CeloPay Terms of Service

Last Updated:  May 3, 2018

Welcome to our website at www.celopay.com (the “Site”). These Terms of Service (these “Terms”) constitute a binding legal agreement between you (either an individual or an entity, “you” or “Subscriber”) and CeloPay LLC (“CeloPay,” “we,” or “us”) regarding your use of the Site, including your use of any version of any of our products or services located at celopay.com, billing-portal.com, billingrequest.com, hotel-billing.com, mypaymentdetails.com, payment-vault.com, paymentlobby.com, securebillingportal.com, securepaymentdetails.com, or third-party-billing.com (collectively, the “Service”).

Please read these Terms carefully. By clicking “I Accept,” registering for an account on the Site or otherwise for the Service, or otherwise using the Site or the Service, you agree to be bound by these Terms and to use the Site and the Service in compliance with these Terms. If you are registering for access to, or otherwise accessing or using, the Site or the Service on behalf of a company or other legal entity, you and such company or entity represent and warrant that (i) you have the right and legal authority to bind such company or entity to these Terms; (ii) such company or entity is fully aware of, understands, and agrees to be bound by these Terms (with the terms “you” and “your” as used herein referring to such company or entity), and (iii) you agree to be bound by these Terms on behalf of such company or entity. If you do not qualify for the Service, or do not agree to these Terms, then you should not and may not register for, access, or use the Site or Service.

These Terms provide that all disputes between you and CeloPay will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 20 (“Dispute Resolution and Arbitration”) below for the details regarding your agreement to arbitrate any disputes with CeloPay.

1.  Definitions

(a) “Content” means any information (including contact information), data, audio, visual, and audiovisual works, any score or rating regarding an individual or an actual or prospective ecommerce transaction, any results or recommendations, or any other content made available through the Service including such content developed and provided in connection with Professional Services.

(b) “Transaction” means orders (i) taken in a “card-not-present” environment and (ii) made with credit card-related payment methods, which consist of credit cards, PayPal, Apple Pay, Android Pay, pre-paid cards, debit cards, and any other methods approved in writing by CeloPay.

(c) “Eligible Chargeback” means a chargeback provided by a financial institution indicating a fraudulent transaction or “no cardholder authorization” and having one of the eligible chargeback reason codes stated in the Chargeback Assist Guarantee Terms and Conditions. For clarity, CeloPay may elect to recognize additional reason codes as Eligible Chargebacks on a case-by-case basis, in its sole discretion; chargebacks provided with any other reason codes, including those listed as ineligible chargeback reason codes in the Chargeback Assist Guarantee Terms and Conditions, are not Eligible Chargebacks.

(d) “End User” means an end user providing personal or payment information.

(e) “Order” shall have the meaning ascribed to it in Section 2(a).

(f) “Process” shall have the meaning ascribed to it in Section 9(b) below.

(g) “Professional Services” shall have the meaning ascribed to it in Section 2(b) below.

(h) “Service” means CeloPay’s cloud-based payment processing service, made available by CeloPay, including any plug-ins or APIs provided by CeloPay for use with the Subscriber and all related documentation provided by CeloPay.

(i) “SOW” shall have the meaning ascribed to it in Section 2(b) below.

(j) “Subscription Term” shall have the meaning ascribed to it in Section 5(b) below.

(k) “User Data” shall have the meaning ascribed to it in Section 8(b) below.

(l) “User/Transaction Information” shall have the meaning ascribed to in Section 8(b) below.

2. Use of the Service

(a) General.  Subject to your ongoing compliance with these Terms (including the timely payment of all applicable fees), we grant you a non-exclusive, revocable, non-sublicenseable, non-assignable and non-transferable right, during the applicable Subscription Term, to access and use the Service for which you have purchased a subscription through our website or pursuant to a mutually executed order form (each an “Order”) and the Content solely to request and receive Service for your internal business purposes.  For the avoidance of doubt, your right to use the Service is subject to any usage metrics and limitations set forth in the applicable Order.

(b) Professional Services.  We may offer certain professional services to you related to implementation and development activities or other professional services as requested by you for an additional fee (“Professional Services”). If we agree to provide Professional Services to you, any such Professional Services will be provided pursuant to a Statement of Work (“SOW”) that has been executed by both parties and that describes such Professional Services and the fees therefor.

