Date of last revision: May 18, 2021
These Payhere Service Terms (these “Service Terms”) are between Payhere LLC, a Delaware limited liability company (“Payhere”) and the business entity that submits an order for Payhere’s services (“Customer”).
Capitalized words in these Service Terms have special meanings given in the Section where they are first used or in Section 10 (Defined Terms).
Payhere may modify these Services Terms at any time, but modifications are not effective for Orders that are in place prior to the modification until the Order renews. See Section 9.20 (Changes to Online Service Terms).
1.1 Services. Payhere agrees to provide the Services for the Term on the terms and conditions stated in the Order and these Service Terms. Payhere makes the following commitments:
1.1.1 The Services will include those features listed in Customer’s Order. The Services include updates that Payhere makes generally available to its customers for the same Services, subject to any fees and terms that may apply to new features.
1.1.2 Payhere warrants that it will provide the Services in accordance with the description of the Services stated in the Order and with its general release user Documentation (the “Services Warranty”). Payhere warrants that it will use commercially reasonable efforts to avoid the introduction of Malware to the Services and to any system that interacts with the Services.
1.1.3 Payhere’s obligation to provide the Services is conditional on Customer providing and maintaining Payhere’s access to Customer’s payment processor accounts, email services, and other third-party services accounts as reasonably requested by Payhere (“Customer Services Accounts”). Customer authorizes Payhere to use Customer Services Accounts and the data accessible via Customer Services Accounts (“Customer Data”) only as expressly authorized in this Section, Section 4 (Customer Information) and Section 9.3 (Confidential Information) of this Agreement. Payhere may use Customer Services Accounts and Customer Data for the purpose of providing the Services, such as determining the status of the customer’s account, analyzing payment history, collecting payments from Customer’s customers,, and sending communications to Customer’s customers using Customer’s email domain. Customer authorizes Payhere to collect payments, manage subscriptions, and update Customer Data with updated information provided by Customer’s customers as part of their interaction with the Payhere Services. Payhere agrees to use the Customer Services Accounts and Customer Data in accordance with the third-party’s terms of service applicable to Customer’s use and to protect Customer Services Accounts and Customer Data from unauthorized access, use, disclosure, corruption, and destruction, using the measures described in Section 1.4 (Security). Customer may disable Payhere’s access to Customer’s Service Accounts and require it to destroy any copies it may have of Customer Data at any time in Customer’s sole discretion, provided that Payhere is relieved of its obligation to provide the Services to the extent it is not able to perform them as a result of Customer’s disabling of access.
1.1.4 Payhere will use commercially reasonable efforts to make the Services available to Customer 24 hours per day, 7 days per week, year-round, excluding reasonable maintenance. If Customer’s Order includes a service level commitment or “SLA” for availability, Payhere makes the availability commitment to Customer described in that SLA.
1.1.5 Payhere will provide online support Documentation for Customer’s use. Customer’s Order or SLA includes details on how to contact Payhere for support 24 x 7. Payhere weekend and holiday support is provided for urgent issues only. Weekends start Friday at 11:59 p.m. and end Monday at 12:01 a.m., United States Pacific time. Holidays are federal public holidays in the United States and other Payhere-announced support holidays.
1.2 Service Levels or SLA. If Customer’s Order includes an SLA, the SLA is subject to the following terms:
1.2.1 Credit Requests. To receive a credit, Customer must request a credit no later than ten (10) days following the day that the Payhere commitment was not met. Customer must submit Customer’s request to firstname.lastname@example.org.
1.2.2 General SLA Terms. Payhere is not required to apply credits for any month that exceed the fees due from Customer for that month. Payhere is not required to apply unused credits to past or future months for Customer’s Services or to apply them to other services. Payhere is not required to apply a credit if any fees due from Customer is overdue, or if Customer’s account has been suspended or terminated for Customer’s violation of the Order or Service Terms. If Customer is entitled to an SLA credit after the time that Customer has paid Customer’s final fees to Payhere, Payhere will issue a refund to Customer in the amount of the credit. Time periods are measured with reference to time stamps in the Payhere system or other reliable Payhere records. The credit remedies provided in this SLA are Customer’s sole and exclusive remedy for damages arising from Payhere’s failure to meet a commitment for which a credit is provided.
