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Terms of Service

THESE TERMS OF SERVICE (“TERMS”) WERE LAST UPDATED 10/31/24.

Customer Agreement

This Customer Agreement (“Agreement”) is between PayGround, Inc. (“PayGround”) and the “Company” named in an Order, into which this Agreement is incorporated and applies to the PayGround Solution and other products and services made available by PayGround under that Order.

PayGround and Company are also referred to herein collectively as the “Parties” and individually as a “Party.” The Parties agree to the following terms: THIS AGREEMENT INCLUDES, AND INCORPORATES BY THIS REFERENCE, (A) THE PAYGROUND ONLINE TERMS OF SERVICE, AVAILABLE AT https://payground.com/terms-of-service. (THE “TERMS”) AND (B) ANY ORDERING DOCUMENT BETWEEN PAYGROUND AND COMPANY REFERENCING THIS AGREEMENT (“ORDER”).

Section 1. Definitions

Words used in this Agreement with their initial letters capitalized will have the meanings specified in Appendix 1 or as defined within this Agreement.

Section 2. Company’s Rights; Restrictions

2.1 Rights to Use the PayGround Solution. PayGround hereby grants to Company and its authorized affiliated and/or associated independent medical practices (“Associated Practice(s)”) a limited, nonexclusive, revocable reseller license during the Term to: (a) access and use the PayGround Solution and Documentation; and (b) allow and enable Company’s employees, agents, and contractors (“Company Personnel”) to access and use the PayGround Solution and Documentation through an individual User Account. Company will ensure that Company Personnel use the PayGround Solution and Documentation only for Company’s internal business purposes. Company is responsible for Company Personnel’s compliance with this Agreement. As between PayGround and Company, PayGround owns all right, title, and interest in and to the PayGround Solution and all Intellectual Property Rights therein or thereto. Except as otherwise specified in this Section 2.1, Company does not obtain any rights under this Agreement from PayGround to the PayGround Solution, including any related Intellectual Property Rights. Company shall ensure that all Associated Practices have agreed to the terms of this Agreement and shall be solely responsible for any Associated Practice’s compliance with, including but not limited to payment, and/or breach of the terms of this Agreement. With respect to application of the terms of this Agreement to Associated Practices, all references to Company shall be deemed to refer to the applicable Associated Practice represents and warrants that (i) it has all right and authority to enter into this Agreement on behalf of any Associated Practice and (ii) any Associated Practice using the PayGround Solution has agreed to look only to Company for any claims, damages or liabilities arising from or related to use of the PayGround Solution.

2.2 Restrictions. Company will not, directly or indirectly, and shall not allow any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or the PayGround Solution, or any part thereof; (ii) modify, translate, or create derivative works based on the Services or the PayGround Solution; (iii) use the Services or the PayGround Solution for timesharing or service bureau purposes or otherwise for the benefit of any third party; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer the Services or PayGround Solution; (v) bypass or breach any security device or protection of the Services or PayGround Solution; (vi) input, upload, transmit or otherwise provide to or through the Services or PayGround Solution, any information or material that are unlawful, injurious, malicious, or contains, transmits or activates any harmful code; (vii) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the PayGround Solution, or Company’s provision of services to any third party, in whole or in part; (viii) access or use the Services or PayGround Solution for purposes of competitive analysis of the Services or PayGround Solution or development of a competing service or product; (ix) remove any proprietary notices or labels; (x) violate the rights of others or any applicable law.

2.3 Suspension of PayGround Solution. PayGround may, in its sole, reasonable discretion, immediately suspend access to or use of the PayGround Solution by Company or any Company Personnel if (i) Company or any Company Personnel violates a material restriction or obligation of Company or Company Personnel in this Agreement (including any Policies), or, (ii) if in PayGround’s reasonable judgment, the PayGround Solution or any component thereof is likely to suffer a threat to security or functionality. PayGround will use reasonable efforts to re-establish the affected PayGround Solution promptly after PayGround determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. PayGround may terminate access to the PayGround Solution if any of the foregoing causes of suspension caused by acts or omission of Company or Company Personnel are not cured within thirty (30) days after PayGround’s initial notice thereof. Any suspension or termination by PayGround under this Section 2.3 will excuse Company from its obligation to make further payment(s) under this Agreement except if the suspension or termination is caused by acts or omissions of Company. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.

2.4 Hardware.

If specified in an Order, PayGround will lease certain Hardware to Company for the time period and for the amount listed in the Order. PayGround will use reasonable efforts to deliver the Hardware to Company within three to five business days after the effective date of the Order. Company will use the Hardware solely in connection with its use of the PayGround Solution. Company will, at all times, maintain a record of the Hardware’s then-current location. Company will maintain the Hardware in good operating order, normal wear and tear excepted. If the Hardware does not (a) maintain power when properly plugged in or (b) process payments via the PayGround Solution without failure 99% of the time, Company may request a return merchandise authorization (“RMA”) from PayGround. If Company returns the Hardware to PayGround with an applicable RMA, PayGround will inspect such item. If, upon PayGround’s inspection of such item, PayGround determines that such item does not appropriately function as provided herein, PayGround will repair or replace the non-conforming item and deliver the repaired or replaced item to Company free of charge.
Company agrees to bear all risks of loss or damage to Hardware regardless of cause, including but not limited to theft, seizures and confiscation of Hardware, after delivery to Company, during the term of the Company Agreement, while the Hardware is in the care, custody or control of Company, its officers, employees, or affiliates, and until the Hardware is returned to PayGround or its agent or designated carrier. Within ten (10) days after termination of this Agreement (or the Hardware rental term if earlier) Company shall, at its expense, return the Hardware to PayGround in the condition in which it was received by Company, less ordinary wear and tear, free and dear of all liens and encumbrances. In the event of loss or damage to the Hardware after delivery to Company, regardless of cause, rental payments will accrue until Hardware is repaired or replaced. In the event the Hardware is lost, stolen, destroyed, or damaged beyond repair, as judged by PayGround, Company shall pay PayGround the full amount of replacement value of Hardware equal to $[____] per unit. During the Term, and at its own expense, Company shall obtain and maintain property insurance against loss by all risks to the Hardware in an amount at least equal to the total replacement value of all units leased to Company as set forth herein.
Company understands and agrees that it does not acquire any right, title, or interest in or to Hardware under the Company Agreement and shall not assign nor sublet the Hardware or its rights or obligations hereunder in whole or in part. Company’s interest is a possessory interest only and Company holds the Hardware subject to and subordinate to the rights of PayGround. Company will, at its expense, keep the Hardware free and clear from any liens or encumbrances of any kind (except any caused by PayGround) and will indemnify and hold PayGround harmless from and against any loss caused by Company’s failure to do so. Company grants PayGround a first priority security interest in the Hardware and authorizes PayGround, in its discretion, to file Uniform Commercial Code financing statements evidencing this security interest.
Upon default of Company in the payment of amounts due to PayGround or any default by Company under any provisions of the Agreement and Company’s failure to cure the default within 30 days following written notice form PayGround, PayGround may enter or cause to be entered the premise where the Hardware is located and remove it with or without process of law and without liability, and Company shall be liable to PayGround for all charges then due PayGround under this Agreement, as well as all charges for the remainder of the minimum term of the Company Agreement and any costs and expenses incurred by PayGround associated with PayGround’s removal of the Hardware. Company agrees that all rights of PayGround hereunder, including but not limited to the right to take possession of the Hardware, may be assigned by PayGround to a third party.

