Biller Genie User Agreement

Scope of Document — Effective 4/23/2019 6:02:17 PM +00:00

Version 1

Please Note:The terms and conditions of this User Agreement for Customer Portal include an exclusive jurisdiction clause, disclaimers of warranties, limitations of liability, indemnification obligations, an arbitration clause, and your consent to electronic communications.Please review these terms and conditions in their entirety.


User Agreement for Customer Portal

BEFORE YOU CLICK ON THE ACCEPT BUTTON AT THE END OF THIS USER AGREEMENT, CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING ON THE ACCEPT BUTTON, YOU AGREE ON YOUR BEHALF AND ON BEHALF OF THE COMPANY FOR WHOM YOU WORK (IF APPLICABLE) TO BE BOUND BY AND TO BECOME A PARTY TO THIS AGREEMENT. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE PERSONALLY REPRESENTING AND WARRANTING THAT YOU HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS USER AGREEMENT AND, IF APPLICABLE, ON BEHALF OF YOUR COMPANY.

This Biller Genie User Agreement for Customer Portal (the "User Agreement") is entered into by and between Biller Genie ("Company") and you as a user (“User,” “you,” ”your”) who is authorized by a participating merchant (“Merchant") to use the customer payment and invoicing services (the “Services”) which you can access by means of an internet portal (“Customer Portal”) hosted by Company on behalf of Merchant. The Customer Portal is provided for your access and use pursuant to a license agreement (the “Merchant License”) between Company and Merchant (the “Merchant License”).

This User Agreement includes and incorporates by reference the provisions of Company’s Privacy Policy found here https://merchant.billergenie.com/LegalContent?type=PrivacyPolicy&isExternal=true(“Privacy Policy”). This User Agreement governs your access to and use of the Customer Portal, the Services, and all materials and information you access in connection with the Services (the "Materials") and constitutes a binding legal agreement between you and Company. Please read the terms and conditions stated in this User Agreement, including the Privacy Policy, carefully. If you consent to be bound by this User Agreement, please click "I Accept the User Agreement for Customer Portal" below.

CHANGES TO THIS AGREEMENT.

Company may at any time, at its sole discretion, update and revise this User Agreement, including the Privacy Policy, by posting a link to an amended Agreement on the homepage of the Customer Portal; provided that no such update or revision shall modify or supersede Merchant License, and in the event of any conflict between the Merchant License and this User Agreement, Merchant License shall control. Any changes to this Agreement will be effective immediately upon posting on the Customer Portal homepage. Please check this page periodically for changes to the Agreement including the Privacy Policy.You will be able to determine if Company has made any changes since your previous visit by viewing the "Last Updated" information that appears at the top of the posted User Agreement and Privacy Policy. Use of the Services by you following the posting of any changes constitutes acceptance of those changes. 

YOUR PERSONAL INFORMATION.

How Company uses and discloses personal information is described in the Privacy Policy at https://merchant.billergenie.com/LegalContent?type=PrivacyPolicy&isExternal=true. Company will not sell, exchange or disclose the credit card or other financial or transaction information you or your Merchant process using the Services except (i) to Merchant (ii) to Company’s business partners, which include third party payment processors and other service providers necessary to operate the Customer Portal and the Services (collectively, “Business Partners”), or (iii) as reasonably necessary to comply with legal or regulatory process, to enforce this User Agreement, or to protect the rights of Company, Merchant, users of the Customer Portal, or others. Notwithstanding the foregoing, Company may use your e-mail address to contact you for marketing and promotional purposes unless you opt-out of such use by Company. 

YOUR OBLIGATIONS AND CONDUCT.

Conditions to Access.By accessing the Services, you represent that Merchant has authorized you to access and use the Customer Portal.You agree that when you enter your username and password you are authorizing Company to provide the Services to you on behalf of Merchant on the terms and conditions stated in this User Agreement. The use of the Customer Portal is subject to your continued customer relationship with, and any agreement between you and Merchant.You agree not to (i) use or access the Customer Portal following termination of your relationship with Merchant, or (ii) use or access the Customer Portal in contravention of any agreement between you and Merchant.

