This Terms of Service Agreement is hereby entered into between you (user), and SPAN Enterprises, LLC, a South Carolina corporation doing business as “PayWow.” These terms and conditions, govern the use of PayWow’s Payroll application (the “Application”). PayWow directly, and through https://PayWow.com and the associated domains (the “Site”), PayWow offers various payroll and business services listed on https://PayWow.com (collectively known as the “Services”).
These Terms apply to all who use or access the online Application and the associated Services, as a company or individual, including collaborators who act as authorized users representing the company, employees, or others using or accessing PayWow’s Services (collectively, “Users”). If you as a User agree to these terms on behalf of a business or an individual other than yourself, that User has authority to bind that business or other individual to this Agreement. The User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By indicating User’s acceptance of this Agreement, or by accessing or using the Application, User agrees, effective as of the date of such action, to be bound by the Agreement.
The “Arbitration” section of this Agreement provides more information about the arbitration provision and class action waiver which requires User to resolve disputes with PayWow through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has closely read and understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
1. Payment & Fees
All PayWow Users agree to pay the fees for the Services in accordance with the applicable fee schedules listed at https://PayWow.com/pricing, and therefore authorize PayWow to debit User’s designated bank account, as specified by User through the Application (the, “Bank Account”), for all fees as they become payable. Unless otherwise stated, such fees are applied in full on a monthly basis, regardless of whether User is only enrolled in the Services for a portion of such month. With the exception of certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis. Notwithstanding the foregoing, PayWow may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method PayWow may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse PayWow for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. PayWow may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Pricing and other charges for PayWow’s Services are subject to change at the sole discretion of PayWow and SPAN Enterprises. Users will be notified of any change to the current pricing at least thirty (30) days before the change goes into effect.
In the event that payroll is initiated by the client, it is the client’s responsibility to ensure that their bank account can cover the total charges to be withdrawn. If the client’s bank cannot cover the total payroll, the client will be liable for a $50 chargeback fee and runs a risk of running a late payroll. If a payroll chargeback occurs for whatever reason, PayWow will require the client to provide proof of available funds before the next payroll is able to be run. This proof of funds will be mandatory for the next payroll cycle, and must consist of either a timestamped screenshot of the client’s bank account balance, or a photo of the client’s online account showing the total available funds including a date and time. A bank statement will not be accepted to show proof of funds.
In the event of an account cancellation, the User’s continued use of PayWow beyond the cancellation constitutes an implicit agreement to any such changes. If PayWow is unable to receive the agreed upon payment due to insufficient funds or for another reason, the User must pay the outstanding amount due immediately, plus any applicable processing fees, bank fees, or charges resulting from the failed payment, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
2. User Accounts
In order to utilize the PayWow Application, each User must have sighed up for an account with PayWow on PayWow.com. Each User hereby authorizes PayWow to obtain and store all applicable Account information as needed to make the Application available to the User.
3. Who Can Utilize PayWow
A User may use the Application only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
Use of the PayWow Application and related Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
6. User Is Responsible for Certain Information and Obligations Relating to the Services
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf. User is solely responsible for all actions made under any Account that User has access to. Any actions made under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that PayWow reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs PayWow to take on its behalf.
In addition, User is solely responsible for (i) following instructions that PayWow provides to User regarding Services, whether such instructions are provided via the Application, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Application, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify PayWow. PayWow reserves the right to prevent access to the Services if PayWow has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing PayWow with the information required for PayWow to perform the Services. User may furnish such information directly to PayWow or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to PayWow that for any information that User shares with PayWow, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to PayWow, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify PayWow, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to PayWow.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Application by PayWow (or otherwise made available to User by PayWow) for User’s review, and User or its Account Administrators or Authorized Representatives must notify PayWow of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from PayWow.
