General Terms of Service
Last updated March 1, 2024
These General Terms of Service (“General Terms”) are a legal agreement between you, as a current or prospective customer of eEndorsements’s services (“you,” “your”) and eEndorsements LLC, (”eEndorsements,” “we,” “our” or “us”) and govern your use of eEndorsements’s services, including mobile applications, websites, software, cloud-based solutions, hardware, and other products and services in the United States of America (collectively, the “Services”). By using any of the Services, you agree to these General Terms and any policies referenced within (“Policies”), including our Privacy Policy. You also agree to any additional terms specific to Services you use (“Additional Terms”), such as those listed below, which become part of your agreement with us (collectively, the “Terms”). If you are using the Services on behalf of a business, you represent to us that you have authority to bind that business or entity to these Terms, and that business accepts these Terms. You should read all of our Terms carefully.
eEndorsements Messaging Services: These terms apply when using eEndorsements Messaging Services to the public..
eEndorsements Payment Services: These terms apply if you are accepting payments through the eEndorsements platform.
HIPAA Business Associate Agreement: If you are subject to HIPAA as a Covered Entity or Business Associate (as defined in HIPAA) and use the Services in a manner that causes us to create, receive, maintain, or transmit Protected Health Information on your behalf, then you agree to the HIPAA Business Associate Agreement (“HIPAA BAA”).
1. eEndorsements Account Registration
You must open an account with us (a “eEndorsements Account”) to use the Services. During registration we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. You are fully responsible for all activity that occurs under your eEndorsements Account, including for any actions taken by persons to whom you have granted access to the eEndorsements Account. We reserve the right to change the account type, suspend or terminate the eEndorsements Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
2. Revisions, Disclosures and Notices
We may amend the Terms at any time with notice that we deem to be reasonable under the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version.
You agree to receive electronic delivery of communications. We may provide disclosures and notices required by law and other information about your eEndorsements Account to you electronically. Under this Consent, eEndorsements may provide all Communications electronically by email, by text message, or by making them accessible via eEndorsements websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Consent, the eEndorsements Privacy Notice (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, (4) and all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, contact eEndorsements Support. If we are not able to support your request, you may need to terminate your eEndorsements Account.
3. Restrictions
Except where prohibited by law, you may not, nor may you permit any third party, directly or indirectly, to access or monitor any material or information on any eEndorsements system using any manual process or robot, spider, scraper, or other automated means; except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services; perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure; copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from eEndorsements; use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; transfer any rights granted to you under these General Terms;use the Services for any illegal activity or goods or in any way that exposes you, other eEndorsements users, our partners, or eEndorsements to harm; or otherwise use the Services except as expressly allowed under these Terms.
If we reasonably suspect that your eEndorsements Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your eEndorsements Account, and any of your transactions with law enforcement.
4. Compatible Mobile Devices and Third Party Carriers
We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as “jail broken.”
5. Your Content
The Services may include functionality for uploading or providing suggestions, recommendations, feedback, stories, photos, documents, logos, products, loyalty programs, promotions, advertisements and other materials or information (“Content”).
You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media for any reason, including to provide, promote, and/or incorporate into the Services. You retain all rights in your Content, subject to the rights you granted to us in these General Terms. You may modify or remove your Content via your eEndorsements Account or by terminating your eEndorsements Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or Intellectual Property Rights; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with eEndorsements’s or its partners’ products and services, as determined by us in our sole discretion; or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose eEndorsements, its affiliates or its customers or other persons to harm or liability of any nature.
Although we have no obligation to monitor any Content, we have absolute discretion to remove Content at any time and for any reason without notice. eEndorsements may also monitor such Content to detect and prevent fraudulent activity or violations of eEndorsements’s General Terms. You understand that by using the Services, you may be exposed to Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content.
- Copyright and Trademark Infringement
If you believe that third-party material hosted by eEndorsements on any of our platforms, infringes your copyright or trademark rights, please file a notice of infringement to eEndorsements. Please read this entire document before submitting a notice.
Copyright/Trademark Infringement Notice – Framework and Requirements
The Digital Millennium Copyright Act (“DMCA”) requires hosting providers to remove or disable access to potentially infringing content upon receipt of a notice that meets certain requirements. For content hosted by eEndorsements, eEndorsements’s policy is to comply with notices alleging copyright infringement pursuant to the DMCA. Section 512 of the DMCA outlines the requirements for reporting a copyright violation for copyright owners, as well as requirements for submitting a counter-notification by an affected party. eEndorsements applies a similar framework to allegations of trademark infringement.
We send a copy of each notice we receive to the alleged infringer, if applicable.
To submit a notice alleging trademark or copyright infringement, you need to provide us with the following information:
- An electronic or physical signature (typing a full name in the reporting form or an email will be sufficient) of the copyright or trademark owner or a person authorized to act on behalf of the owner;
- A description of the material that you claim has been infringed: a. For copyright, please identify and describe the copyrighted work, and provide a URL where we can see an example of the copyrighted work; b. For trademark rights, include the basis for your claim, such as a national or community trademark registration and any applicable registration number, the country or jurisdiction, and the description of goods and/or services for which you claim rights;
- Identification of the claimed infringing material, including the URL(s)of such material on eEndorsements’s applications, websites, or services;
- Contact information, including the name of the owner of the copyright or trademark at issue and your name, title, address, telephone number, and email address;
- A statement that you have a good faith belief that the claimed infringing material is not authorized by the copyright or trademark owner, its agent, or the law; and
- A statement made under penalty of perjury, that the information provided in your notice is accurate and that you are the copyright or trademark owner or are authorized to act on behalf of the owner.
