Enroll & Pay – Merchant Terms and Conditions
Last Updated: 03/10/2023
Introduction
The Enroll & Pay service is a merchant-customer relationship management software service
(“Service”) that allows opted-in members to receive loyalty-based offers, discounts, rewards and
promotional advertising content (“Rewards”) from merchants via the Enroll & Pay loyalty application.
Payment Integrations. Inc. d/b/a Enroll & Pay and its affiliates and subsidiaries (collectively “Enroll & Pay”,
“we”, “us”) operate and provide the Service to you as a merchant (“Merchant”, “you”, or “your”) in
accordance with these Enroll & Pay – Merchant Terms and Conditions (“Terms”).
The Service includes and is made available to you via the Enroll & Pay application (“Enroll & Pay
App”) that you can download to your terminal from your processor app store or app distribution platform.
BY CLICKING [“I ACCEPT”] OR BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE
BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE, INCLUDING THE
MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 16, AND ANY LINKED
TERMS HEREIN. IF YOU DO NOT AGREE WITH THE TERMS (AS DEFINED BELOW), DO NOT INSTALL OR
USE THE ENROLL & PAY APP OR SERVICES (INCLUDING THE ENROLL & PAY APP’S RELATED SERVICES OR
FEATURES).
Agreement to the Terms and Disclosures
After you download the Enroll & Pay App on your Merchant Device, you will be able to register
with Enroll & Pay and create your Enroll & Pay Merchant account. These Terms, includes the order form
executed by the parties that reference these Terms which sets forth any additional terms and conditions
under which those products and Services will be delivered (“Order Form”), form a legally binding contract
between Merchant and Enroll & Pay in relation to your use of the Enroll & Pay App and Services.
If you agree to be bound by these Terms, you represent and warrant that:
- You will only use the Enroll & Pay App in accordance with these Terms, as updated by
Enroll & Pay from time to time in its sole discretion, and all applicable laws, rules and regulations. - Your agreement to the Terms includes agreeing to all current and future disclosures,
notices, receipts and statements required by applicable law and related to your Enroll & Pay Merchant
account, which will be communicated to you via the email address or contact phone number associated
with your Merchant account. - Your receipt of electronic notices or disclosures has the same meaning and effect as if
Enroll & Pay had provided you with paper copies, whether or not you choose to view the Terms or notices
or disclosures and are considered received by you within 24 hours of the time emailed to you or
communicated via telephone.
If you have any questions about these Terms or our Services, please contact us at
info@enrollandpay.com, or 1-866-942-5500.
159165802.8
1
Your Use of the Enroll & Pay App and Service
3.1
Eligibility
Registration for and use of the Service and its features is void where prohibited. By registering
and using the Service and its features, you represent and warrant that (a) you are duly organized and
validly existing under the laws of the jurisdiction in which you are organized; (b) you have all legal rights,
powers, and authority, and have obtained all approvals, permissions and consents necessary to create a
Merchant account and to perform your obligations hereunder; (c) the execution, delivery and
performance of these Terms does not and will not conflict with any agreement to which you are a party;
(d) all registration information you submit is truthful and accurate; and (e) you will maintain the accuracy
of such information. If you provide any information that is untrue, inaccurate, not current or incomplete
(or Enroll & Pay has reasonable suspicion that such information is untrue, inaccurate, not current or
incomplete) or you otherwise have violated the Terms, Enroll & Pay has the right to suspend or terminate
your Merchant account and refuse any or all-current or future use of the Service.
3.2
Registration and Passwords
When you create your Enroll & Pay Merchant account, you will be asked to provide an email
address and password. You agree that Enroll & Pay will not be liable for any loss that you may incur as a
result of an unauthorized user using your email or password, either with or without your knowledge. You
must maintain the security of your Merchant account and promptly notify us if you discover or suspect
that an unauthorized user has accessed your Merchant account. You are responsible for your Merchant
account and all activities that occur through the use of your credentials. You are liable for all actions
occurring on or through your Merchant account, including any losses incurred by Enroll & Pay due to an
unauthorized third-party using your email or password. In addition to providing your email and creating a
password, you will be asked to provide certain information to enable Enroll & Pay to contact you in
accordance with the Terms. Please see the Privacy Policy for details.
