Restated Terms & Conditions

1. Definitions.

The following definitions apply as used in the Agreement and in any Biller Order Form and add on Biller Order Form, now or hereafter:

“Agreement” or “Biller Agreement” means these Restated Terms & Conditions, the Biller Agreement, any Biller Order Form or add on Biller Order Form (including without limitation any Biller Order Form for Add Ons – Outbound), whether written or submitted online and any materials available on the Invoice Cloud website specifically incorporated by reference herein;

“Biller”, “you”, or “your” means the Invoice Cloud customer that has executed or agreed to the Biller Agreement, Biller Order Form and these Restated Terms & Conditions whether written or submitted online;

“Biller Data” means invoices and bills of the Biller as well as the Content of such invoices and bills;

“Biller Order Form” or “Order Form” means the order form and any add on order form (including without limitation any Biller Order Form for Add Ons – Outbound) specifying, among other things, the services contracted for, the applicable Biller Pricing fees and Transactional Fees and Service Fees, the billing period, and other charges, terms and conditions as agreed to between the parties, each such Biller Order Form to be incorporated into and to become a part of this Agreement. The Biller Order Form includes any corresponding Invoice Parameter Sheets or Outbound Payments Sheets (as applicable) attached thereto which are part of the Biller Order Form;

“Chargeback” is a reversal of a Transaction initiated by a credit card company, processor, bank or other financial institution including chargebacks, ACH rejects or reversals, disputes and other refunds or credits, that Biller previously presented to Invoice Cloud under this Agreement and includes, but is not limited to: (i) failure to issue a refund to a Customer as required; (ii) Invoice Cloud did not receive Biller’s response to a Retrieval Request within 7 days or any shorter time period required by the Payment Brand Rules; (iii) a Customer disputes the Transaction or claims that the Transaction is subject to a set-off, defense or counterclaim, or (iv) the Biller Bank Account designated by the Customer for an ACH transaction is invalid, or has insufficient funds to complete a Transaction;

“Content” means the information and documents contained or made available to Biller by Invoice Cloud in the course of using the Service;

“Custodial Account” means an account held at a federally insured bank into which disbursement funds from Biller will be held and subsequently disbursed to the applicable Customer in connection with the Outbound Payment Services.

“Customer” shall include customers, payers, taxpayers and users of services of Biller. Additionally, for those Billers that utilize Outbound Payment Services, “Customer” shall also include persons and entities that are authorized to receive payments from Biller on behalf of payers, taxpayers, policy holders, and direct users/customers of services of Biller, such persons and entities to include but not be limited to mortgage lien holders, attorneys, automobile repair shops, insurance agents, and contractors;

“Customer Data” means name, address and contact information of Customers and associated credit card numbers and bank account numbers, excluding any data that Invoice Cloud acquired other than from the Biller or Customers. Additionally, for those Billers that utilize Outbound Payment Services, “Customer Data” may also include, as applicable, a Customer’s insurance policy number, payment or disbursement amounts paid to Customer by Biller, and/or claims and related information contained in a Customer’s explanation of benefits (EOB) statement;

“Effective Date” means the date this Agreement is accepted by executing a Biller Order Form;

“Go Live Date” means: (i) the date on which those invoice types listed on the Biller Order Form are publicly available to Customers for online payment; or (ii) for those Billers that utilize Outbound Payment Services, the date on which Invoice Cloud begins processing outbound payment disbursement instructions from Biller at approximately the dollar or payment volume indicated on the Outbound Payments Sheets (for the avoidance of doubt, this would exclude any test periods administered by or on behalf of Biller during which transactions are processed at a reduced volume);

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives, integration components and application programming interfaces thereof, and forms of protection of a similar nature anywhere in the world;

“Integration Components” means software, which integrates the Service with third party software, and any updates or revisions thereto;

“Invoice Cloud” or “we” means Invoice Cloud, Inc., a Delaware corporation;

“Invoice Cloud Technology” means all of Invoice Cloud’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Biller or otherwise developed by Invoice Cloud in providing the Service;

“IVR” means the software as a service which provides interactive voice and communication response functionality, automated payments by voice and text, text (SMS) messaging, and related functionality, including inbound and outbound communications;

“Network” is any Payment Method provider whose payment method is accepted by Biller from Customers and which is accepted by Invoice Cloud for processing, including, but not limited to, Visa, Inc., MasterCard International, Inc., American Express, PayPal (including Pay Pal, Venmo, Pay In 4 and PayPal Credit), Discover Financial Services, LLC, and any other Payment Methods, digital wallets, credit and debit card providers, debit network providers. Network also includes the National Automated Clearing House Association (”NACHA”), with respect to Transactions involving any credit or debit entry processed over the ACH network, and any other network or clearinghouse over which any electronic check processing Transactions may be processed;

“Network Fees” means all pass-through costs including interchange, PayPal brand fees, dues, assessment fees, processing fees, service fees, and similar fees, assessed by any Network, credit card or payment processers, bank card issuers, payment associations, ACH and check processers, and any other third-party processor or service provider;

“Network Liabilities” means any and all fines, fees, penalties, liabilities, charges and other amounts which may be imposed or assessed by the Networks or payment processors as a result of Biller’s actions, omissions, , Transactions or Chargebacks, including without limitation, Biller’s failure to comply with the Network Rules, or this Agreement and/or any agreement with any payment processor;

“Outbound Payment Services” or “OPS” means Invoice Cloud’s proprietary technology and service that allows Billers to make certain payments to its Customers through the Invoice Cloud Technology and through the use of designated service providers that assist Invoice Cloud in the provision of the service;

“Payment Instrument Transaction(s)” or “Transaction(s)” means a transaction conducted between Biller and its Customers with respect to an account, or evidence of an account, utilizing Payment Methods for payment in connection with the sale, lease, financing or provision of goods and/or services by Biller and/or payment of taxes (either directly or through Invoice Cloud). “Payment Instrument Transaction(s)” or “Transaction(s)” may also be used to refer to the written or electronic record of such a transaction, including, without limitation, an authorization code, settlement record, ECP file, or a credit or debit entry pursuant to and consistent with NACHA Rules or card association rules which is submitted to a processor to initiate or evidence a Transaction;

“Payment Processing Agreements” means the payment and card processing agreements and merchant agreements which Invoice Cloud has directed the Biller to enter into to enable Invoice Cloud to provide the Service;

“Payment Methods” means credit and debit cards, ACH, EFT and Check 21 transactions, digital wallets including but not limited to Visa, MasterCard, Amex and Discover, PayPal, Venmo, Apple Pay, Google Pay, credit instruments including PayPal Credit and PayPal Pay in 4, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts that are used for Payment Instrument Transactions and listed on the Biller Order Form. From time to time Invoice Cloud may offer Biller new Payment Methods, and, in such event, Invoice Cloud will provide Biller with notice by email disclosing the pricing under which the added Payment Methods are made available. Biller will have at least thirty (30) days after the date of the notice to opt-out of the additional Payment Methods in the manner provided in the notice. If Biller does not opt-out in such time frame, then on introduction of the additional Payment Methods, Biller will be bound by the additional terms as disclosed in the notice, and the Biller Order Form will be deemed amended to reflect the changes;

“Reserve Account” means a Biller account which is maintained in order to protect Invoice Cloud against the risk of, among other things, existing, potential, or anticipated Chargebacks and to satisfy the other obligations under the Agreement;

“Service(s)” means Invoice Cloud’s billing and payment service, the Outbound Payment Services (as applicable), the Content, the Invoice Cloud Technology and other services identified on the Biller Order Form, developed, operated, provided, and/or maintained by Invoice Cloud, accessible via www.invoicecloud.com or another designated website or IP address, or ancillary online and/or offline products and services provided to Biller by Invoice Cloud, to which Biller is being granted access under this Agreement.

