THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE SUBJECT MATTER OF THIS AGREEMENT AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, NEGOTIATIONS, REPRESENTATIONS AND PROPOSALS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. IF THERE IS A CONFLICT BETWEEN THE TERMS IN ANY ORDER AND THESE TERM OF USE, THEN THE TERMS IN THE ORDER CONTROL. ANY PURCHASE ORDER ISSUED BY CUSTOMER IS FOR CUSTOMER’S CONVENIENCE ONLY AND ANY TERMS AND CONDITIONS IN SUCH PURCHASE ORDER DO NOT SUPPLEMENT OR AMEND THIS AGREEMENT AND ARE OF NO EFFECT.
NOTICE OF BINDING ARBITRATION
ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THE SECTION TITLED “ARBITRATION” BELOW. PLEASE READ THE SECTION TITLED “ARBITRATION” CAREFULLY.
1.1. Generally. Pursuant to the applicable Order, RoadSync shall provide Payment Services which Customer’s Authorized Users may use to complete Transactions between Customer and its Payees. A “Transaction” means a payment transaction between Customer’s business and a Payee for the Payee’s performance of a service or completion of a delivery (such as completion of a load where the load price has been contracted in advance) where Customer has received an invoice from the Payee. A Transaction may be via an automated clearing house (“ACH”) or printed check method, as indicated by Customer. “Payee” means a truck driver owner/operator, vendor, or freight factoring entity to whom Customer authorizes payment using the Payment Service. “Authorized Users” means Customer’s employees, contractors, or agents whom Customer authorizes to use the Payment Services and act on Customer’s behalf to make a payment to Payees. RoadSync is not acting as a banking institution or a money transmitter in performing the Payment Services. Transactions through the Payment Services use processing services provided through or with the assistance of certain third party services providers (“Service Providers”) and are subject to the Payment Processing Addendum attached as Exhibit A.
1.2. Account Set Up. To utilize the Payment Services, Customer will open a service account with RoadSync (the “Account”). To create the Account, Customer shall designate a Company Admin and submit an application that provides RoadSync with complete and accurate information about Customer’s organization as reasonably required, including but not limited to the following: (a) Customer legal name; (b) other business or trade name; (c) mailing address; (d) telephone; (e) website; (f) tax identification number; (g) business type and MC and DOT numbers; (h) bank account information for the Payout Account, and (i) Customer’s controller information (including name, job title, last four digits of SSN, date of birth, email address, and mailing address). “Company Admin” means an Authorized User who is your contact for purposes of controlling your Account.
1.3. Underwriting. RoadSync may request additional information in connection with your Account to verify the beneficial ownership or control of the business, validate information provided by you, verify the identity of the business owners or principals, as required by law or RoadSync’s Service Providers and generally assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, or your controller, beneficial owners or principals. You shall promptly comply with all RoadSync’s reasonable requests for additional information, and you acknowledge and agree that your failure to do so may result in suspension or termination of your Account.
1.4. Changes to Account Information. You agree to keep the information in your Account current. You must promptly update your Account with any changes affecting you, the nature of your business activities, your Authorized Users, beneficial owners, principals, or any other pertinent information. Failure to keep your Account information current may affect your ability to receive Payment Services or complete Transactions.
1.5. Use of Payment Services. The Payment Services available to you depend on the specific services selected by you on the Order. Subject to the terms and conditions of this Agreement, RoadSync grants Customer a nonexclusive, nontransferable, nonsublicensable license for Customer’s Authorized Users to use the Payment Services for Customer’s internal business use in conducting Transactions. RoadSync may provide online or other documentation related to the use of the Payment Services (“Documentation”). Authorized Users may access and use any Documentation solely in connection with their permitted use of the Payment Services.