3.3
Using your Enroll & Pay Merchant Account
Through your Enroll & Pay Merchant account, you can configure the offers, conditions, discounts,
points and other loyalty benefits you offer (“Reward Program Rules”) to your loyalty members (“Loyalty
Members”) through your Merchant Rewards program (“Reward Program”). Loyalty Members are
individual consumers who have opt-in to Merchant’s Reward Program. Merchant may include in its
Reward Program Rules, among other things, ‘Reward Program Type’ (‘Points’ or ‘Punch Card’) and
‘Enrollment Reward’ (‘Instant Discount’, ‘Percentage Off’, or ‘Points’). You will be notified when your
Reward Program Rules set up is complete. If at any time you wish to change your Reward Program Rules,
you may do so by logging into your Merchant account or contacting Enroll & Pay support at
info@enrollandpay.com. Reward item and offers are designated by the your Reward Program Rules. Upon
your request, Enroll & Pay will also deliver special offers and push notifications from you on your behalf
to your Loyalty Members. Merchant is responsible for providing any required notices and obtaining any
required consents in connection with any marketing, special offers, push notifications Enroll & Pay
provides to Loyalty Members for or on Merchant’s behalf. Loyalty Members have the right to “opt-out”
of those special offers and push notifications. Please ensure the accuracy of your contact information
(email and phone number) during registration. These communication methods are used in order to keep
you updated with respect to notices, Reward Program Rules, customer relationship management tools,
account updates, and other important communications. You are solely responsible for providing all
159165802.8
2
content, information, and required notices disclosures, and consents, relating to your Rewards Program
and Rewards, including the type of Reward, and amount and limits on applicable Rewards to your Loyalty
Members, and you are solely responsible for managing, responding to, and/or resolving any complaints,
issues, or inquiries relating to your Rewards Program and/or Rewards. Enroll & Pay does not offer Rewards
or Merchant’s Reward Program and is not responsible for any Rewards to Loyalty Members.
3.4
Updates
Enroll & Pay is constantly innovating in order to provide the best possible experience for any
merchant that installs the Enroll & Pay App. You acknowledge and agree that from time to time, and
without prior notice to you, Enroll & Pay may at its sole discretion release updates to the Enroll & Pay App
that you may be required to install. In addition, some updates may prevent you from accessing the Enroll
& Pay App or certain features within the Enroll & Pay App (permanently or temporarily) and, if that occurs,
you will be notified through the contact information you provided at registration.
Your Privacy and Personal Information
4.1
Privacy
We understand that your privacy is important. Enroll & Pay has developed a privacy policy, at
https://www.enrollandpay.com/privacy-policy/, describing how we collect, use, share, process and
disclose information (“Privacy Policy”). By downloading the Enroll & Pay App, you acknowledge that you
have reviewed Enroll & Pay’s Privacy Policy.
Changes to the Terms
We reserve the right to make changes to the Terms at any time by publishing a revised version of
the Terms on the Enroll & Pay App or via the email address associated with your Merchant account. The
revised version of the Terms will take effect from the time it was first published. You will be subject to the
Terms in force at the time that you download the Enroll & Pay App. Your continued use of the Enroll &
Pay App indicates your acceptance of any such updates and changes. You are advised to check the Terms
from time to time for any updates or changes that may affect you. We last modified these Terms on the
date stated at the beginning of these Terms. If you are dissatisfied with the Service, its content or any
Terms (including as modified), you agree that your sole and exclusive remedy is to discontinue using the
Service. The Terms are the entire agreement between you and Enroll & Pay with respect to your use of
the Service.
Term; Fees and Payment
6.1
Term
Unless otherwise terminated as set forth below, these Terms shall commence as of the effective
date designated in the Order Form and shall continue in effect thereafter unless superseded or otherwise
terminated by agreement of the parties.
6.2
Fees and Payment
All fees are as set forth in the Order Form and shall be paid within thirty (30) days of your receipt
of our invoice, unless otherwise specified in such Order Form. Except as otherwise set forth in the Order
159165802.8
3
Form, all fees are payable in advance. Except as expressly set forth in the Order Form, all fees are non
refundable. You are required to pay any sales, use, value-added withholding, or similar taxes or levies,
whether domestic or foreign, other than taxes based on our income. Any late payments shall be subject
to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law,
whichever is less (plus the costs of collection).