2. Biller’s Responsibilities.

1. Biller is responsible for all activity occurring under Biller’s account(s) and shall abide by all applicable laws and regulations as well as card association rules, NACHA rules and Payment Processing Agreements, in connection with Biller’s and/or its customers’ use of the Service, including those related to data privacy, communications, export or import of data and the transmission of technical, personal or other data. Biller shall: (i) notify Invoice Cloud immediately in writing of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Invoice Cloud and immediately stop any copying or distribution of Content that is known or suspected to be unauthorized by Biller or Customers; and (iii) not impersonate another Invoice Cloud user or provide false identity information to gain access to or use the Service. Biller shall not: (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; (iv) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (v) modify or make derivative works based upon the Service; (vi) recreate, “frame” or “mirror” any portion of the Service on any other server or wireless or Internet-based device; (vii) reverse engineer or access the Service; or (viii) copy any features, functions or graphics of the Service.
2. Biller must designate on the Biller Order Form (and/or subsequent to execution of the Biller Order Form as requested by Invoice Cloud), at least one bank account for the deposit and settlement of funds and the debit of any Chargebacks, fees and costs, including, but not limited to Network Fees and Network liabilities, associated with the Service or the Transactions (all such designated bank accounts and all bank accounts substituted for accounts listed on the Biller Order Form shall be collectively referred to herein as the “Biller Bank Account”). You authorize Invoice Cloud to instruct its processors to initiate electronic credit entries, debit entries, and adjustments to a Biller Bank Account for amounts due to or from you in connection with this Agreement. Invoice Cloud will not be liable for any delays in receipt of funds or errors in Biller Bank Account entries caused by third parties, including but not limited to delays or errors by the Networks, payment processors, merchant acquirors or the bank.
3. The dollar amount payable to Biller for Biller’s Transactions will be equal to the amount submitted by Biller in connection with your sale Transactions, minus the sum of amounts due from Biller or debited from a Biller Bank Account, including Chargebacks, Network Fees, Network Liabilities, other fees and charges referenced on the Biller Order Form and all applicable charges and adjustments. If, however, Invoice Cloud or the processor fails to withhold Chargebacks, Network Fees or other charges or amounts due from the proceeds payable to a Biller Bank Account (including where such proceeds are insufficient to cover such obligations), or if a Biller Bank Account does not have a sufficient balance to pay amounts due from Biller under these guidelines, Invoice Cloud may pursue one or more of the following options: (i) demand and receive immediate payment from Biller for such amounts; (ii) debit the Biller Bank Account for the amount of the negative balance; (iii) reduce future settlement payments by the amount owed, (iv) withhold settlement payments to the Biller Bank Account until all amounts are paid, (v) delay presentation of refunds until a payment is made to Invoice Cloud of a sufficient amount to cover the negative balance; and (vi) pursue any remedies we may have at law or in equity.
4. To enable Invoice Cloud to process transactions for the Biller, Biller authorizes and directs Invoice Cloud, its affiliates, the Payment Method providers, and the payment processors: (1) that, with respect to any Payment Instrument Transactions processed by the payment processor, the payment processor will disburse funds to and collect funds from the Biller in accordance with instructions provided to the payment processor by Invoice Cloud, and as otherwise permitted pursuant to any applicable Payment Processing Agreement that Biller has entered into; (2) that outstanding sums due and owing to Invoice Cloud, including, but not limited to Chargebacks and Network Fees, will automatically be debited from the Biller Bank Account for such purpose on a daily or monthly basis at Invoice Cloud’s sole discretion. Biller shall maintain sufficient funds in the Biller Bank Accounts to pay all periodic fees, Chargebacks, Network Fees and other fees due hereunder; and non-sufficient funds for these debits, or blocking or otherwise rendering inaccessible any Biller Bank Account, are grounds for an increase in fees, suspension of the Service, and/or termination of this Agreement.
5. Invoice Cloud is not responsible for any Biller postings in error due to delayed notification from credit card processor, ACH bank, and/or other related circumstances. Biller agrees to provide Invoice Cloud with timely, complete, and accurate billing and contact information. This information includes Biller’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Biller agrees to update this information within 30 days of any change to it.
6. Biller is required to ensure that it maintains a fair policy in compliance with applicable laws, regulations, and all Network rules with regard to the refund, return or cancellation of services and adjustment of Transactions. Biller is also required to disclose any refund, return or cancellation policies to Invoice Cloud and any applicable payment processors and Biller’s Customers, as requested. Any change in a return or cancellation policy for the transactions underlying the Payment Instrument Transactions must be submitted to Invoice Cloud, in writing, not less than 21 days prior to the effective date of such change. If Biller allows or is required to provide a price adjustment, or cancellation of services in connection with a Transaction previously processed, Biller will prepare and deliver to Invoice Cloud, Transactions reflecting such refund/adjustment within 2 days of resolution of the request resulting in such refund/adjustment. The amount of the refund/adjustment with respect to Transactions under the Service cannot exceed the amount shown as the total on the original Transaction. Biller may not accept cash or any other payment or consideration from a Customer in return for preparing a refund to be deposited to the Customer’s account; nor, with respect to credit card transactions, may Biller give cash/check refunds to a Customer in connection with a Transaction previously processed, unless required by applicable law. Biller shall obtain consent from Biller’s Customers and payers to receive notifications, payments, communications and invoices from Invoice Cloud and its third party service provider(s). Individual users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from Invoice Cloud from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preference at http://www.invoicecloud.com/privacy.html. Note that because the Service is a hosted, online application, Invoice Cloud occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service
7. As to all Transactions that Biller submits to Invoice Cloud for processing, Biller represents and warrants that:
  1. The Transactions represent payment or refund of payment, for a bona fide transaction.
  2. The Transactions represent an obligation of the Customer for the amount of the Transaction, and that the Transaction is valid and accurate.
  3. The Transactions do not involve any element of credit for payment of a previously dishonored payment or for any other purpose than payment for a current transaction and future payments as agreed upon by the Customer.
  4. The Transactions are free from any material alteration not authorized by the Customer.
  5. The amount charged for the Transaction is not subject to any dispute, setoff, or counterclaim.
  6. Neither Biller nor its employees has advanced any cash to the Customer in connection with the Transaction, nor have you accepted payment for effecting credits to a Customer.
  7. Biller has made no representation or agreement for the issuance of refunds except as it states in your return/cancellation policy, which has been previously submitted to Invoice Cloud in writing, and which is available to the Customer.
  8. Any Transaction submitted to Invoice Cloud to credit a Customer’s account represents a valid refund or adjustment to a Transaction previously submitted to Invoice Cloud.
  9. Biller has no knowledge or notice of information that would lead it to believe that the enforceability or collectability of the subject Transaction is in any manner impaired. The Transactions, including but not limited to total due fields, are complete, accurate and in compliance with all Network rules, applicable laws, ordinances, and regulations. The Transactions are originated in compliance with this Agreement and any applicable agreements.
  10. For a Transaction in which the Customer pays in installments or on a deferred payment plan, a Transaction record has been prepared separately for each installment transaction or deferred payment on the date(s) the Customer agreed to be charged. All installments and deferred payments, whether or not they have been submitted to Invoice Cloud for processing, shall be deemed to be a part of the original Transaction.
  11. Biller has not submitted any Transaction that it knows or should have known to be unauthorized, fraudulent, illegal, or otherwise in violation of any provision of this Agreement or other applicable agreements.
8. Communications with Customers and Biller Website. Biller hereby grants to Invoice Cloud and its providers a worldwide, non-exclusive, assignable, perpetual, and royalty-free license and right to copy, use, publish and distribute Customer names, physical addresses, and email addresses as well as obtain email addresses of Biller’s Customers by using data Biller has provided or made accessible to Invoice Cloud or any of its affiliates, solely for the purposes of: (i) communicating or sending to Customers (and/or their agents) information designed to inform, promote, and encourage Customers (and/or their agents) to use the Service including, without limitation, paying bills online, enrolling in autopay, and enrolling in paperless billing, and (ii) in conjunction with information relating to feedback and response regarding such communications, creating and using aggregated and anonymized data and analysis for purposes of improving the Service. Biller hereby grants to Invoice Cloud and its providers a worldwide, non-exclusive, assignable, and royalty-free license and right during the Term, to copy, use, modify, and publish the Biller’s name, logos, trade dress, photographs, website materials, and other works of authorship for the purpose of implementing and providing the Service and performing their obligations under this Agreement. Biller represents and warrants it has all necessary rights, permissions, and licenses to grant and provide to Invoice Cloud and its service providers the license, rights, and permissions described in this Section and will comply with all applicable laws and regulations with respect to any personal information of any of its Customers. For purposes of clarity, the license, rights, and permission grants described in this Section are part of the “Service” under the Biller Agreement.
9. American Express Compliance only.
  1. Biller agrees to comply with all applicable laws, rules and regulations, including the American Express Merchant Operating Guide requirements, which are incorporated into this Agreement by reference as if they were fully set forth in the Agreement. The American Express Merchant Operating Guide may be viewed at: www.americanexpress.com/merchantopguide.
  2. Processing Restrictions. Biller is prohibited from processing Transactions or receiving payments on behalf of, or (unless required by law) re-directing payments to any other party.
  3. Third Party Beneficiary Rights.
    1. Biller confers on American Express the third-party beneficiary rights, but not obligations, to the Biller Agreement and subsequent addenda (collectively the “Agreement”) between Biller and Invoice Cloud and, as such, American Express has the express right to enforce the terms of the Agreement against the Biller.
    2. Biller agrees and warrants that it does not hold third party beneficiary rights to any agreements between Invoice Cloud and American Express and at no time will attempt to enforce any such agreements against American Express.
  4. American Express Limitation of Liability. BILLER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL AMERICAN EXPRESS, ITS AFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO BILLER FOR ANY DAMAGES, LOSSES, OR COSTS INCURRED, INCLUDING INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED ON CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.

