HEADNOTE USER AGREEMENT
Section A: Headnote General Terms
Section B: Headnote Technology Terms
Section C: Payment Processing Terms
Section D: Data Terms
Section E: Additional Legal Terms
Section A: Headnote General Terms
BY USING HEADNOTE's SERVICE (DEFINED BELOW) EITHER AS A CUSTOMER OR CLIENT AS SUCH TERMS ARE DEFINED BELOW), YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH CONSTITUTE A LEGALLY ENFORCEABLE AGREEMENT, GOVERNING YOUR USE OF HEADNOTE'S ONLINE PAYMENTS AND ACCOUNTS RECEIVABLE SERVICE (THE “SERVICE”). YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18, HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE AND, IF ENTERING INTO THIS AGREEMENT ON BEHALF OF A CUSTOMER OR CLIENT, YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SAME, AND YOU ARE NOT A DIRECT COMPETITOR OF HEADNOTE (OR OTHERWISE REPRESENT, DIRECTLY OR INDIRECTLY, THE INTERESTS OF A DIRECT COMPETITOR).
AS USED IN THIS AGREEMENT, THE TERM “YOU” and “YOUR(S)” APPLIES WHETHER YOU ARE A CUSTOMER OR CLIENT AND MEANS THE ENTITY OR PERSON RESPONSIBLE FOR THE ACCOUNT ESTABLISHED PURSUANT TO THIS AGREEMENT AND EACH USER ACCESSING THE SERVICE BY MEANS OF A VALID ACCOUNT ESTABLISHED BY YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THE TERM “CUSTOMER” OR “YOU” MEANS ALL EMPLOYEES OF YOUR COMPANY WHO ARE GIVEN ACCESS TO THE SERVICE. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF OR YOUR COMPANY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, OR IF YOU ARE A DIRECT COMPETITOR OF HEADNOTE (OR REPRESENT THE INTERESTS, DIRECTLY OR INDIRECTLY, OF A DIRECT COMPETITOR) YOU MAY NOT USE THIS SERVICE.
"Agreement" means this Headnote User Agreement, the original Sign up Form and associated checkbox(es), the Payment Terms and Conditions and associated checkbox(es), any subsequent billing changes, whether written or submitted online via the Service or as may be incorporated into the terms of service of a Headnote integration partner or affiliate, and any materials available on www.headnote.com or www.headnotelaw.com and specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Headnote from time to time in its sole discretion pursuant to the provisions of this Agreement.
"Client" means any of Customer’s customers or clients, whether an entity, person or individual, or any person or entity that is using the Service to initiate a payment to a Customer or other User, including any User of Client.
"Confidential Information" means any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, any Data and any information provided by You to Headnote in connection with the Service, including, without limitation, information about your Users, administrators, Clients, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.
"Content" means the information, documents, software, products and services made available under this Agreement to You in connection with Your use of the Service.
"Customer" shall have the meaning set forth in the introductory paragraph and shall also mean any lawyer, legal services provider, or other vendor or entity subscribing to or otherwise using the Service, including any User, present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on Customer’s behalf. Customer shall also include any individuals or entities accessing the Service via any of Headnote’s current API partners or affiliates, and any other entities as Headnote may add from time to time.
"Data" means any data uploaded to and stored in the Service by Customer or Client in the course of using the Service, which may include data from or about Customer’s customers or other individuals.
"Effective Date" means the earlier of either the date this Agreement is accepted by You as indicated by Your clicking any of the signup buttons, including “REQUEST ACCESS”, “REQUEST FREE TRIAL”, “CREATE ACCOUNT”, “ACTIVATE FOR FREE”, “SUBMIT APPLICATION”, or “SIGN UP” from any page on www.headnote.com or www.headnotelaw.com or on the applicable page of an integration partner or affiliate, or the date You begin using the Service, or the date Client clicks on any other Headnote button, including “VIEW AND PAY INVOICE”, “MAKE A PAYMENT”, “CONTINUE”, “MAKE PAYMENT”, “SUBMIT PAYMENT” or date Client checks the Payment Terms and Conditions box.
“Fin Partner TOS” shall have the meaning set forth in Paragraph 5 of Section A and shall be set forth in more detail in Section C.
“Headnote” means Headnote Inc., a Delaware corporation, having its principal place of business at 1 California Street, Floor 29, San Francisco, CA 94111.
“Headnote Technology” means all of the proprietary technology of Headnote (including software, hardware, products, business concepts, and processes, logic algorithms, graphical user interfaces (GUI), techniques, designs and other tangible or intangible technical material or information) made available to You by Headnote in providing the Service.
"Intellectual Property Rights" means all rights, title and interest in and to the Headnote Technology, the Content, the Service and all copyrights, patents, trade secrets, trademarks, service marks or other intellectual property or proprietary rights and any corrections, bug fixes, improvements, enhancements, updates, releases, or other modifications, including custom modifications made by Headnote relating thereto, and the media on which same are furnished.