Notices and Communications
7.1
When you use the Enroll & Pay App or send emails to Enroll & Pay, you are communicating
with Enroll & Pay electronically. Enroll & Pay will communicate with you by e-mail and phone or by posting
notices in the Enroll & Pay App. You consent to receive notices and communications from Enroll & Pay
electronically and agree that all notices and communications that Enroll & Pay provides you electronically
satisfy any legal requirement that such communications are in writing, unless mandatory applicable laws
specifically require a different form of communication.
7.2
All notices that you are required or desire to give to Enroll & Pay must be delivered in
writing by e-mail to info@enrollandpay.com.
Ownership and Licensing
8.1
Enroll & Pay grants you a limited, non-exclusive, non-transferable, revocable license to
access, download and use the Enroll & Pay App and Services for your business’ commercial use only in
accordance with these Terms and as specified on the Order Form, and without the right to sub-license or
assign in any way. Enroll & Pay may from time-to-time upgrade, update or modify the Enroll & Pay App or
Services, release new versions of the Enroll & Pay App or Services or create new related modules, each of
which may, at Enroll & Pay’s sole discretion, be included in this license. Any use of the Enroll & Pay App
or Services other than as specifically authorized herein, without our prior written permission, is strictly
prohibited, will terminate the license granted herein and violate Enroll & Pay’s intellectual property rights.
8.2
All intellectual property rights in or related to the Enroll & Pay App and Services are and
remain the sole and exclusive property of Enroll & Pay and its licensors, and all rights, title and interest
associated with the Enroll & Pay App and Services not expressly granted by Enroll & Pay under these Terms
are withheld.
8.3
You are not granted any rights or license to the Enroll & Pay name, trademarks, service
marks, graphics or logos, which are and will remain the sole and exclusive property of Enroll & Pay. Enroll
& Pay, Enroll & Pay Rewards, Community Cash Back® and our logos, our product or service names, our
slogans and the look and feel of the Services are trademarks of Enroll & Pay and may not be copied,
imitated or used, in whole or in part, without our prior written permission.
8.4
You grant Enroll & Pay a limited, non-exclusive, revocable, royalty-free right to use
Merchant’s name, trademarks, service marks, graphics or logos (the “Merchant Marks”) in connection
with Enroll & Pay’s promotion or provision of the Enroll & Pay App and Services to you or to provide
Rewards to members for you or on your behalf. You represent and warrant that you own and have all
rights to license Merchant Marks as set forth herein and that use of any Merchant Marks (including
derivative works) by us in compliance with these Terms, does not and will not infringe any intellectual
property rights of any third party. Enroll & Pay takes no responsibility and assumes no liability for any
Merchant Marks provided by you or any third party.
159165802.8
4
8.5
The Enroll & Pay App or Services may allow you to create, post, store and share content,
including messages, text, photos, videos, and other materials to Loyalty Members relating to the Reward
Program Rules (collectively, “Posted Information”). You hereby grant to Enroll & Pay a perpetual,
worldwide, royalty-free, nonexclusive, transferable, irrevocable license to use, modify, adapt, translate,
create derivative works of, reproduce, publish, broadcast, distribute and commercially exploit your Posted
Information and any name or likeness provided in connection with your Posted Information, in whole or
in part, and alone or as part of other works in any form, media or technology whether now known or
hereafter developed, including, but not limited to, the right to sublicense through multiple tiers of sub
licensees or assign in any way, in connection with the Enroll & Pay App or Services.
8.6
You hereby irrevocably waive and cause to be waived against Enroll & Pay any claims and
assertions of moral rights or attribution with respect to your Posted Information. You may not create,
post, store or share any Posted Information that violates these Terms or for which you do not have all the
rights necessary to grant us the license described above. You represent and warrant that your Posted
Information, and our use of such content as permitted by these Terms, will not violate any rights of or
cause injury to any person or entity. We may delete or remove Posted Information at any time and for
any reason with or without notice.
8.7
All intellectual property rights in or related to your Posted Information are and remain
your sole and exclusive property, and all rights, title and interest associated with your Posted Information,
not expressly granted by you under these Terms, are withheld.
8.8
The Enroll & Pay App and our Services may also contain information provided by Enroll &
Pay, including, but not limited to, text, images, logos, photographs, graphics, audio, video, marketing
materials, press releases and related information (“Enroll & Pay Content”). Enroll & Pay Content is
protected by copyright, trademark, patent, trade secret and other laws, and Enroll & Pay owns and retains
all rights in the Enroll & Pay Content.