3. Chargebacks, Fees, Reserve Account, Etc.

If Biller incurs excessive Chargebacks, in Invoice Cloud’s sole determination, or otherwise fails to pay fees or charges, or there are insufficient funds for Invoice Cloud to debit amounts for which Biller is responsible hereunder, in addition to other remedies under this Agreement, Invoice Cloud (or the payment processor) may take the following actions: (i) notify Biller of a new rate that will be charged to process Chargebacks; (ii) collect from Biller an amount reasonably determined by Invoice Cloud (or the payment processor) to be sufficient to cover anticipated Chargebacks and all related fees, penalties, expenses, and fines, or increase a reserve amount; (iii) require Biller to promptly establish a Reserve Account as determined by Invoice Cloud, or (iv) terminate the Agreement. Biller shall be responsible to Invoice Cloud for and shall promptly pay to Invoice Cloud such charges required to be paid by Biller; and any Chargebacks, by any party, including without limitation Chargebacks claimed by any payment and credit card processors, bank, or other financial services organization.

To the extent permitted by applicable law, Biller shall indemnify, defend, and hold Invoice Cloud, its licensors and Invoice Cloud’s subsidiaries, affiliates, officers, directors, employees, attorneys, agents, and payment processors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any claim, cause of action, lawsuit, administrative or criminal investigation, charge, action or claim alleging: (i) any charge against any reserves required by payment or credit card processors; (ii) Chargebacks, Network Fees and insufficiency of funds in any Biller Bank Account, by any party, including without limitation Chargebacks claimed by any payment and credit card processors, bank, or other financial services organization; (iii) that use of any Customer Data infringes the rights of a third party; (iv) a violation by Biller of Biller’s representations and warranties or the breach by Biller or Biller’s users or Customers of this Agreement including without limitation incomplete or inaccurate Transactions; (v) Biller’s violation of any third party payment and credit card processing agreement and merchant agreement, or (vi) relating directly or indirectly to Biller’s or its authorized users’ use of the Service. Biller represents and warrants that the Biller Bank Account(s) will contain sufficient funds to cover any estimated financial exposure based on reasonable criteria for Chargebacks, ACH rejects or reversals, credits, returns, and all additional liabilities anticipated under this Agreement, including, but not limited to Chargebacks, fines, fees and penalties. Invoice Cloud may, at its sole discretion, collect fees related to Chargebacks and ACH rejects and reversals, or other refunds or credits from Biller’s customers.

4. Certain Contractual Terms

The following only applies to the extent not otherwise addressed in the Agreement:

LIMITED WARRANTY: THE SERVICES ARE PROVIDED “AS IS”. ALL EXPRESSED AND IMPLIED WARRANTIES ARE HEREBY DISCLAIMED WITH RESPECT TO THE INTEGRATION COMPONENTS INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST LATENT DEFECTS.

NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, INVOICE CLOUD’S AND ANY OF ITS AFFILIATE’S TOTAL AGGREGATE LIABILITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM BILLER FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT SHALL INVOICE CLOUD AND/OR ANY OF ITS AFFILIATES AND/OR LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES OR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Biller.

To the extent that the Biller’s Agreement does not have a Biller indemnification, limited warranty, or limitation of liability clause respectively, or to the extent that there is no Biller Agreement, the clauses in this Section 4 shall apply, control, and be binding on the Biller. Where there is no Biller Agreement, the terms of these Restated Terms & Conditions (and any order forms) shall be the sole and entire agreement between the parties.

5. Encrypted Card Readers (Applicable where Card Readers are designated on the Biller Order Form).

Encrypted Card Readers (or Card Readers as described in the Biller Order Form) are provided to the Biller for their use under license fees provided in the Biller Order Form. Invoice Cloud provides to Biller all products on a license basis. Biller will be fully responsible for all products including without limitation all risk of loss and damage to products while in its possession or control, save normal wear and tear.