Submitting a Copyright/Trademark Infringement Notice
If you believe that third-party material hosted by, posted on, or accessible through eEndorsements’s applications infringes your copyright or trademark rights, please send a notice of infringement to eEndorsements.
By submitting the infringement notice, you acknowledge and agree that eEndorsements or its designated agent may forward the information you provide in your notice to the person responsible for the allegedly infringing material.
Copyright laws of the United States require you to consider copyright defenses, limitations, or exceptions, such as the fair use doctrine, before sending a notice. If you are not sure whether the material infringes your copyright or whether the fair use doctrine applies, we suggest you contact an attorney. Please be aware that under 17 U.S.C. (s) 512(f) of the DMCA, you may be liable for any damages, including costs and attorneys’ fees incurred by us or our merchants, if you knowingly and materially misrepresent that an activity or material is infringing.
Submitting a Counter-Notice to Challenge a Copyright/Trademark Infringement Notice
If your material has been removed or disabled as a result of an infringement notice and you believe that your material is not infringing, or that you have the authorization or right to post and use that material from the copyright or trademark owner, that owner’s agent, or pursuant to law, you may send a counter-notice to eEndorsements. The counter-notice must include:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
- Your name, address, and telephone number; and
- A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which eEndorsements may be found, and that you will accept service of process from the person who provided notification of infringement or an agent of such person.
eEndorsements or its designated agent will forward your counter-notice to the party who submitted the infringement notice. If the copyright or trademark owner does not file an action seeking a court order to restrain you from engaging in infringing activity related to the removed or disabled material within ten business days of receiving the counter-notice from eEndorsements, then eEndorsements may reinstate the removed or disabled material.
Right of Publicity and Personal Likeness Infringement Policy
If you believe that content hosted by, posted on, or accessible through eEndorsements uses your name, voice, signature, image or likeness, or that of your minor child, without your permission and in violation of a legally recognized right of publicity, we encourage you first to contact the user directly about your concerns. If that does not resolve your concerns, you may contact eEndorsements.
Repeat Infringer Policy
eEndorsements’s policy is to suspend or terminate the accounts of repeat infringers. The manner in which we apply that policy may depend on relevant aggravating or mitigating circumstances, if any, but generally we will terminate an account if it is the subject of three valid infringement notices.
eEndorsements’s Trademarks, Logos and Brands Restrictions on Use
We must be mindful of our brand identity, our reputation, and the goodwill developed under our trademarks, logos, product designs, trade dresses, user interfaces, and other assets. That means that we must ensure that these assets are used only with our permission. For example, only eEndorsements (and its affiliated companies) and its authorized licensees may use the eEndorsements Logo in advertising, promotional, and sales materials. Licensees may use eEndorsements assets only as specified in their agreement with eEndorsements and pursuant to applicable guidelines. Developers and businesses that use eEndorsements on their websites may use specific eEndorsements trademark assets.
If you have any questions, or if you see our trademarks being misused, please contact eEndorsements.
7. Security
We have implemented technical and organizational measures designed to secure your personal information from accidental destruction, loss, alteration and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
You are solely responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or eEndorsements Account or any other breach of security. You will immediately take all reasonable steps to mitigate the effects of a security breach and will cooperate with eEndorsements and provide all information requested by eEndorsements to remediate the breach. Any assistance provided by eEndorsements in relation to a security breach does not in any way operate as acceptance or acknowledgement that eEndorsements is in any way responsible or liable to you or any other party in connection with such breach.
Notwithstanding Sections 21 and 22, in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any eEndorsements Account subject to dispute) will be final and binding on all parties.
8. Privacy
Your Personal Information By using any of our Services as a eEndorsements seller, you acknowledge our data practices that apply to you, as set out in the eEndorsements Privacy Notice (the “Privacy Notice”). The Privacy Notice explains how eEndorsements collects, uses and protects the personal information you provide to us where eEndorsements makes use of your personal data to provide you with the Services or for its own purposes. You are required to familiarize yourself with the Privacy Notice prior to using the Services.
Your Customers’ and Employees’ Personal Information eEndorsements will process certain of your customers’ or employees’ personal data on behalf of your business as a service provider (“data processor”). In such circumstances, you agree that you will comply with the data protection laws applicable to you and will provide data subjects with information on the processing of their personal information which satisfies the transparency requirements of such data protection laws and which ensures that personal data may be processed fairly, lawfully and in a transparent manner. If you or your business are located in California, Colorado, Connecticut, Utah, or Virginia, please see Section 28.