1.3 No Resale or Service Provider Use. Customer may not resell the Services or use them to provide services to others.
1.4 Security. Payhere will use the security measures described at https://payhere.co/security (the “Security Materials”). Payhere makes no other representations or warranties regarding security. Customer agrees that Payhere is not responsible to Customer for any harm Customer suffers as a result of a security breach unless the breach was the result of Payhere’s failure to maintain the security measures described in this Security Materials.
1.5 Privacy. Personal Data that is part of the Customer Information is Customer’s “Confidential Information” covered by the Payhere commitments stated in Section 9.3 (Confidential Information). Payhere makes the following additional commitments regarding Customer Information that is personal data:(i) Payhere will provide Customer with access to the Personal Data as necessary for Customer to comply with applicable legal requirements for access, destruction, or modification of the personal data at the request of a data subject; and (ii) Payhere will notify Customer in writing without undue delay if it discovers that any personal data has been accessed, used, disclosed, destroyed, or corrupted other than as permitted by the Agreement, will provide all information reasonably available to it regarding the reported event, will cooperate with Customer’s reasonable requests to mitigate and remediate the event. Customer acknowledges and agrees that Payhere affiliates and subcontractors may be based outside of the geographic jurisdiction in which Customer’s data subjects are located. If legally required the parties will enter into good faith negotiations for such agreements as are necessary for the transfer of the personal data across national borders.
1.6 Test Services. Payhere may provide Customer with access to non-production services at no additional charge for Customer’s use in testing changes and integrations before Customer implements them as part of Customer’s production Services. These services will be designated as “Test Services” or with a similar description. Test services have significantly limited functionality compared to Customer’s production Services. Test services are not “Services” and are provided AS IS, without any service level commitments, warranties or representations whatsoever. Payhere has no obligation to provide support for any test services. Any support that is provided is provided on an AS IS and AS AVAILABLE basis. Payhere has no liability for any harm or damage arising out of or in connection with Customer’s use of a test service. Payhere may terminate Customer’s test services and delete any related data at any time.
The Payhere API(s) are licensed to Customer on a non-exclusive, limited term basis for Customer’s use only in connection with the Payhere Services as permitted by the Agreement, and subject to all of the restrictions and conditions stated in the Agreement.
3. INTEGRATION FEATURES
Payhere provides integration features for third-party services as part of the Payhere Service. Customer acknowledges that Payhere’s integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts the Payhere integration feature. Payhere will use commercially reasonable efforts to modify its integration features to maintain compatibility with service provider’s APIs and services but may discontinue an integration feature without liability to Customer if there is a change in the service that creates an unreasonable cost or operational burden to Payhere. Customer’s obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features.
4. CUSTOMER INFORMATION
Customer Data and any other data or information that Customer or Customer’s customers submit to or create by means of the Payhere Services is “Customer Information.” As between Customer and Payhere, Customer owns and retains ownership and all rights in Customer Information and Payhere may use Customer Information only for the purpose of providing the Services and exercising its legal rights and remedies in connection with the Agreement. “Customer Information” does not include system generated data about Customer’s use of the Services, such as user navigation on the Services interface and resource utilization. Payhere may use system generated data for the purpose of improving its services generally, such as improving user experience with its services. Customer authorizes Payhere to de-identify and aggregate Customer Information with similar de-identified data of other customers and with anonymous data from public or private data sets and analyze the resulting data sets for insights to help it improve its methods for providing the Services, provided that Payhere’s method of de-identification must make it technically infeasible for any data to be re-identified to any of Customer’s customers or to Customer.