Where Invoice Cloud provides encrypted card readers, the following additional terms apply (with “products” or “device” in this Section 5 referring to the encrypted card readers):

Invoice Cloud and the manufacturer warrants that the products provided pursuant to this Agreement will perform in accordance with the manufacturer’s published specifications. Should a product fail to conform to applicable manufacturer’s specifications, repair parts and replacement products will be furnished on an exchange basis and will be either reconditioned or new as specified below. This limited warranty does not include service to repair damage to the product resulting from accident, disaster, unreasonable use, misuse, abuse, customer’s, Reseller’s, or any other third party’s negligence, or non-manufacturer modification of the product. Invoice Cloud reserves the right to examine the alleged defective product to determine whether the warranty is applicable. Without limiting the generality of the foregoing, Invoice Cloud and the product manufacturer specifically disclaim any liability or warranty for any product resold in other than manufacturer’s original packages, and for products modified, altered, repaired, maintained, or treated by Biller, its customers, and/or any third party. Service on a defective product may be obtained by delivering the product during the warranty period as instructed by Invoice Cloud.
The following is the repair and replacement policy for a defective product: Replacement Requests – Biller shall promptly notify Invoice Cloud that the device is not working, via email, phone call or help desk ticket. Invoice Cloud will update and/or open a new help desk ticket for the product swap replacement request. Biller must provide the serial number of the device that is not working. Replacement device will be shipped to the Biller as noted on the help desk ticket issued by Invoice Cloud. Shipping Method: Replacement devices will be shipped via a commercial shipping service at no charge to the Biller. If Biller needs the device sent via overnight shipping there is an additional cost of $35.00 per device. Biller has 14 business days to return a device that is not working to an address specified by Invoice Cloud on the return help desk ticket, delivery or postage pre-paid. Failure to return the non-working device may result in additional fees and charges to Biller. Invoice Cloud shall use reasonable efforts to provide the encrypted card reader service in an uninterrupted, continuous manner. Biller understands and agrees that services may be periodically off line or otherwise inoperable in order for Invoice Cloud to perform maintenance, install or test software, or for other commercially reasonable business purposes and that during such time card reader service services may not be provided. Biller further understands and agrees that from time to time card reader service services may be off line or otherwise inoperable as a result of the failure of equipment or services provided to the manufacturer by third parties (for example, public or private telecommunications services or internet nodes or facilities, overall Internet congestion, unavailability of internet services, such as DNS services), and that during such time Services may not be provided. Furthermore, Biller understands and agrees that the provisions of any services and other performances hereunder will be excused for any of the reasons set forth herein. In the event of unforeseen network or equipment failure, manufacturer will use commercially reasonable efforts to restore the Services in a reasonability prompt fashion. Manufacturer may from time to time, in its sole discretion, modify the manner in which it provides services, and modify its software and systems, all of which may result in a change in the manner in which manufacturer provides the software and systems provided, however, that such modifications and/or changes do not degrade the level of, or have a material adverse impact upon the features and functionality of the Services.
EXCEPT AS PROVIDED IN THIS SECTION 5, INVOICE CLOUD AND THE DEVICE MANUFACTURER MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND INVOICE CLOUD AND THE DEVICE MANUFACTURER DISCLAIM ANY WARRANTY OF ANY OTHER KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BILLER AGREES AND ACKNOWLEDGES THAT ALL PRODUCTS AND DEVICES ARE OFFERED AND PROVIDED ON AN “AS IS” BASIS.
Responsibilities of Biller. Biller is responsible for the following: (i) providing Invoice Cloud with a static IP address or a specific range of static IP addresses, (ii) confidentiality of each End User’s Data. Biller is solely responsible for ensuring the secure transmission of any data that Biller transmits to Invoice Cloud (“Biller Transmitted Information”), and Invoice Cloud and the manufacturer will have no liability therefore (provided that the manufacturer will use Biller Information only for purposes of this Agreement). Biller is solely responsible for adopting, implementing, and maintaining appropriate and effective security measures, procedures, policies, and standards and any other best practices available to protect the confidentiality of Biller Data, (iii) protecting the confidentiality of any information stored on Biller’s servers, and (iv) using the Services in the manner instructed by Invoice Cloud and the manufacturer and otherwise in the manner intended.
Network Security. Biller shall be solely responsible for ensuring that authorized Biller employees and contractors are not security risks. Upon Invoice Cloud’s request, Biller will promptly provide Invoice Cloud with any information reasonably necessary for Invoice Cloud to evaluate security issues and/or concerns relating to any authorized Biller employee and/or contractor. Each party will be solely responsible for the selection, implementation, and maintenance of security procedures and policies that are sufficient to ensure that (a) such party’s use of any network or internet connection is secure and is used only for authorized purposes, and (b) such party’s business records and data are protected against improper access, use, loss, alteration, and/or destruction.
Biller shall provide Invoice Cloud with physical access to the devices upon request after reasonable advance notice. Biller shall not, nor allow any Third Party to, modify, repair, replace, relocate, sell, lease, assign, encumber, or otherwise tamper with any of the devices without Invoice Cloud’s express written consent. Any change of the location of any device may warrant that Biller pay Invoice Cloud any additional installation and related charges associated with such relocation, charged by Invoice Cloud’s third-party vendors. At the end of the term, Biller shall be responsible to promptly return all devices, freight prepaid by Invoice Cloud, to Invoice Cloud at the place from which devices was shipped (or as otherwise designated by Invoice Cloud) in as good condition as exists at the commencement of the term, reasonable wear and tear, and casualty, in respect thereto excepted. Biller shall use each device at all times in a proper, diligent, and workmanlike manner and in such manner as will not damage or injure the device except by the ordinary wear and tear of such device. In the event of damage to any device, Biller shall notify Invoice Cloud who shall replace or repair the device at Biller’s expense.
Devices and all parts and components thereof shall retain their character as personal property and all right, title and interest in and to shall not pass to Biller or any third party, but title and ownership shall remain exclusively with Invoice Cloud. Biller shall be and shall have the duties of a bailee of the devices. Biller shall not remove, conceal, or otherwise interfere with the title or ownership plate of Invoice Cloud affixed to any device until and unless such device is purchased, and full payment is made as herein provided. If Biller sells, assigns, pledges, or attempts to sell or assign devices or any interest therein, or if Biller defaults in any of the covenants, conditions or provisions of this Agreement, it is agreed that Invoice Cloud may immediately and without notice take possession of the devices where found and remove and keep or dispose of the same and any unpaid fees shall at once become due and payable by Biller. If any step is taken by legal action or otherwise by Invoice Cloud to recover possession of any device(s) or otherwise enforce this Agreement or to collect moneys due hereunder, Biller shall promptly reimburse Invoice Cloud for all expenses and charges incurred by Invoice Cloud, including reasonable attorney’s fees.

6. Kiosks (applicable where kiosks that are provided by Invoice Cloud as designated on the Biller Order Form).

Kiosks (as described in the Biller Order Form) are provided to Biller for use by Invoice Cloud under a license fee provided in the Biller Order Form. Invoice Cloud provides to Biller the products (as defined below) on a license basis. Biller will be fully responsible for all kiosks including without limitation all risk of loss and damage to products while in its possession or control, save normal wear and tear.