Section 3. Eligibility; Registration; Support; Data Practices

3.1 Eligibility. Company represents and warrants that no Company Personnel are: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list.

3.2 Company Personnel Registration. In order to access and use the PayGround Solution, Company will need to register for an Account on the Site and accept this Agreement. Company must create separate User Accounts for each Company Personnel authorized by Company to have access to the Site. Each User Account may only be used by one person and shall not be shared by multiple people. Company will ensure that each Company Personnel that is provided a User Account will: (a) maintain the security of Company Personnel’s Account by not sharing its password with others and restricting access to the Account and their computer or mobile device; (b) promptly notify PayGround if a Company Personnel discovers or otherwise suspect any security breaches related to the Company Personnel’s Account; and (c) take responsibility for all activities that occur under a Company Personnel’s Account and accept all risks of unauthorized access. Each Company Personnel’s login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else. Company is responsible for its access or use of the PayGround Solution under each Company Personnel’s Account.

3.3 Support. During the Term, PayGround will provide telephone support and email support to Company relating to the use and operation of the PayGround Solution between the hours of 8 a.m. to 5 p.m. Mountain Standard Time, Monday through Friday. Company acknowledges that PayGround may, and hereby authorized PayGround to, access, view, and modify Company Data as reasonably necessary to provide the PayGround Solution to Company or perform any debugging, maintenance, or repairs of an Account or Company Data.

3.4 Consent to Data Practices.

Company is solely responsible for the content of any data or materials that Company, Company Personnel, Associated Practices or Associated Practices’ personnel use, process, submit, provide to, or make available through the PayGround Solution, including, without limitation, Company Data.
Company represents and warrants to PayGround that: (i) Company has all rights in the Company Data necessary to grant the rights contemplated by this Agreement; and (ii) the Company Data (including as used in connection with the PayGround Solution) does not and will not violate the Policies or applicable law. Company grants PayGround the right to identify, document, collect, analyze, transmit, and record Company Data through the PayGround Solution and to use and maintain a repository of Company Data to provide and improve the PayGround Solution and to develop new product and service offerings subject to the confidentiality obligations herein.
To the extent that the use of the PayGround Solution involves the access, use, creation or disclosure of Protected Health Information (“PHI”), as defined under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), the Parties agree to comply with the Business Associate Agreement (“BAA”) attached as ‘PayGround, Inc. Business Associate Agreement’. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of the BAA in regard to the subject matter of HIPAA and PHI, the BAA shall control. Except as prohibited by the BAA or the HIPAA Privacy Rule located at 45 C.F.R. Part 160 and Part 164 subpart A and E, Company hereby grants PayGround a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty free license to use, copy, distribute, transmit, display and prepare derivative works of Company Data, and acknowledges that this license cannot be terminated by Company once Company Data is submitted through the Services. No compensation will be paid to Company with respect to PayGround’s use of Company Data.
Notwithstanding anything to the contrary contained in this Agreement, PayGround may aggregate Company Data and other content, data, and patient information in such a way that it will not identify a Company’s customer and PayGround may use that aggregated data to develop and improve the Services, for diagnostic and corrective purposes in connection with the Services and for any other lawful purpose.

3.5 Data Security. PayGround has established and implemented reasonable information security practices regarding the protection of Company Data, including administrative, technical, and physical security processes. Notwithstanding the foregoing, Company is responsible for maintaining appropriate security, protection, and backup of all information, content, or Company Data. PayGround is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any data unless due to the gross negligence of PayGround or PayGround’s breach of this Section 3.6.

3.6 Collection of Text, Mobile, and Email Consent. Company acknowledges that certain features of the PayGround Solution may require PayGround to communicate certain information (including but not limited to PHI) with Company customers by text, mobile push notices or by email (“Messaging”). Company shall obtain an express written consent agreement from all of its customers to receive such Messaging from PayGround or through the PayGround Solution, which must include a clear and conspicuous disclosure informing such customer (a) that certain features of the PayGround solution require communication by text, mobile push notices or by email, (b) of the option to consent to PayGround’s delivery of Messaging for each of the following (i) marketing, (ii) PHI, or (iii) informational messaging, and (c) that, consent to advertising or telemarketing Messaging is not contingent on use of the PayGround Solution. Except as otherwise required by this Section 3.6, Company is responsible for determining the method with which customer consent is obtained and maintaining information on customer consents. Except to the extent Company has notified PayGround of a customer’s denial of such consent, Company will be solely responsible for any liability arising out if its failure to obtain the foregoing consents.

Section 4. Payments and Taxes

4.1 PayGround Subscriptions. Company subscribes to the PayGround Solutions (a “Subscription”) on a monthly basis, as specified in the relevant Order agreed to by Company.

4.2 Fees to Be Paid by Company to PayGround.

Company shall pay fees to PayGround during the Term of this Agreement as provided in the relevant Order. Upon at least sixty (60) days written notice to Company, PayGround shall increase fees consistent with interchange and assessment card rate increases and/or USPS postage rate increases. Any such increases shall be no more than (5%) annually. In addition to any Subscription fees and Hardware fees, Company will be responsible for any fees incurred by PayGround as a result of any chargebacks initiated by a Company customer. PayGround’s fees shall be due and payable by Company within thirty (30) days from the date of the applicable invoice and are nonrefundable except as provided herein. PayGround may increase Subscription fees each renewal term by providing Company written notice at least sixty (60) days prior to expiration of the Initial Term (defined below) or then-current renewal term (with such increased fees to be effective and applied immediately upon expiration of the Initial Term or preceding renewal term, as applicable). Company authorizes PayGround to process an ACH payment from its bank account identified in the Order to process payment of fees according to the terms of this Agreement. Company will notify its bank of this authorization to ensure that PayGround’s ACH payment requests are not rejected or blocked. Company understands that there will be a fee of $25 for each item returned unpaid or rejected for any reason. If the payment date falls on a weekend or holiday, payments may be executed on the next business day. This authorization will remain in effect until terminated by Company in writing. Company will notify PayGround in writing of any changes in its account information or termination of this authorization at least fifteen (15) days prior to the next billing date. Company agrees that it will not dispute the scheduled payments with its bank provided the transactions correspond to the terms indicated in this Agreement. Payments not made on or before their due date may be subject to late fees of one and one-half percent (1.5%) per month (or the maximum allowed by law, if less), plus all expenses of collection. Late payments may result in immediate termination of this Agreement by PayGround.
PayGround may incur certain fees, charges, and incidental expenses (including, but not limited to, postage fees, interchange fees, assessment fees and merchant fees) in connection with providing the PayGround Solution and services set forth in the relevant Order (“Passthrough Fees”). These Passthrough Fees may include, without limitation, fees charged to PayGround by mail carriers, card-issuing banks, payment processors, credit card payment networks (i.e., Visa and Mastercard), payment gateways and the Company’s bank, and similar fees incurred by PayGround’s third party contractors and passed along to PayGround. Unless otherwise provided by law or in the relevant Order agreed to by Company, PayGround may pass through and charge the Passthrough Fees directly to Company at cost and without markup. PayGround shall have the right to require that Company prepay the anticipated amount of any Passthrough Fees prior to PayGround’s performance of any service that may incur such Passthrough Fees.