"Service(s)" shall have the meaning set forth in the introductory paragraph and shall include the specific edition of Headnote, or other offerings developed, operated, and maintained by Headnote, accessible via www.headnote.com or www.headnotelaw.com or another designated web site or IP address, or ancillary services rendered to Customer or Client by Headnote or its integration partner or affiliate.
"Term(s)" where applicable, means the period(s) during which a specified number of Users have the right to use the Service.
“Transaction Fee(s)” is/are defined in Paragraph 1 of this Section A. Transaction Fees may be changed from time to time at Headnote's sole discretion.
“Network Fee(s)” is/are defined in Paragraph 1 of this Section A. Network Fees may be changed from time to time.
"User(s)" means Your employees, representatives, consultants, contractors or agents who are authorized under this Agreement to gain access to and use the Service and who have been supplied User identifications and passwords by You (or by Headnote at Your request).
1. TRANSACTION FEES AND OTHER CHARGES
To the extent the Service or any portion thereof is made available to You for any fee, or if you are a Client paying a Customer via the Service, you will be required to provide Headnote with information regarding your credit card, banking information, or other payment instrument.
As a Customer, you agree to pay a pre-selected percentage of funds (as specified on www.headnote.com/pricing if you signed up for the Service directly from headnote.com or as specified by a specific integration partner or affiliate if you signed up for the Service via that specific integration partner or affiliate) you receive from purchases made by your Clients, other customers, or any other person, entity or organization for your goods and services (“Transaction Fees”) as well as a variable percentage of the funds you receive through the Service where applicable and as may be required by Headnote’s financial institution partners (“Network Fees”), and you will pay Headnote a percentage of each such transaction. Learn more about potential applicable Network Fees that may be charged by Visa, Mastercard, American Express and Discover. By signing up for Headnote either directly via headnote.com, headnotelaw.com, via any of Headnote’s integration partners, or agreeing to our Terms of Service you agree to pay the Transaction Fees and Network Fees to Headnote. If you are a Client or any other person using Headnote to make a payment, by agreeing to our Terms of Service you are acknowledging that you understand that when you authorize payment, a portion of those funds will be paid to Headnote as part of the fee structure as agreed upon by Customer upon signing up to use the Service.
If Customer requests a payment be made to an account, the applicable Transaction Fees will be deducted from the payment prior to being deposited into Customer’s bank account. Network Fees, if applicable, may be deducted from your operating account at the beginning of every calendar month for the previous month’s aggregated Network Fees. Further, by agreeing to our Terms of Service, Customer acknowledges and agrees that said Transaction Fees and Network Fees are payable to Headnote and authorize Headnote to deduct such amounts from Customer’s account funds at the time of transfer for Transaction Fees and, in aggregate, for the previous month’s Network Fees, if applicable. If Customer requests a payment be made to a Trust or IOLTA account, neither the Transaction Fees nor Network Fees will be subtracted from the funds themselves at the time of transfer. Rather, those Transaction Fees and Network Fees will be subtracted from Customer’s operating account to preserve and protect the Trust Account funds. Customer agrees that Headnote is entitled to collect such Transaction Fees and Network Fees incurred as a result of facilitating a payment to a trust account and authorizes Headnote to deduct said Transaction Fees and Network Fees from Customer’s operating account.
If Client disputes any payments made or charges incurred using the Service, Client must contact the applicable Customer directly regarding the disputed charge or payment. If Customer agrees to refund any money procured using the Service, Customer is still obligated to pay Headnote the associated Transaction Fees and any associated Network Fees, if applicable, resulting from the original payment and authorizes Headnote to deduct those amounts from Customer’s operating account.
Headnote reserves the right to change Transaction Fees, Network Fees, and other prices upon written notice of such change on its website or in an e-mail to You, at Headnote’s sole option, at least 10 (ten) days before such change is to take effect. Your continued use of the Service after such change becomes effective constitutes Your agreement to pay the revised amounts. You shall be responsible for all taxes associated with Your procurement and use of the Service other than U.S. taxes based on Headnote’s net income. Where applicable, Headnote will charge any software customization fees as mutually agreed upon in writing by Headnote and Customer.
Headnote will charge the latest operating account provided by You. You represent that You have the legal right to use any payment account that You provide to Headnote and agree to update all billing, account, and contact information within three (3) business days of any change, including changes to Your legal name, street address, e-mail address, and the names and telephone numbers of Your authorized billing contact and authorized administrator(s). If a deposit is rejected due to inaccurate account information provided by You, Headnote reserves the right to charge a $25 fee rejected deposit fee. If Your contact information is false or fraudulent, Headnote reserves the right to terminate Your access to the Service, in addition to pursuing any other available legal remedies. If You believe that any Transaction Fees, Network Fees or other charges to Your account are incorrect, You must contact Headnote or the applicable integration partner or affiliate from whom you have procured the Service in writing within thirty (30) days of the date of the charge in question to be eligible for consideration to receive an adjustment or credit. All payments shall be in United States currency and are final. Headnote will not provide full or partial refunds outside of the thirty (30) days refund period.