9. Communications
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for a eEndorsements account or update the contact information associated with your account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
You may opt-out of receiving promotional email communications we send to you by following the unsubscribe options on such emails. You may opt out of any promotional phone calls by informing the caller that you would not like to receive future promotional calls. You may only opt-out of text messages from eEndorsements by replying STOP. You acknowledge that opting out of receiving communications may impact your use of the Services.
We also provide Services that allow you to send short message service (SMS) messages to your customers (the “Seller-Initiated SMS Services”). You will only use the Seller-Initiated SMS Services in compliance with these Terms and all other applicable laws and regulations of the jurisdiction from which you send messages and in which your messages are received.
10. Paid Services
eEndorsements’s Services include both subscription and transactional services. Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable Taxes (as defined below) (“Subscription Fee”). Transactional Services may subject you to fees charged per usage and/or terms, including transaction volume. By using a Transactional Service, you agree to pay the fees and any Taxes incurred at the time of usage.
In general, fees may be paid by debit card or credit card. If you link a debit or credit card to your account, you authorize us to collect such Fees by debit from your linked debit card or charge to your linked credit card. Regardless of payment device or method, we reserve the right to collect Paid Service Fees by deduction from your transaction proceeds, the Balance (as defined in the Payment Terms) in your eEndorsements Account or your linked bank account.
Unless otherwise provided in a Subscription Service’s terms, Subscription Fees will be charged on the first day of your billing period until canceled. You may cancel a Subscription Service at any time from your eEndorsements Account settings. If you cancel a Subscription Service, you will continue to have access to that Subscription Service through the end of your then current billing period, but you will not be entitled to a refund or credit for any Subscription Fee already due or paid. We reserve the right to change our Subscription Fee upon thirty (30) days’ advance notice. Your continued use of Subscription Services after notice of a change to our Subscription Fee will constitute your agreement to such changes.
11. Taxes
For purposes of these Terms, “Tax” and “Taxes” include any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, telecommunications, value-added, goods and services tax or similar taxes, stamp tax or duty, gross receipts, excise, real or personal property, sales, withholding, social security, occupation, use, severance, environmental, license, net worth, payroll, employment, franchise, transfer and recording taxes, fees and charges, imposed by any domestic or foreign Taxing authority, including any penalties, interest or additions to tax (collectively, “Taxes”).
Unless otherwise expressly stated, all Paid Services Fees are exclusive of any Taxes. You are responsible and liable for identifying and calculating any and all Taxes required to be assessed, incurred, collected, paid or withheld for your use of the Services. Unless otherwise expressly stated, You also are responsible and liable for (a) determining whether Taxes apply to your sale of products and services, payments received, bill payments make or received, and/or any other transactions arising from or out of your use of the Services, and (b) registering with Tax authorities in jurisdictions where you are required to do so by applicable law, and (c) calculating, collecting, reporting, paying, and/or remitting any such applicable Taxes to the appropriate Tax and revenue authority. eEndorsements specifically disclaims any liability for such Taxes and you agree to fully indemnify, defend, and hold eEndorsements harmless against any such Taxes and any other related expenses or costs. Notwithstanding anything in these Terms to the contrary, You agree that we are not a marketplace, marketplace facilitator, marketplace provider, or similar construct under any applicable law relating to sales, use, or similar taxes, nor do the Services hereunder provide a marketplace or similar construct, and You agree to not take any tax position to the contrary, including on any tax return, tax filing, in any tax audit or examination or otherwise.
Notwithstanding the foregoing, eEndorsements may charge applicable Taxes on Services, as required by law, which you agree to pay, unless you provide eEndorsements with timely appropriate, complete, and accurate information and documentation satisfying the legal and Tax requirements of the relevant governmental or Tax authority to establish that the otherwise applicable Tax is not required to be charged by eEndorsements. You agree to fully indemnify, defend and hold eEndorsements harmless against any Tax imposed by a Tax authority for failure to apply correct Taxes if such failure is a result of your failure to provide eEndorsements with the correct evidence to support your exemption from such Taxes, as applicable.
eEndorsements may be obligated under applicable laws to report certain information to tax and revenue authorities (“Tax Information”) and/or you with respect to your use of the Services. Upon request, you shall provide eEndorsements with the necessary information to complete any applicable Tax Information reporting and recertify such information from time to time, as may be required by applicable law, or otherwise in connection with any Tax audit or examination. If you use our Services you acknowledge that we will report to the applicable Tax and revenue authorities the required Tax Information (including the total number and amount of payments you received during the relevant reporting period). We also may, but are not obligated to, send to you the Tax Information reported.
If applicable, eEndorsements shall be entitled to deduct from any payments to you the amount of any applicable withholding Taxes with respect to amounts payable, or any other Taxes, in each case required to be withheld by eEndorsements to the extent that eEndorsements remits to the appropriate Tax authority on your behalf such Taxes. Any amounts so deducted or withheld shall be treated as having been paid for all purposes of these Terms and eEndorsements will not be obliged to increase or gross-up any payment on account of any withholding of Tax.
You acknowledge and agree that eEndorsements is not providing any Tax advice and nothing eEndorsements says or provides to you should be interpreted as such. For any Tax-related inquiries in connection with the Services or these Terms, you should consult your own Tax or legal advisor.