3. Account Registration. You must register for and maintain an account with us to use the Service.  When registering, you must provide accurate and complete information and promptly update this information.  You represent and warrant that all registration information you submit is truthful and accurate, and you agree to keep such information accurate and up-to-date at all times.  If you provide any information that is inaccurate or incomplete, or that we have reason to believe is inaccurate or incomplete, we may suspend or terminate your account and your use of the Service.  Only you and your employees are authorized to use your account, and you are responsible for all activities that occur through your account.  You agree that: (i) you will not provide your user identification or password to any third party; and (ii) you will notify us immediately of any unauthorized use of your account or any other breach of security regarding the Service.

4. Fees

(a) Subscription Fees. We charge fees as set forth in the applicable Order. Except as otherwise set forth in the applicable Order, we will invoice you monthly, and you must pay within thirty (30) days of the date of the invoice (or the time period set forth in the applicable Order, as applicable). If we do not receive timely payment of an invoice, we may suspend or terminate your access to the Services or the applicable Order. Except as otherwise set forth in these Terms or the applicable Order, all payments are non-refundable and must be in U.S. dollars, and you are responsible for all applicable taxes (other than those taxes based on our income) or other governmental charges. Except as otherwise set forth in the applicable Order, we may modify our fees, and any such modification will apply beginning in the month following publication or other notice of the change.

(b) Professional Services Fees. If the applicable SOW specifies that CeloPay will charge a fixed fee for the performance of Professional Services, then CeloPay shall invoice you a fee for the Professional Services in the amount set forth in such SOW. Such fee shall be payable within thirty (30) days following your receipt of the corresponding invoice. Our determination of any fixed fee assumes that you have provided accurate and complete information in response to inquiries by CeloPay, and that you will provide reasonable support in order to enable CeloPay to perform its obligations under the applicable SOW. If the technical or operational characteristics of the Subscriber networks or computer systems materially differ from the descriptions provided to CeloPay by you or if you fail to provide reasonable assistance, then CeloPay may charge an additional fee on a time and materials basis at our then-standard rates for time spent by CeloPay resources in performing the Professional Services in excess of the estimates used by us to establish the fixed fee.

5. Term and Termination

(a) Term. These Terms will commence on the earlier of the date on which you accept these Terms, register for the Service or an account, or otherwise access or use the Site, Service, or Content, and will continue until terminated in accordance with these Terms.

(b) Subscription Term.  Each Order will have the initial subscription term set forth therein, and, except as otherwise set forth in the applicable Order, will automatically renew for successive periods equal to the length of the initial subscription term, unless either party provides the other party at least sixty 60 days’ notice of its intent not to renew prior to the end of the then-current subscription term (collectively, the “Subscription Term”).

(c) Termination. Either party may terminate these Terms or an Order by written notice if the other party materially breaches these Terms or the Order, as applicable, and fails to cure such breach within 30 days of written notice thereof. We may terminate these Terms or any Order(s) immediately in the event of insolvency affecting you under which you: (i) are unable to pay its debts when due; (ii) make any assignment or composition for the benefit of creditors; (iii) have appointed or suffer the appointment of a receiver or trustee for its business, property or assets; (iv) file or have filed against you any petition under the bankruptcy or insolvency laws of any jurisdiction; (v) are adjudicated bankrupt or insolvent; or (vi) suffer any other event analogous to the events described in subsections (i)-(v) in any jurisdiction. We may terminate these Terms or any Order (unless otherwise set forth in such Order) and refuse any and all current or future use of the Site, Service and Content, as applicable, by you, for any reason at any time without any liability to you upon 30 days’ prior written notice to you. Except as otherwise set forth in the applicable Order, you may terminate these Terms, your account, or any Order upon 30 days’ prior written notice by contacting customer service at support@celopay.com; however, any termination thereof will not relieve you of any current or future obligation to pay any fees or other costs owed by you to us under these Terms or any Order.

