clicking the “I Agree”
button. This EULA is a legal agreement between you as the End User and the
Provider of the Application(s). This EULA is in addition to any agreements
between the Financial Institution and you or Customer, and this EULA shall
control as it relates to matters within its scope.
Provider may modify this EULA from
time to time, as set forth in Section 10. You will be required to agree to the
revised EULA to continue using the Application(s). The most recent and
governing version of the EULA will be accessible through the Application(s) and
can be printed for your review and permanent records.
SECTION 3 LICENSES
Grant of
License. In consideration for the
performance of all material obligations under this EULA, Provider hereby grants
the End User, and you hereby accept, a nontransferable, nonexclusive,
revocable, limited license to access and use the Application(s) in accordance
with the terms and conditions set forth in this EULA, in a manner intended for
authorized use, and to the extent authorized by Financial Institution and
Customer. This license shall become effective upon accepting this EULA and
remain valid during the term of this EULA, unless otherwise terminated or
revoked as provided hereunder. Provider hereby reserves and retains all
ownership, proprietary, or other rights not expressly granted hereunder.
Termination
of License. Unless otherwise agreed
to by Provider, the license granted hereunder shall terminate upon the
occurrence of any one of the following events: (i)
the relationship between the Financial Institution and Customer is terminated
for any reason; (ii) this EULA is terminated pursuant to the terms set forth
herein; or (iii) you do not agree to modifications to this EULA that Provider,
in its sole discretion, determines to be reasonable.
Revocation of
License. Provider reserves the
right to immediately revoke any license granted hereunder if you attempt to use
the Application(s) in an unauthorized manner, in a manner that is not intended
by Provider, or in contravention of End User’s obligations set forth in Section
5.
SECTION 4 OWNERSHIP
OF PROPRIETARY RIGHTS
The following property is owned by
and constitutes the Intellectual Property of one or more entities defined as
the Provider or provided to the End User pursuant to valid licensing
agreements: the Application(s), any enhancements to the Application(s), any
software or code developed to customize the Application(s) for an End User or
to enable the End User to interact with the Application(s); and certain
Trademarks displayed in the Application(s). All such Intellectual Property is
protected by applicable copyright, patent, trademark or other intellectual
property law.
You acknowledge that this EULA
does not convey or grant any Intellectual Property or other proprietary right
to you, except for the limited licenses set forth in Section 3. Except as
expressly authorized therein, you may not copy, reproduce, transmit, sell,
display, distribute, publish, broadcast, circulate, modify, disseminate, or
commercially exploit such Intellectual Property in any manner (including
electronic, print, or other media now known or hereafter developed) without the
written consent of Provider. You hereby agree to refrain from doing or causing,
directly or indirectly, any act that might impair Provider’s rights, title, or
interest in any of the Intellectual Property.
SECTION 5 END
USER OBLIGATIONS
Acceptable
Use Policy. You are solely
responsible for any and all acts and omissions that occur under your account or
password, and you agree not to engage in unacceptable use of the
Application(s), including but not limited to the following activities: (i) creating a false identity or otherwise attempting to
mislead any person as to your identity or the origin of any communication
transmitted through the Application(s); (ii) using accounts, account numbers,
or attempting to authorize transactions through accounts for which you do not
have full authority to conduct such activities; (iii) disseminating or
transmitting any materials or messages that do not pertain to the intended use
of the Application(s) or that contain anything that is obscene, defamatory,
harassing, offensive, or malicious; (iv) disseminating or transmitting files,
graphics, software, or other material that actually or potentially infringes
the Intellectual Property right of any person or entity; (v) exporting,
re-exporting, or otherwise transmitting data, information, or software in
violation of any applicable export or import law, regulation, or restriction;
(vi) interfering with, disrupting, or attempting to gain unauthorized access to
information or other accounts hosted on the Application(s); or (vii) attempting
copy, modify, or reverse engineer the Application(s) without the express
written permission from an authorized representative of Provider; (viii)
engaging in any other activity deemed by the Provider to be in conflict with
the spirit or intent of this EULA or the intended use of the Application(s).
Provider hereby expressly disclaims any and all liability arising from or
relating to End User’s violation of this Acceptable Use Policy.
End User
Account Information. It is solely
your responsibility to maintain current and accurate information for your
account within the Application(s). If you fail to maintain a current and valid
email address, you will not be notified when Information becomes available
through the Application(s) and you will not be provided payment confirmations
by email. You assume responsibility for all consequences arising from your
failure to maintain accurate account information within the Application(s).
Application
Access. Provider shall make the
Application(s) available over either the Internet or Customer’s intranet to
allow the End User to electronically and remotely access
the Application(s). You shall provide at your own expense, all necessary
telephone lines, Internet connections, equipment, software (including a
compatible Web browser), and services for you to effectively access the
Application(s). You are responsible for upgrading and configuring your internal
systems (e.g., network or Intranet settings, Internet routing, fire
walls, and Web browsers) to be and remain compatible with and optimize the
performance of the Application(s). You acknowledge that the availability and
performance of the Application(s) may be subject to interruption or delay due
to causes beyond the reasonable control of Provider.