1.6. Account Management. The Company Admin will manage your Authorized User access. Your and your Authorized Users’ protection of their IDs and passwords is an integral part of maintaining the privacy and integrity of data in the Service. You shall keep confidential and not disclose, nor permit any Authorized User to disclose, any ID or password to third parties. You shall notify RoadSync immediately of any unauthorized use of any ID or password or any other known or suspected breach of security with respect to your use of the Payment Services. You are responsible for ensuring that all Authorized Users comply with the terms of this Agreement and for all activities of Authorized Users and others that occur through your Account.
1.7. Transactions. The Payment Service receives a request for payment to a Payee from your Authorized User and transmits the relevant information to its Service Provider for the ACH or printed check Transaction; those Service Providers will then perform the ACH or check printing/mailing for payment to your Payee from the Customer bank account indicated by Customer on the applicable Order (“Payout Account”). Additional information and conditions regarding the ACH and check-written Transactions are indicated on Exhibit A. To enable RoadSync to process Transactions, Customer hereby authorizes and directs RoadSync and its Service Providers to receive and pay any funds through the Payment Services, and to the extent necessary will identify RoadSync as Customer’s agent for purpose of providing the Payment Services. Customer acknowledges and agrees that once a Transaction is processed using the Payment Services, RoadSync is unable to hold, stop, or cancel the Transaction. Customer is solely responsible for all instructions that Authorized Users provide to RoadSync and any results therefrom with respect to Transactions and routing of funds.
1.8. Limitations on Use. The Documentation contains requirements for and limitations on the use of the Payment Services. Customer’s use is subject to the requirements and limitations in the Documentation and any other limitations on the Payment Services in the Order. Customer shall only utilize the Payment Services for legitimate and lawful Transactions; Customer shall not (a) use or attempt to use the Payment Services in a manner that violates any laws, infringes the rights of anyone, or damages any person or property, including to send or receive funds to a person, entity, or state where such Transactions are prohibited by applicable law; (b) act as a payment intermediary or aggregator, or reseller of Payment Services on behalf of others; (c) submit or partake in what Customer or any Authorized User believes or knows to be a fraudulent Transaction; or (d) use the Payment Services in a manner that is an abuse of any Service Provider or a violation of any Service Provider terms, including to engage in unfair, deceptive, or abusive acts or practices. If Customer misuses the Payment Services for any Transactions, or if RoadSync required to do so by the rules applicable to RoadSync or a Service Provider, then RoadSync may freeze or terminate Customer’s Account and its ability to use the Payment Services immediately. Customer must comply with RoadSync’s Acceptable Use Policy with respect to the Transactions and use of the Payment Services. In addition, Customer may not use the Payment Services for purposes of monitoring the performance or functionality of the Payment Services or for any other benchmarking or competitive purposes.
1.9. Errors and Corrections. Customer is solely and exclusively responsible for reviewing its Transactions and Transaction history, and for immediately notifying RoadSync in writing of any errors. RoadSync will investigate any reported errors, including any errors made by RoadSync or by its Service Providers, and attempt to rectify them. Customer’s chance of recovering of funds it has lost due to a Transaction error will be very limited or even impossible if RoadSync did not cause the error. RoadSync will work with Customer and RoadSync’s Service Providers to correct a Transaction error in accordance with their applicable rules and procedures; however, if Customer fails to notify RoadSync of a Transaction error for review within 60 days after Customer discovers it, Customer waives any right to make any claim against RoadSync or any Service Providers (or their financial institution partners) for any amounts associated with the Transaction error. A Service Provider or RoadSync may issue a reversal for any payment Customer has made under a Transaction, where the payment has been made without the proper authorization, or that violates RoadSync’s or its Service Providers’ terms of service or policies, the law, or for many other reasons. If a Service Provider or RoadSync issues a reversal, RoadSync will exercise a reasonable effort to provide Customer notice and a description of the cause of the reversal.
1.10. Support. RoadSync will provide 24/7 email support for the Payment Services. Additional provisions regarding support may be set forth in the applicable Order.