Accurate and Authorized Information.By using the Customer Portal to provide credit card or checking account information, you are confirming that you are submitting valid and accurate information, and that you are authorized to provide such information and to authorize transactions using such accounts. Company is not responsible for any consequences of your provision of inaccurate information. Company may take reasonable measures to detect and prevent fraud, including viewing, monitoring and recording any activity conducted by you or other Users, without providing notice or obtaining Merchant’s prior consent. Any information obtained as a result of such measures may be provided to governmental authorities. 

Confidentiality of Login Information. You will protect the confidentiality of your user name and password. You agree to immediately notify Company of any unauthorized use of your username or password or any other breach of security.

Prohibited Activities.You may not access or use the Customer Portal or Services in any unlawful manner or for any unlawful purpose or in violation of this User Agreement or applicable laws, rules and regulations. You will access and use the Customer Portal and the Services solely for Merchant's internal business purposes, consistent with this User Agreement. You will not permit any other individuals to use the Customer Portal or the Services unless they are authorized by Merchant. You will not enable any user or other person or entity to: (a) reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purposes any portion of the Customer Portal, Services or Materials (including log-In Information); (b) create derivative works based on the Services or Materials; (c) remove any disclaimer, title, trademark, copyright and/or restricted rights notice or labels on the website, Customer Portal, or Materials; (d) probe, scan or test the vulnerability, or circumvent any security mechanism, related to the Services; (e) impersonate any person or entity, including another user; or (f) falsely state or otherwise misrepresent your affiliation with a person or entity. You will not use the Customer Portal to post, upload or otherwise transfer to or via servers or communication lines by any means, including but not limited to web page content, linked web pages, e-mail or FTP, anything which (i) is obscene or constitutes child pornography or any other legally prohibited subject matter under applicable law, (ii) is defamatory, (iii) contains any computer code, data or other mechanismintended to disrupt, disable, harm or otherwise impede the operation of the Customer Portal or Services or any associated data, software, firmware, hardware, computer or network (sometimes referred to as "viruses" or "worms"), or (iv) is commercial or promotional in nature. 

YOUR RELIANCE ON MERCHANT

Merchant’s Obligations.The Merchant is responsible to you for (i) authorizing your use of the Customer Portal to access the Services and for all fees relating to the Customer Portal and the Services; (ii) administering, operating and managing the Services, (iii) providing accurate and complete account and other information to you, (iii) implementing, maintaining, and enforcing the quality and security procedures to be followed by Users and Merchant’s personnel to safeguard the confidentiality, security, availability and integrity of User information; and (iv) providing adequate protection, security, and backup of data and/or equipment use in connection with the Services. 

Risks.Company acts solely as an operator of the Customer Portal and Services on behalf of Merchant and Company does not warrant that the use or operation of the Customer Portal or Services will be uninterrupted or error-free. Use of the Customer Portal and Services and any reliance upon the Service or Materials, including any action taken or not taken by you or Merchant or any other person because of such use or reliance, is at the sole risk of you or Merchant. Without limiting the foregoing, you agree that Company is not responsible for the accuracy, completeness or reliability of the Services, Materials or any information processed in connection therewith, including invoicing, transaction, financial and ensure the accuracy of such information. 

INTELLECTUAL PROPERTY

The Customer Portal, Services, Materials, and the Company’s and any Business Partners’ names and logos and all related product and service names, design marks and slogans are the property of Company, its affiliates or Business Partners. Other product names and service marks, etc. are the property of their respective owners. You are not authorized to use any of these marks. Use of the Customer Portal or Services confers no title or ownership in the Services, the Materials or the marks. References to any names, marks, products or services of third parties or hypertext links to third party site or information do not necessarily constitute or imply Company's or its Business Partners’ endorsement, sponsorship or recommendation of the third party, information, product or service. You acknowledge that Company owns all copyrights and associated intellectual property rights in the Customer Portal, Services and Materials. You will not, and will not permit any other person to, copy, modify, translate, reverse engineer, decompile, disassemble or create derivative works of any software or Materials licensed to Merchant by Company or its Business Partners in connection with the Services. 