Prohibited Conduct
9.1
You will not violate any applicable law, contract, intellectual property right or other third
party right or commit a tort, and you are solely responsible for your conduct while using the Enroll & Pay
App and our Services. You will not: (a) engage in any harassing, threatening, intimidating, predatory or
stalking conduct; (b) use or attempt to use another merchant or user’s account without authorization
from that merchant or user; (c) sell, resell, rent, lease, provide access to or sublicense the Enroll & Pay
App or our Services; (d) copy, reproduce, distribute, publicly perform or publicly display all or portions of
the Enroll & Pay App or our Services, except as expressly permitted by us or our licensors; (e) modify the
Enroll & Pay App or our Services, remove any proprietary rights notices or markings, or otherwise make
any derivative works based upon the Enroll & Pay App or our Services; (f) use the Enroll & Pay App or our
Services other than for their intended purpose and in any manner that could interfere with, disrupt,
negatively affect or inhibit other users from fully enjoying the Enroll & Pay App or our Services; (g) reverse
engineer, decompile or disassemble any aspect of the Enroll & Pay App or our Services, or do anything
that might discover source code or bypass or circumvent measures employed to prevent or limit access
to any part of the Enroll & Pay App or our Services; (h) use any data mining, robots or similar data gathering
or extraction methods designed to scrape or extract data from the Enroll & Pay App or our Services; (i)
develop or use any applications that interact with the Enroll & Pay App or our Services without our prior
written consent; (j) use the Enroll & Pay App or our Services for any illegal or unauthorized purpose, or
159165802.8
5
engage in, encourage or promote any activity that violates these Terms; or (k) propagate any virus, worms,
Trojan horses, or other programming routine intended to damage any system or data.
9.2
You may also post or otherwise share only Posted Information that is nonconfidential and
that you have all necessary rights to disclose. You may not create, post, store or share any Posted
Information that: (a) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive,
harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (b)
would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party
or otherwise create liability or violate any applicable law; (c) may infringe any patent, trademark, trade
secret, copyright or other intellectual or proprietary right of any party; (d) contains or depicts any
statements, remarks or claims that do not reflect your honest views and experiences; (e) impersonates,
or misrepresents your affiliation with, any person or entity; (f) contains any unsolicited promotions,
political campaigning, advertising or solicitations; (g) contains any private or personal information of a
third party without such third party’s consent; (h) contains any viruses, corrupted data or other harmful,
disruptive or destructive files or content; or (i) in our sole judgment, is objectionable, restricts or inhibits
any other person from using or enjoying the Enroll & Pay App or our Services, or may expose Enroll & Pay
or others to any harm or liability of any type.
9.3
You agree to comply fully with all applicable regulations of the United States Department
of Commerce and with the United States Export Administration Act, as amended from time to time, and
with all applicable laws and regulations of other jurisdictions with respect to the importation and use of
the Enroll & Pay App and our Services.
9.4
Enforcement of this Section 9 is solely at Enroll & Pay’s discretion, and failure to enforce
this section in some instances does not constitute a waiver of our right to enforce it in other instances. In
addition, this Section 9 does not create any private right of action on the part of any third party or any
reasonable expectation that the Enroll & Pay App or Services will not contain any content that is prohibited
by such rules.
Loyalty Member Data
10.1
“Loyalty Member Data” means any and all data, including any personal information as
defined by applicable law, obtained from or provided by your Loyalty Members through the Enroll & Pay
App and our Services. You will provide all required notices to and collect all required consents from your
Loyalty Members, relating to Enroll & Pay’s collection, use, and/or processing of Loyalty Member Data for
you or on your behalf. In addition. You are solely responsible for the accuracy, content and legality of all
Loyalty Member Data. You represent and warrant that you have sufficient rights in the Loyalty Member
Data to allow Enroll & Pay to use and process the Loyalty Member Data in accordance with these Terms
and to grant the rights granted to us in Section 10.2 below and that the Loyalty Member Data does not
infringe or otherwise violate the rights of any third party.