1.11. Customer Responsibilities. Customer represents and warrants that (a) Customer has the right to use and provide to RoadSync for use as described in this Agreement any information and materials that Customer and its Authorized Users provide, and (b) all Authorized Users have the right and authority to bind Customer with respect to any Transactions. Customer is solely responsible for, and RoadSync and the Service Providers have no responsibility for, (i) the products or services provided by Payees subject to any Transaction, including the nature, quality, quantity and merchantability of their products or services, or determining the amounts Customer properly owes for such products and services, and (ii) the availability of funds in the Payout Account or any other Customer bank account. Customer shall deal directly with its Payees with respect to any claim, complaint, adjustment, or refunds regarding Payees’ products and services or Customer’s failure to pay amounts owed to any Payee. Customer is responsible for using, and ensuring its Authorized Users use, the Payment Services in accordance with this Agreement. Customer shall defend, indemnify, and hold harmless RoadSync, from all claims, liabilities, damages, losses, costs, and expenses, including reasonable attorneys’ fees, arising out of a third party claim to the extent caused by: (a) Customer’s or its Authorized Users’ use of the Payment Services not in compliance with this Agreement; (b) data Customer provides, such as any Account Information and Transaction Data, including any failure by Customer to obtain the rights necessary to provide such data, or (c) any dispute between Customer and Payees regarding a Transaction.
1.12. Reservation of Rights. Except for the limited rights expressly granted in this Agreement, RoadSync reserves all rights, title and interest in and to the Payment Services and the technology used to provide the Payment Services, including all related intellectual property rights. No rights are granted to Customer other than as expressly set forth in this Agreement. Without limiting the generality of the foregoing, Customer may not (a) distribute, sublicense, copy, or modify the Payment Services or its underlying technology, (b) use on behalf of any third party, or permit any third party to use, the Payment Services, (c) decompile or reverse engineer any software used to provide Payment Services; (d) remove any proprietary rights notices on the Documentation or any displays of any portions of Payment Services (e.g., screen shots), or (e) attempt to gain unauthorized access to the Payment Services or circumvent any security measures within the Payment Services.
2. FEES AND PAYMENT.
2.1. Payment Service Fees. The fee schedule for Payment Services will be set forth in the applicable Order (the “Payment Service Fees”). RoadSync may change the fee schedule set forth on the Order from time to time, in its sole discretion by notifying you at least 15 days before a change in the Payment Service Fees takes effect. Unless otherwise set forth in an Order, all per-Transaction Payment Service Fees are calculated based upon the number of Transactions processed by RoadSync on your behalf and are aggregated on a monthly basis. Unless otherwise set forth in an Order, all Payment Service Fees are invoiced monthly. Unless otherwise indicated in an Order, you expressly authorize RoadSync to deduct the applicable Payment Service Fees directly from the Payout Account at the time of invoice. Your failure to pay RoadSync amounts owed under this Agreement shall be considered a material breach of this Agreement. You shall pay interest in the lesser of 1.5% per month or the highest amount allowed by law on any amounts not received when due and will be liable for any costs RoadSync incurs during collection in addition to the amount owed. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost.
2.2. Currency; Taxes. All fees and other amounts payable to RoadSync shall be paid in U.S. dollars. Fees and other amounts charged are exclusive of taxes unless otherwise expressly indicated. Customer shall pay all applicable sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by RoadSync or by any authority in connection with or arising from the use of the Payment Services, excluding taxes based upon RoadSync’s net income. All fees are nonrefundable.
3. CONFIDENTIALITY; DATA.
3.1. Confidentiality. “Confidential Information” means any trade secrets and other information that is of value to its owner and is treated as confidential. Confidential Information of RoadSync includes any RoadSync proprietary methods and technology, including those relating to its Payment Services. Confidential Information does not include information which (a) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of the receiver; (b) can be shown by written documentation to have been known to the receiver, without restriction, at the time of disclosure; (c) was independently developed by the receiver without any use of the discloser’s Confidential Information; or (d) becomes known to the receiver, without restriction, from a source other than the discloser without breach of any confidentiality agreement and otherwise not in violation of the discloser’s rights. Each party shall treat the Confidential Information of the other party in a confidential manner with the same degree of care as it treats its own proprietary information of like importance, but with no less than a reasonable degree of care. The receiving party shall not use or disclose the Confidential Information for any purpose other than as expressly provided by this Agreement. A party may disclose Confidential Information pursuant to the order or requirement of a court or other government body, but that party shall notify the other party in advance to enable the other party to take protective measures.