5. FEES AND PAYMENTS
5.1 Fees. The fees for Payhere’s services plans (each a “Plan”) are stated in the Order or on the Payhere Site. Payhere may not increase the fees applicable to a Plan during the initial term of an Order but may increase Plan fees for any renewal term to the Plan fees in effect as of the date of the renewal. Payhere may move Customer to a Plan that requires payment of a higher fee if Customer meets the revenue or customer-count criteria for the other Plan at any time during the term of an Order. Any discounts described in the Order are for the initial term of the Order only unless otherwise stated in the Order. Customer must pay any base, minimum, or fixed fees associated with Customer’s active Plan even if Customer does not use the Services. Fees are charged at the times stated in the Order or if no time is stated are charged monthly in advance.
5.2 Sales Tax. The stated fees do not include any sales, use, VAT or like taxes (“Sales Tax”). Customer must pay any applicable Sales Tax that Payhere is required to collect from Customer under applicable law.
5.3 Payments. Unless Customer has made other arrangements with Payhere, Customer must authorize and maintain a current valid means for Payhere to collect its fees for the Services via payment card or ACH at all times during the Term. Payhere may charge the fees on or after the following times: (i) for monthly minimums, base fees, and other fixed monthly recurring fees, the first day of each month, (ii) for variable fees, the last day of each month, or more often if Customer’s variable fees are unusually high for Customer’s account type, (iii) for one-time fees (such as set up fees), the day Customer submits the Order that includes the fee, (iv) for hourly fees, at the time stated in the Order, or if no time is stated, on completion of the hourly services described in the Order, and (v) for transaction fees, collected by Stripe alongside Stripe’s own transaction fees. Payhere may charge any applicable Sales Tax with the charge for the related Service, or separately.
5.4 Late Payments. Payhere may suspend or terminate Customer’s Services or the Agreement if Customer’s payment is overdue, including if Payhere’s charge to Customer’s payment card or account is rejected. If Payhere suspends Customer’s account for late payment, Customer must pay Payhere’s reasonable reinstatement fee, not to exceed the minimum or base fee of Customer’s Plan.
5.5 General. Fees are non-refundable. Fees are stated and must be paid in United States Dollars, unless otherwise negotiated.
6. CUSTOMER OBLIGATIONS
6.1 Fees. Customer must pay Customer’s fees when due for the Term. Customer must not use or attempt to use the Services in a way that undermines Payhere’s ability to correctly calculate its fees.
6.2 Customer’s Security Obligations. Customer must use reasonable security precautions in connection with Customer’s use of the Services, such as requiring Customer’s users to establish reasonably secure passwords and using commercially reasonable efforts to protect Customer’s systems and data from malware. Customer may not interfere, or attempt to interfere, with the encryption features of the Services.
6.3 Authorized Users. Customer may authorize as Services users only Customer’s and Customer’s affiliates’ personnel and the personnel of contractors retained by Customer or Customer’s affiliates in support of Customer’s or their internal business operations. Customer is solely responsible for de-activating or updating permissions and authentication credentials for Customer’s users, such as on the termination of employment of user. Customer authorizes Payhere to act on the instructions of Customer’s user who authenticates using active account credentials that Customer or the user has established.
6.4 Compliance with Law. Customer must use the Services in compliance with applicable law. Customer may not use the Payhere services in a way that would cause Customer or Payhere to violate any laws or regulations applicable to Customer’s business or the laws or regulations applicable to the collection of a debt.
6.5 Representations and Warranties. Customer represents and warrants to Payhere as of the effective date of each Order and on an ongoing basis that: (i) the information Customer submits about itself and Customer’s activities to establish a Services account with Payhere and place an Order is true, correct, and complete, (ii) Customer has not been the target of any legal or regulatory investigations or proceedings in connection with Customer’s business activities, and (iii) Customer has all necessary rights and authority to authorize Payhere to use and process Customer Information as permitted by the Agreement.
