Effective Date: April 1, 2023
These General Terms of Use (“General Terms”) are a legal agreement between you, as a current or prospective customer of Paysley’s services (“you,” “your”) and Paysley (“we,” “our” or “us”). They govern your use of Paysley’s services, including mobile applications websites, software cloud-based solutions, and other products and services (collectively, the“Services”). You should read all of these General Terms carefully.
You acknowledge that this Agreement is solely for commercial and business purposes, and not for personal, family or household purposes. Your use of the Services constitutes your representations to us that: you have read and understood all of these General Terms; and that you agree to these General Terms and any related policies (“Policies”) including without limitation our Privacy Notice (see Section 7), limitation of liability (see Section 15), individual arbitration for any legal dispute (see Section X), and all other policies identified herein.
The Policies are material to any contract relationship with you, and Paysley would not agree to provide Services to you without your acceptance of them. You also agree to any additional terms specific to the Services you use (“Additional Terms”), which become part of your agreement with us. (These General Terms and any Additional Terms are hereafter referred to collectively as the “Terms”). Your use of the Services on behalf of a business or entity constitutes representations by you to us that: you have authority to bind that business or entity to these Terms; and that the business or entity accepts these Terms.
1. Paysley Account Registration
You must register for and open an account with us (a“Paysley Account”) to use the Services. During registration, we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate, truthful, and complete information in response to our questions, and you must keep that information current.
You are fully responsible for all activity that occurs under your Paysely Account, including, without limitation, actions taken by persons to whom you have granted access to the Paysley Account.
We reserve the right to change the account type, suspend or terminate the Paysley Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
2. Revisions, Disclosures, and Notices
We may revise the Terms at any time with notice. Notice of such revisions (“Revised Terms”) will be delivered by any means we deem to be reasonable under the circumstances, including without limitation, by posting the notice on our website or by providing it to you through the Services. The Revised Terms will be effective when notice of them is posted or provided and will not apply retroactively. Your continued use of the Services after notice of the Revised Terms is posted or provided constitutes your acceptance of such Revised Terms. Reference to “Terms” herein includes any Revised Terms.
You agree that any written documents relating to the Paysley Account including disclosures and notices required by law as well as those requiring signatures may be provided, received, and exchanged electronically. You also agree that any such documents may be provided to you by our posting it on our website, pushing notifications through the Services, or by emailing them to the email address listed in your Paysley Account or that you otherwise provide to Paysley. Electronic disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, contact Paysley Support. If we are notable to support your request, you may need to terminate your Paysely Account.
3. Restrictions
As a condition to our providing you with Services, you agree that you will not engage in, and that you will not permit any third party, directly or indirectly, to engage in, any of the following conduct:
a) Exportthe Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII);
b) Engage in any activity that may be in violation of regulations administered by the United States Department of Treasury’s Office of Foreign Asset Control (31C.F.R. Parts 500-599). Prohibited activity includes but is not limited to the provision of Services to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Syria, or the Crimean Region of Ukraine. If found to be in apparent violation of these restrictions, your account could be terminated and your funds could be held for an indefinite period of time;
c) Accessor monitor any material or information on any Paysley system using any manual process or robot, spider, scraper, or other automated means;
d) Except to the extent that any restriction is expressly prohibited by law, violate the restriction in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;
e) Perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
f) Copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Paysley;
g) Use and benefit from the Services via a rental, lease, timesharing, service bureau or another arrangement;
h) Transfer any rights granted to you under these Terms;
i) Use the Services in a way that distracts or prevents you from obeying traffic or safety laws;
j) Use the Services for any illegal activity or goods or in any way that exposes you, other Paysely users, our partners, or Paysley to harm; or
Otherwise use the Services except as expressly allowed under these Terms. If we reasonably suspect that your Paysley Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Paysley Account, and any of your transactions with law enforcement.
4. Compatible Mobile Devices and Third Party Carriers
We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls-sometimes referred to as “jailbroken.”