3.2. Feedback. If Customer or Customer’s Authorized Users submit to RoadSync suggestions or other feedback related to the Payment Services or other RoadSync products or services (“Feedback”), then RoadSync will own all rights to the Feedback and any resulting modifications or works and may use the Feedback for any purpose without compensation to Customer or any other person and without any obligation of confidentiality to Customer.
(a) Account Information. “Account Information” means the personal and other nonpublic information that RoadSync requests from and receives from you and your Authorized Users in order to open and maintain your Account as described in Sections 1.2-1.4. RoadSync will use commercially reasonable efforts to maintain as confidential Customer’s Account Information. RoadSync may use the Account Information as necessary to provide the Payment Services to Customer, to contact Customer or an Authorized User regarding RoadSync products and services, and for any other purpose permitted under law.
(b) Transaction Data. “Transaction Data” means the Transaction-related data your Authorized Users submit to the Payment Services, including payment amounts, Payee contact and account information, and load/delivery information. Transaction Data does not include Usage Data (as defined below). You grant RoadSync the worldwide, nonexclusive right to copy, display, modify, store, process and otherwise use Transaction Data, and permit RoadSync’s Service Providers (and their subprocessors) to do so, during and after the term of this Agreement in order to do the following: (a) provide the Payment Services and complete Transactions, and (b) support and improve the Payment Services and RoadSync’s other products and services. You own and retain all rights in the Transaction Data other than the license granted to RoadSync above.
(c) Usage Data. As a part of the Payment Services, RoadSync and its Service Providers may collect, process, store, modify, aggregate and otherwise use statistics and other data regarding the Payment Services and how you and your Authorized Users use and interact with the Payment Services, such as the timing, number and frequency of Transactions (“Usage Data”). RoadSync (or its Service Provider, as applicable) owns and retains all rights in the Usage Data, but nothing in this Agreement transfers ownership to RoadSync of your Transaction Data.
(d) Aggregate Data. “Aggregate Data” means de-identified, anonymous data in the form of summary level information that may be based on data resulting from any aggregation, combination or analysis of Usage Data and data from other sources. RoadSync and/or its Service Providers may use Aggregate Data in connection with research and development, creation of data and analytics tools and products and for any other purpose permitted by applicable law. RoadSync or its affiliates will own all right, title or interest in or to Aggregate Data and any information, products, or services based on Aggregate Data. Aggregate Data disclosed by RoadSync (other than to its Service Providers) will not disclose Confidential Information of or the identity of Customer or its Authorized Users.
(e) Transfers. RoadSync may transfer the data under this Agreement to a third party in connection with a delegation of hosting, transmission or other duties, as long as the third party provider agrees to abide by confidentiality obligations similar to the ones contained in this Agreement or in connection with a permitted assignment of this Agreement. In addition, RoadSync may disclose data if required by law or to any government body upon its audit or other inspection of the records or facilities of RoadSync or its providers. Additional collection and uses of data by Service Providers are set forth in the Payment Processing Addendum.
4. SECURITY AND BUSINESS CONTINUITY.
4.1. Data Security Obligations. RoadSync has implemented comprehensive IT and data security policies and practices (“Data Security Policies”) and agrees to maintain and update them periodically to maintain an appropriate level of security. Upon Customer’s reasonable request, RoadSync will provide Customer with a summary of its current Data Security Policies. The parties acknowledge that risks and data security regulations and best practices change over time and consequently. RoadSync reviews its Data Security Policies and program on a regular basis and modifies them as necessary. RoadSync agrees to notify Customer of any material changes in its Data Security Policies.