Where Invoice Cloud provides kiosks, the following additional terms apply (with “Products” and “kiosks” in this Section 6 referring to the kiosks and any firmware and software and applicable documentation included with the kiosks and/or Product, as the same may be upgraded, modified, and enhanced from time to time):

License. Invoice Cloud grants to Biller a non-exclusive, non-transferrable, non-sublicensable right to use the Products for its Customers during the term of this Agreement, and subject to the terms hereof. The foregoing right includes, without limitation, the right to install and use the Products for purposes reasonably related to the subject matter of this Agreement, including, but not limited to, testing, and staging of the Products. All rights not specifically granted to Biller hereunder are reserved by Invoice Cloud and the kiosk manufacturer. Any and all intellectual property rights to the Products shall belong solely to Invoice Cloud and the manufacturer. Without limiting the generality of the foregoing, delivered Products shall not be (a) copied, distributed, modified, translated, adapted or altered, in part or in whole, in any way or (b) decompiled, disassembled or reverse engineered or unbundled from any product nor may Biller seek, in any manner, to discover, disclose or use any source code, proprietary algorithms, techniques or other Confidential Information contained therein. In addition, Biller may not produce, copy, alter, or modify any of the Products or Product packaging or labeling, or combine Products with any other product or services for sale without prior written consent of Invoice Cloud; such consent may be given or withheld in the sole discretion of Invoice Cloud. Biller shall not erase, remove, cover, deface, obscure, or alter any copyright, trademark, or patent notice, guarantee, or other statement or marking, affixed or applied by Invoice Cloud or the manufacturer on or to either the Products or any other technical or promotional material related to the Products.
Manufacturer Limited Warranty. Where Invoice Cloud provides kiosks to Biller (as opposed to Biller contracting directly with a third party for the provision of a kiosk), the manufacturer warrants that the Products provided pursuant to this Agreement will materially perform in accordance with the manufacturer’s published specifications. Warranty service is detailed in Section 6(d) below. Should the Product fail to conform to manufacturer’s specifications, repair parts and replacement Products will be furnished on an exchange basis and will be either reconditioned or new as specified below. This limited warranty does not include service to repair damage to the Product resulting from accident, disaster, unreasonable use, misuse, abuse, the negligence of Biller or any third party, or non-manufacturer modification of the Product. Invoice Cloud and the manufacturer reserve the right to examine the alleged defective Product to determine whether the warranty is applicable. THE PRODUCTS FROM INVOICE CLOUD ARE PROVIDED STRICTLY “AS IS” AND INVOICE CLOUD AND KIOSK.COM SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF PERFORMANCE OR DEALING.
Term and Effect of Termination. Minimum fee charges as provided in the Biller Order Form shall apply from the earlier of four weeks from date of delivery to Biller of each applicable kiosk or the date that the kiosk is operational. Notwithstanding anything to the contrary in the Biller Agreement, and notwithstanding anything to the contrary in any limitation of liability provision in the Biller Agreement, in the event that the Biller Agreement or other agreement between Invoice Cloud and the Biller permits Biller to terminate the Agreement or any order relating to kiosks for the Biller’s convenience, Biller shall pay on the effective date of such termination: (a) all amounts due for the use of and all transaction fees due for use of the kiosks as of the effective date of termination; (b) all amounts that would have been due to Invoice Cloud through the end of the later of the term referenced in the Biller Agreement or the term of the kiosks referenced in the Biller Order Form, notwithstanding the termination, based on the minimum transaction fees on the Biller Order Form times the number of months remaining in the term in the Biller Order Form immediately prior to the effective date of termination, (c) all amounts due from Biller to the manufacturer for services or parts procured, and (d) any committed and non-cancellable amounts for equipment, Products or kiosks, purchased by Invoice Cloud as a result of Biller’s order of kiosks.
Warranty Service. Service may be obtained as follows under the Advanced Exchange and Field Service Warranty from Kiosk.com: Advanced Exchange and Field Service Warranty provides a factory parts stocking plan with overnight shipping designed to minimize business disruption. The bundled warranty covers replacement of any failed part or workmanship, as well as the Field Service Technician site visit expense to implement the replacement part swap. Expectations surrounding the scope of the Kiosk.com Advanced Exchange & Field Service Warranty are as follows:
1. Advanced Exchange & Field Service Description