12. Modification and Termination
We may terminate these General Terms or any Additional Terms, or suspend or terminate your eEndorsements Account or your access to any Service, at any time for any reason. We may add or remove, suspend, stop, delete, discontinue or impose conditions on Services or any feature or aspect of a Service. We will take reasonable steps to notify you of termination or these other types of Service changes by email or at the next time you attempt to access your eEndorsements Account. You may also terminate the General Terms and Additional Terms applicable to your eEndorsements Account by deactivating your eEndorsements Account at any time.
13. Effect of Termination
If these General Terms or your eEndorsements Account is terminated or suspended for any reason: (a) the license and any other rights granted under these Terms will end, (b) you agree to immediately terminate and cease use of all Services, (c) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. In addition to any payment obligations under the Payment Terms, the following sections of these General Terms survive and remain in effect in accordance with their terms upon termination: 5 (Your Content), 6 (Copyright and Trademark Infringement), 7 (Security), 8 (Privacy), 13 (Effect of Termination), 15 (Ownership), 16 (Indemnity), 17 (Representations and Warranties), 18 (No Warranties), 19 (Limitation of Liability and Damages), 20 (Third Party Products), 21 (Disputes), 22 (Binding Individual Arbitration), 23 (Governing Law), 24 (Limitation on Time to Initiate a Dispute), 25 (Assignment), 26 (Third Party Service and Links to Other Web Sites), and 29 (Other Provisions).
14. Your License
We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the Paid Services, and a royalty-free, limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the Free Services as authorized in these General Terms. We may make updates to the Services available to you, which you must accept to continue using the Services. Any such updates may be subject to additional terms made known to you at that time.
15. Ownership
We reserve all rights not expressly granted to you in these General Terms. The Services are protected by copyright, trademark, patent and other laws of the United States and other countries. We own all rights, title, and interest, in and to the Services and all copies of the Services. These General Terms do not grant you any rights to our trademarks or service marks.
For the purposes of these General Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You may submit feedback, comments or ideas about the Services (“Ideas”). Submitting Ideas is entirely voluntary, and we will be free to use such ideas as we see fit without any obligation to you.
16. Indemnity
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with any claim, action, audit, investigation, inquiry, or other proceeding instituted by any person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country or any inaccuracy in any Tax Information provided hereunder; (e) any third-party claims made by your Buyer regarding eEndorsements’s processing of your customer/Buyer’s Personal Information in connection with providing you with the Services; and (f) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code; and (g) any transaction, purchase, good or service in respect of which eEndorsements provides, or provided, you with payment processing services in accordance with the Terms.
17. Representations and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are located in the United States; (c) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these General Terms; (d) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (e) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act (“HIPAA”); (f) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (g) your use of the Services will be in compliance with these Terms.
18. No Warranties
The services are provided “as is” without representation or warranty, whether it is express, implied, or statutory. without limiting the foregoing, eEndorsements specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. eEndorsements does not warrant, represent or guarantee in any way that the services are accurate, reliable or correct; that the services will meet your requirements; that the services will be available at any particular time or location, uninterrupted, error-free, without defect or secure; that any defects or errors in the services will be corrected; or that the services are free of viruses or other harmful components or fit for any particular purpose.
eEndorsements does not warrant, endorse, guarantee, or assume responsibility or liability for any product or service advertised or offered by a third party. eEndorsements does not have control of, or liability for, goods or services that are paid for using the Services.
19. Limitations of Liability and Damages
To the maximum extent permitted by applicable law, in no event will eEndorsements be liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data, or other intangible losses, that result from the use of, inability to use, or unavailability of the service. In all cases, eEndorsements will not be liable for any loss or damage that is not reasonably foreseeable.
under no circumstances will eEndorsements be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of the services or your eEndorsements account, or the information contained therein.
to the maximum extent permitted by applicable law, the total liability of eEndorsements is limited to the greater of (a) the amount of fees earned by us in connection with your use of the services during the three (3) month period immediately preceding the event giving rise to the claim for liability, or (b) $500.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if eEndorsements has been advised of the possibility of such damage. the foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction
20. Third Party Products
All third party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. eEndorsements MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
21. Disputes
“Disputes” are defined as any claim, controversy, or dispute between you and eEndorsements, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), whether arising before or during the effective period of these Terms, and including any claim, controversy, or dispute based on any conduct of you or eEndorsements that occurred before the effective date of these Terms, including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
22. Binding Individual Arbitration
General.
You and eEndorsements agree that any and all Disputes, except those that are resolved informally or brought in a small claims court, will be individually arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, MASS ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST eEndorsements. Nothing in this agreement prevents you or eEndorsements from settling Disputes on a class, representative, or consolidated basis. If any term of this arbitration agreement in Section 21 is found unenforceable, including the Bellwether Arbitration procedures described below, the unenforceable term will be severed, and the remaining terms will be enforced (but in no case will there be a class action, consolidated action, mass action or representative action arbitration).
Pre-Filing Requirement to Attempt to Resolve Disputes.