(d) Suspension. If you or your use of the Service negatively affects, or is reasonably expected to negatively affect, any part of the Service or the rights or interests of us or any third party, including in the event of breach of your payment obligations, or may result in a violation of applicable law, legal obligation, or legal rights of another, then, in addition to the termination rights set forth in Section 6© and any other remedies available to us, we reserve the right to suspend the Service or change the level of the Service, including without limitation the features or functionality thereof, provided to you, with or without notice and without liability to you.

(e) Effect of Termination. Upon the expiration or termination of these Terms for any reason, all Orders will automatically terminate and you will immediately (i) cease use of the Site, Service, and Content and (ii) pay us all fees and other amounts owed under these Terms and all Orders. Upon the expiration or termination of an Order for any reason, you will immediately cease use of the applicable Service and Content and pay us all fees and other costs owed under such Order and all rights granted to you with respect to such Service will immediately terminate. The provisions of Eligible Chargebacks, Fees, Ownership, Confidentiality, and User Data License and Privacy, Feedback, Warranty Disclaimers, Limitation of Liability, Indemnity, and Legal Notices will survive any termination or expiration of these Terms, except that none of the license rights granted by us to you under these Terms survive termination.

6. Access to the Service; Modifications to the Service. We do not provide you with the equipment to access the Site or the Service. You are responsible for all fees charged by third parties to access the Site and the Service (e.g., charges by Internet service providers). You acknowledge and agree that we will have no obligation to provide you with any support or maintenance in connection with the Site or Service except as otherwise set forth in the applicable Order. We reserve the right to modify or discontinue, temporarily or permanently, all or a part of the Site and the Service (including, without limitation, access to any Content, in whole or in part, and including but not limited to any prior cases of submitted transactions on the Service and any Content displayed to you in connection with such cases) without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service (including, without limitation, access to any Content, in whole or in part), except that to the extent you pay subscription fees to access or use the Service, you are only entitled to a prorated refund representing the unused (as of the date of termination) portion of any subscription fees that you have paid in advance if we permanently discontinue the Service in its entirety.

7. Ownership. The Site, the Service, and all Content are protected by applicable intellectual property laws, including United States copyright law and international treaties. We and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the Site and the Service, including all Content on and available through the Site and the Service, and any and all underlying software and technology used to provide and make available the Site and the Service. Except for those rights expressly granted in these Terms, no other rights are granted, either express or implied, to you. All trademarks, logos and service marks displayed on the Site (“Trademarks”) are our property or the property of other third parties. You are not permitted to use these Trademarks without our prior written consent or the consent of such third party which may own the Trademarks.

8.  User Data License and Privacy

(a) CeloPay User Data Restrictions. We will not (i) identify you to any unaffiliated third party as the source of the User Data, (ii) disclose a complete data set of User Data or User/Transaction Information for an ecommerce transaction with any unaffiliated third party, (iii) disclose more than the disaggregated portions of User Data or User/Transaction Information that is necessary to exercise CeloPay’s rights and perform its obligations under these Terms or (iv) Process User Data for purposes of cookie tracking, ad exchanges, data brokerages, ad networks, or sending electronic communications (including email) in violation of applicable law.

(b) User Data License. CeloPay’s Privacy Policy is hereby incorporated into these Terms.  CeloPay’s GDPR Policy is hereby incorporated into these Terms and will apply for User Data or User/Transaction Information of End Users in the European Economic Area or Switzerland. To the extent that CeloPay’s GDPR Policy conflicts with other terms in these Terms, including CeloPay’s Privacy Policy, CeloPay’s GDPR Policy will control. For each submitted transaction, you will supply or make available to us, and you hereby authorize us to receive or collect End User information regarding the applicable End User (including email address, first name, last name, birth date, age, email address, company, job title, photo, website URLs, social network user IDs, instant messenger handles, credit card data, and IP address) (collectively, “User Data”).  You further acknowledge and agree that we may receive, from the Service, End User, or other third-party platform, User Data regarding each such individual or such individual’s actual or attempted transactions on the applicable platform (such User Data, “User/Transaction Information”).  You acknowledge that our provision of the Service is conditioned upon our receipt of correct and accurate User Data.  You are solely responsible for the User Data.  You hereby represent and warrant that the User Data, your provision of the User Data, and Our use and disclosure of the User Data in accordance with these Terms (including CeloPay’s Privacy Policy and GDPR Policy), does not violate any third-party rights or any laws, regulations, or obligations imposed by any third party.  In addition, you hereby represent and warrant that you have obtained or will obtain and maintain all necessary consents, approvals, and waivers to permit you and each third-party platform to provide us with or otherwise authorize our access to User Data and to use and disclose to third parties User Data as contemplated by these Terms (including CeloPay’s Privacy Policy and GDPR Policy).  We have no obligation to back up any User Data and the User Data we store may be deleted at any time.  You hereby grant to CeloPay, and you represent and warrant that you have the right to grant, for the purposes of exercising our rights and performing our obligations under these Terms and providing and improving our products and services (collectively, to “Process”), an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, sublicensable license to the User Data, in each case during and after the Term. To the extent that an agreement between CeloPay and one of CeloPay’s third-party providers requires CeloPay to grant a license in the User Data to such third-party provider, the scope of the license set forth in the foregoing sentence shall be deemed to include the rights necessary to enable CeloPay to grant such license to the applicable third-party provider.