1. 1. Phone and Warranty Parts Shipment Support. In the event that there is a warranty or support issue with any Kiosk, please contact Invoice Cloud support. The Exchange Warranty outlined below applies.
  2. If replacement part and/or Field Service Technician is required, Invoice Cloud (through the manufacturer) arranges for overnight shipment of replacement parts and schedules the Kiosk.com Field Technician Visit to arrive (typically within 24 hours of call receipt).
  3. Service will be provided pursuant to service level provided in the SLA addendum at www.invoicecloud.net/sla.
  4. No charge for replacement components to the extent warranted hereunder and subject to the terms and conditions herein.
  5. Kiosk.com covers inbound and outbound shipping costs for failed/replacement parts except as provided herein. The manufacturer provides the Biller with an RMA number and a pre-paid return shipping label with each replacement component. When the Biller receives the replacement, the failed part is then returned with the Kiosk.com pre-paid label.
2. Exchange Warranty – Out of Scope Items
  1. The warranty and support commitments include the original kiosk enclosure and all components as shipped from the manufacturer’s factory but does not include consigned components, any Biller or customer software application, network connectivity service, custom modifications, or changes made to the system, cleaning, installation, or repositioning of any system.
  2. Returned parts with No Defect Found (following the manufacturer failure analysis) will be billed back to the Biller. No Defect Found fees include reversal of any component credit, any applicable shipping and handling fees, and an hourly RMA diagnostic fee of $125 / hour.
  3. The most common source of No Defect Found parts is component maintenance and cleaning neglect in the field. Biller is responsible for keeping each kiosk clean through occasional wiping down with damp cloth, dusting, etc.
  4. Warranty does not include any customer application software, drivers, or special interface equipment and configuration unless specifically noted in the purchase contract.
  5. The warranty does not apply to expendable items (i.e., normal wear and tear of external graphics, etc.). Paint damage due to normal wear and tear is not covered under this warranty. Paint damage resulting from manufacturing defects will be covered by this warranty.
  6. Damage caused by cleaning, neglect, vandalism, physical abuse, or environmental acts of God are not covered under this warranty.
3. Additional Exchange & Field Service Warranty Terms and Conditions
  1. Warranty service is guaranteed for 30 days for workmanship after the service is complete.
  2. Replacement components are not guaranteed to be new components and may come from the manufacturer refurbished and tested stock (at the discretion of the manufacturer).
  3. The three-year warranty on part defects is not extended if replacement parts are provided in a maintenance action.
  4. This warranty is voided by misuse, accident, modification, and unsuitable physical or operating environment, improper maintenance by Biller, a Customer or any other third party, or customer’s other service organizations, removal or alteration of part identification, or failure caused by a product or component not supplied by Invoice Cloud or manufacturer, or for which Invoice Cloud or the manufacturer is not responsible, or any modifications or changes to components or to the kiosk without Invoice Cloud’s written approval.
  5. Requests for optional Hourly Field Service Technician service calls must be received by 1:00 pm MST, Monday through Friday (except national holidays), to be eligible for the next business day site arrival (24-hour) service metric. Technician request calls received after 1:00 pm MST will be scheduled on the following business day. Field service charge is $175 / hour.
  6. Biller will provide onsite contacts for each location. Exceptions to fulfillment of onsite service can include holidays or events that prohibit access to the location.
  7. Keys must be on-site and available prior to the dispatch of a Field Technician.
  8. Payment of out-of-scope service fees is due upon invoice. Invoice Cloud reserves the right to suspend service and support until delinquent account payments are settled in full. Invoice Cloud and the manufacturer shall use reasonable efforts to provide the kiosks in an uninterrupted, continuous fashion. Biller understands and agrees that services may be periodically off line or otherwise inoperable in order for Invoice Cloud or the manufacturer to perform maintenance, install or test software, or for other commercially reasonable business purposes and that during such time services may not be provided. Biller further understands and agrees that from time to time services may be off line or otherwise inoperable as a result of the failure of products, equipment or services provided to manufacturer by third parties (e.g. public or private telecommunications services or internet nodes or facilities, overall internet congestion, unavailability of internet services, such as DNS services), and that during such time Services may not be provided. Furthermore, Biller understands and agrees that the provisions of services and other performances hereunder will be excused for any of the reasons set forth herein. In the event of unforeseen network or equipment failure, the manufacturer will use commercially reasonable efforts to restore the services in a reasonably prompt fashion. The manufacturer may from time to time, in its sole discretion, modify the manner in which it provides services and modify its software and systems, all of which may result in a change in the manner in which the manufacturer provides the software and systems; provided, however, that such modifications and/or changes will not degrade the level of, or have a material adverse impact upon, the features and functionality of the product or services.
Responsibilities of Biller.
1. Biller will be responsible for the following: (i) providing Invoice Cloud with a static IP address or a specific range of static IP addresses, and (ii) confidentiality of End User’s Data. Biller is solely responsible for ensuring the secure transmission of any data that Biller transmits to Invoice Cloud (“Biller Transmitted Information”), and Invoice Cloud and manufacturer will have no liability therefore. Biller is solely responsible for adopting, implementing, and maintaining appropriate and effective security measures, procedures, policies, and standards, and any other best practice available to protect the confidentiality of Biller Transmitted Information, (iii) protecting the confidentiality of any information stored on Biller’s servers, and (iv) using the Services in the manner instructed by Invoice Cloud and the manufacturer and otherwise in the manner intended.
2. Biller shall be solely responsible for ensuring that Biller’s employees and contractors are not security risks. Biller will be solely responsible for the selection, implementation, and maintenance of security procedures and policies that are sufficient to ensure that (a) Biller’s use of the Network Connection is secure and is used only for authorized purposes, and (b) Biller’s business records and data are protected against improper access, use, loss, alteration or destruction.
3. Biller shall provide Invoice Cloud or the manufacturer with physical access to the kiosks upon request after reasonable advance notice. Biller shall not, nor allow any third party to, modify, repair, relocate, sell, lease, assign, encumber, or otherwise tamper with any of the kiosks without Invoice Cloud’s or the manufacturer’s express written consent. Any change of the location of the kiosks may warrant that Biller pay Invoice Cloud any additional installation and related charges associated with such relocation, charged by Invoice Cloud’s third-party vendors. At the end of the term, Biller shall be responsible to de-install all kiosks, return all kiosks, freight prepaid by Biller, to Invoice Cloud at the place from which kiosks was shipped (or as otherwise designated by Invoice Cloud) in as good condition as exists at the commencement of the term, reasonable wear and tear, excepted. Biller shall use and ensure that the kiosks are at all times used in a workmanlike manner and in such manner as will not damage or injure the kiosks except by the ordinary wear and tear of such kiosks. In the event of damage to any kiosks, Biller shall promptly notify Invoice Cloud who shall replace or repair the kiosks at Biller’s expense.
Personal Property of Invoice Cloud. Kiosks and all parts and components thereof shall retain its character as personal property and all right, title and interest thereto shall not pass to Biller, but title and ownership shall remain exclusively with Invoice Cloud. Biller shall be and shall have the duties of a bailee of the kiosks. Biller shall not remove, conceal or otherwise interfere with the title or ownership plate of Invoice Cloud affixed to kiosks. If Biller sells, assigns or attempts to sell or assign kiosks or any interest therein, or if Biller defaults in any of the covenants, conditions or provisions of this Agreement, it is agreed that Invoice Cloud may immediately and without notice take possession of kiosks where found and remove and keep or dispose of the same and any unpaid fees including all fees as provided herein and in the Biller Order Form will be due and payable. If any step is taken by legal action or otherwise by Invoice Cloud to recover possession of kiosks or otherwise enforce this Agreement or to collect moneys due hereunder, Biller shall pay Invoice Cloud the equivalent of the moneys expended or charges incurred by Invoice Cloud in such behalf, including reasonable attorney’s fees.

7. Interactive Voice Response Functionality and Outbound Communications (“IVR”)

License. For and in consideration for the payment of all fees and charges paid to Invoice Cloud, as provided in the Biller Order Form, Invoice Cloud hereby licenses to Biller non-exclusive access to its proprietary IVR for Biller’s internal use only.
Indemnification. Biller agrees it will not use the IVR in any manner, shape or form that violates any local, state or federal law or regulation (including without limitation violations of Fair Debt Collection Practices Act, 15 U.S.C. § 1692 –1692p ) and will defend and hold Invoice Cloud and its licensor harmless from and against any and all claims and will indemnify Invoice Cloud and its licensor against any and all costs, fines, penalties, causes of action, allegations, suits, and claims, including reasonable attorney’s fees and expenses as a result of any act by Biller. Likewise, Invoice Cloud agrees it will not use the design or establish service in any manner, shape or form that results in an intellectual property rights infringement claim by any third party and will hold Biller harmless from any and all claims and will indemnify Biller from and against any and all costs and claims, including reasonable attorney’s fees as a result of any third party intellectual property rights infringement claim against Invoice Cloud or its licensor.
Legal Compliance. Biller shall comply with all applicable laws, regulations, or other requirements of any governmental authority which relate to or affect this Agreement and the Biller’s performance hereunder. Notwithstanding anything to the contrary in the Biller Agreement and these Restated Terms & Conditions or other agreement between the parties, Biller shall be responsible for compliance with all applicable laws and regulations related to the call flows, content, prompts, and data flows and the Biller’s benefits and uses of the IVR, and the instructions and directions in the use of the IVR that it has provided. Although neither Invoice Cloud nor its licensor provides legal advice to Biller, Biller understands and acknowledges and shall comply with all laws, rules, and regulations regarding do not call lists, legal calling times, and dialing cellular numbers, and shall abide by all applicable laws, rules, and regulations while implementing or using IVR.
No Warranty. NEITHER INVOICE CLOUD NOR ITS LICENSOR MAKES ANY WARRANTY OR ANY REPRESENTATION, EXPRESS OR IMPLIED WRITTEN OR ORAL, RELATING TO THE IVR UNDER THIS AGREEMENT OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY THAT THE SERVICES ARE FIT FOR ANY PARTICULAR PURPOSES OR OF MERCHANTABILITY, AS THE IVR IS PROVIDED “AS IS”. BILLER AGREES THAT NEITHER INVOICE CLOUD NOR LICENSOR WARRANTS THE IVR OR ITS SERVICES WILL BE ERROR FREE OR OPERATED UNINTERRUPTED, AND THAT NEITHER INVOICE CLOUD NOR LICENSOR WILL BE HELD RESPONSIBLE IN ANY MANNER, SHAPE OR FORM FOR ANY FAILURE OF THE IVR OR ITS SERVICES TO PERFORM ANY PARTICULAR FUNCTION. In the event of a breach of this warranty by Invoice Cloud or any licensor, Invoice Cloud will use reasonable efforts to attempt to resume provision of the IVR. Biller acknowledges IVR or its services is provided through telephone and electronic devices and shall not hold Invoice Cloud or any licensor responsible for any failure due to technical or electronic failures. Further, neither Invoice Cloud nor licensor is responsible for any poor result as a result of judgments and choices made by Biller in using any IVR service.