The User is also obligated to immediately notify PayWow of any third-party letters received which relate to PayWow’s service, specifically payroll, and any other connected business service. If a claim is made against the User in connection with the Services, i.e IRS Letters, State DOR letters, Unemployment notices, etc; the user must promptly provide this information to PayWow.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to PayWow by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Application (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a PayWow Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
7. User Verification
User gives PayWow permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. PayWow may ask for User’s name, address, date of birth, social security number, and other information that will allow PayWow to identify User. PayWow may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes PayWow to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. PayWow may decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, PayWow is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
8. Third-Party Services, Websites, and Resources
Through the Application, User will be able to choose to receive services from partners of PayWow (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. PayWow is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes PayWow to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to PayWow in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to PayWow and for PayWow to provide it to Partners, and that PayWow’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing PayWow to submit User’s Shared Information to a Partner, User has waived and released any Claim against PayWow and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Application and the Services may contain links to third-party websites or resources. PayWow provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
9. Proprietary Rights
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Application by Users. To eliminate any doubt, any templates, documents, or materials that PayWow provides to User via the Services shall constitute PayWow Content (as defined below) hereunder. PayWow does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to PayWow a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Application and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant PayWow the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and PayWow has the right to remove User Content from the Application in accordance with Section 14. User may generally remove User Content from the Application, provided that certain types of User Content may not be removed from the Application, as further specified in particular Service Terms. In certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Application. PayWow is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
PayWow’s Intellectual Property Rights
“PayWow Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by PayWow, other than User Content. User Content and PayWow Content shall be collectively referred to herein as “Content”. PayWow and its licensors exclusively own all worldwide right, title, and interest in and to the PayWow Content, and also in and to the Application and the Services, including in each case all associated intellectual property rights (“PayWow IP”). User acknowledges that the Application, Services, and PayWow Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Application, Services, or PayWow Content. This Agreement does not convey any proprietary interest in or to any PayWow IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Application, Services, or PayWow Content (“Feedback”) is given entirely voluntarily and PayWow will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to PayWow in response to any surveys PayWow conducts, through any available technology, about User’s experience. Subject to User’s compliance with this Agreement, PayWow grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download PayWow Content solely in connection with User’s permitted use of the Application for User’s own behalf.
10. Consent to Receive SMS/MMS Messages About User’s Account
The User’s provision of a mobile phone number to PayWow, grants PayWow permission to send User autodialed Short Message Service (“SMS”) or Multimedia Messaging Service (“MMS”) messages about activity in User’s Account and service updates, as well as SMS or MMS messages soliciting User’s feedback about the Services and User’s experience interacting with PayWow’s Customer Care team. Standard message and data rates may apply. If User would like to opt out of receiving SMS and MMS messages, User should contact support@PayWow.com.
11. General Prohibitions
User agrees not to take any of the following actions:
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
- Use the Services other than as authorized in this Agreement;
- Resell, sublicense, timeshare, or otherwise share the Services with any third party;
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Application; (iii) the Services; or (iv) PayWow Content or any individual element within the Site, Application, or Services, including PayWow’s name and any PayWow trademark, logo, or other proprietary information, in each case, without PayWow’s express prior written consent;
- Access, tamper with, or use non-public areas of the Application, Services, PayWow’s computer systems, or the technical delivery systems of PayWow’s providers;
- Interfere or attempt to interfere with the proper working of the Application or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services;
- Impose (as determined by PayWow in PayWow’s sole discretion) an unreasonable or disproportionately large load on PayWow’s (or Partners’) infrastructure;
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- Harvest or scrape any Content from the Application or Services;
- Attempt to probe, scan, or test the vulnerability of any PayWow system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by PayWow or any of PayWow’s providers or any other third party (including another User) to protect the Application, Services, or Content;
- Attempt to access or search the Application, Services, or Content or download Content from the Application or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by PayWow or other generally available third-party web browsers;
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Application or Services;
- Use any meta tags or other hidden text or metadata utilizing a PayWow trademark, logo, URL, or product name without PayWow’s express written consent;
- Use the Application, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Application, Services, or Content to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Application, Services, or Content;
- Modify, translate, or otherwise create derivative works of any part of the Application, Services, or Content other than User’s own User Content;
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Application or Services;
- Collect from or store on the Application or Services any personally identifiable information or protected health information of other Users without their express permission;
- Impersonate or misrepresent User’s affiliation with any person or entity;
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or
- Encourage, assist, or enable any other individual to do any of the foregoing.
12. PayWow’s Rights to Monitor User Content and Conduct
PayWow is not obligated to monitor access to or use of User Content or to review or edit any User Content, however, PayWow has the right to do so for the purposes of operating the Application and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. PayWow reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if PayWow, at PayWow’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.PayWow has the right to monitor access to and use of the Application, Services, and Content and to investigate conduct that PayWow believes could affect the Application, Services, or Content, including violations of this Agreement. PayWow may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
PayWow provides an electronic signature service (the “e-sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the e-sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and PayWow has no responsibility or liability with respect to such matter.