You are responsible for maintaining sufficient funds in Your account at all times and shall reimburse Headnote for any costs incurred in pursuing and collecting delinquent or unpaid amounts. Headnote recommends maintaining a minimum balance of $5,000 to account for any chargebacks, refunds, or other reversed amounts or charges (as set forth in Paragraph 2 of this Section A below) but does not guarantee that such minimum balance will be sufficient for Yourpurposes. In the event of insufficient funds in Your account, Headnote reserves the right to charge a fee of $15 for each instance.
In the event of termination of this Agreement, You agree to pay the balance due on Your account (plus any applicable late payment charges). You agree that Headnote may charge any unpaid amounts to Your credit card, debit card, or bank account, or otherwise bill You for same.
2. DISPUTES AND CHARGEBACKS
In the event that a payment made using the Service is disputed after the funds have already been transferred to a Customer, Customer authorizes Headnote to retrieve such funds from the applicable account to cover the entire disputed amount including any related Transaction Fees or Network Fees (which shall not be refunded) plus a $30 chargeback fee. If Customer’s account does not contain the funds necessary to reimburse Headnote for the disputed amounts, including any costs incurred by Headnote as set forth in the foregoing paragraph, Customer agrees to pay Headnote said funds within seven (7) days of being notified of same by Headnote, including any fees for insufficient funds described above.
Customer agrees to allow Headnote to hold any disputed funds until the applicable dispute is resolved to Headnote’s reasonable satisfaction. If the dispute is resolved in Customer’s favor, Headnote will return said funds to Customer minus the chargeback fees described above as well as the Transaction Fees and any applicable Network Fees outlined in Paragraph 1 of this Section A. If the dispute is resolved in Client’s favor, Headnote will return said funds to Client and shall charge Customer the fees and other amounts set forth herein.
3. NON-PAYMENT AND SUSPENSION
Headnote reserves the right to suspend or terminate this Agreement and Your access to the Service immediately if Your account becomes delinquent or You are otherwise unable to provide proper payment. In the event Your account is suspended as a result of non-payment, a $25 reactivation fee will be applied upon the reactivation of the account, plus, to the fullest extent permitted by law, all expenses and legal fees incurred by Headnote while collecting such amounts. You agree that, if Your use of the Service is suspended but not terminated, You will be obligated for and agree to pay the applicable Transaction Fees, Network Fees, and other applicable fees described herein. Headnote reserves the right to impose a reconnection fee in the event Your rights are suspended and You thereafter request access to the Service. Headnote will charge a $25 reconnection fee for each suspended or deactivated User should You request reactivation of a specific User. Customer agrees and acknowledges that Headnote has no obligation to retain Data and that such Data may be irretrievably deleted if Customer’s account is delinquent.
Accounts that are not paid in full within fifteen (15) days of the applicable due date are subject to a late payment charge equal to ten percent (10%) of the total amount due, including any applicable Transaction Fees, Network Fees, and other fees or other charges then due or the maximum charge permitted by applicable law, whichever is lower.
The foregoing reactivation and reconnection fees and late payment charges are subject to increase by Headnote at any time, with or without prior notice.
Termination for Convenience. Headnote may terminate this Agreement, or reduce the number of Users (where applicable), effective immediately (or, where applicable, at the conclusion of the then current Term). You may terminate this Agreement, update billing information, or reduce the number of Users, effective upon the expiration of the then current Term (where applicable), by contacting Headnote at (888) 893-5129 or emailing email@example.com at least five (5) business days prior to such termination taking effect.
Termination for Cause. Headnote may, in its sole discretion, immediately suspend or terminate Your password, account and use of the Service if Headnote believes, in its sole discretion, that You have breached any provision of this Agreement.
Termination of Free Accounts. Headnote may terminate a free account at any time in its sole discretion, with or without prior notice.
5. ELECTRONIC FUND TRANSFERS (“EFTs”) & ACCOUNT BALANCES
6. EMAIL, PHONE AND SMS TEXT COMMUNICATION OPT IN
Headnote may contact You via email, SMS text or phone call to the phone number provided upon registration, and Customer agrees to pay any and all third-party fees (e.g., wireless provider, etc.) associated with such contact.
