GENERAL CONDITIONS OF February 1st, 2015 FOR Reepay Subscription Service
These Terms and Conditions constitute an agreement (“Agreement”) between you (“you”, “your”, “user”, “Customer”, or “Merchant”) and Reepay Aps, (“Reepay”, “us”, “we” or “our”) for recurring billing services and any related products or services (“Service” or “Services”). This Agreement governs both the Services and any assigned account (“Account”) used in connection with the Services.
1. Reepay Service
A. You are granted a nonexclusive right during the Term (as defined below) to use the Reepay 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. Reepay may revise its fees upon 30 days prior notice.
D. Reepay keeps a protected copy of the credit card numbers of your users. This billing data belongs to you (and your customers) and by utilizing the Service, you grant Reepay a license to use this data for the purposes of fulfilling our Service obligations to you and Reepay shall otherwise use commercially reasonable efforts to keep such information confidential and secure in accordance with general industry standards. Reepay has and will continue to be PCI compliant and agrees to comply with all applicable state and federal laws and regulations (including those relating to privacy and data security), with regards to its use, access and storage of billing data on your behalf.
E. Following any termination or expiration of this Agreement or your Reepay account, Reepay 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 Reepay 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 Reepay that you wish to terminate your account. Reepay 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 Reepay which accrued prior to such termination will become immediately due and payable.
3. Modifications to Agreement or Service
Reepay 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 Reepay 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 Reepay. Reepay 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 Reepay shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. Reepay 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 Reepay 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 Reepay Payment Gateway, you shall set up and maintain an account that is capable of receiving funds through a merchant bank account (“Merchant Bank Account”). You authorize us to confirm that the Merchant Bank Account is and remains in good standing with a financial institution as long as you are using the Service. You authorize us to obtain credit reports or other background inquiries from time to time to assess your eligibility to continue use of the Service. You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Service. 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. Reepay will submit your customers’ payment information to the applicable payment gateway and will charge you a fee 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, if any fee is calculated as a percentage of customer billings it shall be calculated based on gross billings (i.e., following the addition of any sales or similar taxes that are applicable to such billings). Payments reflecting charges for the prior month’s use of the Service will be billed by Reepay 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 Reepay’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 Reepay 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. All fees associated with your chosen payment gateway (with the exception of the Reepay Payment Gateway (offered to U.S. customers only)) are also separate and not included in Reepay’s fees. Without limiting any remedy available to Reepay, Reepay if you fail to pay any fees due hereunder, Reepay may suspend your access to the Service.
D. The Service includes an optional “account updater” feature which allows you to receive an update when there is a change to one of your customer’s payment methods (e.g., when a customer receives a new account number on their credit card) (the “Updater Service”). In order to enable the Updater Service for a particular end customer, we must provide that end customer’s payment information (e.g., credit card account number) to our third party Updater Service vendors. Therefore, if you elect to use the Updater Service, you acknowledge and agree that we may provide your customers’ payment information to one or more third party vendors in order to enable the Updater Service. E. Reepay 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 Reepay from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify Reepay of any Fraudulent Actions which may affect the Service. Reepay 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, but in no event fewer than 8 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 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, unless you use Reepay as your payment gateway service provider, in which case, such services shall be deemed part of the Service provided hereunder and otherwise subject to the terms and conditions contained herein.
C. Reepay is a subscription management and billing software service, as well as a payment gateway 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). E. In addition to the other terms and conditions of this Agreement, your use of any Sandbox accounts on the Service (“Sandbox Accounts”) shall be subject to the following additional limitations: Reepay reserves the right to impose upper limits on various aspects of Sandbox Accounts, including without limitation: API requests, subscription creation, account creation, push notifications and transactions. Sandbox Accounts which have been inactive for 60 days (including all data or information stored therein or associated therewith) will be automatically deleted by Reepay.
6. Proprietary Rights
A. The Service contains content and technology of Reepay that is protected by copyright, trademark, patent, trade secret and other laws. As between the parties, Reepay 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 “Reepay Property”). You may not: (i) copy, modify, or reverse engineer any part of the Service or any Reepay 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, Reepay Partners and Partner Sites) may be the trademarks of their respective owners.
B. Subject to the terms and conditions hereof, Reepay hereby grants you a limited, revocable, nonsublicensable license to display the Reepay 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 Reepay in writing. Notwithstanding such permitted uses and license, you acknowledge that all derivative designs and artwork which utilize the Service’s logo or other Reepay Property (collectively, “Derivative Works”) are the sole property of Reepay. No other rights are granted to you with respect to the Reepay 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, Reepay needs the right to make certain uses of your publicly posted User Content (for example, you may provide Reepay 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 Reepay 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 Reepay. In addition, you agree that Reepay may use your name and logo to identify you as a Reepay customer on its website or in other sales or marketing materials (provided that Reepay will not issue any press release regarding your use of the Service without your prior consent). In addition, you acknowledge that Reepay may (i) internally use (but not disclose) information and data collected by Reepay 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. Reepay reserves the right to remove any content (including, without limitation, User Content) from the service, at its sole discretion.
F. Reepay 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 Reepay:: 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. Reepay’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail Reepay Aps Amagerfælledvej 56 2300 København S. Denmark
By E-mail email@example.com
7. REPRESENTATIONS AND WARRANTIES
OUR SITE OR SERVICE ARE OFFERED “AS-IS”, INCLUDING ANY ERRORS, BUGS OR OTHER TECHNICAL ISSUES. YOU AGREE THAT WHILE USING OUR SOFTWARE OR SERVICE, YOUR RESULTS MAY VARY AND YOU MAY NOT ACHIEVE ANY DESIRED RESULTS. WE EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED. OUR SITE, SOFTWARE, OR SERVICE MAY NOT BE FIT FOR A PARTICULAR PURPOSE AND MAY NOT WORK OR BE APPLICABLE WHERE YOU RESIDE. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE REASONABLE SKILL AND CARE INVESTED IN OUR SERVICE, SATISFACTORY QUALITY OF OUR SERVICE, MERCHANTABILITY OF OUR SERVICE OR THAT OUR SERVICE IS NON-INFRINGING. FURTHERMORE, WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR SERVICE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, THAT THE SITE OR SERVICE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION, THAT ANY DEFECTS OR ERRORS IN THE SITE OR SERVICE WILL BE CORRECTED, OR THAT THE SITE OR SERVICE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. REEPAY IS NOT OBLIGATED TO PROVIDE YOU ACCESS TO OUR SITE AND SERVICE. IN THE EVENT OF ANY PROBLEM WITH THE SITE OR SERVICE, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITE OR SERVICE.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL REEPAY, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, OR AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING TO (i) YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii) YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, (iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, OR (vi) ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL APPLY EVEN IF REEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REEPAY ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS (1) WILL BE UNINTERRUPTED OR ERROR FREE; (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS; (3) IS SECURE; OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES, AND ACCOUNT.
IN NO EVENT SHALL REEPAY, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, REEPAY SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND REEPAY AGREE THAT IN NO EVENT SHALL LIABILITY OF REEPAY TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY. YOU AND REEPAY AGREE THAT THIS SECTION OF THE AGREEMENT, “LIMITATION OF LIABILITY”, IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND REEPAY. YOU ACKNOWLEDGE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, REEPAY WOULD NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS REEPAY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS’ FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON’S USE OF ANY ACCOUNT YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE GROSSLY NEGLIGENT ACTS OF REEPAY OR ITS EMPLOYEES, AGENTS, CONTRACTORS, OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.