(c) Your Restrictions for Submitting User Data. You shall ensure that no User Data: (i) violates, or that causes CeloPay or CeloPay’s affiliates, subsidiaries, or partners to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction; (ii) contains or embodies any trade secrets or information for which you have any obligation of confidentiality; (iii) infringes or violates, or may infringe or violate, any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or that you otherwise do not have the right to make available; (iv) pertains to any person under 13 years of age; or (v) in CeloPay’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying the Service, or may expose CeloPay or CeloPay’s suppliers, licensors, or users to harm or liability of any nature.  You must not use the Service to obtain any information regarding any person or entity in violation of any prohibition on you obtaining such information, including under any applicable law or regulation.

(d) Your Restrictions for Using the Service and Content.  You will comply with all applicable laws when using the Service and any Content.  Further, except as may be permitted expressly by applicable law or authorized by us in advance in writing, you will comply with CeloPay’s Acceptable Use Policy, which is hereby incorporated into these Terms. When using certain features of the Service or the Content, you also will be subject to all guidelines, terms, and agreements applicable to such features or Content that may be made available on or in connection with the Service (“Additional Policies”).  All such Additional Policies are incorporated by reference into these Terms.

(e) No Fair Credit Reporting Act Characteristics. You understand and agree that CeloPay is not a consumer reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), and that the Service does not include “consumer reports” as defined in the FCRA. You understand that any information provided to CeloPay in order to use the Service has not been collected by CeloPay for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the FCRA.

9.  Feedback. If you provide us with identification of any potential errors in, or improvements to, the Site, the Service, or any Content (including, without limitation, providing any feedback with respect to any person’s investigatory profile on the Service) (“Feedback”), you hereby grant us the unrestricted right to use your Feedback, including the right to use your Feedback to improve the Site and the Service and create other products and services. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to us any Feedback that you consider to be confidential or proprietary.

10.  Links and Third Party Content. The Site and the Service may contain links to webpages and content of third parties that are not hosted by us (“Third-Party Content”) as a service to those interested in this information. We do not monitor, endorse, or adopt, or have any control over, any Third-Party Content. We undertake no responsibility to update or review any Third Party Content and can make no guarantee as to its accuracy or completeness. Additionally, if you follow a link or otherwise navigate away from the Site or the Service, please be aware that these Terms will no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content provider to which you navigate from the Site or the Service. You access and use Third-Party Content at your own risk. The Site and the Service may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.