Customer acknowledges and agrees that Headnote may send e-mails (invoices, receipts, and follow-up messages regarding the status of invoices including but not limited to “Automated Collections”, “Payment Reminders”, “Auto-Reminders” or “Reminders”) to Client on Customer’s behalf regarding the status of or need for payment for pending, overdue or paid invoices sent via the Service. Such automated messages will be sent automatically to Client on Customer’s behalf by Headnote’s automated system. Customer may opt out of these automated messages by emailing firstname.lastname@example.org or calling (888) 893-5129. Customer further acknowledges and agrees that Headnote may communicate with Client as necessary to direct Client questions to Customer or to assist Client in questions or discussions relating to payments or the process required to make a payment using the Service.
7. SURCHARGE FEATURE
Customer may have the ability to pass the processing fees for online payment to Clients. However, the rules of each state bar differ and change often. It is Customer’s responsibility as a member in good standing with your state bar to understand and comply with all such rules applicable to Customer.
Surcharge, or the ability to pass processing fees to your client, is permitted under the rules of some state bars and is not permitted under the rules of others. Depending on Customer’s state bar(s), it may also be a requirement that Customer obtain informed consent from Client prior to charging them a surcharge.
If Customer utilizes Headnote’s surcharge feature, Customer hereby confirms that Customer checked with the applicable state bar rules prior to passing a surcharge onto a Client and is utilizing the feature properly based on such rules.
In addition, major card brands (including Visa and MasterCard) require that proper signage indicating that Customer will pass on processing fees to Client. Headnote will update payment links and payment pages to disclose such information.
8. ATTACHING INTEREST CHARGES FEATURE
Customer may have the ability to attach interest charges to overdue invoices using the Service. Attaching interest is permitted under the rules of some state bars and may not be permitted under the rules of others. Depending on Customer’s state bar(s), it may also be a requirement that Customer obtain informed consent in writing from a Client prior to charging them an interest payment.
It is Customer’s responsibility as a member in good standing with the state bar(s) to understand any and all rules in regard to the permissibility of charging interest for overdue payment to a Client prior to using this feature.
If Customer uses Headnote’s interest feature, Customer hereby confirms that Customer has checked the applicable state bar rules prior to passing an interest charge to a Client and is utilizing the feature properly based on such rules.
Section B: Headnote Technology Terms
1. RIGHT OF ACCESS AND USE
Subject to Your compliance with the terms and conditions of this Agreement and solely during the Term of this Agreement, Headnote hereby authorizes You to access and use the Service solely for Your own internal business purposes.
Headnote and its licensors reserve all rights not expressly granted to You. The rights set forth in this Agreement may not be shared with any third parties. However, Users may be reassigned from time to time to replace former Users which have terminated and no longer use the Service, so long as You> obtain the prior written consent of Headnote with respect to any such reassignment, which consent shall not be unreasonably withheld.
You shall not, and shall not attempt to, directly or indirectly:
(i) License, grant, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or any part of its Content in any way;
(ii) Use the Service to submit, store, transmit or process malicious code, worms or viruses;
(iii) Use the Service to submit, store, transmit or process Data that is or may be: (a) threatening, harassing, degrading, hateful or intimidating; (b) libelous or defamatory; (c) fraudulent, tortious or unlawful; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) infringing of any person’s rights, any applicable laws or Your obligations to any third party;
(iv) Use the Service to submit, store, transmit or process Data that would violate any applicable law, including any state or federal privacy or labor laws, or in a way that would give rise to criminal or civil liability or that encourages unlawful activity;
(v) Gain unauthorized access to the Service or to the systems or networks of Headnote or its customers;
(vi) Except as otherwise expressly permitted by this Agreement, reproduce, duplicate, copy, sell, resell, rent, sublicense, transfer, lease, make available or exploit the Service (or any part of the Service), use of the Service, or access to the Service;
(vii) Publish or disclose any benchmarks of the Service to third parties;
(viii) Interfere with or disrupt the integrity or performance of the Service or third-party content contained therein;
(ix) Impersonate any person or entity or misrepresent Your affiliation with any person or entity in connection with the Service;
(x) Modify, alter, tamper with, repair, or create derivative works of any Content or any software included in the Service;
(xii) Reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Service;
(xiii) Access, use or attempt to modify the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas;
(xiv) Copy, frame, mirror or link to any part or content of the Service, other than on Your own intranets or otherwise solely for Your own internal business purposes;
(xv) Access the Service in order to (a) build a competitive product or service, (b) build a product or service using ideas, features, functions, or graphics similar to those of the Service, or (c) copy any ideas, features, functions, or graphics of the Service;
(xvi) Remove any copyright, trademark or other proprietary rights notice from the Service; or
(xvii) Provide access to the Service to any third party who does or attempts to do any of the foregoing.
3. THE SERVICE
(a) Use of the Service. Headnote will provide You with use of the Service, including a browser interface and online payment, data encryption, transmission, access and storage.