10.2
As between the parties, you shall retain all right, title and interest (including any and all
intellectual property rights) in and to the Loyalty Member Data as provided to us. Subject to these Terms,
you hereby grant us a non-exclusive, worldwide, royalty-free right to use, process, copy store, transmit,
modify, create derivative works of and display the Loyalty Member Data to the extent necessary to
provide you the Enroll & Pay App and our Services. You also hereby grant us the right to further use and
disclose to third parties the Loyalty Member Data on an aggregated, anonymized basis and in a manner
that does not identify Loyalty Members (“Aggregate Loyalty Member Data”) for the purpose of performing
159165802.8
6
analytics, creating or improving our products or services, or for any other reasonable purpose (including
commercial purposes) that is not prohibited by law.
Feedback
11.1
You may voluntarily post, submit or otherwise communicate to us any questions,
comments, suggestions, ideas, original or creative materials or other information about the Enroll & Pay
App or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any
purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without
limitation, to develop, copy, publish, or improve the Feedback in Enroll & Pay’s sole discretion. You
understand that Enroll & Pay may treat Feedback as nonconfidential.
Disclaimer of Warranties; Limitation of Liability
12.1
THE SERVICE, THE ENROLL & PAY APP, AND CONTENT ON OR AVAILABLE THROUGH THE
ENROLL & PAY APP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ENROLL & PAY EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT.
12.2
ENROLL & PAY MAKES NO WARRANTY THAT: (A) THE ENROLL & PAY APP OR THE SERVICE
WILL MEET YOUR REQUIREMENTS; (B) THE ENROLL & PAY APP OR THE SERVICE WILL BE AVAILABLE ON
AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED
FROM USE OF THE ENROLL & PAY APP OR THE SERVICE WILL BE ACCURATE, TIMELY, OR RELIABLE; OR (D)
THE QUALITY OF THE ENROLL & PAY APP OR THE SERVICE WILL MEET YOUR EXPECTATIONS.
12.3
YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE ENROLL & PAY APP AND THE
SERVICE. ENROLL & PAY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE TO YOUR
COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE ENROLL & PAY APP.
12.4
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE
ENROLL & PAY APP OR THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL
BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH
RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY
DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
12.5
ENROLL & PAY DOES NOT REPRESENT OR GUARANTEE THAT THE ENROLL & PAY APP OR
SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER
SECURITY INTRUSION, AND ENROLL & PAY DISCLAIMS ANY LIABILITY RELATING THERETO. YOU WILL BE
RESPONSIBLE FOR BACKING UP YOUR OWN DEVICE OR COMPUTER SYSTEM.
12.6
ENROLL & PAY HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU
MAY INCUR FROM UNAUTHORIZED USE OF YOUR ENROLL & PAY MERCHANT ACCOUNT OR YOUR USER
NAME AND PASSWORD, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. HOWEVER, YOU COULD BE HELD
LIABLE FOR LOSSES INCURRED BY ENROLL & PAY OR ANOTHER DUE TO SOMEONE ELSE USING YOUR
PASSWORD OR USER NAME. YOU WILL INDEMNIFY AND HOLD ENROLL & PAY HARMLESS FOR ANY
IMPROPER OR ILLEGAL USE OF YOUR ENROLL & PAY MERCHANT ACCOUNT.
159165802.8
7
12.7
ENROLL & PAY DOES NOT REVIEW OR MONITOR ANY MERCHANT MARKS, POSTED
INFORMATION, OR THE GOODS OR SERVICES OFFERED BY MERCHANT TO ANY LOYALTY MEMBERS,
MERCHANT CUSTOMERS OR OTHER THIRD PARTIES. ACCORDINGLY, ENROLL & PAY HEREBY DISCLAIMS
ANY AND ALL LIABILITY FOR ANY LOSSES ARISING FROM OR IN CONNECTION WITH ACTIONS TAKEN OR
OMITTED BY YOU FOR ANY MERCHANT MARKS, GOODS OR SERVICES OFFERED AND THE NATURE OF ANY
POSTED INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO HONOR ANY OFFER,
DISCOUNT, REWARD OR OTHER OBLIGATIONS YOU MAY HAVE TO ANY LOYALTY MEMBERS, CUSTOMERS
OR OTHER THIRD PARTIES. In addition, Enroll & Pay is not responsible for the goods and services that any
Loyalty Member, Merchant customer or other third party purchases using the Services or the Enroll & Pay
App. You are responsible for any customer service obligations related to those goods and services,
including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality
and warranty, technical support, and issues concerning experiences your personnel, policies, or processes.
Enroll & Pay is also not responsible for any customer service related to your payment instrument(s).