4.3 Taxes. All applicable taxes, if any, are additional. PayGround will invoice applicable sales tax if it determines that PayGround has a duty to collect sales tax.

4.4 Company Payment Information.

If elected on the Order, Company will provide PayGround with current and customary billing information for each of Company’s customers, including names, billing addresses, account types, routing numbers, account numbers, and other financial information (“Company Payment Information”). Company authorizes PayGround to automatically store any and all Company Payment Information provided. Company will be solely responsible for the accuracy and completeness of its Company Payment Information, and PayGround will not be responsible for any loss suffered by Company as a result of incorrect Company Payment Information. Further, Company represents and warrants that it has the full right, power, and authority to provide PayGround with Company Payment Information. Company shall indemnify PayGround from and against any and all claims arising from PayGround’s access to or use of Company Payment Information, except to the extent such claims arise from PayGround’s gross negligence or willful misconduct.
If Company does not elect for PayGround to maintain Company Payment Information, for each payment requested by a Company customer, such customer will receive an email requesting payment information and authorization for PayGround to use such information to process payments.
If elected on and pursuant to the criteria specified in the Order, Company will automatically offer a Company’s customer a payment plan if the customer reaches the threshold amount set forth on the Order. Company is solely responsible for setting the terms related to the payment plan, maintaining information on payments, and taking any action regarding default and/or collection.

4.5 Minimal Utilization Charge. After the first 60 days, Company shall pay PayGround the minimum utilization charge set forth in the Order for any calendar month in which Company’s customer transactions do not meet or exceed the minimum utilization amount set forth in the Order.

4.6 Pass Through of Fees to Company. Company understands, acknowledges, and agrees that pass through or charging of certain fees by Company to Company’s customers may be prohibited by law or subject to restrictions under applicable laws, rules and regulations and/or third-party payment processor terms and conditions. If Company elects to include payment processing or other processing fees in charges to Company’s customers through the PayGround Solution, Company understands, acknowledges, and agrees that it does so at its sole risk and has not relied on any information, representations or statements made by or through PayGround. If Company elects to include payment processing or other processing fees in charges to Company’s customers through the PayGround Solution, Company represents and warrants that: (1) it is knowledgeable regarding the laws applicable to pass through of third party payment processing or other processing fees and any contractual or other restrictions of third party payment processors; (2) any and all fees charged to Company’s customers through the PayGround Solution are in full compliance with and do and will not violate any applicable laws, rules or regulations; and (3) any and all fees charged to Company’s customers through the PayGround Solution are in compliance with and do not breach any third party payment processor terms and conditions or restrictions. Company hereby fully releases PayGround and shall indemnify, defend and hold harmless PayGround and its members, managers, officers, directors, shareholders, employees, contractors, agents and representatives harmless for, from and against any and all claims, suits, damages, fines, penalties, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from or relating to payments charged to Company’s customers through the PayGround Solution. The limitations of liability in Section 7 below do not apply to Company’s breach of this Section 4.6 or its obligations hereunder.

Section 5. Term and Termination

5.1 Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated pursuant to this Agreement, will continue for a period of three (3) years (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for successive additional one (1)-year periods unless otherwise agreed upon by the Parties in an Order and until terminated pursuant to Sections 2.3, 5.2, or 5.3 of this Agreement (the Initial Term together with any renewal term, the “Term”).

5.2 Termination for Convenience. After the first year of the Initial Term, either Party may terminate this Agreement for convenience on at least ninety (90) days’ prior written notice to the other Party. Company will be responsible for all charges (including any applicable taxes) incurred with respect to fees processed or applicable to use of the PayGround Solution prior to the cancellation of Company’s subscription.

5.3 Termination for Material Breach. If a Party commits a material breach of or default under this Agreement, then the non-breaching Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and that the Term will terminate pursuant to this Section 5.3 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then this Agreement will terminate.

5.4 Effect of Termination.

Upon termination of this Agreement for any reason, all of Company’s and each Company Personnel’s rights under this Agreement will immediately terminate, the license granted to Company in this Agreement will terminate, and Company and all Company Personnel will immediately cease any access or use of the PayGround Solution, except as permitted pursuant to subpart (c) below.
If Company terminates this Agreement for convenience under Section 5.2 or if PayGround terminates this Agreement for material breach by Company under Section 5.3, Company must pay within thirty (30) days all outstanding Subscription fees due under any Order including any fee due for the then current Term plus related taxes and expenses. If Company terminates this Agreement for material breach by PayGround under Section 5.3, then PayGround shall refund to Company within thirty (30) days of termination any unused prepaid fees on a pro-rata basis for the remaining Term.
Upon termination of this Agreement for any reason except for breach by Company, Company may continue to access Company Data for up to six (6) months. Except as provided herein, PayGround will have no obligation to maintain any Company Data or to forward any Company Data to Company or any third party.
Company will promptly return to PayGround all Hardware leased from PayGround at Company’s expense.
This sentence and Sections 5.4, 5.4, 7, 8 and 9 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.

Section 6. Limited Warranties and Remedies

PayGround warrants: (a) PayGround will comply with all laws applicable to its performance hereunder; (b) the PayGround Solution will materially conform to and perform in substantial accordance with the Documentation. EXCEPT AS PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, ANY HARDWARE, THE PAYGROUND SOLUTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; AND COMPANY HEREBY WAIVES, RELEASES, AND DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) REGARDING THE SITE, THE HARDWARE, AND THE PAYGROUND SOLUTION, INCLUDING ANY WARRANTY THAT THE PAYGROUND SOLUTION WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS. EXCEPT TO THE EXTENT PROHIBITED BY LAW, PAYGROUND AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

Section 7. Limitations of Liability; Indemnity

7.1 Force Majeure. Neither Party will be liable to the other Party for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This Section will not apply to any payment obligation of either Party.