(b) Availability of the Service. Headnote makes no guarantees as to the continuous availability of the Service or of any specific features of the Service. Headnote may modify or discontinue the Service or change, update, or remove any features or functionalities of the Service from time to time in Headnote’s sole discretion. If You do not agree to any such change, Your only recourse is to terminate this Agreement in accordance with Paragraph 4 of Section A.
(c) Access to the Service. Headnote operates a web portal to provide You with access to the Service, which will be available to You through the Internet via a secured, password-protected computer interface or access code. You agree to access the Service at Your own risk and remain solely responsible for ensuring that the method of access, content and scope, and use of the Service is compatible with Your business needs and requirements.
Following the Effective Date of this Agreement and Your completion of any applicable set-up forms and other documents that may be required by Headnote, Headnote will electronically deliver, or otherwise make available, to You instructions on how to access to and use the Service.
You will be responsible for Your Users’ access to the Service and for any unauthorized access. In addition, You shall ensure Your User(s) abide by the terms and conditions of this Agreement. You understand and agree that any passwords and access codes are for use only by You and Your User(s) and are strictly prohibited from being shared with other individuals or entities. Finally, You agree that the unauthorized sharing of any passwords and/or User access codes may cause Headnote irreparable harm and that, in addition to Headnote’s right to pursue available remedies including, but not limited to, injunctive relief and the collection of monetary damages, such breach shall, at Headnote’s sole option, result in the immediate suspension or termination of this Agreement and Your access to the Service.
Headnote will use commercially reasonable efforts to maintain the active status of the Service but Headnote will not be liable for any loss, cost, damage or expense resulting from or relating to Your lack of access to the Service including, without limitation: (i) times that Headnote, our licensors and/or any third party hosting providers may be updating or maintaining the Service or the Headnote Technology; and (ii) during such times as the Service may be inaccessible for any reason (or for no identifiable reason) whatsoever, within or outside of Headnote’s control.
You further agree that Headnote does not and will not provide You with hardware or software necessary for Your access to the Service. Rather, You are solely responsible for: (a) obtaining and maintaining such hardware and software (including, but not limited to, acquiring, installing and maintaining all telephone equipment, modems, routers, scanning devices, and other hardware and communication equipment) necessary to gain access to the Service, and the performance and security of such devices; (b) contracting with an internet service provider or telecommunications carrier for services necessary to establish your connection and access to the internet and the Service. In addition, Your agree that You are solely responsible for all costs, charges and expenses associated with the foregoing.
4. INTERNET DELAYS
The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Headnote is not responsible for any delays, failures, or other damage resulting from such problems.
If You have procured the Service directly from Headnote, Headnote shall provide forum support via direct message with a Headnote representative via any page on Headnote’s websites, www.headnote.com or www.headnotelaw.com, by emailing email@example.com or by calling (888) 893-5129. E-mail and telephonic requests for hard-copy documentation, upgrades, enhancements, and service modifications will not be granted, unless You specifically contract for such materials and/or services. The Service will be unavailable from time to time for routine maintenance. Other support may be excluded on public holidays, including New Year’s Day, Thanksgiving Day, Christmas Eve, and Christmas Day.
If You have procured the Service from a Headnote integration partner or affiliate, You must contact such integration partner or affiliate for support.
6. YOUR RESPONSIBILITIES
You are responsible for all activity occurring under Your User accounts and for Users’ compliance with the terms and conditions of this Agreement. You shall fully comply with all applicable local, state, federal, and foreign laws, treaties, rules, and regulations in connection with Your use of the Service, including, without limitation, those related to data privacy, data security, breach notification, international communications, and the collection, transmission, processing, cross-border transfer, and disclosure of Data, including technical and personal data. You shall: (i) notify Headnote immediately of any known or suspected violation of any law relating to Data, (ii) notify Headnote immediately of any unauthorized use of any password or account or any other known or suspected breach of Service security; and (iii) report to Headnote immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected.
7. INTELLECTUAL PROPERTY OWNERSHIP
(a) Ownership of the Service. Headnote (and its licensors, where applicable) owns all rights, title and interest, including all related Intellectual Property Rights, in and to the Headnote Technology, the Content, the Service, and any suggestions, ideas, improvements, enhancement requests, feedback, recommendations or other information provided by any User relating to the Service. The Headnote name, the Headnote logo, and the product names associated with the Service are trademarks of Headnote or third parties, and no right or license is granted to use them. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Headnote Technology, the Content or the Intellectual Property Rights. You acknowledge that, except as specifically provided under this Agreement, no other right, title, or interest in these items is granted.
(b) Use of Trademarks and other Intellectual Property Rights. You agree that Headnote may use Your name, trademarks, service marks, and/or logos in any advertising or promotional materials for the Service or Headnote.