12.8
YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF POSTED INFORMATION IS
AT YOUR SOLE RISK. ENROLL & PAY HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES
YOU MAY INCUR RELATING TO YOUR CONDUCT OR POSTED INFORMATION.
12.9
THE ENROLL & PAY APP AND SERVICES IS MANAGED FROM ENROLL & PAY’S FACILITIES IN
THE UNITED STATES. ENROLL & PAY DOES NOT REPRESENT OR WARRANT THAT THE ENROLL & PAY APP
OR SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER JURISDICTIONS. IF YOU ACCESS OR USE
THE ENROLL & PAY APP OR SERVICE FROM OTHER JURISDICTIONS, YOU DO SO OF YOUR OWN VOLITION
AND AT YOUR OWN RISK.
12.10 Limitation of Liability
IN NO EVENT SHALL WE, OUR AFFILIATES OR OUR LICENSORS BE LIABLE FOR ANY DAMAGE, CLAIM
OR LOSS INCURRED BY YOU, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, COMPENSATORY,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR PERSONAL INJURY,
BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF PRIVACY, LOSS OF PROFITS OR REVENUE
INCURRED BY YOU OR ANY THIRD PARTY IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF,
KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES
TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT,
BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND
OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS ARISING FROM YOUR ACCESS TO, OR USE OF, OR
INABILITY TO USE THE SERVICE OR THE ENROLL & PAY APP.
12.11 IF THE DISCLAIMERS OR LIMITATIONS OF LIABILITY IN THIS SECTION 12 ARE FOR ANY
REASON HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE VOID,
UNENFORCEABLE OR INAPPLICABLE, SUCH PROVISIONS SHALL BE LIMITED OR ELIMINATED TO THE
MINIMUM EXTENT NECESSARY AND REPLACED WITH A VALID PROVISION THAT BEST EMBODIES THE
INTENT OF THESE TERMS OF USE, PROVIDED, IN NO EVENT WILL THE AGGREGATE LIABILITY OF ENROLL &
PAY OR ITS AFFILIATES TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR YOUR
ACCESS TO AND USE OF THE SERVICE OR THE ENROLL & PAY APP EXCEED THE AMOUNTS PAID OR PAYABLE
BY YOU DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN THE CLAIM AROSE, REGARDLESS OF THE
FORM OR THEORY OF THE ACTION OR CLAIM.
Indemnification and Waiver
159165802.8
8
13.1
By using the Service and the Enroll & Pay App, you agree, to the fullest extent permitted
by law, to indemnify and hold Enroll & Pay, its directors, officers, employees, affiliates, agents,
contractors, principals, and licensors (individually and collectively, the “Enroll & Pay Parties”) harmless
with respect to any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out
of your (a) breach of these Terms or any representation or warranty (b) your use of the Service and the
Enroll & Pay Apps; (c) your Posted Information or Feedback; (d) your violation, misappropriation or
infringement of any rights of another (including intellectual property rights or privacy rights); (e) your
conduct in connection with the Services; (f) any Loyalty Member Data (including, without limitation, the
violation of any laws, regulations or privacy rights); or (g) any dispute between you and any Loyalty
Member.
13.2
You cannot sue or recover any damages from Enroll & Pay, its directors, officers,
employees, affiliates, agents, contractors, principals, and licensors as a result of its decision to (a) remove
or refuse to process any information or content, (b) warn you, suspend or terminate your access to the
Enroll & Pay App or Service, or (c) take any other action during the investigation of a suspected violation
or as a result of Enroll & Pay’s conclusion that a violation of these Terms has occurred.
13.3
This waiver and indemnity provision applies to all violations described in or contemplated
by these Terms.
13.4
You agree to promptly notify the Enroll & Pay Parties of any third-party Claims, cooperate
with the Enroll & Pay Parties in defending such Claims and pay all fees, costs and expenses associated with
defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Enroll & Pay
Parties will have control of the defense or settlement, at Enroll & Pay’s sole option, of any third-party
Claims.
Suspension and Termination
14.1
Either party may terminate these Terms if the other party (a) fails to cure any material
breach of these Terms (including a failure to pay fees) within thirty (30) days after written notice (such
notice must contain sufficient detail as to the nature of the breach and state the intent to terminate and
email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c)
seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or
comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within
sixty (60) days thereafter). Either party may, at its convenience, terminate these Terms with or without
cause, in whole or in part, upon thirty (30) days’ prior written notice. If you cancel these Terms pursuant
to the foregoing termination for convenience, you shall pay a cancellation fee of $0.00, unless otherwise
specified in the Order Form.