11.  Warranty Disclaimers. YOUR USE OF THE SITE AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, IS AT YOUR SOLE RISK. THE SITE, THE SERVICE, AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SITE, THE SERVICE, AND THE CONTENT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. CELOPAY AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SITE OR THE SERVICE OR YOUR ACCESS TO ANY CONTENT. WE AND OUR SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT THE SITE, THE SERVICE, OR ANY CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT ANY RESULTS, DATA, INFORMATION, OR CONTENT OBTAINED OR DERIVED THROUGH THE USE OF THE SITE OR THE SERVICE OR ANY OF THE CONTENT WILL BE TIMELY, ACCURATE, COMPLETE, ERROR-FREE, LEGAL, SAFE, OR FREE FROM VIRUSES OR OTHER HARMFUL CONTENT, OR THAT ANY ERRORS IN THE SITE, THE SERVICE, OR ANY ERRORS IN ANY RESULTS, DATA, INFORMATION, OR CONTENT OBTAINED OR DERIVED THROUGH THE USE OF THE SITE OR THE SERVICE OR ANY OF THE CONTENT WILL BE CORRECTED. WE AND OUR SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE, THE SERVICE, OR ANY CONTENT WILL CREATE ANY WARRANTY REGARDING THE SITE, THE SERVICE, OR ANY CONTENT THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, THE SERVICE, OR ANY CONTENT, THE DURATION AND SCOPE OF SUCH WARRANTY WILL BE THE MINIMUM POSSIBLE UNDER SUCH APPLICABLE LAW.

12.  Limitations of Liability. NEITHER CELOPAY NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS INFORMATION, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF CELOPAY OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER, OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE, THE SERVICE, OR ANY CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE MAXIMUM TOTAL LIABILITY OF CELOPAY TO YOU FOR ALL CLAIMS OR DAMAGES ARISING UNDER OR RELATING TO THESE TERMS OR THE ORDERS, OR OTHERWISE RELATING TO THE SITE, THE SERVICE, OR ANY CONTENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES, IF ANY, PAID BY YOU FOR YOUR ACCESS TO AND USE OF THE SITE OR THE SERVICE IN THE SIX MONTHS PRECEDING THE APPLICABLE CLAIM. IF A COURT FINDS THE MAXIMUM TOTAL LIABILITY UNDER THE PREVIOUS SENTENCE UNENFORCEABLE, THE MAXIMUM TOTAL LIABILITY OF CELOPAY TO YOU FOR ALL CLAIMS OR DAMAGES ARISING UNDER OR RELATING TO THESE TERMS OR THE ORDERS, OR OTHERWISE RELATING TO THE SITE, THE SERVICE, OR ANY CONTENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED $100.00. YOU FURTHER AGREE THAT OUR SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS, THE SITE, THE SERVICE, OR ANY CONTENT. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13. Indemnity. You will defend, indemnify and hold harmless CeloPay, its subsidiaries and affiliates, and their respective directors, officers, agents, employees, licensors, and suppliers from and against any third-party claims or demands, and any related costs, damages, expenses, and liabilities (including reasonable attorneys’ fees), arising out of or related to your use of the Site, the Service, and any Content, any User Data you provide, your violation of any provision of these Terms, or your violation of any law, regulation, or rights of a third party. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

14.  Government Users. The Site, the Service, and all Content are “commercial items” as defined in 48 C.F.R. 2.101. Consistent with 48 C.F.R. 12.211 and 48 C.F.R. 12.212, such commercial items are provided to any U.S. Government users only as commercial Items and with only those rights and licenses set forth in these Terms and subject to the restrictions set forth in these Terms. All U.S. Government users use the Service with only those rights set forth in these Terms. In accordance with the tailoring provisions of FAR 12.302, these Terms amends certain provisions of FAR 52.212-4 as set forth herein, to the extent such provisions may be so tailored or amended in accordance with applicable law and government regulation. To the extent the foregoing tailoring or amendment is so permitted, the provisions of these Terms will take precedence over any otherwise applicable and conflicting or inconsistent provisions of the documentation between the parties and any provisions of the FAR that may be referenced therein.

15.  Confidentiality and Publicity.

(a) Confidential Information. “Confidential Information” means any information disclosed directly or indirectly by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to these Terms that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The parties agree that the Service and Content are hereby deemed to be the Confidential Information of CeloPay, and the User Data is your Confidential Information. The terms (but not the existence) of these Terms are each party’s Confidential Information. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under these Terms.

(b) Non-Use and Non-Disclosure. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under these Terms. You shall limit access to and disclosure of our Confidential Information (including the Service and Content) to its own employees strictly with a “need-to-know,” provided that such employees have executed an agreement with you with confidentiality provisions at least as restrictive as those contained herein. You shall immediately notify us upon learning of any breach of this Section 15. We shall not disclose any of your Confidential Information, except to exercise its rights and perform its obligations under these Terms, and to its advisors or prospective investors or purchasers subject to a written obligation of confidentiality. Each party will take reasonable measures to protect the secrecy of, and avoid unauthorized disclosure and use of, the Confidential Information of the other party. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment.