7.2 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER TO THE OTHER PARTY, WHETHER BASED ON CONTRACT, IN TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID OR TO BE PAID BY COMPANY UNDER THIS AGREEMENT FOR THE 12 MONTH PERIOD PRIOR TO THE ACT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO:

BODILY INJURY OR DEATH OF A PARTY’S PERSONNEL OR DAMAGES TO A PARTY’S PROPERTY ATTRIBUTABLE TO THE FAULT, NEGLIGENCE OR STRICT LIABILITY OF THE OTHER PARTY OR ANYONE UNDER THE OTHER PARTY’S DIRECTION, SUPERVISION OR CONTROL;
COMPANY’S INDEMNITY OBLIGATIONS;
COMPANY’S OBLIGATION TO PAY AMOUNTS OWED FOR SERVICES PROVIDED HEREUNDER; OR
COMPANY’S BREACH OF OR OBLIGATIONS UNDER SECTION 4.6 (Pass Through of Fees).

EXCLUDING COMPANY’S INDEMNITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE, OR INABILITY TO USE, THE SERVICES, OR ARISING OUT OF THIS AGREEMENT, AND COMPANY SHALL NOT BE ENTITLED TO DAMAGES BASED ON LOSS OF PROFIT, LOSS OR INTERRUPTION OF DATA, ALTERATION OR ERRONEOUS TRANSMISSION OF DATA, EVEN IF PAYGROUND IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN OR FORESEEN SUCH POSSIBILITY. 7.4 Indemnity. Company shall defend, indemnify and hold PayGround and its members, managers, officers, directors, shareholders, employees, contractors, agents and representatives harmless for, from and against any and all claims, suits, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from (i) Company Data, including claims that Company Data infringes intellectual property rights or privacy rights of third parties, (ii) violation of this Agreement or applicable law, or (iii) Company’s and any Associated Practices’ use of the Services, including but not limited to any disputes between Company and any Company customer or Associated Practices or other claims by Company customers or Associated Practices.

Section 8. Confidentiality

Each Party understands that the other Party has disclosed or may disclose Confidential Information in connection with this Agreement. Recipient agrees: (i) to take reasonable precautions to protect the Confidential Information of Discloser, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Discloser agrees that the foregoing shall not apply with respect to any information that Recipient can document (a) is or becomes generally available to the public through no fault of Recipient, or (b) was in its possession or known by Recipient prior to receipt from Discloser, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of Discloser, or (e) is required to be disclosed by law.

Section 9. Miscellaneous

9.1 Entire Agreement. This Agreement, the Terms, any Order, the Policies and the BAA, if applicable, are the complete and exclusive statement of the mutual understanding of the parties and shall and do supersede and cancel all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event of a conflict or inconsistency between the Agreement, the Terms, the Order, the Policies and the BAA, the order of precedence will be: the BAA, this Agreement, the Order, the Policies and the Terms.

9.2 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter or incur any agreement, contract, commitment, obligation, or liability in the name of or otherwise on behalf of the other Party.

9.3 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a Party to this Agreement.

9.4 Assignment. Company will not assign this Agreement, in whole or in part (including by any change of control or other sale of all or substantially all of Company’s assets or stock), without PayGround’s prior written consent. PayGround may assign this Agreement (or any of its rights and obligations under this Agreement or any Order): (a) to any of its affiliates; or (b) in connection with any change of control of PayGround or its affiliates. All the terms and conditions of this Agreement will be binding upon, will inure to the benefit of, and will be enforceable by the Parties and their respective successors and permitted assigns. Any assignment in violation of this Section shall be null and void.

9.5 Publicity. The Parties agree that prior to releasing or otherwise making any press releases, articles or other announcements regarding this Agreement or using the party’s name or any parent, affiliate or successor-in-interest to the foregoing, the party wishing to issue such press release, article or announcement will first obtain the written approval of the other party as to each such press release, article, or announcement.

9.6 Non-waiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather, the provision, right, or remedy will be and remain in full force and effect.

9.7 Interpretation; Applicable Law; Dispute Resolution. The interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, except for any rule of law of the State of Arizona that would make the law of any other jurisdiction applicable. Any dispute arising under or relating to this Agreement will be resolved exclusively by arbitration under the Commercial Arbitration Rules of the American Arbitration Association, with the venue of any such arbitration proceeding to be in Maricopa County, Arizona. The arbitrator for any dispute will be selected according to the Commercial Arbitration Rules of the American Arbitration Association and will have experience with commercial agreements. The award rendered by the arbitrator will be final, will identify a winning Party, and judgment may be entered upon the award in accordance with applicable law in any court having jurisdiction thereof. The fees and expenses of the arbitrator will be shared by the Parties. Notwithstanding the foregoing, PayGround has the right to seek injunctive or other equitable relief in connection with any matter based upon or arising out of this Agreement in any forum having proper legal jurisdiction over such matter. If any provision of this Agreement is determined to be unenforceable or in contravention of any applicable law, such provision shall be deemed modified to the minimum extent required to bring such provision into compliance with said statute or case law. Nothing contained herein should be construed as contravening the express intention of the Parties that the laws of the State of Arizona shall apply in all respects, unless and except to the extent that the Parties may reference and request application of a law, statute, or rule of another jurisdiction or governmental body in a specific provision of this Agreement.

9.8 Amendment. No change to any term or provision hereof shall be effective unless stated in writing and signed by both Parties hereto.

9.9 Notices. Company will send all notices to PayGround required by this Agreement to the following email address: concerns@payground.com, with a hard copy to be sent to: PayGround, Inc. 365 E. Germann Rd., Suite 280, Gilbert, AZ 85297. Unless otherwise specifically provided, all notices and other communications provided for or required by this Agreement shall be in writing and shall be effective upon receipt.

End User Terms of Service

IMPORTANT: This is a binding agreement. If you do not wish to enter into these End User Terms of Service (“Terms”) or do not fully understand them, please do not proceed. By accessing, using, or creating an account on PayGround, Inc.’s (“PayGround”) platform, you agree that you have read, understand, and accept the following Terms. These Terms form a contract between you (“you” or “User”) and PayGround. These Terms govern your use of the platform and outline your rights and responsibilities as an end user. Your access to the platform indicates that you agree to be bound by these Terms. If you are accessing or using PayGround on behalf of a person or an organization, you are agreeing to these Terms for that person or organization and promising to PayGround that you have the authority to bind that person or organization to these Terms (in which event, “you” and “your” will refer to that person or organization, as applicable). Please carefully review these Terms, as it is legally binding. We may update these Terms from time to time, so be sure to check them regularly for any changes.

No Warranties and Limited Liability; Arbitration: These Terms provide you with certain legal rights, but you may have other, additional legal rights, which vary from jurisdiction to jurisdiction. PayGround does not provide warranties for the PayGround Solution, and these Terms limit our liability to you. Please see Sections 3 and 4 for details. Some jurisdictions do not permit the exclusion of implied warranties or the exclusion or limitation of certain damages or other rights, so those provisions of these Terms may not apply to you. These Terms require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please see Section 6 for details, including instructions to follow in order to opt out of binding arbitration and the class action waiver.