14.2
Upon any termination of these Terms, (a) you shall immediately cease any and all use of
and access to the Enroll & Pay App and the Services, (b) your Enroll & Pay Merchant account shall be
terminated, and (c) each party will return to the other party (or destroy) such other party’s Confidential
Information, as defined below, notwithstanding any Aggregate Loyalty Member Data or Aggregate Usage
Data, as defined below. Upon termination of your Enroll & Pay Merchant account, your Loyalty Members
will no longer have access to earned discounts, points and Rewards.
14.3
We reserve the right, in our sole discretion, to reject, refuse to post or remove your
Posted Information, or to deny, restrict, suspend, or terminate your access to your Merchant account and
all or any part of the Service at any time, for any or no reason, with or without prior notice or explanation,
159165802.8
9
and without liability. Following the suspension or termination of your Merchant account, Enroll & Pay will
not be under any obligation to return any Posted Information of any kind to you.
14.4
In the event of a termination or suspension of your Merchant account, Enroll & Pay has
the right to retain and use Loyalty Member Data and complete any authorized transactions. Any provisions
that by their nature require survival in order to be effective, shall survive the termination of these Terms,
including but not limited to Sections: 6.2 (Fees and Payment), 8 (Ownership and Licensing), 9 (Prohibited
Conduct), 10 (Loyalty Member Data), 11 (Feedback), 12 (Disclaimer of Warranties; Limitation of Liability),
13 (Indemnification and Waiver), 14 (Suspension and Termination), 15 (Confidential Information), 16
(Applicable Law and Jurisdiction), and 17 (General).
Confidential Information
15.1
Each party agrees that all code, inventions, know-how, business, technical and financial
information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the
confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as
confidential at the time of disclosure or should be reasonably known by the Receiving Party to be
Confidential Information due to the nature of the information disclosed. Any Services, performance
information relating to the Enroll & Pay App, and these Terms shall be deemed Confidential Information
of Enroll & Pay without any marking or further designation. In addition, all fees and pricing information
will be Enroll & Pay’s Confidential Information. Except as expressly authorized herein, the Receiving Party
will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s
nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was
rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has
become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the
Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently
developed by employees of the Receiving Party who had no access to such Confidential Information; or
(e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent
required to comply with such regulation or order and with advance notice to the Disclosing Party). The
Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm
for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure
by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief (without
the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
15.2
Notwithstanding the above, Enroll & Pay may compile aggregate data related to your
usage of the Enroll & Pay App and the Services and may use and/or disclose such aggregate data to third
parties, to the extent that you or any Loyalty Members are not identified as the source of such data and
as long as the data does not reveal the identity, whether directly or indirectly, of any individual, or specific
data entered by or relating to any individual (“Aggregate Usage Data”).
Mandatory Arbitration; Choice of Law; Jurisdiction
Merchant agrees that it will arbitrate certain disputes and claims with Enroll & Pay in accordance with
these Terms and that it is limited in the manner in which it can seek relief from Enroll & Pay. No class or
representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration
precludes you from suing in court or having a jury trial.
A.
No Representative Actions. You and Enroll & Pay agree that any dispute arising out of or
related to these Terms or our Services is between you and Enroll & Pay and that any dispute will be
159165802.8
10
resolved solely through individual action, and will not be brought as a class arbitration, class action or any
other type of representative proceeding.
B.
Arbitration of Disputes. Except for small claims disputes in which you or Enroll & Pay seeks
to bring an individual action in small claims court located in the county of your billing address or disputes
in which you or Enroll & Pay seeks injunctive or other equitable relief for the alleged infringement or
misappropriation of intellectual property, you and Enroll & Pay waive your rights to a jury trial and to have
any other dispute arising out of or related to these Terms or our Services, including claims related to
privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you
have against Enroll & Pay you agree to first contact Enroll & Pay and attempt to resolve the claim
informally by sending a written notice of your claim (“Notice”) to Enroll & Pay by email at
[info@enrollandpay.com ] or by certified mail addressed to [512 Via de la Valle, #301, Solana Beach, Ca.