DISCLAIMERS

THE CUSTOMER PORTAL AND SERVICES ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. COMPANY AND ITS BUSINESS PARTNERS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE CUSTOMER PORTAL AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE CUSTOMER PORTAL AND SERVICES. COMPANY DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE CUSTOMER PORTAL AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE CUSTOMER PORTAL AND SERVICES WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. 

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1. COMPANY MAKES NO WARRANTY THAT (I) THE CUSTOMER PORTAL OR SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CUSTOMER PORTAL OR SERVICES WILL BE ACCURATE, UP TO DATE OR RELIABLE, (IV) THE QUALITY OF ANY SERVICE, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH THE CUSTOMER PORTAL OR SERVICES WILL MEET THE EXPECTATIONS OF YOU OR THE MERCHANT, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED;
  2. ANY INFORMATION OR MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CUSTOMER PORTAL OR SERVICES IS DONE AT YOUR OR THE MERCHANT’S OWN DISCRETION AND RISK, AND THE MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR MATERIALS;
  3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT;
  4. COMPANY DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA, OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS, OR NETWORKS. COMPANY SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES;
  5. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SITE, SERVICE OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN; AND
  6. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THE CUSTOMER PORTAL AND SERVICES AND WITH MERCHANT AND OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE CUSTOMER PORTAL OR SERVICES.
  7. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF INFORMATION OR ACTIVITIES OF MERCHANT IN CONNECTION WITH THE SERVICES.

INDEMNIFICATION

To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold Company, its officers, directors, shareholders, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable attorneys’ fees and court costs, arising out of or in any way connected with your access to or use of the Customer Portal, Services, or Materials or your violation of this User Agreement or any other policies applicable to your use of the Customer Portal, Services, or Materials.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE CUSTOMER PORTAL, SERVICES, OR MATERIALS REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE CUSTOMER PORTAL, SERVICES, OR MATERIALS WILL BE LIABLE FOR ANY DIRECT, INDIRCT, INCIDENTAL, SPECIAL, EXEMPLARY , CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE CUSTOMER PORTAL, SERVICES, OR MATERIALS WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF, OR INABILITY TO USE, THE CUSTOMER PORTAL, SERVICES, OR MATERIALS EXCEED THE TOTAL OF FIFTY DOLLARS ($50.00). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.

SOLE REMEDY AND ARBITRATION 

Subject to the terms and conditions of the paragraph with the heading "LIMITATION OF LIABILITY," your sole and exclusive remedy for any failure or nonperformance of the Customer Portal, Services, or any Materials shall be for Company to use commercially reasonable efforts to adjust or repair the Customer Portal, Services, or the Materials. 

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CUSTOMER PORTAL OR THE SERVICES, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, AND JUDGMENT ON THE AWARD RENDERED BY A SINGLE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. YOU FURTHER AGREE THAT ANY ARBITRATION ACTION BROUGHT BY YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CUSTOMER PORTAL OR THE SERVICES SHALL BE FILED ONLY IN DADE COUNTY, FLORIDA, AND YOU HEREBY CONSENT AND SUBMIT TO THE PERSONAL JURISDICTION AND VENUE IN DADE COUNTY, FLORIDA.

SUSPENSION AND TERMINATION

Company may unilaterally suspend or terminate some or all of Merchant's, or any User’s, access to the Customer Portal if Company has reason to believe that an unauthorized person is accessing and/or using the Customer Portal. The suspension or termination of Merchant’s access to the Customer Portal will also prevent Users from accessing the Customer Portal, until such time as Merchant has resolved the security concern to Company's satisfaction. Company may terminate this User Agreement immediately, with or without notice, if (i) Merchant, you, or any User breaches appear likely to breach or threaten to breach any of the provisions of this User Agreement, or (ii) the Merchant License is terminated. Upon any such termination or expiration, you must immediately discontinue all use of the Customer Portal and Services and immediately destroy all copies of the Materials. The provisions of this User Agreement (other than your right to use the Services) shall survive termination or expiration of this User Agreement. 

CONSENT TO AND TERMS OF ELECTRONIC COMMUNICATIONS DELIVERY

Electronic Delivery of Communications. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that the Company provides in connection with your Customer Portal and your use of the Services. Communications include:

  • agreements      and policies you agree to (e.g., this User Agreement and the Privacy      Policy), including updates to these agreements or policies;
  • all      legal regulatory disclosures and communications associated with the      Company and any related products and Services;
  • transaction      receipts or confirmations;
  • Account      statements and history;
  • federal      and state tax statements we are required to make available to you; and
  • any      other Customer Portal, Service, or transactional information.

