This End User License Agreement (“EULA”) sets forth the exclusive terms and conditions under which Pay Clearly, LLC, a Florida limited liability company (“Pay Clearly”) grants you (“Customer” or “you”) a limited license to any and all software provided by Pay Clearly (the “Software”) in conjunction with Customer’s subscription to the Bill Pay service provided by Mobile Solutions Services Holdings, LLC d/b/a Brightfin (“Brightfin”). The Customer’s use of the Software constitutes acceptance of the terms and conditions of this EULA.
1. Software License and Customer Service.
a. Subject to your compliance with all terms and conditions of this EULA, Pay Clearly grants you a personal, non-exclusive, non-transferable, revocable license (the “Software License”) to use the Software during the term of your subscription to Brightfin’s Bill Pay service.
b. Customer understands that it is responsible for all fraud on its accounts, unless and until it reports fraudulent activity, or lost or stolen cards/payments to Pay Clearly. Customer shall not be responsible or hold Pay Clearly harmless from fraud if Pay Clearly is notified within (1) business day of the card or payment misuse, or if the fraud is due to the negligence of Pay Clearly in its performance of its obligations. Customer shall be responsible for all losses and expenses related to fraud to the extent caused by its acts or omissions.
c. If Customer receives information of a loss, theft or unauthorized use of a specifically identified Pay Clearly payment or account, Customer shall, no later than one (1) business day, notify Pay Clearly of the card or payment misuse. Notice to Pay Clearly may be provided by an authorized representative of the Customer (or Brightfin on the Customer’s behalf) and may be made by telephone (888.333.8541) or by email to support@payclearly.com. Customer agrees, subject to any limitations imposed by applicable law and this EULA, to be responsible for all unauthorized use of such cards or payments until delivery of the fraud notice is made as set forth herein.
d. Notwithstanding the foregoing, Pay Clearly reserves the right to interrupt, suspend, or terminate the Software License and any account or any transaction without notice, if Pay Clearly, in its sole and reasonable discretion, suspects fraudulent, illegal or abusive activity. Customer agrees to take reasonable steps to secure and shall maintain and provide, at no cost to Pay Clearly, any and all documentation and information as Pay Clearly may request, including but not limited to affidavits and police reports, relating to any actual or suspected fraudulent, illegal or abusive activity by Customer in connection with the Bill Pay service.
e. Pay Clearly shall have the right to terminate the Software License and any account upon no less than 10 days’ prior written notice to Customer, unless a shorter time frame is required in order to comply with applicable law, if:
i. Pay Clearly determines there exists a material risk that its continued participation in the Bill Pay service would be in violation of applicable law.
ii. Pay Clearly determines that a change in applicable law, a judicial decision of a court or a new interpretation or guidance from a regulatory authority would have a material adverse effect on the Bill Pay service, Pay Clearly’s rights or obligations under this EULA, Pay Clearly’s economic returns from the Bill Pay service or Pay Clearly’s financial conditions.
iii. a regulatory authority with jurisdiction over Pay Clearly has provided concerns about the Bill Pay service and Pay Clearly determines, in its sole discretion, that its rights and remedies under this EULA are not sufficient to protect Pay Clearly against the potential consequences of such concerns; Doc ID: 7e412cde0e482ee395129fe4ef3493e197084798
iv. a material fine or penalty has been assessed against Pay Clearly in connection with the Bill Pay service, including as a result of a consent order or stipulated judgment;
v. Customer has become involved in any situation or activity which reflects unfavorably on the reputation of Pay Clearly, its brands, products or services;
vi. Customer is unable to pay its debts generally as they come due or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or
vii. Pay Clearly’s contract with Brightfin to provide the Bill Pay service to you is terminated.
f. Pay Clearly reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties, which rights are owned by Pay Clearly. You may not reverse engineer the Software. You may not re-sell the Software or permit another party (affiliate or otherwise) to use the Software.
g. Title to the Software shall, at all times, remain with Pay Clearly. h. Pay Clearly has customer service representatives standing by during normal business hours to answer any questions related to the Software.
2. Warranty Disclaimer; Limitations of Liability; Statute of Limitations.
a. YOUR USE OF THE SOFTWARE WILL BE AT YOUR OWN RISK AND ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. PAY CLEARLY AND ITS SUPPLIERS AND AFFILIATES DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
b. PAY CLEARLY SHALL NOT BE LIABLE FOR ANY GENERAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES RELATED TO THE SOFTWARE OR YOUR USE OF THE SOFTWARE. YOUR EXCLUSIVE REMEDY AGAINST PAY CLEARLY IS LIMITED TO YOUR ACTUAL PROVEN DAMAGES RESULTING DIRECTLY FROM ACTIONS OF PAY CLEARLY AND SUBJECT TO THE LIMITATIONS AS SET FORTH HEREIN.
c. Any lawsuit or other action you may have against Pay Clearly or agents, employees, subsidiaries, affiliates, or parent companies must be filed within one (1) year from the date of the event which caused the loss, damage or liability.
3. Indemnification.
a. Pay Clearly will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret related to the Software (other than that due to information provided by the Customer (the “Customer Data”). In case of such a claim, Pay Clearly may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Software with a non-infringing Software, or if it deems such remedies not practicable, Pay Clearly may terminate the license Doc ID: 7e412cde0e482ee395129fe4ef3493e197084798 to the Software, and this EULA without fault. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
b. Customer will defend, indemnify, and hold Pay Clearly (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data infringes the intellectual property rights or other rights of a third party or has caused harm to a third party.
c. In case of any claim that is subject to indemnification under this EULA, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this EULA. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement requires any payment to be made by Indemnitee.
4. Assigns. This EULA is not assignable by you except upon the prior written consent of Pay Clearly. Pay Clearly shall have the right, in whole or in part, to assign this EULA or to subcontract any of its obligations under this EULA without notice to you.
5. Waivers. Compliance with this EULA may be waived only by a written instrument specifically referring to this Agreement and signed by the party waiving compliance. No course of dealing, nor any failure or delay in exercising any right, shall be construed as a waiver, and no single or partial exercise of a right shall preclude any other or further exercise of any right.
6. Attorney’s Fees. If any legal action, arbitration, or other proceeding is brought for the enforcement of this EULA, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this EULA, the successful or prevailing party or parties will be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which they may be entitled.