7. TERM, TERMINATION, SUSPENSION
7.1 Term. If Customer signs up for a monthly Plan, the Term of the Order begins on the date of Order submission and continues on a month-to-month basis until Customer or Payhere terminates the Order. Customer may terminate an Order at any time effective on written notice. Payhere may terminate an Order by giving at least thirty (30) days advance written notice of termination, unless termination on fewer days’ notice is permitted by Section 7.2 (Termination).
7.2 Termination. Either party may terminate an Order, or the Agreement, on written notice if the other party is in material violation of any term of an Order or these Service Terms, provided that if the violation is curable the terminating party must first give the other party a written notice describing the violation in reasonable detail and at least ten (10) days to cure the violation. If Payhere materially fails to meet any SLA commitments, Customer may terminate the Agreement without liability to Customer or Payhere other than the issuance of credits as described in the SLA.
7.3 Suspension. Payhere may suspend Customer’s access to the Services and Customer Information during any period that Customer is in material breach of the Agreement or Customer’s access to the Services or Customer Information creates a material security vulnerability. Payhere will give Customer at least two (2) business days’ advance notice of the suspension unless the suspension is made under emergency circumstances. Payhere will reinstate Customer’s access to the Services when the grounds for suspension are cured unless Payhere has already terminated the Agreement as described in this Section.
7.4 Surviving Provisions. The following sections survive expiration or earlier termination of the Agreement: Fees and Payment, Confidentiality, Indemnification, Limitation of Liability, Term and Termination, Suspension, Governing Law, Disputes, Notices, General, and any other terms that by their nature are intended to survive expiration or termination.
7.5 Return of Customer Information. Customer is responsible for exporting Customer Information from the Services prior to expiration of the Agreement. If Payhere terminates Customer’s Services for breach, Payhere will retain Customer Information for at least 15 days from the effective date of termination. If Customer wishes to export Customer Information following a termination for breach, Payhere will either, at its option, export Customer Information using its standard export tools or enable short term access to the Services at a scheduled time so that Customer may export the Customer Information. Payhere has no obligation to retain Customer Information after the 15-day period and may destroy Customer Information. Payhere has no obligation to assist Customer with the export of Customer Information. Payhere may be available to assist with data export on an hourly fee basis at a time scheduled by Payhere.
8. REMEDIES, DISCLAIMERS, INDEMNIFICATION, LIMITATIONS
8.1 SLA Credits. SLA credits, and Customer’s right to terminate the Agreement without liability as provided in Section 7.2 (Termination), are Customer’s sole and exclusive remedies for Payhere’s failure to meet the SLA.
8.2 Warranty Remedy. If Payhere fails to meet the Service Warranty, Payhere will attempt to cure the failure or if it is unable to cure the failure through commercially reasonable efforts will refund the fees paid for the month during which the failure occurred. However, to be eligible for a warranty remedy under this section, Customer must give a written notice describing the failure no later than ten (10) days following the end of the month and cooperate with Payhere’s reasonable efforts to cure the failure. The remedies stated in this Section are Customer’s sole and exclusive remedy for Payhere’s breach of the Services Warranty.
8.3 No Other Warranty. Except as expressly stated in these Services Terms or an SLA, the Services are provided AS IS. Payhere disclaims any implied warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and any representation or warranty that may arise through a course of dealing. Customer acknowledges that the use of the Service may not be uninterrupted, error free, or completely secure. Customer represents that Customer has not relied on any representation or warranty other than those stated in these Services Terms.