4.2. Business Continuity Plans. RoadSync will maintain during the term of this Agreement disaster recovery and business continuity plans (collectively, “Business Continuity Plans”) designed to maintain the continuity of RoadSync’s operations and the ability to recover from the effects of a Force Majeure event or other disaster affecting RoadSync’s operations. RoadSync shall provide Customer with summaries of its Business Continuity Plans upon Customer’s request. If a disaster affects RoadSync’s operations, then RoadSync shall implement the steps in its Business Continuity Plans and shall update Customer periodically regarding its progress until resumption of the Payment Services.
5. WARRANTIES; DISCLAIMERS.
5.1. General. Each party represents and warrants to the other party that: (a) it is duly organized and in good standing under the laws of the state of its organization; and (b) it is duly authorized to enter into this Agreement and to perform its obligations hereunder.
5.2. Transaction Responsibility. RoadSync solely facilitates payments on your behalf, and no funds for Transactions are transferred to RoadSync or through RoadSync’s bank accounts. RoadSync is not a party to any agreement between you and your Payees, and as such RoadSync has no responsibility for any actions or omissions of Payees, including the legality, quality, timeliness, completion or any other aspect of the Payee’s products or services or for your failure to fulfill your payment or other obligations to your Payees. RoadSync is unable to determine if any particular payment or Transaction amount is accurate or correct. You are responsible for knowing whether a Transaction involving you or an Authorized User and any Payee is proper or erroneous, and RoadSync is not responsible for erroneous or fraudulent Transactions in connection with your Account or your use of the Payment Services or for verifying the identity or background of any Payee; RoadSync is not responsible any losses you incur due to any of the foregoing.
5.3. General. Except as expressly set forth in this Agreement, the Payment Services are provided without warranty of any kind, either express or implied, and to the fullest extent permitted by applicable law, RoadSync disclaims, on behalf of itself and its Services Providers, any and all warranties and conditions including (i) that the Payment Services will meet Customer’s requirements; (ii) the availability, accuracy, security, usefulness, timeliness, or informational content of the Payment Services; (iii) warranties of non-infringement, merchantability, satisfactory quality, and fitness for a particular purpose; or (iv) that the Payment Services will be secure, uninterrupted, virus-free, or error-free.
5.4. Third Party Warranty Disclaimer. Any representation or warranty of or concerning any third party materials or services is strictly between customer and the third party provider of the third party materials, and RoadSync makes no representation or warranty regarding any third party materials or services.
6. LIMITATION OF LIABILITY.
RoadSync, its affiliates, and its and their officers, directors, employees and agents, will not be liable for any of the following in any way connected with the Payment Services: (a) any indirect, incidental, special, consequential or exemplary damages, including damages for loss of profits, use, or data even if RoadSync has been advised of the possibilities of those damages, or (b) any amount exceeding the greater of fees Customer has paid to RoadSync for the Payment Services in the 12 months immediately preceding the claim or cause of action.
7. TERM AND TERMINATION.
7.1. Term. This Agreement will continue for the period set forth in the Order, unless the Agreement is earlier terminated as set forth in this Agreement.
7.2. Termination. A party may terminate this Agreement if the other party commits any material breach of this Agreement and does not remedy the material breach within 30 days after the date that it receives notice of the breach. The Agreement may be terminated by either party immediately upon written notice, in the event that: (A) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (B) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (C) the other party adopts a resolution for discontinuance of its business or for dissolution.
7.3. Suspension of Access. RoadSync may suspend Customer’s or any Authorized User’s access to the Payment Services for any violation of this Agreement or if RoadSync reasonably believes that Customer’s or Customer’s Authorized Users’ activity is unlawful, is in violation of this Agreement or any applicable terms of its Service Providers as set forth or referenced in this Agreement or is harming the Payment Services or the rights or property of any person. RoadSync may exercise these suspension rights prior to exercising its rights under the termination provisions of this Agreement and without prior written notice to Customer. Unless the Agreement is terminated, RoadSync will remove the suspension upon resolution of the cause of the suspension.