92075). The Notice must (a) include your name, your organization’s name and address, email address, and
telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief
sought. Our notice to you will be similar in form to that described above. If you and Enroll & Pay cannot
reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either
party may submit the Dispute to binding arbitration administered by JAMS or, under the limited
circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through
confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in San Diego
County, California. You and Enroll & Pay agree that Disputes will be held in accordance with the JAMS
Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules
are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and
agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS
Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
C.
You and Enroll & Pay agree that these Terms affect interstate commerce and that the
enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration
Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by
the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all
procedural and substantive decisions regarding any Dispute and to grant any remedy that would
otherwise be available in court, including the power to determine the question of arbitrability. The
arbitrator may conduct only an individual arbitration and may not consolidate more than one
organization’s claims, preside over any type of class or representative proceeding or preside over any
proceeding involving more than one organization.
D.
The arbitration will allow for the discovery or exchange of non-privileged information
relevant to the Dispute. The arbitrator, Enroll & Pay, and you will maintain the confidentiality of any
arbitration proceedings, judgments and awards, including information gathered, prepared and presented
for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority
to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty
of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the
arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in
connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that
disclosure is otherwise required by law or judicial decision.
E.
You and Enroll & Pay agree that the party that initiates the arbitration shall pay all JAMS
fees and costs. You and Enroll & Pay agree that the state or federal courts of the State of California and
159165802.8
11
the United States sitting in San Diego County, California, have exclusive jurisdiction over any appeals and
the enforcement of an arbitration award.
F.
Any dispute arising from this Terms and your use of the Services will be governed by and
construed and enforced in accordance with the laws of California, except to the extent preempted by U.S.
federal law, without regard to conflict of law rules or principles (whether of California or any other
jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between
the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in
the state or federal courts of California and the United States, respectively, sitting in San Diego County,
California.
G.
Any Dispute must be filed within one year after the relevant claim arose; otherwise, the
Dispute is permanently barred, which means that you and Enroll & Pay will not have the right to assert
the claim.
H.
If any portion of this Section 16 is found to be unenforceable or unlawful for any reason,
(a) the unenforceable or unlawful provision shall be severed from Terms; (b) severance of the
unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 16
or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this
Section 16; and (c) to the extent that any claims must therefore proceed on a class, collective,
consolidated, or representative basis, such claims must be litigated in a civil court of competent
jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed
pending the outcome of any individual claims in arbitration. Further, if any part of this Section 16 is found
to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the
extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be
enforceable.
General
17.1
A failure by Enroll & Pay to enforce any right or provision of the Terms will not constitute
a waiver by Enroll & Pay of future enforcement of that right or provision or any other right or provision.
17.2
If any provision of the Terms is held to be invalid or unenforceable, that provision will be
inoperative only to the extent necessary and will be severed from the remainder of the Terms. The rest
of the Terms will remain in full force and effect.
17.3
Except as specifically stated, no third party will have any rights under, or be able to
enforce, the Terms.
17.4
You must not assign or transfer any of your rights or obligations under the Terms, in whole
or in part, by operation of law or otherwise, without the prior written approval of Enroll & Pay. You must
enter into any documents required by Enroll & Pay to effectuate an assignment or transfer by Enroll &
Pay of its rights and obligations under the Terms.
17.5
The Terms establish an independent contractor relationship between you and Enroll &
Pay, and do not create any affiliate relationship, partnership, joint venture, employment relationship,
agency, or fiduciary or other special relationship between you and Enroll & Pay. Except as expressly stated
in the Terms, neither party has the authority to act or purport to act as the other party’s agent or
representative for any purpose.
159165802.8
12
17.6
Neither party shall be liable to the other for any delay or failure to perform any obligation
under these Terms (except for a failure to pay fees) if the delay or failure is due to unforeseen events
which occur after the signing of these Terms and which are beyond the reasonable control of such party,
such as a strike, blockade, war, act of terrorism, riot, natural disaster, or failure or diminishment of power
or telecommunications or data networks or services.
17.7
The Terms and the Privacy Policy constitute the entire and complete legal agreement
between you and Enroll & Pay regarding its subject matter, and completely replaces any prior or
contemporaneous agreements or understanding, written or oral, between you and Enroll & Pay regarding
its subject matter. Each party acknowledges that it has not relied on any oral or written representations
made to it (whether made negligently or innocently) other than as expressly set out in the Terms. Nothing
in this Section 17.7 will limit or exclude your liability for fraud.
159165802.8
13