8.4 Indemnification. Customer agrees that if a third party asserts a legal claim against Payhere or any of its officers, members, managers, employees, staff, personnel, agents, licensors or suppliers (the “Payhere Defendants”) arising from Customer’s violation of these Services Terms or any Order, including Customer’s breach of a representation or warranty, or if Customer’s customer or end user asserts a legal claim against any of the Payhere Defendants on any basis other than Payhere’s gross negligence or misconduct, Customer will pay all reasonable costs of defending the claim, including reasonable attorney fees, and any damages awarded to the third party or paid to the third party by Payhere as a reasonable settlement. Customer agrees that Payhere may control the defense of the claim at its option or may require Customer to defend the claim directly. If Payhere elects to control the defense of the claim, Customer will reimburse Payhere for its reasonable defense costs and expenses as incurred.
8.5 Limitation of Liability. In the event Customer has a legal claim against Payhere or any of its officers, members, managers, employees, staff, personnel, or agents, suppliers or licensors (the “Payhere Defendants”), Customer agrees that the maximum total amount of money Customer can recover from any or all of them cannot, in the aggregate, exceed the amount of fees Customer has paid or that are payable for Service for the six (6) months prior to the date the claim arose, unless the legal claim is based on a Payhere Defendant’s intentional misconduct or is for personal injury or death resulting from the negligence, recklessness or intentional misconduct of a Payhere Defendant. In addition, Customer agrees that in no event is Customer entitled to recover any lost revenue, lost profits, damages for lost data, or any indirect or consequential loss or damages of any kind.
8.6 General. Customer acknowledges that Payhere has set its fees and entered into the Order in reliance on the limitations of remedies and liability stated in these Terms, and that these limitations reflect an agreed allocation of risk between Customer and Payhere. The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
9. GENERAL TERMS
9.1 Rights in Technology/Intellectual Property. Customer may not copy any part of the Services or mirror the Services on any site or system, except that Customer may download and print copies of Documentation for the Services as reasonably necessary for Customer’s permitted use of the Services, provided that Customer use the Documentation in the exact form published, retain all branding and proprietary notices, and do not transfer the Documentation to any other person. Customer may not reverse engineer or attempt to discover any underlying algorithm or method embodied by the Services or Payhere’s other technology except to the extent applicable law permits such activity notwithstanding this limitation, and then on thirty (30) days advance written notice to Payhere. Customer may not disclose to any third party any benchmarking or other test or evaluation Customer conduct on the Services. Customer may not use the Payhere Services or API’s for the purpose of creating a competing technology. Except for rights expressly granted in this Agreement, Payhere retains all right, title and interest in and to its Services, technology, and information and all related intellectual property rights. No rights in Intellectual Property may arise by implication or estoppel.
9.2 Feedback. Customer hereby licenses to Payhere any feedback or suggestions that Customer may provide regarding the Services or Payhere’s other existing or proposed products or services on a perpetual, irrevocable, royalty free, worldwide, unconditional, fully sublicensable and transferable basis, including the right to make, have made, use, sell, offer to sell, import, copy, display, perform, modify, distribute in modified or unmodified form, and commercialize any intellectual property, without accounting to Customer.
9.3 Confidential Information. Neither party may use the other party's Confidential Information except in connection with the performance of its obligations under this Agreement or the permitted use of the Services, as applicable, the exercise of the party’s legal rights under this Agreement, or as may be otherwise permitted under this Agreement or required by law. Each party agrees not to disclose the other party’s Confidential Information to any third person except as follows: (i) to the party’s respective service providers, agents and representatives, provided that such service providers, agents or representatives are bound by written confidentiality measures that are at least as stringent as these terms; (ii) in response to a subpoena or other compulsory legal process, provided that each party agrees to give the other advance written notice of at least seven days prior to disclosing the other party’s Confidential Information under this subparagraph (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law or a reasonable interpretation of it, forbids such notice, or (iii) as otherwise expressly permitted by the Agreement. On expiration or earlier termination of the Agreement, each party will return or destroy the other party’s Confidential Information. If a party believes it is not feasible to completely destroy the other party’s Confidential Information as required by this Section, it will give the other party written notice describing the Confidential Information and the circumstances that make destruction infeasible. All Confidential Information retained by party following termination of the Agreement remains subject to the requirements of this Section. Customer will use commercially reasonable care to safeguard Payhere’s Confidential Information. Payhere’s obligations to safeguard Customer Information are stated in Section 1.4 (Security). For Customer’s Confidential Information other than Customer Information, Payhere will use commercially reasonable care to safeguard the Confidential Information. Each of Customer and Payhere is responsible for a breach of this Section by its service providers, agents and representatives to whom it has disclosed the other party’s Confidential Information.