7.4. Effect of Termination. Upon termination of Customer’s Payment Services for any reason, Customer will no longer be able to use the Payment Services. No fees will be refunded upon any termination. Within 15 business days following termination of Payment Services, RoadSync will either (a) permit Customer to access the Payment Services in order to download a report with the current Transaction Data or (b) provide to Customer a report containing the current Transaction Data. The report will be in the format generally available from the Payment Services or in a format mutually agreed by the parties. Upon termination of this Agreement Customer will return or destroy all Confidential Information of RoadSync in Customer’s possession. The following sections of this Agreement survive termination in full force and effect: 1.12, 3, 5, 6, 7.4, 12, 13, and 17.
RoadSync may include Customer’s name in a list of its clients and customers on its website and as provided by RoadSync to potential clients and customers. In such case, RoadSync will follow Customer’s branding, guidelines including, but not limited to logo, font and brand colors. Any other use of Customer’s name or logo by RoadSync requires Customer’s written consent, to which Customer will provide a timely response either allowing or denying the request.
9. FORCE MAJEURE.
Other than payment obligations, neither party will be responsible, nor incur any liability to the other for any failure to comply with the terms of this Agreement due to causes beyond its control, including, without limitation, fire, storm, flood, acts of war, accident, insurrection, sabotage, labor disputes, acts of God, acts of third parties, acts of federal, state or local government or judicial action.
You may not assign, sublicense, or transfer this Agreement without the prior written consent of RoadSync. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void. RoadSync may assign this Agreement in whole or in part without notice to you. RoadSync may subcontract portions of the Services and will be responsible for such subcontractors in their performance of any Services. Service Providers and Contractors are not RoadSync’s subcontractors.
11. GOVERNING LAW.
This Agreement is governed by the laws of the state of Georgia, USA, without regard to conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.
Arbitration shall be conducted by and submitted to a single arbitrator selected from and administered by the Atlanta, Georgia, USA office of JAMS, in accordance with the then-existing expedited procedures of the JAMS Comprehensive Arbitration Rules & Procedures. The arbitration shall be conducted by a licensed attorney with experience in technology law. The arbitrator is authorized to award damages only as permitted by this Agreement. Each party shall bear its own attorneys’ fees and costs arising out of the arbitration and shall pay an equal share of the fees and costs of the arbitrator and JAMS. The arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. The arbitrator shall issue a written award and a written statement of decision describing the material factual ﬁndings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. BY AGREEING TO THIS BINDING ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU ARE WAIVING CERTAIN RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE IF A CLAIM OR DISPUTE WERE DETERMINED BY LITIGATION IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO SEEK OR OBTAIN CERTAIN TYPES OF DAMAGES, THE RIGHT TO A JURY TRIAL, CERTAIN RIGHTS OF APPEAL, THE RIGHT TO BRING A CLAIM AS A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE RIGHT TO INVOKE FORMAL RULES OF PROCEDURE AND EVIDENCE. YOUR USE OF THE SERVICE IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO SUE ROADSYNC DIRECTLY OR TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SERVICE OR RELATED TO THIS AGREEMENT.
13. LIMITATION OF ACTIONS.
No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.
14. U.S. GOVERNMENT END USE PROVISIONS.
The following applies to all acquisitions of the Services and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Services and Documentation and services utilizing the Services and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Services and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Services and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.
Any notices to RoadSync regarding this Agreement should be sent to email@example.com. RoadSync may contact and notify you at the email address for your contact set forth in the Order.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. No waiver, amendment or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.
Exhibit A: PAYMENT PROCESSING ADDENDUM
This Payment Processing Addendum sets forth the terms, limitations, and prohibitions that will apply to you throughout your use of the Payment Services. To use the Payment Services, you may also be required to accept separate agreements or terms with respect to the particular Service Provider, as applicable.