5. Security
We have taken certain measures to protect your personal information from disclosure, accidental destruction, loss, alteration, or unauthorized access or use, but we cannot guarantee, and make no warranty, that those measures are such that third parties can never gain unauthorized or illegal access to or use of your personal information. You provide your personal information at your own risk.
You are solely responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your Paysley Account password or any other breach of security relating to it. You will immediately take all reasonable steps to mitigate the effects of any unauthorized use or other security breach and will cooperate fully with Paysley and provide all information requested by Paysley to remediate the breach. Any assistance provided by Paysley in relation to a security breach does not in anyway operate as acceptance or acknowledgment that Paysley is in any way responsible or liable to you or any other party in connection with such breach.
6. Privacy
Your use of our Services constitutes your acknowledgment of our privacy and data practices as set out in the Paysley Privacy Statement (https://paysley.com/legal/privacy) and your representations that: you have read the Privacy Statement; you understand the Privacy Statement; and you agree that the Privacy Statement governs how Paysley collects, uses, and protects the personal information you provide to us and where, when, and how Paysley makes use of your personal data to provide you with the Services or for its own purposes. The Privacy Statement is incorporated herein by reference.
California residents should note that additional privacy practices, subject to the California Consumer Privacy Act of 2018, are included in the Privacy Statement, and below in Section 21.
Paysley may process or use certain personal data of your customers or employees that you provide to us for Services we provide as a service provider (“data processor”). You agree that you will comply with the data protection and privacy laws applicable to you and will provide data subjects with information on the processing of their personal information which satisfies the transparency requirements of such data and privacy protection laws and which ensures that personal data may be processed fairly, lawfully and in a transparent manner.
7. Communications
You consent to accept and receive communications we send to you by email, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for a Paysley Account or when you update the contact information associated with your Paysley Account. Such communications may include but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text message we send you.
You are not required to consent to receive promotional texts or calls as a condition of using the Services.
You may opt out of receiving promotional email communications we send you by following the unsubscribe options on such emails. You may opt-out of any promotional phone calls by informing the caller you would not like to receive future promotional calls.
You may only opt out of text messages from Paysley by replying STOP. You acknowledge that opting out of receiving communications may impact your use of the Services.
We also provide services that allow you to send short message service (SMS) messages to your customers (the “Seller-Initiated SMS Services’). You will only use the Seller-Initiated SMS Services in compliance with these Terms and all other applicable laws and regulations of the jurisdiction from which you send messages and in which your messages are received.
8. Modification and Termination
We may terminate these Terms, or suspend or terminate your Paysley Account or your access to any Service, at anytime for any reason. We may add or remove, suspend, stop, delete, discontinue or impose conditions on Services or any feature or aspect of a Service. We will take reasonable steps to notify you of termination or changes to the Services by email or at the next time you attempt to access your Paysley Account. You may also terminate the Terms applicable to your Paysley Account by deactivating your Paysley Account at any time.
9. Effect of Termination
Once our relationship ends, we are not responsible for any losses you experience because of the termination of our services or for removing your data from our servers. Some terms on our agreement will still apply even after our relationship ends.
If your Paysley Account is terminated or suspended for any reason, you agree that: (a) all licenses and other rights granted under these Terms will end immediately; (b) you will immediately terminate and cease use of all Services; (c) we may (but have no obligation to) delete your information and account data stored on our servers; and (d) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or accountdata. In addition to any payment obligations, the following sections of these General Terms survive termination and thereafter remain in effect in accordance with their terms: 5 (Security), 6 (Privacy), 9 (Effect of Termination), 10 (Ownership), 11 (Indemnity), 12 (Representations and Warranties), 13 (No Warranties), 14 (Limitation of Liability and Damages), 15 (Disputes), 16(Governing Law), 17 (Limitation on Time to Initiate a Dispute), 18 (Assignment), and 19 (Third Party Service and Links to Other Websites).