8. THIRD PARTY INTERACTIONS AND LINKS
During use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between You and the applicable third party. Headnote and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchases or promotions between You and any such third party. Headnote does not endorse any sites on the Internet or otherwise that are linked through the Service. Headnote provides these links to You only as a matter of convenience, and in no event shall Headnote or its licensors be responsible for any content, products, or other materials on or available from such sites. Your right of access hereunder does not provide any license or agreement that may be required by third-party providers of ancillary software, hardware, or services prior to Your use of or access to such software, hardware, or services.
Section C: Payment Processing Terms
1. FINANCIAL INSTITUTION PARTNERS
Headnote utilizes various financial institution partners to provide the Service to You. To the extent applicable, You agree that: (i) Headnote’s financial institution partner(s) are not liable for any action or inaction by Headnote or others not under the reasonable control of such partners; (ii) such partner(s) have no duty to monitor Headnote’s activities or to report to or inform You other third party of Headnote’s financial condition, compliance with any applicable terms of service or applicable laws, or otherwise; (iii) such partner(s) shall not be liable except in cases of their respective gross negligence or willful misconduct; (iv) such partner(s)’ liability, if any, is limited as set forth in any agreements between Headnote and such partner(s) as such agreements may be updated from time to time; and (v) such partner(s) may rely and act upon communications relating to the Service without inquiry to or confirmation from You or any third party.
2. PAYMENT CARD TERMS
You must comply with all applicable terms and conditions of the payment card industry as such terms and conditions may change from time to time, including those specified by: (i) Visa, available at https://usa.visa.com/support/consumer/visa-rules.html, (ii) MasterCard, available at https://www.mastercard.com/en-ke/about-mastercard/what-we-do/terms-of-use.html, (iii) American Express, available at https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf, and (iv) Discover, available at https://www.discover.com/credit-cards/help-center/discover-terms-of-use.html. In addition, certain providers require that You enter into a direct relationship with Wells Fargo, which terms are available at https://www.wellsfargo.com/biz/merchant.
3. SUB-MERCHANT PROCESSING AGREEMENT
By agreeing to this Headnote User Agreement and/or requesting Headnote’s “Credit Card To Trust” feature, You agree to enter into a Sub-Merchant Processing Agreement (as used in this Paragraph 2 of Section C only, “Agreement”), effective as of the Effective Date, among First Data Merchant Services LLC (as used in this Section C, “Provider”), Wells Fargo Bank N.A. (as used in this Section C, “Bank”) (“Provider” and “Bank” together “Servicers”), and Headnote (as used in this Section C, “Payment Facilitator”). (“Provider,” “Bank” and “Payment Facilitator,” collectively “we,” “our,” or “us”), and You (otherwise referred to as Merchant, “you” or “your” in this Section C).
The parties agree:
Notice to Provider will be sent to: Provider Merchant Services LLC, Attn: Executive Vice President – Operations, 5565 Glenridge Connector NE, Atlanta, Georgia 30342; with a copy to: Provider Merchant Services LLC, Attn: General Counsel’s Office, 6855 Pacific Street, AK-32, and Omaha, NE 68106. Emailed notices to Provider will be sent to: firstname.lastname@example.org.
Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter discussed in this Agreement, and supersedes any previous agreements and understandings. Except as provided in this Agreement, this Agreement can be changed only by a written agreement signed by all parties. A party's waiver of a breach of any term or condition of this Agreement will not be deemed a waiver of any subsequent breach of the same or another term or condition
Section D: Data Terms
You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any of Your Data. You hereby agree that any support provided by Headnote in the provision of the Services shall not be construed as a guarantee of the accuracy, quality, integrity, legality, reliability, or appropriateness of any of Data.
2. NO LIABILITY
Headnote shall not be responsible or liable for: (i) the deletion, correction, destruction, and/or damage, to any Data; or (ii) Your collection, use, storage, cross-border transfer, or disclosure of the Data.
3. DISCLOSURE AND USE OF DATA
Headnote will not use Data for any purpose other than in providing the Service to
By submitting a payment via the Service and agreeing to this Agreement, Client authorizes the disclosure of certain confidential information including but not limited to Client’s name, contact information, payment details and payment amount for the purposes to transmitting payment as authorized by Client or for the purposes of investigating or resolving a dispute regarding payments made by using the Service. The foregoing shall constitute explicit informed consent. You further acknowledge that it is Your duty to inform your customers that certain confidential information may be disclosed or may not be protected as a result of using the Service.
4. REVIEW OF DATA
Headnote does not have any obligation to monitor or review Data for any purpose. Notwithstanding the foregoing, Headnote reserves the right to take steps it believes are reasonably necessary to enforce and/or verify compliance with this Agreement. Without limiting the foregoing, Headnote may, without notice (unless required by law) or liability to You, access, use and/or preserve Your account information and/or Data and disclose Your account information and/or Data to law enforcement authorities, government officials and/or any other party as Headnote reasonably believes necessary or appropriate: (i) if Headnote is required to do so to comply with legal process or governmental request, (ii) to enforce this Agreement, (iii) to detect or prevent security, fraud or technical issues, (iv) to protect the rights, property and/or safety of Headnote, its users, customers, or any other person, or (v) as permitted by law. Headnote also reserves the right to notify the appropriate authorities, without prior notice, if Headnote reasonably believes that Data violates any applicable law.