1. Registration and Approval; Electronic Consent.
- When you register for an Account and request that we provide you with Payment Services, you may be asked for financial information, or information we use to identify you, your Authorized Users, principals, beneficial owners, and other individuals associated with your Account. Throughout the term of this Agreement, we may share information about you and your Account with Service Providers in order to verify your eligibility to use the Payment Services, establish any necessary accounts with Service Providers, monitor your activity regarding Transactions, and conduct risk management and compliance reviews. We will review and may conduct further intermittent reviews of your Account information to determine that you are eligible to use the Payment Services.
- You agree to the electronic consents that RoadSync provides regarding the Payment Services, including an E-sign consent. We may provide disclosures and notices required by law and other information about your Account to you electronically, by posting it on our website, pushing notifications through the Payment Services, or by emailing it to your email address listed in your Account. Electronic disclosures and notices have the same meaning and effect as paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to our website, or within 24 hours of the time the email is sent unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, you shall notify RoadSync as provided in this Agreement. If RoadSync is not able to support your request, the parties may terminate the applicable Payment Service.
2. ACH Transactions.
Payment Services for ACH Transactions are conducted by RoadSync’s Service Provider, Dwolla Inc. (“Dwolla”) through it and its financial institution partners. For these ACH Transactions Customer is considered by Dwolla a business verified customer (BVC) in the Dwolla service. The ACH Transaction process works as follows: Customer’s Authorized User initiates a payment through RoadSync’s Payment Service interface and decides if the Customer wants to pay via regular ACH, next day ACH, or same day ACH. Dwolla then debits Customer’s Dwolla account using same day debit. Dwolla credits the Payee (who is a receive-only user or unverified customer as determined by Dwolla and who is a registered business with the bank account information provided by Customer) using the ACH method indicated by Customer as described above. The following terms and conditions apply to these ACH Transactions and the Payment Services for them.
b) No Personal Use. As business end user, you may not conduct any Transactions for personal, family, or household purposes.
c) Transactions and Risk Management. You understand and agree that Dwolla may decline, restrict, or otherwise limit any Transaction and/or your ability of an end user to use the Dwolla services in accordance with Dwolla’s risk management policies. Dwolla reserves the right to restrict, suspend or terminate your use at any time if: (i) Dwolla determines that your activities violate the Dwolla Terms, any other applicable Dwolla agreement or policy, or any applicable laws; (ii) Dwolla reasonably determines that the risk associated with you or your activities poses unacceptable risk to Dwolla and/or its users; (iii) you do not provide RoadSync with the applicable information as required or requested by Dwolla; or (iv) for any other reason, in Dwolla’s reasonable discretion. Dwolla may also, in its reasonable discretion, contact you for Dwolla’s fraud investigation and/or risk management purposes. Transfer times for ACH Transactions are not guaranteed in any way.
d) Termination. In addition to any termination rights elsewhere in the Agreement, your use of the ACH Payment Services and your Dwolla account may be terminated if (i) you violate or any applicable Dwolla policy or agreement; or (ii) your use of the Payment Services through Dwolla poses unacceptable risk, including but not limited to financial or data security risk, to Dwolla and/or its financial institution partners in Dwolla’s and/or its financial institution partner’s sole discretion. RoadSync may terminate your Dwolla account if Dwolla deems your Dwolla account inactive or dormant or for any other reason specified by Dwolla. You agree to notify RoadSync promptly if you want to close your Dwolla account that RoadSync has opened for you
e) NACHA Rules. The ACH network is controlled by the National Automated Clearinghouse Association (“NACHA”) and financial institution member organizations. If you use ACH Payment Services, then when you submit funds over the ACH network, you are required to comply with the network rules for use of the ACH network on NACHA’s web site: https://www.nacha.org/rules. NACHA may amend its network rules at any time, and we may amend this Agreement or make changes to the Payment Services as necessary to comply with those amendments. As with other Payment Services, you may not, and may not attempt to send or receive funds to or from a person, entity, or state where such Transactions are prohibited by applicable law. You also agree to maintain the security and integrity of all information you collect as part of an ACH Transaction.