Section 1: Use of PayGround Solution and Accounts

1.1 Use of and Access to PayGround Solution

Subject to your continued compliance with these Terms, PayGround grants you on a non-exclusive, non-transferable, and non-sublicensable right to access and use the PayGround Platform. PayGround reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the PayGround Platform at any time. PayGround may add or remove functionalities or features, and or suspend or stop the PayGround Platform altogether, at any time and without prior notice to you. PayGround will not be liable to you or to any third party for any modification, suspension, or discontinuance of the PayGround Solution or any part of the PayGround Solution. All rights not granted in these terms are reserved by PayGround.

Certain features of the PayGround Solution require the PayGround or Third Party Service providers communicate with you by text, mobile push notices or by email. By using the PayGround Solution, you consent to receive such communications from PayGround regarding the services to which you have subscribed as well as promotions, and other notifications related to our Services. These communications are intended to keep you informed about opportunities that may be of interest to you. By providing your mobile phone number, you are expressly consenting and “opting in” to receive marketing text message via automated technology. Use of telephone and email information is subject to PayGround’s Privacy Policy or the privacy policy of Third Party Service providers, as applicable.

If you decide at any time that you no longer wish to receive such communications, you have the option to opt out. To unsubscribe from emails, you can follow the unsubscribe link provided at the bottom of each email. To stop receiving text messages, you can reply with “STOP” to any message we send. Please note that opting out of these communications may affect your ability to receive important updates and offers about new services and features.

1.2 Third-Party Services

PayGround may provide Third-Party Services through the PayGround Platform. Your use of or interaction with any Third-Party Services is solely between you and the third party. PayGround does not control or endorse, and makes no representations or warranties regarding, any Third-Party Services, and access to and use of such Third-Party Services is at your sole risk.

1.3 Access

Only individuals age 18 and older are permitted to use the PayGround Solution. If you are between the age of 13 and the age of majority in the jurisdiction where you reside, you will use the PayGround Solution only under the direct supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the PayGround Solution by individuals under the age of 13 is prohibited and is a violation of these Terms.

1.4 Restrictions

You will not (and will not assist others to): (a) publish, copy, rent, lease, lend, sell, license, display, host or otherwise commercially exploit the PayGround Solution, (b) access the PayGround Solution in order to build a similar or competitive service or other commercial offering or for any other purposes except as expressly authorized herein, (c) remove any product identification, proprietary, copyright, or other notices contained in or displayed with the PayGround Solution, (d) assign or transfer the PayGround Solution (except as permitted by Section 7.7), (e) work around any technical or security restrictions or limitations in the PayGround Solution, (f) modify, create derivative works of, reverse engineer, decompile, or disassemble any part of the PayGround Solution, except to the extent the foregoing restrictions are prohibited by applicable law or by the licensing terms governing the use of open-source components that may be included with the PayGround Solution, (g) copy, reproduce, distribute, download, display, or transmit the PayGround Solution (or any portion of the PayGround Solution) in any form or by any means, except as expressly permitted by these Terms, (h) use any Internet-based features in any way that could interfere with others’ use of them or to try to gain access to or use any service, data, account, or network in an unauthorized manner, (i) use any data mining, robots or similar data gathering or extraction methods except as provided by the PayGround Solution, (j) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the PayGround Solution, or any other system, device or property; or (k) use any of the PayGround Solution other than for its intended use.

1.5 Ownership

Except for the limited license rights expressly provided in these Terms, PayGround or its licensors, as applicable, have and will retain all rights, title, and interest (including all intellectual property rights) in and to the PayGround Solution. Any suggestions, information or feedback provided by you to PayGround regarding the PayGround Solution (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the PayGround Solution) (“Feedback”) is voluntary and you hereby grant to PayGround a world-wide, royalty free, irrevocable, transferrable, perpetual license to use (and authorize others to use) any Feedback without restriction.

1.6 Privacy Policy

For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy [https://home.payground.com/privacy-policy/]. All information, including personal information, provided by you or received by PayGround through your use of the PayGround Solution, are subject to the Privacy Policy. The PayGround Solution will provide PayGround with information about you (including your contact information, payment card information, and other information you provide to the PayGround Solution) and your use of the PayGround Solution. PayGround will handle any information we receive or obtain in accordance with PayGround’s Privacy Policy. By using the PayGround Solution, you agree and consent to PayGround’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing, and use of this information.

1.7 Terms

These Terms will remain in effect so long as you continue to access or use the PayGround Solution, or until terminated in accordance with the provisions of these Terms. Sections 1.4, 1.5, 1.6, 3, 4, 5, 6 and 7, and any other terms which by their nature are intended to survive, survive any expiration or termination of these Terms.

Section 2: Warranty Disclaimer; Additional Use Limitations

2.1 Warranty Disclaimers

THE PAYGROUND SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYGROUND AND ITS LICENSORS AND SERVICE PROVIDERS MAKE NO (AND SPECIFICALLY DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, (A) ANY WARRANTY THAT THE PAYGROUND SOLUTION WILL BE UNINTERRUPTED, ERROR-FREE, FREE OF HARMFUL COMPONENTS, TIMELY, OR SECURE, (B) ANY IMPLIED WARRANTY OF ACCURACY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND (C) ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT, SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

YOUR USE OF THE PAYGROUND SOLUTION IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR, AND PAYGROUND DISCLAIMS, ANY AND ALL LOSS, LIABILITY, OR DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE PAYGROUND SOLUTION.

2.2 Third-Party Services

PayGround may exchange relevant information with the Third-Party Services, which may include personal information (e.g., the content of your requests; the amount of a bill from a doctor; etc.). Once this information is shared with the Third-Party Services, its use will be governed by the third party’s privacy policy and not by PayGround’s Privacy Policy. Your use of any Third-Party Services is subject to these Terms and any third party terms applicable to such Third-Party Services. If you do not accept the third party terms applicable to a PayGround Platform service, do not use that PayGround Platform service. You should exercise your own independent judgment when reviewing and relying on information provided by a PayGround Platform service. Without limiting the generality of the foregoing, if you choose to make payments through the PayGround Solution, all such payments and related payment card information will be processed by PayGround’s third party payment processor. To make such payments in through the PayGround Solution, you will be required to accept such third party payment processor’s terms of use, and your use of those services are solely between you and the third party payment processor. PayGround has no responsibility or liability for Third-Party Services. PayGround does not guarantee the accuracy, usefulness, safety, completeness, reliability, availability or timeliness of, or relating to, any Third-Party Services. PAYGROUND DISCLAIMS, ANY AND ALL LOSS, LIABILITY, OR DAMAGES ARISING FROM OR RELATED TO YOUR USE OF ANY THIRD PARTY SERVICES.