The Company will provide these Communications to you by posting them on the Company website and/or by emailing them to you at the primary email address listed in your Company profile.


Hardware and Software Requirements. In order to access and retain electronic Communications, you will need the following computer hardware and software:

  • a      computer with an Internet connection;
  • a      current web browser that includes 128-bit encryption (e.g. Internet      Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome      version 3.0 and above, or Safari 3.0 and above) with cookies enabled;
  • Adobe      Acrobat Reader version 8.0 and above to open documents in .pdf format;
  • a      valid email address (your primary email address on file with Company); and
  • sufficient      storage space to save past Communications or an installed printer to print      them.

The Company will notify you if there are any material changes to the hardware or software needed to receive electronic Communications from Company. By giving your consent you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of these Communications for your records as they may not be accessible online at a later date.


How to Withdraw Your Consent. You may withdraw your consent to receive Communications electronically by writing to Biller Genie, LLC at “9999 NE 2nd Ave., Suite 314, Miami Shores, Florida 33138 ", or by contacting the Company’s Customer Service at 877-245-5374. If you fail to provide or if you withdraw your consent to receive Communications electronically, Company reserves the right to either deny your application for a Customer Portal or Services, restrict or deactivate your Customer Portal or Services, close your Customer Portal and any sub-portal or Services, or charge you additional fees for paper copies.


Requesting Paper Copies of Electronic Communications. If, after you consent to receive Communications electronically, you would like a paper copy of a Communication the Company previously sent you, you may request a copy within 180 days of the date the Company provided the Communication to you by contacting the Company as described above. We will send your paper copy to you by U.S. mail. In order for us to send you paper copies, you must have a current street address on file as your “Home” address in your Customer Portal account. If you request paper copies, you understand and agree that Company may charge you a records request fee for each Communication. The records request fee will not be charged if you request a Form 1099-K in paper form; for all other Communications, the records request fee is $10.00.


Updating Your Contact Information. It is your responsibility to keep your primary email address up to date so that Company can communicate with you electronically. You understand and agree that if Company sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Company will be deemed to have provided the Communication to you.


Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add Company to your email address book so that you will be able to receive the Communications the Company sends to you.


You can update your primary email address or street address at any time by logging into your Customer Portal and adjusting your profile/settings. If your email address becomes invalid such that electronic Communications sent to you by Company are returned, Company may deem your Customer Portal to be inactive, and you will not be able to transact any activity using your Customer Portal until the Company receives a valid, working primary email address from you.


OTHER TERMS 

Governing Law.You recognize that, although the Internet can be accessed from anywhere in the world, the Customer Portal is operated from the State of Florida, United States of America. This User Agreement is governed by and construed in accordance with the internal substantive laws of the State of Florida without giving effect to any principles of conflict of law and the Federal laws of the United States of America.

General Terms. This User Agreement constitutes the entire agreement among you, Merchant and Company with reference to use of the Customer Portal, Services and the Materials, and supersedes any prior agreement between or among the parties regarding its subject matter. Notwithstanding the foregoing, this User Agreement does not supersede the Merchant License or other agreement between Company and Merchant. The failure Company to enforce any right or provision of this User Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Company. You may not assign, transfer or delegate this User Agreement or any part of it without Company's prior written consent. Company may freely transfer, assign or delegate all or any portion of this User Agreement, and any rights and duties hereunder. Subject to the foregoing, this User Agreement will be binding upon and inure to the benefit of any heirs, successors and permitted assignees of the parties. In the event any provision of this User Agreement is found to be unenforceable or invalid, such provision shall be modified so as to make it valid and enforceable and as so modified the entire User Agreement shall remain in full force and effect. 

Risk Allocation. You acknowledge and agree that the provisions of this User Agreement represent a reasonable allocation of the risks under this User Agreement. Company’s willingness to grant you access to the Customer Portal, Services, and Materials reflects this allocation of risk and the disclaimers and limitations of liability specified herein.