9.4 Governing Law, Disputes. The Order and these Services Terms are governed by and should be interpreted under the laws of the State of California, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. Each party agrees that it shall bring any lawsuit or other legal action related to this Agreement in the State or Federal courts sitting in San Diego County, California. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court.The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act. To the maximum extent permitted by applicable law each party waives any right to a trial by jury. Each party agrees not bring a claim related to the Services or the subject matter of an Order or these Services Terms more than two years after the time that the claim accrued.
9.5 Notices. Customer’s notices must be submitted via ticket on the customer portal, and copied by electronic mail to email@example.com. Payhere’s notices to Customer must be given to Customer’s primary account contact at the email address in the Payhere portal. If Customer sends a notice of breach of the Agreement, a legal disputes, a legal claim, or other legal matter, Customer must copy Customer’s notice to firstname.lastname@example.org, and must also send Customer’s notice via first class United States mail to Payhere’s physical address appearing on its Site on the day the notice is transmitted electronically. Payhere’s legal notices to Customer must be copied via first class United States mail to Customer’s physical notice address, or if Customer’s physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.
9.6 Informal Dispute Resolution. Each party agrees that it will not file a lawsuit or other legal action in connection with the Services, any Order, or these Services Terms, unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation.
9.7 Injunctive Relief. Notwithstanding anything in this Agreement to the contrary, this Agreement does not prohibit, condition or delay a party’s right to seek injunctive relief in any court of competent jurisdiction to address the other party’s infringement or misappropriation of its intellectual property, or the other party’s breach of its confidentiality obligations under this Agreement.
9.8 Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Customer may not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Payhere to be in violation of U.S. export laws, even if the use is permitted the laws applicable to Customer or Customer’s user or customer. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
9.9 Anti-Corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, it will promptly notify the other party.
9.10 Force Majeure. Except for Customer’s payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
9.11 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.12 Publicity. Customer agrees that Payhere may identify Customer as its customer, using Customer’s name and logo, on its website where it identifies its customers generally, and Payhere agrees that Customer may identify it as Customer’s service provider on Customer’s website using the Payhere name and logo. In addition, each party will consider the other’s requests to participate in the development of product whitepapers, testimonials for Web publication, and other like materials for publication, provided that neither party may issue any press release or other publicity regarding this Agreement or the relationship or transactions contemplated by this Agreement without the prior review and consent of the other party. Each party may use the other party’s trade or service marks in connection with approved activities, and otherwise with the other party’s prior consent. Each party shall use the other’s trademarks subject to the other party’s reasonable trademark usage guidelines that are communicated to the party from time to time.
9.13 Relationship of the Parties. The parties are independent contractors. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.
9.14 Interpretations. In calculating any period of time under this Agreement, the day of the act, event or default from which the designated period of time begins to run is not be included. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The word “personnel” refers to a person’s employees and individual contractors who are under the person’s direct supervision. The word “affiliate” refers to an individual or entity that controls, is controlled by, or is under common control with the person referred to, where control means ownership of the majority of voting interests of an entity or the right to control the policies of the entity by means of a controlling number of seats on the entity’s governing body. The use of the word “including” should be read to mean “including, without limitation.” All references to monetary amounts mean United States Dollars. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement unless expressly stated as a “third party.” For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Pacific Time, excluding federal public holidays in the United States. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. All software and other technology provided for Customer’s use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription service. Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. The Section captions in this Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement.