Please see additional terms below if you are using the Plastiq, Inc. payment services.

Section 3: Indemnity and Liability Limitations

3.1 Sole Risk and Indemnity

If you use the PayGround Solution in violation of these Terms, including the restrictions set forth in Section 1.4: (i) you acknowledge that such use is at your sole risk, (ii) you agree PayGround is not liable, in whole or in part, for any claim or damage arising from such use, and (iii) you will indemnify, defend and hold PayGround harmless from and against any and all claims, damages, fines, sanctions, losses, costs, expenses and liabilities arising out of or in connection with such use in accordance with Section 5.

3.2 No Uptime or Availability Guarantee

The PayGround Solution is provided AS-IS and AS AVAILABLE. PayGround makes no guarantee or warranty regarding the availability or reliability of the PayGround Solution, including any failures or unavailability beyond PayGround’s control, such as the lack of an Internet connection. PayGround does not provide any specific uptime or availability guarantee for the PayGround Solution.

3.3 Limitation of Liability

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL PAYGROUND, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS OR YOU BE LIABLE TO THE OTHER PARTY, (AND IN THE CASE OF PAYGROUND, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS), OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF, BASED ON, OR RESULTING FROM THESE TERMS, OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE PAYGROUND SOLUTION, EVEN IF YOU OR PAYGROUND (AND PAYGROUND AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES).

IN NO EVENT WILL PAYGROUND’S, ITS AFFILIATES’ AND ITS AND THEIR OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’, CONTRACTORS’, SUPPLIERS’, AND LICENSORS’ OR YOUR TOTAL LIABILITY TO EACH OTHER (AND IN THE CASE OF PAYGROUND, IT’S AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS), OR TO ANY OTHER THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE PAYGROUND SOLUTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING GROSS NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED FIFTY DOLLARS ($50.00).

THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN SECTION 4 DO NOT APPLY TO LIABILITIES THAT ARISE FROM THE UNAUTHORIZED USE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY (INCLUDING UNAUTHORIZED ACCESS OR USE OF THE PAYGROUND SOLUTION), YOUR INDEMNIFICATION OBLIGATIONS, OR LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS, SUCH AS IN THE EVENT OF STATUTORILY MANDATED LIABILITY (INCLUDING LIABILITY UNDER APPLICABLE PRODUCT LIABILITY LAW) OR IN THE EVENT OF PERSONAL INJURY ARISING SOLELY FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE MATERIAL, BARGAINED FOR BASES OF THE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.

3.4 INDEMNIFICATION

You will indemnify, hold harmless and defend PayGround (including its affiliates, officer, directors, employees, contractors and agents), its licensors and service providers from any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by PayGround arising out of or relating to: (a) your breach of any term or condition of these Terms, (b) your use or misuse of the PayGround Solution, or (c) violations of any laws, rules or regulations applicable to your use of the PayGround Solution. PayGround reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify PayGround and your will cooperate with PayGround’s defense of such claims. You will not to settle any such claim without PayGround’s prior written consent.

Section 4: Disputes and Arbitration

Any dispute or claim relating in any way to these Terms or your access or use of any PayGround Solution will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator can award on an individual basis the same damages and relief as a court, including injunctive and declaratory relief or statutory damages, and must follow the provisions of these Terms as a court would.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to PayGround, Attention: concerns@payground.com, with a hard copy to be sent to: PayGround, Inc. 365 E. Germann Rd., Suite 280, Gilbert, AZ 85297.. Your notice to PayGround must (a) provide your name, mailing address, and email address, (b) describe the dispute, and (c) state the relief you are requesting. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. For any arbitration you initiate, you will pay the AAA filing fee and PayGround will pay the remaining AAA fees and costs. For any arbitration initiated by PayGround, PayGround will pay all AAA fees and costs. PayGround will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at either a mutually agreed location or in Arizona.

Any claim arising out of or related to these Terms or the PayGround Solution must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you will not have the right to assert the claim.

4.1 Waiver of Class Actions

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in a state or federal court in Phoenix, AZ to enjoin infringement or other misuse of intellectual property rights.

4.2 Option to Opt-Out

To opt out of the arbitration and class-action waiver terms in this Section 6, you must notify PayGround in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). You must mail your written notification to PayGround, Attention: Legal Department to the address in Section 6.2. Subject to Section 6.5, if you do not notify PayGround as outlined in this Section 6.4, you agree to be bound by the arbitration and class-action waiver provisions herein, including such provisions in any Terms revised after the date of your first acceptance.

You may reject any change PayGround makes to Section 6 (except address changes) by sending PayGround written notice within 30 days of the change by mail to the address in Section 6.2. If you do, the most recent version of Section 6 before the change you rejected will apply. It is not necessary to send PayGround a rejection of a future change to this Section 6 if you had properly opted out of the arbitration and class-action waiver provisions in this Section 6 within the first 30 days after you first accepted these Terms.

Section 5: General Legal Terms and Contract Information

5.1 Changes to Terms

PayGround may change these Terms at any time by posting the amended Terms on PayGround’s website, available at [www.PayGround.com/terms] (the “Site”). Any changes to these Terms will be effective upon posting the revised version of these Terms on the Site (or such later effective date as may be indicated at the top of the revised Terms). We may also notify you via the PayGround Solution or by email to the email address associated with your account. If you do not agree to the Terms as amended, you must stop using the PayGround Solution. Your continued use of the PayGround Solution after the date the amended Terms are posted will constitute your acceptance of the amended Terms.

5.2 Governing Law

You agree that these Terms, and any claim, dispute, action, or issue arising out of or relating to these Terms or your use of the PayGround Solution is governed by the Federal Arbitration Act, applicable federal law, and the laws of the State of Arizona without reference to conflict of laws principles. Unless a dispute would be governed by an applicable arbitration clause, you agree to submit to the personal jurisdiction of the state and federal courts in or for Arizona for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, PayGround may seek injunctive or other equitable relief to protect its (or its licensors or service providers’) confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.

5.3 Notice

PayGround may need to communicate with you from time to time regarding these Terms or the PayGround Solution. PayGround may provide such notice to you via email to the email address you provided to PayGround or on the Site. If you have questions regarding these Terms or need to contact PayGround, please see [www.PayGround.com/contact] for PayGround’s contact information.

5.4 Entire Agreement

These Terms, and any additional agreement you enter into with PayGround in writing are the complete and entire understanding and agreement between PayGround and you regarding the PayGround Solution and supersede all previous or contemporaneous written and oral agreements and communications relating to the subject matter of these Terms, all of which are merged into these Terms. In these Terms: (a) the word “including” and words of similar import will mean “including, without limitation,” unless otherwise specified and (b) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”.