10. Ownership
Your use of the Services does not give you any ownership rights in them. We own all Intellectual Property Rights to the Services (including any copies). “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and all other similar property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals, and extensions, under the laws of any state, country, territory or other jurisdiction. In addition, the Services are protected by copyright, trademark, patent, and other laws of the United States and other countries. The Terms grant you no rights to our trademarks or service marks.
You may submit feedback, comments, or ideas about the Services (“Ideas”). Submitting Ideas is entirely voluntary, and we will be free to use such ideas as we see fit without any obligation to compensate you.
11. Indemnity
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with any claim, action, audit, investigation, inquiry, or other proceeding instituted by any person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any third-party claims regarding Paysley’s use of your Personal Information or your customers’ in connection with providing you with the Services; and (f) any other party’s access to and/or use of the Services.
12. Representations and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register for and use the Services and have the right, power, and ability to enter into and perform under these Terms; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Profitability and Accountability Act (“HIPAA”); (e) you will not use the Services, directly or indirectly, for any fraudulent or unlawful undertaking or in any other manner so as to interfere with the operation of the Services; and (f) your use of the Services will be incompliance with these Terms.
13. No Warranties
PAYSLEY’S SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, PAYSLEY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ORNON-INFRINGEMENT.
14. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PAYSLEY BE LIABLE OR RESPONSIBLE FOR:
(a) ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES; (b) ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE; (c) ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES; OR (d) THE GREATER OF (i) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (ii)$100.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, ORANY OTHER BASIS, EVEN IF PAYSLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
15. Disputes
The following terms apply to all Disputes between you andPaysley or Paysley’s processors, suppliers, or licensors (or their respective affiliates, agents, directors, or employees).
(a) A “Dispute” is defined as any claim, controversy, or dispute, whether arising before or during the effective period of these Terms, at law or in equity, and including any claim, controversy, or dispute based on any conduct by you or Paysley that occurred before the effective date of these Terms, including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
(b) Arbitration: You and Paysley agree that any and all Disputes, except those that are resolved informally, will be arbitrated in accordance with and subject to Ohio Revised Code Ch. 2711 by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can.
(i) No Class Actions: ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASSACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST PAYSLEY.
(ii) Severability: If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).
(iii) Pre-filing Requirement to Attempt to Resolve Disputes: Before an arbitration is commenced, you or Paysley agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Paysley should be sent by certified mail, postage pre-paid, or by overnight carrier, and addressed to Paysley, to the attention of Chief Executive Officer, 250 W.Huron Rd., Suite 400, Cleveland, Ohio 44113. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (A) include your name and account number; (B) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (C) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages, Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that the state or federal courts in Cuyahoga County, Ohio may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
(iv) Scope of Arbitration: If the Dispute is not resolved by informal negotiation, it will be resolved finally and exclusively by binding individual arbitration before a single arbitrator (the “Arbitrator”). The Arbitrator will be selected, and the arbitration will be conducted, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) (https://www.adr.org). The Arbitration may be conducted through the AAA or by a private Arbitrator applying the AAA rules.
(v) Arbitration Procedures: Any arbitration hearing will occur in Cleveland, Ohio, at a mutually agreeable location or, if both parties agree, by telephone or videoconference. You and Paysley will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including whether the Terms (or any aspect thereof) are enforceable, unconscionable, or illusory, and any defense to arbitration, including waiver, delay, laches, orestoppel. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction in accordance with Ohio Revised Code Ch. 2711.
You and Paysley agree that the arbitration and anynon-public proceedings relating to it will be confidential and will not, without the prior written consent of the other party, disclose to any third party the fact, existence, content, award, or other results of the arbitration except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While the Arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have any precedential value.