16.  Changes to these Terms. We may make changes to these Terms from time to time. If we make any material changes, we may notify you by sending you an email to the last email address you provided to us (if any) and/or by prominently posting notice of the changes on the Site or the Service. Any changes to these Terms will be effective upon the earlier of thirty calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty calendar days following our posting of notice of the changes on the Site or the Service. These changes will be effective immediately for new users of our Site and our Service. Users of our Service are responsible for providing us with their most current email address. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Site or the Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

17.  Consent to Electronic Communications. By using the Site or the Service, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Site and the Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

18.  Miscellaneous. Our failure to act in a particular circumstance does not waive our ability to act with respect to that circumstance or similar circumstances. Any provision of these Terms that is found to be invalid, unlawful, or unenforceable will be severed from these Terms, and the remaining provisions of these Terms will continue to be in full force and effect. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect and the terms “including,” “including but not limited to,” and “including without limitation” as used in these Terms mean by way of example and not of limitation. You will not transfer or assign these Terms, directly or indirectly, to another person without our prior written consent. Nothing express or implied in these Terms is intended to confer upon any entity other than the parties and their respective successors and assigns any rights, remedies, obligations, or liabilities whatsoever. We will not be liable for any delay or non-performance of our obligations under these Terms due to any cause beyond our control. These Terms are governed by the laws of the State of Georgia, excluding conflicts of laws principles. Any controversy or claim arising out of or relating to the Site, the Service, or these Terms must be commenced by you in the State of Georgia within one year after the claim arose. If a lawsuit or court proceeding is permitted under these Terms, you consent to the exclusive personal and subject matter jurisdiction of the state and federal courts located in Forsyth County, Georgia, and unconditionally waive to the extent permitted by applicable law: (a) any objection that you might now or hereafter have to the venue of any such court in any action so instituted under these Terms and (b) any claim that any action or proceeding so brought in any such court has been brought in an inconvenient forum. These Terms, together with all Orders and including the Acceptable Use Policy, all Additional Policies and any exhibits, schedules and other documents incorporated by reference into these Terms and/or the Orders (i) constitute the entire agreement between you and CeloPay concerning the Site, the Service, and any Content and (ii) supersede all prior agreements or communications between you and CeloPay regarding the subject matter of these Terms, unless you and CeloPay have entered into a Signed Agreement, in which case the Signed Agreement, and not these Terms, will govern your access to and use of the applicable Service or portion thereof.

19.  Dispute Resolution and Arbitration.

(a) Generally. In the interest of resolving disputes between you and CeloPay in the most expedient and cost effective manner, you and CeloPay agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CELOPAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

(b) Exceptions. Despite the provisions of the paragraph directly above, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

(c) Arbitrator. Any arbitration between you and CeloPay will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting CeloPay.

(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). CeloPay’s address for Notice is: CeloPay LLC, 5665 Atlanta Highway, Suite 103-403, Alpharetta, GA 30004. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or CeloPay may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or CeloPay must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, CeloPay will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by CeloPay in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

(e) Fees. If you commence arbitration in accordance with these Terms, CeloPay will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Forsyth County, Georgia, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse CeloPay for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

(f) No Class Actions. YOU AND CELOPAY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CeloPay agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

(g) Modifications. If CeloPay makes any future change to this arbitration provision (other than a change to our address for Notice), you may reject the change by sending us written notice within 30 days of the change to our address for Notice, in which case your account with CeloPay will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.

(h) Enforceability. If Section 19(g) is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.

20.  Contact Information; Disclosures. The Services are offered by CeloPay LLC, located at 5665 Atlanta Highway, Suite 103-403, Alpharetta, GA 30004. If you have any questions or concerns about these Terms, the Site, or the Service, please send us a thorough description by email to support@celopay.com.

Contact Us

5665 Atlanta Highway, Suite 103-403, Alpharetta, Georgia 30004
844-CELOPAY | 470-878-2200
sales@celopay.com | support@celopay.com

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