8. Outbound Payment Services (“OPS”)

License. For and in consideration for the payment of all fees and charges paid to Invoice Cloud, as provided in the Biller Order Form, Invoice Cloud hereby licenses to Biller, non-exclusive access to its proprietary Outbound Payment Services technology in order for Biller to make certain payments (such as insurance claims payouts) to certain of its Customers.
Selected Payout Methods. Biller will be permitted to select which of the Available Payout Methods (defined below) it will make available to its Customer (the “Selected Payout Methods”) on the Biller Order Form or Add-on Form. Biller acknowledges and agrees that changing its Selected Payout Methods may result in the increase of the applicable service fees charged to Biller.
Disbursement Data and Customer Enrollment. Biller may initiate a disbursement by providing information on the intended Customer to Invoice Cloud as is reasonably required by Invoice Cloud (the “Initial Disbursement Data”). Once Invoice Cloud receives all required information and Initial Disbursement Data from Biller relating to the Customer, and provided that sufficient funds are available as required pursuant to Section 8(e) below, Invoice Cloud will (i) notify the Customer of payment availability, (ii) require the Customer to agree to Invoice Cloud’s (or its service provider’s) terms and conditions of use, as applicable, and (iii) allow the Customer to select one of the Available Payout Methods set forth below for purposes of the disbursement to the Customer. Each Customer account must be linked to at least one verified U.S. bank or payment account.
Operating Rules of Custodial Account. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that any and all funds in the Custodial Account are held in trust until funds are transferred to a Customer pursuant to the Selected Payout Method chosen by the Customer. Invoice Cloud will not withdraw funds except as permitted by the authorized instructions of the Biller. Invoice Cloud may modify the Custodial Account, including the titling thereof.
Remittances from Custodial Account. Following Invoice Cloud’s authentication of the Customer and obtaining Customer’s consent, provided that Invoice Cloud has received settled funds sufficient to cover the disbursement via ACH transfer from the Biller’s bank account to the Custodial Account, Invoice Cloud shall promptly remit, or cause its service provider(s) to remit, funds from the Custodial Account to the relevant Customer through the Selected Payout Method chosen by the Customer.
Return of Funds to Biller. Invoice Cloud will return or make available to Biller any remaining or pre-funded balance from the Custodial Account upon written notice from Biller and verification that all outstanding Transactions have been finally settled.
Changes to Outbound Payment Services. Invoice Cloud reserves the right to make changes to the Outbound Payment Services, as long as such changes do not have a material adverse impact on the Outbound Payment Services provided to Biller. If a change to the Outbound Payment Services is required by applicable law and, acting in good faith, the parties are unable to agree on a written amendment to the Agreement to reflect such required change, Invoice Cloud may terminate Biller’s use of the Outbound Payment Services described herein.
Non-Delivered or Mis-delivered Disbursements. As between the parties, (a) Invoice Cloud is solely responsible for the failure to deliver the disbursements in accordance with Biller’s instructions, except where such failure is attributable to (i) the Customer’s failure to comply with the terms of Section 8(c) above, (ii) the Customer failing to satisfy Invoice Cloud’s authentication requirements, or (iii) the Customer failing to provide its consent to receive such disbursements; and (b) Biller is solely responsible for disbursements that are mis-delivered or not delivered based on incorrect instructions provided to Invoice Cloud by Biller or its Customers. If disbursement funds need to be retrieved, the parties shall cooperate in good faith to remediate any applicable error or fraud.
No Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER INVOICE CLOUD NOR ITS LICENSOR MAKES ANY WARRANTY OR ANY REPRESENTATION, EXPRESS OR IMPLIED, WRITTEN OR ORAL, RELATING TO THE OPS UNDER THIS AGREEMENT. THE OPS IS PROVIDED “AS-IS.” ALL EXPRESS AND IMPLIED WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST LATENT DEFECTS.
Tax Certification. Biller represents and warrants that it is not a Payment Settlement Entity (“PSE”) and further that Biller is not contracting with Invoice Cloud to settle payments reportable under IRC Section 6050W. In the event that the payments Invoice Cloud provides as part of Outbound Payment Services under the Agreement involve the settlement of payments by a PSE that would be required to be reported under IRC Section 6050W, Biller represents and warrants that as a PSE it will undertake all reporting obligations under IRC Section 6050W related to Form 1099-K reporting obligations with respect to the disbursements, as well as any other tax reporting obligations, and provide confirmation to Invoice Cloud, upon request, that it has complied with applicable reporting obligations under IRC Section 6050W and will undertake and comply with all backup withholding obligations under IRC Section 3406.
Available Payout Methods. Available Payout Methods means the methods Invoice Cloud will make available to Biller for purposes of effecting disbursements to Customers, which methods are as follows:
1. “Online Deposit via ACH,” which means the direct delivery of a disbursement to a Customer’s designated bank account via ACH credit.
2. “Online Deposit via RTP,” which means the direct delivery of a disbursement to a Customer’s designated bank account via means of the Real Time Payments (“RTP”) network operated by The Clearing House (TCH), subject to the operating rules and regulations, requirements, and terms and conditions of the RTP network as issued by TCH.
3. “Print and Deposit,” which means the delivery of a disbursement to a Customer by means of the Customer printing a digital check made available by or on behalf of Invoice Cloud and thereafter depositing such digital check via remote deposit capture functionality.
4. “Mail and Deposit,” which means the delivery of a disbursement to a Customer by means of a paper check sent by or on behalf of Invoice Cloud to the Customer via the United States Postal Service.
5. “Instant Deposit,” which means the delivery of a disbursement to a Customer via a credit to the Customer’s account associated with a debit card (i.e., a debit card being associated with an account number, expiry date and CVV2).
6. “Virtual Credit Card” means delivery of funds or a disbursement to a Customer account via a credit to a virtual credit card account established for that Customer.
Third Party Terms and Conditions; Limited Third Party Beneficiary; Right of Enforcement; Indemnity.
1. Third Party Terms and Conditions. Biller acknowledges and agrees that in order to access and use the Outbound Payment Services, Biller must first create an account and register with Invoice Cloud’s third party service provider, or otherwise authorize Invoice Cloud to create such an account for Biller and register on Biller’s behalf. By creating an account and registering with Invoice Cloud’s third party service provider (or authorizing Invoice Cloud to create such an account for Biller and register on Biller’s behalf), Biller agrees to be bound by such third party service provider’s terms and conditions available at https://smart-enroll.com/terms-of-use (“Third Party Terms and Conditions”). Biller acknowledges that it must agree to the Third Party Terms and Conditions before accessing or using the Outbound Payment Services or the products or services of Invoice Cloud’s third party service provider, and Biller must at all times comply with the Third Party Terms and Conditions. Where Biller authorizes Invoice Cloud to create an account for Biller with Invoice Cloud’s third party service provider and register on Biller’s behalf, Biller thereby authorizes Invoice Cloud to act as its agent for the limited purpose of binding Biller to the Third Party Terms and Conditions. In the event that Biller is unwilling to be bound by any or all of the Third Party Terms and Conditions, Biller must immediately notify Invoice Cloud in writing and cease all use of the Outbound Payment Services and the products and services of Invoice Cloud’s third party service provider. Biller also agrees to be bound by the terms and conditions of the third party service provider’s privacy policy available at https://www.transcard.com/privacy-policy.
2. Consent. Biller hereby consents to Invoice Cloud accessing and viewing Biller’s account with Invoice Cloud’s third party service provider solely for the limited purposes of providing customer support and assistance to Biller in its use of the Outbound Payment Services. Additionally, Biller hereby consents to Invoice Cloud sharing all data and information received from Biller, including personally identifiable information, with Invoice Cloud’s third party service provider and bank(s) associated with such third party service provider (as applicable) solely for the purpose of providing Biller and its Customers with the Outbound Payment Services.
3. Third Party Beneficiary. As and to the extent set forth in this Section 8(l), Invoice Cloud’s third party service provider, Transcard Payments, LLC (“Transcard”), shall be a third party beneficiary to this Agreement. Biller will be liable to Transcard for all payments, disbursements sent, requested and received in connection with Transcard’s services except to the extent due to Transcard’s intentional misconduct, intentional omissions or fraud.
4. Rights and Obligations. Biller shall be responsible for the settlement of all transactions in the amount communicated to Biller by Transcard. Notwithstanding anything to the contrary in this Agreement, Transcard shall not be obligated to advance or otherwise provide funds for Transcard’s services or settling transactions utilizing bank provider services. Biller shall transfer funds to the Custodial Account via ACH payments or Fedwire transfer to fund all load and settlement funds due in connection with any bank provider. Biller will deposit into the Custodial Account no less than an amount as determined by Transcard in its reasonable discretion, that (i) is based on the projected transaction volumes prepared by Biller in good faith and provided to Transcard; (ii) takes into consideration risks associated with any program proposed by Biller; and (iii) does not exceed the first month of such projected volume, or such other sum mutually agreed to by the parties in writing (“Minimum Deposit Amount”). Thereafter, and for the duration of the Term, Biller shall at all times maintain in the Custodial Account(s) the Minimum Deposit Amount until such time that Transcard has advised Biller in writing or via e-mail (no more frequently than weekly) that the Minimum Deposit Amount is adjusted to an amount, as determined by Transcard in its reasonable discretion, that (A) is based on Biller’s historical and projected load and transaction volumes for the next month; (B) takes into consideration risks associated with Biller; and (C) does not exceed the average of the prior thirty (30) days’ load volume. Transcard or the applicable bank may require that Biller initiate an additional transfer to cover loaded, authorized or settled funds, on an exception basis upon 24 hours’ notice with mutual written or e-mail agreement of the parties. If Biller fails to so maintain sufficient funds in the Custodial Account, in addition to any other remedies available to Transcard, Transcard may (x) cease performing its services until Biller has met its obligations under this section, (y) instruct the applicable bank to cease providing bank provider services without liability to Biller, and (z) instruct Invoice Cloud to invoice Biller for all deficient amounts. Biller shall pay the undisputed deficient amount no later than three (3) business days following the date of such invoice, and, notwithstanding anything to the contrary in this Agreement, such failure shall constitute a material breach of this Agreement that is not subject to the cure periods as provided in the termination provision of this Agreement. Transcard shall have the limited right to enforce the terms and conditions of this Agreement as if it were a party hereto in the event of an actual or threatened Biller violation of this Agreement arising from or related to: (i) Biller’s failure to maintain sufficient funds in the Custodial Account; (ii) Biller’s breach of the terms of this Section 8(l); (iii) Biller’s violation of the Third Party Terms and Conditions; (iv) Biller’s violation of applicable law in its use of Transcard’s services; or (v) Biller’s acts or omissions that cause or are likely to cause actual, imminent or potential harm to Transcard.
5. Indemnification. Biller shall indemnify, defend and hold Transcard and its directors, officers, agents, and employees harmless from and against all claims, damages, losses, liabilities, costs, expenses, and reasonable attorney’s fees, arising out of a claim by a third party against Transcard resulting from Biller’s use of the Transcard services in violation of this Section 8(l), the Third Party Terms and Conditions, or applicable law.
6. Taxes. Transcard will have no liability for any sales taxes, Value Added Taxes or any other analogous taxes which may be due from Biller (“Taxes”) and Biller will indemnify Transcard in the event Transcard is charged for such Taxes at some future point. Biller shall be responsible for payment of all such Taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Transcard’s income. This provision does not apply to any taxes for which Biller is exempt, provided Biller has furnished Transcard with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Use of Third Party Services. Biller acknowledges and agrees that all services provided to Biller by Transcard must be used only for Biller’s internal purposes. Biller further acknowledges and agrees that Transcard’s services may not be resold or syndicated to any third party.
8. Control. In the event of a conflict or inconsistency between the terms and conditions of this Section 8(l) and any other term or condition of this Agreement, the terms and conditions of this Section 8(l) shall control and prevail.