Before an arbitration is commenced, you and eEndorsements agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms. To provide this opportunity, before commencing any arbitration, proceeding in small claims court, or lawsuit (when permitted by this arbitration agreement), each party agrees to send to the other party a written Notice (“Notice”) and personally meet and confer to informally resolve any Dispute. Any Notice to eEndorsements should be sent by email to support@eendorsements.com. Any Notice sent to you will be mailed to the address on file for your account. The Notice must: (i) include your name, mailing address, eEndorsements Account Name, the email address and phone number associated with your account, and; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; (iii) set forth the specific relief sought, including an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages; and (iv) be personally signed by you or eEndorsements, as applicable. A Notice is only valid when it pertains to, and is on behalf of, an individual party. A Notice brought on behalf of multiple parties is invalid as to all. Both parties agree that they will attempt to resolve a Dispute through an informal negotiation within sixty (60) days from the date the Notice is received, and you and eEndorsements therefore agree that, before either you or eEndorsements demands or attempts to commence arbitration or litigation (where permitted) against the other, both parties will personally meet and confer, via telephone or videoconference, with each other in a good-faith effort to resolve informally any Dispute. These informal resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration or litigation (where permitted); multiple parties initiating claims cannot participate in the same informal resolution conference, unless mutually agreed to by the parties. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. Engaging in an informal resolution conference is a requirement that must be fulfilled before commencing arbitration or litigation (where permitted). Any statute of limitations shall be tolled while the parties engage in the informal resolution process required by this paragraph.
After that sixty (60) day period and not before, and after the informal resolution conference has occurred and not before, either party may elect, in a written Notice to the other party as described above, that it will pursue the matter either through small claims court or arbitration. The party receiving the notice shall then have seven (7) days to respond, including to elect for the case to be heard by a small claims court with jurisdiction. After that seven (7) day period and not before, either party may commence arbitration if not proceeding in small claims court with jurisdiction. You agree that compliance with the informal resolution process described above is a condition precedent to commencing arbitration or filing a claim in small claims court. A party’s failure to satisfy this condition precedent entitles the opposing party to seek immediate dismissal of the arbitration or litigation (where permitted) and the right to seek reimbursement for its costs. If either party elects small claims court, the Dispute will be resolved in that forum and not through arbitration. Each party agrees that state courts in the City of McKinney, Texas, Collin County Texas, or federal court for the Eastern District of Texas, referenced below, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph. Each party also agrees that state courts in the City of McKinney, Texas, Collin County Texas, or federal court for the Eastern District of Texas may address whether a claim filed in small claims court or in arbitration has been previously released.
Scope of Arbitration.
If we and you are not able to resolve the Dispute by informal negotiation or, as provided below, in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by National Arbitration and Mediation (“NAM”) (https://www.namadr.org) according to the NAM Comprehensive Rules and Procedures (the “NAM Rules”), and this Section. In the event NAM is unavailable to administer the arbitration, either party may invoke 9 U.S.C. § 5 to request that a court appoint the Arbitrator. Except as set forth above, and for Disputes subject to jurisdiction in small claims court, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Small Claims Court.
Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the arbitration provider but before an Arbitrator has been selected, and the claim is subject to the jurisdiction of the filing party’s local small claims court, the other party can send a written notice to the opposing party and the arbitration provider requesting that the Dispute be decided in small claims court. Upon receipt of such notice, and if all outstanding arbitration service fees have been paid, the arbitration provider shall then administratively close the case. respondent.
Arbitration Procedures.
The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. So long as it is consistent with the NAM Rules, the arbitration shall occur through the submission of documents to one Arbitrator. To the extent the Arbitrator determines that hearing is required, the arbitration shall be conducted remotely by telephone or video conference. To the extent that the Arbitrator determines that an in-person hearing is required, the arbitration hearing will take place as close to your hometown as practicable. You and eEndorsements will have the right to file early or summary dispositive motions. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. eEndorsements values your privacy, particularly with respect to your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an Arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect with respect to disputes involving other parties.
Bellwether Arbitration Procedures.
You and eEndorsements agree that if twenty-five (25) or more similar individual arbitration demands are brought against you or us by or with the assistance of the same or coordinated counsel or entities (“Mass Proceeding”), the parties shall select twelve (12) individual arbitration demands (six (6) per side) for arbitration to proceed (“Bellwether Arbitrations”). The determination of whether or not a demand/demands is/are part of a “Mass Proceeding” is in the arbitration provider’s sole discretion; however, either party can request the appointment of a Procedural Arbitrator (as described below) if they do not agree with the arbitration provider’s determination.
While the Bellwether Arbitrations are adjudicated, all other demands for arbitration that are part of the Mass Proceeding shall be held in abeyance and stayed, and no party shall be responsible for paying any administrator or arbitrator fees (other than the arbitration provider’s initial filing/administrative fees, and Procedural Arbitrator fees, if applicable) while the Bellwether Arbitrations are adjudicated. Any applicable statute of limitations shall be tolled as to non-Bellwether Arbitrations demands when such non-Bellwether Arbitrations are held in abeyance. The tolling period will begin when the claimant first provided the Notice of its intent to initiate an informal resolution conference as described above.