The Application(s) are not the
"system of record" for financial information (e.g., balances,
transactions, etc.), but rather merely a means to access information. The
“system of record” is maintained at the credit card processor.
User Codes. Your access to the Application(s) will be controlled by a
user name and password (collectively referred to as “User Codes”), as well as
the authorization approved by the Customer’s program administrator. The User
Codes are for your personal use only, and you agree not to disclose them to any
third party. You are responsible for maintaining the confidentiality of the
User Codes and for establishing sufficient policies and controls and taking
such actions to protect against disclosure of your User Codes. You are
responsible for all statements made, acts or omissions that relate to your user
account while access to the Application(s) is obtained using your User Codes,
regardless of whether you authorized such use. You are responsible for any
damages, losses, costs, or breaches of security incurred or caused by your
failure to maintain the confidentiality of your User Codes. You agree to IMMEDIATELY
notify both the Provider (using the “Contact Us” link) and your program
administrator if you become aware or suspect that your User Codes have been
lost, stolen, or compromised in any way, or if you become aware of possible or
actual unauthorized use of the Application(s).
Payment
Authorization. If you make a
payment request through the Application(s) (payment features are not available
to all users), you hereby acknowledge and agree, or represent that: (i) you are a legal owner of the Paying Account to be
debited upon payment, and you have full authority to authorize such payments;
(ii) Provider and the Payment Institution are authorized to debit the Paying
Account from time to time in accordance with your specific authorization; (iii)
Provider is authorized to maintain information concerning your
Paying Account and to process your payment requests; (iv) you will ensure that
the Paying Account information is accurate each time a payment is requested and
that there are sufficient funds in the Paying Account to cover such payment
request; (v) any payment requests made through the Application(s) may take 3 to
5 business days or longer before the payment is posted to the payee account; (vi)
you are solely responsible for submitting payment requests far enough in
advance to ensure timely payment; and (vii) Provider is not liable for any
penalties, overdraft charges, insufficient fund charges, or late payment
charges resulting from your failure to maintain sufficient funds to cover such
payment requests or delays in processing the payment request.
Transmissions across the Internet
can fail for various reasons and without warning. A payment request will not be
considered transmitted to Provider until you receive an email confirmation of
such payment request and/or online payment receipt with a unique tracking
number (“Payment Confirmation”). Until you receive a Payment Confirmation, do
not assume that Provider has received your payment request. Regardless of
whether you receive a Payment Confirmation, your payment request will not be
fulfilled if there is an inaccuracy in the Paying Account information provided
by you or if there are insufficient funds available in the Paying Account. You
will not be notified through the Application(s) about such payment failures and
Provider will not be liable for such payment failures, including any associated
fees or charges incurred by you.
This is a business pre-authorized
debit plan for sporadic debits in variable amounts, as authorized by you
through the Application(s) from time to time. Each debit must be specifically
authorized by you if you wish to use the Application(s) to make a payment to
the Provider. Provider will not automatically debit your
Paying Account on a monthly basis and it is your responsibility to initiate
payment each month.
You may cancel this authorization
at any time on written notice to Provider at the following address:
TSYS
1 TSYS Way
Columbus GA 31901
Any such notice shall take effect
ten (10) business days after receipt by the Provider. You may obtain a sample
cancellation form, or more information regarding your cancellation rights, at
your Financial Institution or by visiting www.cdnpay.ca.
You have certain recourse rights
if any debit does not comply with this Payment Authorization and the specific
authorization for the payment. For example, you have the right to receive
reimbursement for any debit made by the Provider that is not authorized or is
not consistent with this Payment Authorization and the specific authorization
for the payment. To obtain a form for a reimbursement claim,
or for more information on your recourse rights, you may contact your Financial
Institution or visit www.cdnpay.ca.
The Financial Institution will
remain the “originator” of any payment request submitted through the
Application(s) for purposes of complying with federal and state banking laws,
regulations, or rules. Other third parties involved in providing the
Application(s) may not be governed by such laws, regulations, or rules and do
not assume the responsibilities of the “originator”.
Joint
Accounts. If the Paying
Account is a joint account (an account having more than one owner) then each
joint account owner shall be bound by all terms and conditions of this EULA for
purposes of payment requests made through the Application(s) that debit such
joint accounts. Each joint account owner agrees that they are jointly and
severally liable for all charges and other responsibilities, which may arise
from use of the Application(s). You hereby warrant that you have: (i) obtained the agreement of any joint owner to be bound by
the terms of this EULA; (ii) full authority to make payment requests from the
joint account; and (iii) full and independent authority to exercise control
over and to conduct transactions using the Application(s), as fully as if you
were a sole owner, and without further consent of or notice to any other joint
owner.