9. Incorporation by Reference into Agreement, Modification.

These Restated Terms & Conditions are hereby incorporated into and made a part of the Agreement by this reference. Invoice Cloud may, at any time and periodically, with or without advance notice to Biller, modify these Restated Terms & Conditions in its sole and absolute discretion: (1) where made necessary as a result of changes in applicable law, regulatory requirements, PCI-DSS requirements, card network rules, ACH requirements or card association or payment processor requirements; (2) in order to modify, supplement or replace the terms, policies, practices and procedures relevant to the Services; (3) in order to make changes affecting equipment or software related to the Services; (4) in order to institute new or change the features, functionalities, characteristics and specifications of the Services or the Invoice Cloud Technology, including by instituting or changing limits and restrictions that affect Service features and functionalities, by changing Content, or by changing Invoice Cloud’s hours of availability; or (5) in order to make any other change relating to any Services contemplated or not expressly prohibited by your Agreement or applicable law.

10. California Consumer Privacy Act of 2018

All capitalized terms used in this Section 10, not otherwise defined, shall have the meaning established in the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General (“CCPA”). Regardless of Biller’s status as a Business, Invoice Cloud is a “Service Provider” pursuant to CCPA. Invoice Cloud’s obligations as a Service Provider include:

Invoice Cloud will not Sell Personal Information.
Invoice Cloud will not retain, use, or disclose Personal Information for any purpose other than for the specific purpose of providing the Service, as set out in the Agreement, or as otherwise permitted by CCPA.
Invoice Cloud will not retain, use, or disclose Personal Information for any commercial purpose other than providing the Service.
Invoice Cloud shall provide reasonable assistance to Biller in facilitating compliance with Consumer rights requests.
Upon direction by Biller, and with a commercially reasonable amount of time, Invoice Cloud shall delete the Personal Information.
Invoice Cloud shall not be required to delete any of the Personal Information to comply with a Consumer’s request directed by the Biller if it is necessary to maintain such information in accordance with Cal. Civ. Code §1798.105(d). Invoice Cloud shall promptly inform Biller of the exceptions relied upon under §1798.105(d) and Invoice Cloud shall not use the Personal Information retained for any other purpose than provided for by the exception or as otherwise permitted by CCPA.
Invoice Cloud certifies it understands the prohibitions in this Section 10 and will comply with them.
If Invoice Cloud, in its sole discretion, uses a Service Provider to provide the Service, Invoice Cloud will enter into written agreements with such Service Providers requiring the Service Provider to abide by terms substantially similar to this Section 10.