5. ACCESS TO DATA UPON TERMINATION
In the event this Agreement is terminated (other than by reason of Your breach), Headnote will make available to You a file of the Data within ninety (90) days of termination if You so request it in writing at the time of termination. You agree and acknowledge that Headnote has no obligation to retain the Data, and may delete, without incurring any liability, such Data, on the ninety-first (91st) day after termination. Headnote reserves the right to withhold, remove and/or discard Data, without notice or liability, for any breach of this Agreement by You, including, without limitation, Your non-payment. Upon termination due to Your breach, Your right to access or use Data shall immediately cease, and Headnote shall have no obligation to maintain or provide any Data.
Section E: Additional Legal Terms
1. REPRESENTATIONS & WARRANTIES
(a) Your Representations and Warranties.
You represent and warrant that:
(b) Headnote’s Representations and Warranties. Headnote represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will be capable of performing substantially in accordance with the online Headnote support documentation under normal use and circumstances.
(c) Service provided on an “AS IS” Basis. THE SERVICE AND ALL CONTENT, INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, OTHER THAN THOSE EXPRESSLY MADE ELSEWHERE IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEADNOTE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(d) Exclusions. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HEADNOTE AND ITS LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY, AND YOU MAY HAVE ADDITIONAL RIGHTS.
2. LIMITATION OF LIABILITY
(a) LIABILITY EXCLUSIONS. IN NO EVENT SHALL HEADNOTE, ITS PARENT ORGANIZATION, AFFILIATES, SUBSIDIARIES, AND LICENSORS, OR EACH SUCH ENTITY’S RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (THE “HEADNOTE ENTITIES”) BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE, SECURITY OF DATA (INCLUDING BUT NOT LIMITED TO DATA IN YOUR POSSESSION, CONTROL, OR STORAGE), GOODWILL, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR CONTENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE (INCLUDING AS A RESULT OF ANY TERMINATION OR SUSPENSION OF YOUR ACCOUNT), OR FOR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE HEADNOTE ENTITIES BE LIABLE FOR NEGLIGENCE, INTENTIONAL MISCONDUCT OR MISHANDLED BUSINESS BY YOU UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, SUCH CONDUCT BETWEEN YOU AND (1) THE IRS OR ANY GOVERNMENT AGENCY; (2) ANY ACCOUNTING AUDIT SERVICE; (3) YOUR EMPLOYEES, SUPPLIERS, END CONSUMERS, OR USERS (INCLUDING IN CONNECTION WITH REFUNDS AND CHARGEBACKS); AND (4) ANY MERCHANT SERVICES.
(b) LIMIT OF LIABILITY. IN ANY CASE, THE AGGREGATE LIABILITY OF THE HEADNOTE ENTITIES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY AND DUE FROM CUSTOMER (OR IF YOU ARE A CLIENT, THE APPLICABLE CUSTOMER(S)) IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY.
(c) LEGAL LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) Your Indemnity. You shall defend, indemnify and hold harmless the Headnote Entities from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) Your use of the Service or collection, use, disclosure, or cross-border transfer of any Data; (ii) Your breach or alleged breach of any of Your obligations, representations, or warranties under this Agreement; or (iii) the representation of Client by Customer, including any claim brought by Customer against Client, or any third party claim brought against Client, Customer or Headnote by a third party or government entity; provided in any such case, that the Headnote Entities (a) provide You with prompt written notice of the claim (except that the Headnote Entities’ failure to promptly notify You will not limit, impair, or otherwise affect the Headnote Entities’ rights hereunder unless You are prejudiced by such failure and then only to the extent of the prejudice); (b) grants You sole control of the defense and settlement of the claim (except You may not settle any claim without the Headnote Entities’ prior written consent, unless the settlement includes a full and final release of all claims against the Headnote Entities and does not impose any obligations on the Headnote Entities); (c) provides You with reasonable assistance (including reasonable access to information in the possession or control of the Headnote Entities); and (d) has not compromised or settled such claim. You also agree to indemnify the Headnote Entities in the event of any claim brought against Headnote by any financial institution partners or other partners arising from Your acts or omissions.