SECTION 6 ADVERTISING
AND LINKS TO OTHER SITES
Advertisements. The Application(s) may contain advertisements or notices
posted by Customer. Provider does not endorse, audit, or attest to the accuracy
or suitability of such advertisements or notices. Provider hereby disclaims any
responsibility or liability arising from or relating to the accuracy or content
of such advertisements or notices.
Web Site
Links. The Application(s) may
contain links to Web sites or other online applications controlled or offered
by third parties that are not affiliated with Provider (“Third Party Sites”)
solely as a convenience to you. Provider hereby disclaims liability for any
information, materials, products or services posted or offered at any such
Third Party Site. By creating a link to a Third Party Site, Provider does not
endorse or recommend any products or services offered or
information contained at such Third Party Site, nor is Provider liable for any
failures of such products or services offered or advertised at such sites.
The Third Party Sites may have a privacy policy different from that of Provider
and may be less secure than the Application(s). When you access a Third Party
Site, you do so at your own risk.
SECTION 7 WARRANTIES
Ownership. Provider warrants
that it has full title and ownership of the Application(s) or is providing the
Application(s) pursuant to valid licenses. Provider further warrants that it
has the full power and authority to grant the licenses conveyed by this EULA to
End User and that the license granted to the End User and the normal use of the
Application(s) will in no way constitute an infringement or other violation of
any Intellectual Property of any third party.
Availability. Provider further
warrants that it will use commercially reasonable efforts to maintain
acceptable availability and performance of the Application(s) and minimize any
interruption or degradation of performance of the Application(s); however, you
hereby acknowledge that from time to time the Application(s) may be
inaccessible, inoperable, or experiencing performance degradation for various
reasons, including normal data or file processing, periodic maintenance of or
enhancements to the Application(s), operation malfunction, and causes beyond
the control of Provider. Provider makes no guarantee of the availability or
performance of the Application(s).
Limitations. THE APPLICATION(S), RELATED SERVICES, AND INFORMATION
PROVIDED PURSUANT TO THIS EULA ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT
AS EXPRESSLY WARRANTED ABOVE, PROVIDER AND ITS RELATED PARTIES HEREBY EXPRESSLY
DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES
OF AVAILABILITY, RELIABILITY, USEFULNESS, AND THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, AND USAGE
OF TRADE. PROVIDER DOES
NOT WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE INFORMATION AND
EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION.
SECTION 8 ALLOCATION
OF RISK
Limitation of
Liability. IN NO EVENT WILL
PROVIDER BE LIABLE FOR ANY DAMAGES (INCLUDING WITHOUT LIMITATION DIRECT,
INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COST OF PROCURING SUBSTITUTE
SERVICES, LOST PROFITS, LOSSES, OR OTHER
EXPENSES) ARISING IN CONNECTION WITH THE PROVISION OR USE OF THE
APPLICATION(S), RELATED SERVICES OR INFORMATION PROVIDED PURSUANT TO THIS EULA,
REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, OR WHETHER
PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR
EXPENSES.
WITHOUT LIMITING THE FOREGOING,
THIS LIMITATION OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE
UNAVAILABILITY OF THE APPLICATION(S), UNAUTHORIZED ACCESS OR PAYMENTS, ANY
FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN
OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR SYSTEM FAILURE. PROVIDER CANNOT AND DOES NOT
GUARANTEE CONTINUOUS, UNINTERRUPTED OR COMPLETELY SECURE ACCESS TO THE
APPLICATION(S).
IF YOU ARE DISSATISFIED WITH
APPLICATION(S), RELATED SERVICES, OR INFORMATION, OR ANY PORTION THEREOF, YOUR
EXCLUSIVE REMEDY SHALL BE TO CEASE USING SUCH PRODUCTS OR SERVICES.
Reliance on
Limitations. End User acknowledges that Provider has set its prices and
entered into this EULA in reliance upon the limitations and disclaimers of
liability, damages, and warranties set forth herein, and that the same form an
essential basis of the bargain between the parties. The parties agree that the
limitation and exclusions of liability and disclaimers specified in this EULA
will survive and apply even if found to have failed their essential purpose.
SECTION 9 PRIVACY
& CONFIDENTIALITY OF INFORMATION
Provider will abide any applicable
law, rules, or regulations relating to the privacy of non-public, personal
information. Provider will also adhere to the Privacy Policy that is published
and accessible through the Application(s). The Privacy Policy sets forth the
means by which and types of information Provider collects through the use of
the Application(s). Provider will take all commercially reasonable actions to
ensure that any non-public personal information collected from you or processed
on your behalf will remain confidential and secure. Such confidential
information shall only be used for the purposes for which it was provided.