(vi) Court Proceedings: Subject to and without waiving the arbitration provisions above, you agree that any judicial proceedings relating to the enforcement of this arbitration agreement, the confirmation or vacation of any award by the Arbitrator, and the enforcement of such award will be brought in the state or federal courts in Cuyahoga County, Ohio, and you hereby consent to the exclusive jurisdiction of those courts and waive any challenge to venue. This provision shall not prohibit the transfer of any final judgment confirming an award to any other court of competent jurisdiction when necessary to execute on or enforce a final judgment against the losing party.
16. Governing Law
The Terms and any Dispute will be governed by Ohio law, including Ohio Revised Code Ch. 2711 as set forth above, without regard to its choice of law or conflicts of law principles.
17. Limitation on Time to Initiate a Dispute
Any arbitration action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
18. Assignment
Neither the Terms, including any all rights you have hereunder, nor the Services may be transferred or assigned by you. Any attempted transfer or assignment by you will be null and void.
19. Third Party Services and Links to Other Websites
You may be offered services, products, and promotions provided by third parties, and not by Paysley, including but not limited to, third-party developers who use Paysley’s services (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions for those services. We are not responsible or liable for the performance of any Third Party Services. Further, you agree to resolve any disagreement between you and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship, and not Paysley. The Services may contain links to third-party websites. The inclusion of any website link does not imply an approval, endorsement, or recommendation by Paysley. Such third-party websites are not governed by these Terms. You access any such website at your own risk. We expressly disclaim any liability for these websites. When you use a link to go from the Services to a third-party website,our Privacy Notice is no longer in effect. Your browsing and interaction on a third-party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies.
20. Third-Party Beneficiaries
No provision in these Terms is intended to, or shall, create any rights with respect to the subject matter of these Terms in any third party.
21. California Businesses
If you are a “Business” as defined by the California Consumer Privacy Act of 2018, Cal. Civ. Code Section 798.100 et seq., (“CCPA”) then this Section 21 applies to you. For purposes of this Section 21,“process”, “sell”, and “business purpose(s)” have the meaning ascribed to them by the CCPA.
a) For purposes of this Section 21, “Buyer Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household that is processed by Paysley in connection with its Services to you. Buyer Personal Information does not include information Paysley receives about your customers (“Buyers”) for purposes of Paysley’s digital receipt, customer directory, and email marketing tools(“Paysley Buyer Features”). It does include information that your Buyer has provided you through Paysley Appointments, Paisley Invoices, or to receive Loyalty-related or promotional text messages. For details about our privacy practices with respect to Paysley Buyer Features, please refer to our Privacy Statement.
b) We may receive Personal Information from Buyers for the purpose of performing Services on your behalf as described in these Terms. We agree that we will process Buyer Personal Information collected, processed, stored or transmitted by you, or accessible to us under the Terms only on your behalf, and for the purpose of providing you with the Services. We acknowledge that we are prohibited from (i) selling the Buyer Personal Information; (ii) retaining,using, or disclosing the Buyer Personal Information for any purpose other than providing you the Services specified in the Terms(s). As part of, and for purposes of, facilitating the Services, Paisley may (i) de-identify or aggregate the Buyer Personal Information; and (ii) process the Buyer Personal Information for operational purposes, including without limitation, verifying or maintaining the quality and safety of the Services; improving, updating or enhancing the Services either for you or for our customers generally; detecting and preventing fraud, and for protecting the security and integrity of our Services; and comply with our legal obligations. You acknowledge and agree that Buyer Personal Information that you disclose to Paysley is provided to Paysley for the parties’ business purposes.
c) We reserve the right to delete Personal Information stored pursuant to the Terms in the ordinary course of business, pursuant to our retention schedules.
22. Other Provisions
These Terms are a complete statement of the agreement between you and Paysley regarding the Services. Matters or understandings based on oral or written statements prior to or contemporaneous with your agreement to these Terms that are not included herein are not a part of these Terms unless, and only if, they are included in a written addendum signed by You andPaysley. These Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any provision of these Terms will be deemed a further or continuing waiver of such provision.