5.5 No Waiver

All waivers by PayGround will be effective only if provided in writing. Any failure or delay by PayGround to strictly enforce any provision of these Terms will not operate as a waiver of that provision, any other provision, or any subsequent breach of that or any other provision.

5.6 Severability

Each provision in these Terms constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part of a provision) is unenforceable under or prohibited by any present or future law, then the unenforceable provision (or part of the unenforceable provision) is amended to be in compliance with such law, while preserving the intent of the original provision to the extent possible. Any provision (or part of a provision) that cannot be amended will be severed from these Terms; and, all the remaining provisions of these Terms will continue in full force and effect.

5.7 Assignment

These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without PayGround’s prior written consent. These Terms may be assigned by PayGround without restriction. These Terms are binding upon any permitted assignee.

5.8 Proprietary Rights

As between you and PayGround, PayGround owns all right, title, and interest in and to the PayGround Marks (as defined below), and any goodwill arising out of the use of the PayGround Marks will remain with and belong to PayGround and its licensors. The PayGround Marks may not be copied, imitated, or used without the prior written consent of PayGround or the applicable trademark holder. PayGround Marks means any trademarks, service marks, service or trade names, logos and other designations of PayGround and its affiliates.

5.9 Export Compliance

The PayGround Solution are subject to the export control laws, regulations and orders of the United States and may be subject to the export or import control laws and regulations of other countries. You will comply with all such laws and regulations that apply to the PayGround Solution. These laws include restrictions on destinations, end users, and end use. You represent and warrant that you: (a) are not a citizen, national or resident of, nor under the control of, the government of Cuba, Iran, North Korea, Syria, Sudan, or any other country to which the United States has prohibited export, (b) are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor listed on the United States Department of Commerce Table of Denial Orders, nor any other United States Government exclusion lists, (c) are not under the control of or an agent for anyone on such lists or the entities listed above, (d) will not export or re-export any portion of the PayGround Solution, directly, or indirectly, to the above-mentioned countries or to citizens, nationals, or residents of those countries or to persons on the above mentioned lists, and (e) will not use the PayGround Solution for, and will not allow the PayGround Solution to be used for, any purposes prohibited by United States law, including for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction.

Section 6: Additional Terms Related to Use of the Plastiq Services

In the event that you use a debit card, credit card or ACH transfer to pay a recipient (“Vendor”) through the Plastiq, Inc. service (the “Service”), you are additionally bound to the following terms (“Plastiq Terms”) contained within the following Card Payment Agreement. To the extent that any terms of the Terms conflict with these Plastiq Terms, these Plastiq Terms will control.

PayGround uses Plastiq Inc. to process credit and debit card and ACH transactions. Plastiq uses an account at Silicon Valley Bank (SVB) that is held in SVB’s name. The account title also shows that this account is for the benefit of customers of Plastiq. Plastiq has the right to instruct SVB on the use of funds in the account, including to receive funds from you and to then send funds to your recipient based on the instructions.

6.1 Card Payments

Payments can be made via credit or debit cards using the Service. PayGround uses Plastiq Inc. to process credit and debit card transactions. Plastiq is considered the Merchant of Record and User shall see Plastiq’s name (or “PQ”) on its card statement. Mastercard®, Visa®, Discover®, JCB®, Diners Club®, and American Express® (collectively “Payment Methods”) may be used with various restrictions applied based on the card brand. PayGround will proactively notify the User when a card is not compatible with a transaction prior to submission of the payment.

User agrees to provide complete, accurate, and up-to-date information for all information required to use the Service. Depending on your usage of the Service, more information may be requested. At any time post-submission, payments may be subject to review, which serves to better understand the nature of and reason for the payment. During this review process and for any reason, Plastiq may place a temporary hold on the delivery of the payment, and may request more information from User including but not limited to verification of User’s identity, an associated bill or invoice, or other evidence of your payment terms with Vendor. User acknowledges that failure to provide satisfactory information upon request may result in cancellation of the transaction.

To help the government fight terrorism and money laundering activities, certain personal data about the User may be obtained, verified, and sometimes stored. User authorizes Plastiq, directly or through third parties and service providers, to make any inquiries necessary to verify User’s identity. This may include asking User for further information, requiring User to take steps to confirm ownership of the financial instruments, and verifying User’s information against third party databases or through other sources. If identity cannot be verified, Plastiq reserves the right to deny you use of the Services. Plastiq reserves the right to review, place a hold on or cancel any payment requested through the Services for any reason, including but not limited to credit and fraud risk or compliance with applicable laws, such as anti-money laundering regulations, combating terrorist financing laws and OFAC sanctions. In Plastiq’s sole discretion, a hold may be placed on a payment for as long as reasonably necessary to conduct an appropriate inquiry regarding a payment, a User, a User’s counterparty, or any related facts or circumstances.

Depending on the results of this review, appropriate action may take place, including declining the payment, refunding the payment, or continuing to hold the payment pending instructions from a government agency.

6.2 Applicable Taxes and Penalties

User is responsible for all fees, fines, penalties and other liability incurred by Plastiq, yourself, or a third party caused by or arising out of your breach of these Plastiq Terms, and/or your use of the Services. User agrees to reimburse Plastiq or a third party for any and all such liability.

In the event that you are liable for any amounts owed, a transaction may be initiated via your Payment Method or other available payment methods to pay any such amounts. If User does not have sufficient funds available to fulfill such payment, collection efforts and/or other legal actions to recover such amounts will be used.

A temporary, small authorization charge may appear on your card statement to confirm validity. All Payment Method usage associated with payments submitted via the Services are subject to existing terms set by your Issuing Bank, including any relevant credit or transactional limits, credit and interest terms, and the conditions for any rewards programs. If your Payment Method is not based in the USD, a foreign transaction fee may be charged by your Issuing Bank.

To prevent fraud and comply with legal obligations, we may ask for additional information from User and from third parties. The payment may be put on hold for review. If User does not cooperate within the review process, the payment may be delayed or declined.

6.3 Satisfactory Goods or Services

By submitting the payment for processing by the Services, User agrees that the goods or services provided by Vendor in exchange for the principal have already been rendered to your satisfaction. User hereby forfeits any future claims regarding insufficient or unexpected quality or untimely delivery of the goods and services provided. User assumes all financial risks associated with the nonperformance of the Vendor.

User agrees not to use the Services:

For unsupported transfers, including sending money
to yourself or an entity in which you have control;
on behalf of another party;
not in direct exchange for a rendered good or service;
or goods or services whose delivery or completion has not yet been confirmed;
other than for legitimate payment purposes (e.g., to test or probe card behaviors)

Refunds are not available in cases where a Vendor has already received the payment. If this is the case, you should contact Vendor directly to request a refund, pursuant to their payment terms. Refunds may be made by electronic Payments, including those delivered via Electronic Fund Transfer (EFT), Automated Clearing House (ACH), and bill payment network providers, prior to their disbursement.