3. Printed Check Transactions.
Printed check Transactions are performed using RoadSync’s Service Provider, Lob.com, Inc. (“Lob”). The printed check Payment Service enables Customer to print and deliver checks for payment from Customer’s Payout Account to authorized Payees, and as such, Lob provides a printing and mailing service and not a bill payment service. The following terms and conditions apply to the printed check Payment Services.
a) Responsibilities Generally. RoadSync and Lob do not (i) screen or verify bank routing or account numbers or screen or verify Payees and their addresses; or (ii) track Customer’s checks or payments or have any information about Customer’s bank accounts or who is authorized to access Customer’s bank accounts. Customer is responsible for any such checks requested for a Transaction. Payments made using Lob’s service are only capable of being made and delivered using a paper check and will never be made electronically. Customer is responsible for employing adequate security procedures to keep its bank account information secure and to avoid the issuance of unauthorized checks. RoadSync and Lob shall not be liable for the issuance, printing or delivery of an unauthorized check or payment, and have no liability to Customer, any third party user or any depositary or payor bank for an unauthorized check. Customer further agrees that Lob is not liable for or responsible for compliance with any of the laws and regulations governing checks and payments, including without limitation, the laws, regulations and orders administered by the Office of Foreign Assets Control (OFAC) and FinCEN. Customer may not use or permit the Payment Services to be used for any illegal or misleading purpose, or any manner inconsistent with this Agreement.
b) Mail Responsibilities. Customer acknowledges and agrees that: (i) Customer has exclusive control and responsibility for the content of all data it submits, including any personally identifiable information used with the Services; and,(ii) certain types of content may have specific requirements and regulations regarding the use of such content in mail; and, (iii) Customer is solely responsible for ensuring that the data it submits and content it uses with the Payment Services are appropriate and legal to mail, and Lob is not responsible or liable for any such determination or use; and, (iv) consumer protection laws or other regulations may impose specific requirements for mail. Customer is solely responsible for ensuring it complies with all such laws/regulations, and Lob has no obligations to make such determination or assist with fulfilling any requirements therein.
c) Delivery Times. Mail delivery times may vary depending on the location and service selected. Customer understands and agrees that RoadSync and Lob do not control the postal services and ultimately the delivery time will depend on the service provided by the applicable postal service. Delivery times may also be impacted by factors such as weather, road conditions, and fuel or labor shortages, which are all outside of RoadSync’s or Lob’s control.
d) Mailpiece Disputes. Customer acknowledges and agrees that, where Lob has provided Customer with an Intelligent Mail Barcode tracking code for a mailpiece sent via the Lob’s services, RoadSync and Lob will have no liability for, and Customer will not be entitled to a refund, payment or any other remedy in the event the addressee does not receive such mailpiece. If any mailpiece contains a printing or rendering error, Customer must notify RoadSync of such error within 30 days of such mailpiece printing in order to qualify for a credit or reimbursement for such mailpiece. Any fee credits or reimbursements will be made in Lob’s sole but reasonable discretion.
e) Aggregate/Anonymous Data. Customer agrees that Lob will have the right to generate aggregate or anonymous data and that aggregate or anonymous data is owned by Lob, which Lob may use for any business purpose during or after the term of these Terms (including without limitation to develop and improve Lob’s products and services and to create and distribute reports and other materials). For clarity, Lob will only disclose aggregate or anonymous data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or end users, and that is stripped of all persistent or personal identifiers. Customer is not responsible for Lob’s use of aggregate or anonymous data.
f) Data Transfer. Customer agrees that Lob and its subcontractors may transfer Customer’s data to and access, use, and store Customer’s data in locations other than Customer’s country.