(b) Headnote’s Indemnity. Headnote shall defend, indemnify and hold You harmless from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with an allegation that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided in any such case, that You (a) promptly give written notice of the claim to Headnote (except that Your failure to promptly notify Headnote will not limit, impair, or otherwise affect Your rights hereunder unless Headnote is prejudiced by that failure and then only to the extent of the prejudice); (b) gives Headnote sole control of the defense and settlement of the claim (except Headnote may not settle any claim without Your consent, unless the settlement includes a full and final release of all claims against You and does not impose any obligations on You); (c) provides to Headnote all available information and assistance; and (d) has not compromised or settled such claim. The foregoing indemnification obligation does not apply to the extent the claim arises from Your breach of this Agreement, modification of the Service, or combination of the Service with any products, services, hardware, software, and/or business processes not provided by Headnote. In addition, Headnote shall have no indemnification obligation, and You shall indemnify the Headnote Entities, for claims arising from any infringement alleged to be caused by the combination of the Service with any of Your products, services, hardware, software, and/or business process.
4. LOCAL LAWS AND EXPORT CONTROL
The Service includes services and uses software and technology that may be subject to United States labor and privacy laws, as well as export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are maintained and made available to the public by the relevant government agency and are subject to change without notice. You agree to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining any necessary licenses to export or re-export. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Headnote and its licensors make no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside the United States of America and/or the European Union, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
Headnote may give notice to You by means of a general notice on the Service, electronic mail to Your e-mail address(es) on record, or by written communication sent by first class mail or pre-paid post to Your address on. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Headnote (deemed given upon receipt by Headnote) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Headnote at the following address: Headnote, 1 California Street, Floor 29, San Francisco, CA 94111; addressed to the attention of: Customer Service Department; or by email to email@example.com; or to such other location(s) as may be designated by Headnote from time to time.
6. MODIFICATION TO TERMS
Headnote reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time effective upon posting of an updated version of this Agreement on its website. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes. Notwithstanding the foregoing, any changes to this Agreement shall not apply to any dispute between You and Headnote arising prior to the effective date of any such change(s).
Except as otherwise provided in this Agreement, this Agreement may not be assigned without the prior express written consent of Headnote. This Agreement may be assigned without Your consent by Headnote to (i) a parent or subsidiary, (ii) an acquirer of the Headnote business or assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
8. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law’s provisions. Should any provision of this Agreement be declared illegal or unenforceable and cannot be modified to be enforceable, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect.
9. DISPUTE RESOLUTION
In the event of any dispute among the parties under this Agreement, and if the dispute cannot be settled through negotiation between the parties, such dispute shall be submitted to mediation prior to being filed within the courts of the United States in San Francisco County, California. The prevailing party shall be entitled to all attorneys’ fees and costs from the losing party.
10. FORCE MAJEURE
The Headnote Entities will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such entities’ reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
No joint venture, partnership, employment, or agency relationship exists between Customer, Client or any User and Headnote as a result of this Agreement or use of the Service. The failure of Headnote to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Headnote in writing. This Agreement comprises the entire agreement between You and Headnote and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. You consent to receiving electronic communications and notifications from Headnote in connection with Your use of the Service and this Agreement. You agree that any such communication will satisfy any legal communication requirements, including that such communications be in writing.
13. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Headnote, 1 California Street, Floor 29, San Francisco, CA 94111.
14. SOCIAL NETWORKING SERVICES
In addition, Headnote is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Headnote is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Headnote enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
15. THIRD PARTY WEBSITES
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Headnote has no control over such sites and resources and Headnote is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Headnote will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings You have with third parties found while using the Service are between You and the third party, and You agree that Headnote is not liable for any loss or claim that you may have against any such third party.
16. CONFIDENTIAL INFORMATION
If You are an attorney licensed to practice law in the United States, You shall have the obligation to adhere to all applicable rules of ethics for attorneys promulgated by both Your state of bar admittance and the American Bar Association. Such obligation may include, but is not limited to, the duty to disclose to clients and obtain informed consent from clients regarding: (a) the fact that by making an online payment (credit, debit card or ACH bank transfer), certain information that would otherwise be confidential between attorney and client, such as the client’s identity or the fact that legal services are being performed for the client, will be disclosed in the Data provided to Headnote and its partners, including financial institution partners; (b) any pass-through by the Customer to Clients of any transaction fees or Headnote fees. HEADNOTE DISCLAIMS ALL LIABILITY REGARDING CUSTOMER’S COMPLIANCE WITH APPLICABLE RULES OF ETHICS OR FAILURE OF CUSTOMER TO OBTAIN ANY REQUIRED INFORMED CONSENT FROM CLIENTS.
You grant to Headnote a non-exclusive, royalty free right during their use of the Service, to use the Confidential Information for the sole purpose of performing Headnote’s obligations hereunder. Such rights shall include permission for Headnote to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with this Agreement.
Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
Headnote reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If Headnote is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then Headnote will provide You with prompt written notice (to the extent permitted by law) prior to such disclosure so that the You may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Headnote may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
Any terms which by their nature extend beyond termination shall survive termination or expiration of this Agreement until such terms are fulfilled and shall apply to any permitted successors or assigns.
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.
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