9.15 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
9.16 Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
9.17 Changes to the Services. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Payhere regarding future functionality or features. Customer acknowledges that Payhere may modify or suspend any of its Services offerings at any time. If a modification or suspension materially and adversely affects Customer’s use of the Services, Customer may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and receive a refund of any prepaid fees as Customer’s sole and exclusive remedy.
9.18 General Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.19 Representation by Individual Submitting the Order. The individual submitting the Order represents that: (i) if the individual submits the Order on his or her own behalf (including as a sole proprietor), the individual is old enough to enter into contracts and otherwise has the legal capacity to enter into contracts under applicable law; or (ii) if the individual submits the Order on behalf of a company or other legal entity, the individual has the legal power and authority to bind that entity to the Order and these Service Terms.
9.20 Changes to Online Service Terms. Payhere may amend these Services Terms at any time in its sole discretion. Any amendment will become effective as to Customer’s Order on the first renewal of the Order that follows the publication of the amendment by at least thirty days. If the amendment materially and adversely impacts Customer’s use of the Services, Customer may terminate the Agreement by giving written notice no later than thirty (30) days following the date the amendment is published and receive a refund of prepaid fees as Customer’s sole and exclusive remedy.
9.21 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Payhere regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Service Terms or an Order will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) these Services Terms, and (3) the Documentation. Customer’s use of the Services, both during any free use period and Customer’s Order Term, is subject to all of the terms, conditions, and restrictions stated in Customer’s Order and these Service Terms, and any restrictions stated on a page on the Site that is part of Customer’s Order.
These terms have the meanings stated:
Agreement means these Service Terms and the Order(s) collectively.
Confidential Information means any non-public information that a party (the “recipient”) receives from or learns about the other party (the “discloser”) or the discloser’s licensors or suppliers as a result of activities contemplated by the Agreement that the recipient should reasonably understand to be confidential, given the nature of the information or the circumstances of its disclosure, but not including any information that is developed by the recipient independently and without reference to the discloser’s Confidential Information, or information that is or becomes available to recipient from a source other than discloser so long as the source did not, to recipient’s knowledge, acquire the information as a result of a violation of a duty of confidentiality to discloser. Customer’s Confidential Information includes Customer Information. Payhere’s Confidential Information includes pricing and service terms, product roadmap information, security information, and non-public technology.
Documentation means Payhere’s user and administration guides, FAQ’s, Whitepapers and other materials designed to explain the use of the Services, but not including any marketing materials or publicity.
Order means an order form prepared by Payhere that describes the features of the Payhere Services, the related fees, initial term and other transactions details, and that (i) Customer has submitted using a Payhere defined process and that Payhere has accepted, or (ii) Customer and Payhere have signed. For clarity a transaction document that includes the information described in this definition is an “Order” for purposes of this Agreement even if styled “Statement of Work,” “Order Form,” “Proposal,” or with other name.
Plan means a Payhere bundle of Services included as part of a single offering described in the Order or on the Payhere Site.
Personal Data means any information about a natural person that is identified or identifiable to the natural person, either alone or in combination with other information, that Payhere will process or have access to as part of providing the Services, including any such information that is created by means of the Services.
Malware means any virus, malware, spyware, ransomware, adware, or other code, circuitry or other technological means that is designed to interrupt the normal use of the Services or the systems on which any part of the Services are installed or with which the interoperate, destroy or corrupt any data, make data unavailable, or covertly transmit data or information.
Services means Payhere’s online application services for collecting payments from, and managing subscriptions for Customer’s customer accounts and Support.
Site means payhere.co, or any other website operated by Payhere for the purpose of offering or providing Services, including any subdomains.
Support means the use of the Documentation, and any live human support that is included with the Plan that Customer purchases.
Term means the initial term and any renewal terms, collectively.
Customer Information has the meaning given Section 4 (Customer Information).