Any party may request, within five (5) business days of being notified by the arbitration provider that a Mass Proceeding exists, that the arbitration provider appoint a sole procedural arbitrator (“Procedural Arbitrator”) to determine initial questions that arise in the Bellwether Arbitrations, including whether the Bellwether Arbitration procedures are applicable or enforceable, whether any particular demand is part of a Mass Proceeding, and whether any particular demand within a Mass Proceeding was filed in accordance with this Section XIII.19. To expedite the Procedural Arbitrator’s resolution of any such initial questions, the parties agree that the Procedural Arbitrator may set forth such procedures as are necessary to resolve any such initial questions promptly. The parties agree that procedures outlined in the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (available at https://www.namadr.com/resources/rules-fees-forms/ shall apply to the appointment and conduct of the Procedural Arbitrator. eEndorsements shall pay the Procedural Arbitrator’s costs.
All parties agree that the Bellwether Arbitration procedures are designed to be a generally faster, more efficient, and more affordable mechanism for resolving a Mass Proceeding, including the claims of individual parties who are not selected for a Bellwether Arbitration. All parties shall work in good faith with the Arbitrator or Procedural Arbitrator to complete each Bellwether Arbitration within one hundred and twenty (120) calendar days of its initial pre-hearing conference.
Following resolution of the Bellwether Arbitrations, all parties agree to engage in a mediation of all remaining arbitration demands comprising the Mass Proceeding (the “Bellwether Mediation”). The Bellwether Mediation shall be administered by the arbitration provider. If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Proceeding within thirty (30) calendar days following the Bellwether Mediation, the remaining demands for arbitration comprising the Mass Proceeding shall be administered by the arbitration provider on an individual basis pursuant to the arbitration provider’s rules and this Section 22, unless the parties mutually agree otherwise in writing.
All parties agree to cooperate in good faith with the arbitration provider to implement the Bellwether Arbitration procedures, including deferring any costs associated with the non-Bellwether Arbitration Mass Proceedings until the Bellwether Arbitrations and subsequent Bellwether Mediation have concluded, and cooperate on any steps to minimize the time and costs of arbitration, which may include the appointment of a discovery special master to assist the Arbitrator in the resolution of discovery disputes and the adoption of an expedited calendar of the arbitration proceedings.
These Bellwether Arbitration procedures shall in no way be interpreted as authorizing a class, collective, or mass action of any kind, or an arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this Section 22.
Arbitration Fees.
In accordance with the NAM Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. You agree that you do not intend to use the Services for personal, family or household use. Accordingly, for purposes of calculating any arbitration costs and fees, you and eEndorsements agree that you are not a “consumer,” and that the NAM Comprehensive Fees schedule will apply. The arbitrator’s hourly fees (also referred to as Arbitrator Hearing Time) shall be split evenly between the parties. For purposes of this arbitration agreement, references to you and eEndorsements also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.
23. Governing Law
These General Terms and any Dispute will be governed by the Federal Arbitration Act, as set forth above, and by Texas law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.
24. Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
25. Assignment
Unless expressly authorized by eEndorsements, these General Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
26. Third Party Services and Links to Other Websites
You may be offered services, products and promotions provided by third parties and not by eEndorsements, including, but not limited to, third party developers who use eEndorsements’s services (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions for these services. We are not responsible or liable for the performance of any Third Party Services. Further, you agree to resolve any disagreement between you and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship, and not eEndorsements. The Services may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement, or recommendation by eEndorsements. Such third party websites are not governed by these General Terms. You access any such website at your own risk. We expressly disclaim any liability for these websites. When you use a link to go from the Services to a third party website, our Privacy Notice is no longer in effect. Your browsing and interaction on a third party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies.
27. Third-Party Beneficiaries
No provision in these General Terms, and any applicable Additional Terms is intended or shall create any rights with respect to the subject matter of these General Terms, and any applicable Additional Terms in any third party.
28. State-Specific Privacy Terms
If you are a “Business” as defined by the California Consumer Privacy Act of 2018 (“CCPA”), or are a “Controller” subject to the Colorado Privacy Act, Connecticut’s An Act Concerning Personal Data Privacy And Online Monitoring, the Utah Privacy Rights Act, or the Virginia Consumer Data Protection Act (collectively, “State Privacy Laws”), then this provision 28 applies to you. For purposes of this Section 28, “process”, “sell”, and “business purpose(s)” have the meaning ascribed to them by the State Privacy Laws.
- a) For purposes of this Section 28, “Buyer Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household that is processed by eEndorsements in connection with its Services to you. Buyer Personal Information does not include information eEndorsements receives about your customers (“Buyers”) for purposes of eEndorsements’s digital receipt, customer directory and email marketing tools (“eEndorsements Buyer Features”).. It does include information that your Buyer has provided you through eEndorsements Appointments, eEndorsements Invoices, or to receive Loyalty-related or promotional text messages. For details about our privacy practices with respect to eEndorsements Buyer Features, please refer to our Privacy Notice.