You are responsible for confirming the correctness and completeness of your Payment at the time of submission. If a Payment issue can be traced to any incorrect or incomplete information you confirmed at the time of Payment review, even for information which may have been pre-filled, you agree to hold responsibility for any resulting consequences, which may include but not be limited to an unintended Vendor accepting and retaining your Payment, an issue in a Vendor accounting for your Payment, or an inability to complete your Payment. Accordingly, Plastiq assumes no responsibility and will have no liability for any consequences between User and Vendor.

6.4 Chargebacks

There may be times when User may not be the authorized user of the Payment Method or User may otherwise contest the transaction. If User decides to chargeback or reverse the transaction with your Payment Method and there is reason to believe the chargeback is not in good faith, User agrees to pay the full amount of the chargeback immediately upon demand, and any associated fees, fines, or penalties. User agrees to pay all costs and expenses, including attorneys’ fees and other legal expenses, incurred for the collection of all amounts unpaid by User. Further, if Plastiq reasonably believes that a chargeback is likely with respect to any transaction, we may withhold, reject, or refund the amount of the potential chargeback from payments.

For Visa Cards, Plastiq is a Business Payment Solution Provider (“BPSP”). By continuing to use the Services, User agrees to accept all risks associated with any non-performance by your Vendor. User hereby forfeits any disputes regarding insufficient or unexpected quality or untimely delivery of the goods and services provided.

6.5 ACH Debit Authorization As A Payment Method

If you choose to use your bank account(s) as your Payment Method (“ACH Payment Method”), you hereby authorize Plastiq to use your banking details to debit your account via the Automated Clearing House (“ACH”) system. If this is relevant to your usage of the Services, you will be asked to add your bank account via a third party service to verify your bank account. Plastiq may use Plaid Technologies, Inc. (”Plaid”) to verify your bank account(s) and periodically confirm your bank account balance prior to approving a transaction. Plastiq only shares your information with Plaid in accordance with its Privacy Policy, available at https://plaid.com/legal/.

If you choose to use the ACH Payment Method, a verification process may include debiting a small amount from your bank account(s), then immediately crediting the same amount back to your bank account, and verifying the amount debited, in order to confirm that you are the owner of the bank account(s). Plastiq will only use this process to screen for fraud. You agree to comply with NACHA laws and comply with US laws in accordance with this authorization.

You hereby authorize Plastiq Inc. or its subsidiaries (“Plastiq”) to initiate debits from the bank account(s) that you enter in order to pay amounts owed to your recipients in accordance with the instructions you entered and, if necessary, to initiate adjustments for any transactions credited or debited in error.

If sufficient funds are not in the bank account(s), you may be charged a returned/rejected item fee. You understand that this authorization will remain in effect until you cancel it in writing or revoke it. Furthermore, you authorize Plastiq to debit, if the payment is returned for any reason, a rejected/returned item fee of $30 or the maximum amount allowed by law. You represent that you have authority to bind the organization that owns the bank account(s), and to authorize all transactions to the bank account(s) that are initiated through Plastiq. You acknowledge that transactions initiated to the bank account(s) must comply with the provisions of U.S. law. This authorization will remain in effect until you notify Plastiq in writing to cancel it.

6.6 Returned Transactions and Stopped Payments Via ACH Payment Method

If for any reason, you decide to void a payment request via ACH, Plastiq will use commercially reasonable efforts to stop the payment, but you understand and agree that Plastiq may not be able to stop the payment. Plastiq’s ability to stop a payment depends on a number of factors, including but not limited to the payment method delivery time and whether the payment has cleared the recipient’s account. You agree that Plastiq will not have any liability for failing to stop a payment that has begun to process. Please note that you may be subject to a fee when requesting a stop payment request.

You are solely responsible for the accuracy of the payment information or the payment instructions provided to Plastiq. If a payment is refused or returned, Plastiq will void the payment unless Plastiq, in its sole discretion, decides to take another action on the payment, such as crediting or reissuing the payment. If a returned or refused payment is voided, you authorize Plastiq to credit the amount of the payment directly to the same payment method, less any fees or other amounts owed by you to Plastiq.

Plastiq reserves the right to expire, void, or cancel any payment if the payment is not deposited or otherwise received and processed by a payee within a reasonable amount of time, as determined by Plastiq in our sole discretion. If Plastiq expires, voids, or cancels any payment, you authorize Plastiq to credit the amount of the payment back to the original bank account, less any Fees or other amounts owed by you to Plastiq.

You agree to pay all penalties, interest charges, late payment fees, service fees, and/or interest related to the rejected or returned funding ACH debit and agree to reimburse Plastiq for all penalties and fees incurred if any funding ACH debit is returned because your ACH Payment Method was not properly configured correctly.

6.7 Class Action Waiver and Binding Arbitration

In the event of a dispute, claim, or controversy (“Claim”) between you and Plastiq, arising from or relating in any way to this Agreement, the Services, or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, the Claim shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules (or if the value of the Claim is $75,000 USD or less whether or not you are an individual under the AAA’s Consumer Arbitration Rules). All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you and Plastiq. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis.

IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND PLASTIQ MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.

If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-7787879. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future.

Must file within one year. All Claims must be filed within one year of when the Claim arises. Otherwise, it is permanently barred.

6.8 Severability

If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will not be arbitrated but will proceed in court, with the rest proceeding in arbitration. If any other provision of this Arbitration Agreement is found to be illegal or unenforceable, that provision will be severed but the rest of this Arbitration Agreement still applies.

6.9 Conflict with AAA Rules

This agreement governs if it conflicts with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.

6.10 Plastiq Affiliates are Third-Party Beneficiaries

Affiliates of Plastiq are not parties to this Arbitration Agreement but are third-party beneficiaries of your agreement with Plastiq to resolve disputes through informal negotiation and arbitration.

6.11 Opt-Out

You agree that Binding Arbitration applies to this Agreement unless you opt out by notifying Plastiq with an email containing your full name and the express intent to opt out sent to legal@plastiq.com within 60 days of your initial user of the Services.

6.12 Governing Law and Jurisdiction

In the United States, this Agreement, the Services, and the relationship formed between the parties as a result of this Agreement are governed and construed in accordance with the laws of the State of California, without giving effect to its choice of law provisions. Further, You agree to submit to the personal and exclusive jurisdiction and venue in the state and federal courts sitting in the City and County of San Francisco, California, for any and all disputes, claims, and actions arising from or in connection this Agreement, the Services, and the relationship formed between the parties as a result of this Agreement. In Canada, this Agreement, the Services, and the relationship formed between the parties as a result of this Agreement are governed by the laws of British Columbia.

6.13 Prohibition of Class Representative Action

Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and not in a class or representative action. Neither party to this Agreement will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

6.14 Release of Plastiq

If you have a dispute with one or more Vendor or other third parties, you release Plastiq (and our officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.