In addition, Provider may
aggregate statistical data from the information provided through the Application(s),
without identifying the End User or the Customer as its source, which may be
used by Provider or other third parties to assist in providing better products
and services to you. You hereby expressly consent to such use of the
information.
Each user session with the
Application(s) is secured by encryption technology to protect against the
unauthorized interception of information. The Application(s) may generate
emails to notify or confirm activities within the Application(s) that are not
encrypted; however, highly sensitive information (e.g., account numbers)
is “masked” to protect against unauthorized access to such information. You
hereby acknowledge that information may be intercepted during transmission to
or from the Application(s) and that Provider cannot and does not guarantee that
the use of the Application(s) is completely secure. You hereby agree to assume
any and all risk associated with the unauthorized access to your information
during transmission of such information between the Application(s) and you and
after such information has been delivered to you.
SECTION 10 GENERAL
TERMS & CONDITIONS
Term and Termination. Either party may terminate this EULA without advance
notice. Provider may discontinue or change the Application(s), Related Services,
Information, or their availability to you, at any time or for any reason, with
or without notice. If you breach any of the terms of this EULA, your
authorization to access and use the Application(s) will automatically terminate
absent Provider’s written waiver of such breach.
Governing Law and Jurisdiction. You and Provider agree that all matters arising from or
relating to the Provider’s provision of the Application(s), Related Services,
Information, and your access to and use thereof, shall be governed by the laws
of the State of Colorado and the United States, without regard to conflict of
laws principles. You and Provider agree to submit to the exclusive personal
jurisdiction and venue of the appropriate state or federal court located in
Denver, Colorado, USA with respect to all such matters.
Assignment. The EULA shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. You may not
assign the EULA or your rights or obligations hereunder without the prior
written permission of Provider. Provider may assign, at its sole discretion,
the EULA or any of its rights or obligations hereunder without notice to End
User.
Modification. Provider, in its sole discretion, may make reasonable
modifications to the terms and conditions of this EULA to address changes or
enhancements to the Application(s) or Related Service or to address changes in
applicable law. If this EULA is modified, you will have the opportunity to
review the revised EULA and decide whether to agree to the terms. You will be
required to agree to the revised EULA to continue using the Application(s). The
most recent and governing version of the EULA will be accessible through the
Application(s) and can be printed for your review and permanent records. No
modification or amendment of any provision of this EULA shall be effective
against Provider unless the same is in writing and signed by an authorized
official of Provider.
Waiver. A party’s failure to exercise any right, power, or remedy
under this EULA shall not operate as a waiver of a continuing breach or a
similar breach in the future. All rights and remedies provided under this EULA
are cumulative and not exclusive of any other rights or remedies which are
otherwise available at law or equity.
Severability. If any provision of this EULA is declared or found to be
illegal, unenforceable, or void, then both parties shall be relieved of the
obligations imposed by such provision, but only to the extent that such
provision is illegal, unenforceable, or void. The remaining terms and
provisions of this EULA shall continue in full force and effect.
Notices. All notifications to Provider pertaining to this EULA or
the provision or use of the Application(s) shall be communicated through the “Contact
Us” link in the Application(s) with the phrase “EULA LEGAL NOTICE” in the
subject line. All notifications to the End User shall be communicated using the
email address on record in the Application(s). End User shall be responsible
for maintaining accurate email contact information in the Application(s).
Headings. The headings referred to or used in this
EULA are for reference and convenience purposes only and shall not in any way
limit or affect the meaning or interpretation of any of the terms hereof.
Survival. To the extent applicable, the provisions of this EULA
relating to the following rights or obligations shall survive the termination,
cancellation, expiration, and/or rescission of this Agreement: Section 4
(Ownership of Proprietary Rights), Section 6 (Advertising and Links to Other
Sites), Section 7 (Warranties), Section 8 (Allocation of Risk), Section 9
(Privacy & Confidentiality of Information), and any provision that: (i) expressly states its survival, (ii) is necessary for the
enforcement of this EULA, including Governing Law and Jurisdiction, (iii) is
necessary to interpret surviving provisions, or (iv) provides for a remedy
available under this EULA.
Entire Agreement. This EULA and the Privacy Policy referenced herein
represent the complete and exclusive statement of the agreement and
understanding between you and Provider regarding your rights to access and use
the Application(s) and the provision of Related Services and Information. This
EULA supersedes all prior and contemporaneous agreements and representations
regarding such subject matters, including any verbal representations or
agreements that may have been reached.
BY CLICKING “I AGREE” BELOW, YOU
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS END-USER LICENSE AGREEMENT
AND EXPRESSLY AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU DO
NOT AGREE TO ALL SUCH TERMS AND CONDITIONS, DO NOT ATTEMPT TO ACCESS OR USE THE
APPLICATION(S).