- b) We may receive Personal Information from Buyers for the purpose of performing Services on your behalf as described in these General Terms. We agree that we will process Buyer Personal Information collected, processed, stored or transmitted by, or accessible to us in the course of these General Terms, and other Applicable Terms of Service referenced above, only on your behalf, and for the purpose of providing you with the Services in these Terms and other applicable terms linked above based on the products you use. We acknowledge that we are prohibited from: (i) selling the Buyer Personal Information; (ii) retaining, using, or disclosing the Buyer Personal Information for any purpose other than providing to you the Services specified in these General Terms(s), and other applicable Terms of Service referenced above. As part of, and for purposes of, facilitating the Services, eEndorsements may (i) de-identify or aggregate the Buyer Personal Information; (ii) process the Buyer Personal Information for operational purposes, including, without limitation, verifying or maintaining the quality and safety of the Services; improving, updating or enhancing the Services either for you or for our customers generally; detecting and preventing fraud, and for protecting the security and integrity of our Services; and complying with our legal obligations; and (iii) if you participate in eEndorsements Go, process the Buyer Personal Information on the instructions of the Buyer. You acknowledge and agree that Buyer Personal Information that you disclose to eEndorsements is provided to eEndorsements for the parties’ business purposes.
- c) We reserve the right to delete Personal Information stored pursuant to these General Terms in the ordinary course of business, pursuant to our retention schedules.
29. Other Provisions
If any provision of these General Terms or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These General Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.
eEndorsements Messaging Services
A. Description. eEndorsements provides software and related management tools for communication with your Buyers via email and text messaging, including Receipts, Notifications, Surveys and Offers (collectively, “Messaging Services”). eEndorsements Text Messaging is a feature through the use of a dedicated P10-Digit Long Code (“10DLC”) number (hereinafter, a “Dedicated Messaging Telephone Number” or “DMTN”), eEndorsements Text Messaging provides a DMTN for the limited purpose of sending text messages. In all cases, the DMTN does not support two-way voice communication, such as outbound telephone calls or inbound telephone calls that initiate a two-way voice conversation between a caller and a recipient.
eEndorsements Messaging is designed and intended for one-to-one transactional messaging between a Seller and a Buyer. eEndorsements Email and Text Messages are designed and intended for one-to-many marketing messaging between a Seller and multiple Buyers.
In these terms, “eEndorsements Messaging” refers to all features and functionality offered by eEndorsements Messaging Services unless expressly stated otherwise.
B. Eligibility. To be eligible to use the eEndorsements Messaging, you must (i) comply with all applicable laws regarding eligibility to sign up for and/or use the Messaging Services, and (ii) have not previously been suspended or removed from the Messaging Services or other Services as defined in the General Terms. Specific eligibility requirements for Messaging Services may vary depending on the specific product or service. To use eEndorsements Messaging, you are also required to (i) be at least 18 years old, and (ii) have an eEndorsements Account in the United States. You assume full responsibility for all actions taken by all users of your account, including any of your employees, agents, contractors, and any others that may access any of the Services through your account.
C. Service Availability.
You understand and agree that eEndorsements Messaging may experience service outages and disruptions, including based on issues relating to telephone carriers, service providers, or vendors that may be outside of eEndorsements’s control. eEndorsements will make reasonable efforts to promptly resolve service disruptions, but eEndorsements does not guarantee the Services will be uninterrupted and available at all times or at any particular time. You agree that eEndorsements is not liable for any damages relating to service disruptions, interruptions, or outages.
eEndorsements may impose rate limits, usage limits, and any other restrictions on the use and/or availability of the Services: (i) in our discretion; (ii) as may be required to comply with obligations to carriers, vendors, and partners involved in the delivery of the Services; (iii) to maintain the integrity of our Services; (iv) to safeguard eEndorsements Sellers, Buyers, and any other users of our Services; and/or (v) to comply with any applicable laws, regulations, or law enforcement requests. eEndorsements will make reasonable efforts to notify customers of changes materially impacting the operation of the Messaging Services but is not obligated to do so. eEndorsements reserves the right to modify, deprecate, replace, refuse access to, suspend, disable, or discontinue the Services, partially or entirely, in our sole discretion.
Contact Management and Messaging
You may be able to use the Services to create, send and manage marketing and other messages to your customers (“Buyers”) who have elected to receive offers and updates from eEndorsements merchants they frequent or who provided their contact information to you directly. eEndorsements is not involved in or responsible for your marketing or other messaging to Buyers, except for providing the Services that facilitate the creation, delivery and management of messages by you to Buyers via eEndorsements. You are responsible for marketing or other messages that you send using the Services, the Content of those messages, ensuring you have appropriate consent to send those messages, and honoring any customer privacy choices and terms included in such messages, even if your eEndorsements Account is closed, suspended, or terminated. In using the Services, you will not use purchased, rented, or third-party lists of email addresses or phone numbers, and you may not use the Services to send unsolicited messages. If you utilize the offers program to your Buyers through the Services, you agree to make available to your Buyers any terms and conditions applicable to your offers program. You further agree to notify your customers of any items you exclude from eligibility of your offers program.. You are responsible for ensuring that your transactional messages, marketing messages, and offers program and any associated rewards are compliant with applicable federal, state, or local laws, including laws governing privacy, prepaid cards and special offers such as rebates and coupons.