PayWow has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
PayWow makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
14. PayWow Makes No Representations Regarding Application Availability
PayWow makes no representations or warranties about the Application’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Application may be inaccessible and unavailable, with or without notice to User.
15. The Application Can Cause Irrevocable Damage to User Content
The Application’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT PayWow IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE Application IS AT USER’S OWN RISK.
16. Warranty Disclaimers
User’s use of the Application, Services, and Content is entirely at User’s own risk. PayWow is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by PayWow via the Application or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, PayWow’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for PayWow’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE Application, SERVICES, AND PayWow CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY PayWow. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PayWow DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, PayWow MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR PayWow CONTENT IN OR LINKED TO THE SERVICES. PayWow CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. PayWow DOES NOT WARRANT THAT THE Application, SERVICES, OR PayWow CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, PayWow EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from PayWow’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that PayWow reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then PayWow will attempt to correct the Resulting Error, but PayWow makes no guarantees that it will be able to partially or fully correct the Resulting Error.
PayWow does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Application or any hyperlinked website or service, and PayWow will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
PayWow works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
User will indemnify and hold harmless PayWow and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Application, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) PayWow’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that PayWow or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that PayWow or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) PayWow’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow PayWow’s instructions with respect to the Services.
18. Limitation of Liability
PayWow is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, PayWow with necessary information for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow PayWow’s instructions with respect to the Services.
NEITHER PayWow NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE Application, SERVICES, OR PayWow CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE Application, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PayWow HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL PayWow’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE Application, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO PayWow FOR USE OF THE Application, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PayWow AND USER.
19. Duty to Mitigate
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against PayWow or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
20. Term; Termination; Suspension
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. PayWow is free to terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to PayWow’s foregoing termination right, PayWow may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Application or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) PayWow has any reason to suspect or believe that User may be in violation of this Agreement; (ii) PayWow determines that User’s actions are likely to cause legal liability for or material negative impact to PayWow; (iii) PayWow believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) PayWow has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of PayWow providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, if PayWow cannot support the payroll-related filings for User’s business or organization type, PayWow may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or PayWow’s rights with respect to transactions which occurred before termination. PayWow will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to PayWow’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that PayWow will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. PayWow may deny the Limited Access Rights to User, or PayWow may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
21. Changes to the Agreement, Application, or Service
PayWow may modify the Agreement at any time, at PayWow’s discretion. If PayWow does so, PayWow shall let User know either by posting the modified Agreement on the Application or Site or through other communications. It is important that User reviews the Agreement whenever PayWow modifies it because if User continues to use the Application or Services after PayWow has notified User of the modification and the modified Agreement has been posted on the Application or Site, User is indicating to PayWow that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Application or Services. Because the Application and Services are evolving over time, PayWow may change or discontinue all or any part of the Application, Services, or PayWow Content at any time and without notice, at PayWow’s sole discretion.
22. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of South Carolina, without regard to the conflicts of laws principles thereof.
Both parties agree that any disputes between PayWow and the User will be met with a good faith effort to provide a fair solution before any other steps are taken in the way of legal action. However, if a resolution is not found, the next step would be to set up a Mediation between the parties. The purpose of the mediation would be to provide a fair resolution to both parties and resolve any outstanding conflict.
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or PayWow has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Application, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and PayWow, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in South Carolina or any other location that is mutually agreed upon by User and PayWow. A single arbitrator will be mutually selected by PayWow and User and shall be (i) a practicing attorney licensed to practice law in South Carolina or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”).If PayWow and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and PayWow. A judgment on the award may be entered and enforced in any court of competent jurisdiction. PayWow may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within South Carolina, for any monetary amounts that User owes to PayWow (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by PayWow in such courts.
User and PayWow agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND PayWow ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
PayWow is not responsible or liable for any delays or failures in performance of any cause beyond PayWow’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Application and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Application and the Services. Likewise, PayWow cannot guarantee that any User Content hosted on a third-party server will remain secure.
This Agreement, including all applicable Service Terms, encompasses the entire agreement between PayWow and User regarding the Application, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be amended only by a written modification signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without PayWow’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. PayWow may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by PayWow under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Application, the date of such posting will be deemed the date that notice is given. PayWow’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of PayWow. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
28. Electronic Transmission
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall dispute that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
29. Contact Information
If User has any questions about this Agreement, the Application, or the Services, User may contact PayWow at support@PayWow.com or 704.234.6000. PayWow is located at 2685 Celanese Road, Suite 100, Rock Hill, SC 29732.