Deliverables – The project deliverables for any performance of setup, implementation, data migration, customization, configuration, or other one-time services (the “Services”) shall be performed and billed as set forth in a signed Statement of Work (“SOW”) or as described in these Services Terms and purchased on a corresponding signed order form (a “Quote”). Customer may purchase Services in advance on a Quote, or may otherwise pay the Fees pursuant to the SOW and subject to its payment terms. Where PrimePay performs any support or installation Services related to the Products or any third-party software, Customer authorizes PrimePay to click to accept any applicable terms and conditions (or updates thereto) on behalf of Customer.
Services Availability – PrimePay’s Services team maintains normal business hours of 8 am to 5 pm Eastern Time, Monday through Friday, excluding PrimePay’s designated holidays. PrimePay will make its best efforts to respond to all calls or e-mails by the next business day.
Confidentiality – Neither Party shall disclose the other Party’s information that is either marked confidential or, given its subject matter, would reasonably be regarded as being of confidential nature (“Confidential Information”) to third parties without the Customer’s express written consent, unless legally required to do so. This section shall not apply to information that is independently developed by, publicly known by and available to, or information already in the possession of, the disclosing Party, so long as that information comes to the disclosing Party free from a duty confidentiality or a breach thereof.
Transfer or Migration of Data – Where a SOW calls for PrimePay to import Customer’s data maintained in another application, Client acknowledges the inherent technological limitations and associated risks that the data importation may fail in whole or in part. Customer warrants that it has the legal right to provide any data supplied to PrimePay and expressly authorizes to manipulate that data as required to perform the Service.
QuickStart Package – Where a Quote lists the purchase of a QuickStart, such Services may not require a signed SOW, shall be rendered as described in the Documentation, and shall be governed in accordance with these Terms.
Developed IP – Where PrimePay creates customizations, special features, or modifications (“Developments”) to the PrimePay products and services (the “Products”), PrimePay shall retain all patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world, whether or not registered (collectively “Intellectual Property”) rights to such Developments. PrimePay grants to Customer a limited, non-exclusive, revocable license to use the Developments during the Term of Customer’s PrimePay Subscription, and contingent upon Client timely paying all required fees.
Pre-Existing IP – The Parties agree that PrimePay shall be the sole and exclusive owner of Intellectual Property rights to the Products and under no circumstances shall PrimePay’s performance of Services be deemed to transfer PrimePay or its licensors’ Intellectual Property rights to Customer. Customer’s license to use the Products shall be defined in a separate subscription agreement for use of the Products. The Parties agree that Customer shall be the sole and exclusive owner of Intellectual Property rights to the Information entered by Customer into the Products or data that is given to PrimePay by Customer to display within the Products (“Customer Data”) and under no circumstances shall PrimePay’s performance of Services be deemed to transfer Customer’s Intellectual Property rights in Customer Data to PrimePay.
Training– Unless otherwise agreed, all training called for in a SOW will be provided remotely.
Fees – Unless stated otherwise in a signed Quote or SOW, Fees will be billed at PrimePay’s current rate for Services. with payment due upon signature on the SOW or Quote and prior to the commencement of work.
Termination – Either party may terminate these Terms or a corresponding SOW for any reason by providing thirty (30) days’ Notice to the other Party. Except where PrimePay terminates the SOW prior to completing the deliverables listed in the SOW (in which case PrimePay shall return any unused portion of the Fees pre-paid by Customer), in no circumstances shall the Fees be refundable in whole or in part nor entitle Customer to any credit to its account.
Limitation of Liability– WITH THE EXCEPTION OF ANY VIOLATION OF PRIMEPAY’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PRIMEPAY’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO CUSTOMER CLAIMS ARISING FROM OR RELATED TO THESE TERMS, USE OF THE PRODUCTS, OR TO ANY ACT OR OMISSION OF PRIMEPAY, EXCEED THE AMOUNT CLIENT HAS PAID TO PRIMEPAY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY APPLIES EQUALLY TO AFFILIATES AS DEFINED BELOW. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO ANY LIABILITY WHICH THE PARTIES CANNOT LAWFULLY EXCLUDE PURSUANT TO APPLICABLE LAW. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PRIMEPAY AND CUSTOMER.
Warranty– PrimePay shall make its best efforts to complete the work contemplated in a SOW and shall perform the work in a professional manner. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF ANY AGREEMENT BETWEEN PRIMEPAY AND CUSTOMER.
Indemnification– Customer shall fully indemnify, hold harmless and defend PrimePay and its directors, officers, employees, agents, stock holders, subsidiaries, and Affiliates from and against all claims demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arises out of or relate to: any breach of any representation or warranty of Customer contained in these Terms; any breach or violation of any covenant or other obligation or duty of Customer under these Terms or under applicable law; and any violations of any applicable privacy laws caused by errors or omissions of Customer.
Severability– If any part or parts of the Agreement is held invalid by a court of competent jurisdiction, the remaining parts of the Agreement will continue to be valid and enforceable.
Waiver– The waiver by either party of a breach or default of the Agreement, nor any delay or omission in exercising such rights or claims, shall not be construed as a waiver of any further breach or default of the same or other provisions.
Final Agreement – These Terms, any fully executed Quote(s) and SOW(s) between PrimePay and Customer (the “Agreement”) set forth the entire agreement relating to the subject matter hereof and supersede all prior agreements, discussions and understandings between them, whether oral or written, relating to the subject matter hereof. These Terms supersede any prior agreements between PrimePay and Customer.
Governing Law – EXCEPT WHERE PROHIBITED BY LAW, PRIMEPAY AND CUSTOMER AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. NO ARBITER OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS UNDER THESE TERMS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES. The Parties agree that any claim arising out of the Agreement (including any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise), shall be construed under the laws of the State of Pennsylvania, regardless of conflict of law provisions. The Parties irrevocably consent to the exclusive venue of the state or federal courts of Chester County Pennsylvania. Neither party will bring any legal action more than two years after the cause of action arose. The Parties agree that a condition precedent to instituting any legal action other than the filing of an injunction to protect a Party’s intellectual property rights, the parties must participate in a non-binding mediation, with the parties equally splitting the costs of that mediation.
Prevailing Party –In the event of any litigation arising out of or related to the Agreement or the Services, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees. For purposes of this provision, if a claim made by either Party is deemed to be filed in the improper forum, jurisdiction, or venue, the non-filing party shall be deemed the prevailing party in that action.
Data Processing Addendum; Privacy Policy – Where applicable, the terms of any applicable supplementary contracts, set forth at https://primepay.com/terms/schedules/, and the Privacy Policy set forth at https://primepay.com/privacy-policy/, are expressly incorporated into these Terms by reference.
Affiliates – PrimePay may use subsidiaries, subcontractors, partners, and sub processors to provide the Services, without prior notice or consent. All entities described in this section shall be subject to the same limitations of liability set forth above. PrimePay shall at all times remain responsible for the performance of the Services.
Regulatory Compliance – Customer warrants that neither Customer nor any of its agents, employees, directors, beneficial owners, or individuals with a controlling interest in Customer (“Individuals”) is a sanctioned person or appears on any list which would make it unlawful for PrimePay to make payments to or on behalf of. Customer shall ensure that Customer and the Individuals shall comply at all times with all applicable sanctions laws and regulations, and immediately notify PrimePay of any non-compliance. Customer agrees that it will provide information and documentation reasonably requested by PrimePay in order to conduct regulatory compliance checks, and warrants that such information is accurate and up-to-date, and Customer shall notify PrimePay if any of the information provided to PrimePay changes during the Term of the Agreement.