Buyers may be able to use the Services, including digital receipts, to submit feedback to you about their recent customer experience. When Buyers submit feedback using the Services, we share that feedback with you and allow you to send responses to Buyers who have enabled replies to their feedback. You may not use the feedback features of the Services: to request Buyer Card Information, to send Buyers marketing messages, requests for information, or other communications unrelated to their feedback, or to send abusive, harassing, excessive or objectionable messages. If you do not wish to receive feedback or to report a problem with feedback from a Buyer, you should contact eEndorsements Support.
eEndorsements Messaging- Acceptable Use
Your use of the Messaging Services is subject to the following acceptable use policy (“Messages AUP”). These policies may be updated from time to time, and your continued use of the Messaging Services after such updates constitutes your agreement to the updated policies.
eEndorsements reserves the right to suspend, terminate, or otherwise modify your access to the Services for violations of the Messages AUP as determined in our sole discretion.
(i) Compliance with Applicable Marketing and Communications Laws and Industry Guidelines
You will comply with all applicable laws, rules, and regulations related to unsolicited or unwanted communications or telemarketing, including, but not limited to, the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), the Controlling the Assault of Non-Solicited Pornography and Marketing Acts (“CAN-SPAM”), and any other applicable federal, state, or local laws, rules, and regulations (collectively, the “Applicable Marketing and Communications Laws”). You will also comply with all Carrier Policies, including, but not limited to, the most current version of the Cellular Telecommunications Industry Association (“CTIA”) Messaging Principles and Best Practices Guidelines and any other generally accepted industry policies or rules adopted by carriers, or other practices enforced by carriers.
You are solely responsible for: (i) collecting and maintaining your Buyer lists and other Buyer data in accordance with Applicable Marketing and Communications Laws and Carrier Policies; (ii) providing notice and obtaining consent from Buyers as required under Applicable Marketing and Communications Laws for your use of the Services, including but not limited to sending text messages; and (c) ensuring that all transactional, marketing, and promotional activities that you conduct through the Services comply with Applicable Marketing and Communications Laws and Carrier Policies, including but not limited to your Messages Content, and any contests, raffles, sweepstakes, or similar activities.
You agree that you will only send messages and communications that are within the scope of the consent obtained from a particular Buyer and you agree to honor any requests to unsubscribe or opt out from receiving further messages and any Buyer privacy choices and terms included in such messages, even if your eEndorsements Account is closed, suspended, or terminated.
To the extent eEndorsements provides guidance, templates, tooling, or suggestions via the Messaging Services or otherwise, the foregoing are provided solely for your convenience. eEndorsements does not assume any responsibility for your obligations under this Acceptable Use Policy, and you remain solely responsible for your own compliance, including any obligations to provide opt-out instructions in your messages where applicable. You should confer with your own independent legal counsel to determine whether your transactional and marketing activities and Messages Content meet your obligations under Applicable Marketing and Communications Laws and Carrier Policies.
(ii) Data and Use Restrictions
The Messaging Services are not intended for the communication by text, voice recording, or email, of: (i) sensitive personal information; (ii) personal health information (“PHI”) as defined by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) cardholder data (“CHD”), including primary account numbers (“PAN”) and personal identification numbers (“PIN”); or (iv) sensitive authentication data (“SAD”), such as card verification codes (i.e., CVC, CVV, CID); (v) customer proprietary network information; (vi) nonpublic personal information subject to the Gramm-Leach-Bliley Act (“GLBA”) or similar laws related to financial privacy and data; (vi) sensitive personal information, as defined under the California Privacy Rights Act (“CPRA”); or (vii) government identifiers that uniquely identify a natural person such as a social security number or passport number.
You agree that you will not ask for or provide via the Messaging Services information falling within any of the categories listed in this section. You further agree to not process payment transactions with CHD or SAD provided to you via the Messaging Services.
You are responsible for complying with, and ensuring your employees, contractors, agents, and any others that access the Services through your account comply with all applicable laws relating to the collection or use of any of the types of information listed in this section. You agree to comply with any Payment Card Industry Data Security Standards (“PCI-DSS”), as well as any requirements under the Network Rules, that apply to your use of the Messaging Services. You will also cooperate in forensic investigations as required by eEndorsements or its partners.
You agree not to perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure or that of our partners, vendors, and telephone carriers.
(iii) Third Party Services and Integrations
You may not use the Messaging Services in connection with a third-party service or integration other than those offered by and/or officially supported by eEndorsements. Please contact eEndorsements if you have questions about other third-party integrations. If you use the Messaging Services, or any data obtained via the Messaging Services, in connection with a third-party service, whether through an integration offered by eEndorsements or otherwise, you are solely responsible for your use of such third-party service, including any disclosure or other processing of Buyer data in connection with such third-party service. Any use of a third-party service is at your own risk. eEndorsements will have no liability for your use of any third-party service in connection with the Services, and disclaims all responsibility for the functionality, security, availability, and operation of any third-party service.
(iv) Prohibited Uses and Content
You agree that you will not use the Services, or encourage, promote, facilitate, or instruct others to use the Services, to send messages that contain, offer, promote, reference, or link to any information or content (including payment for any associated services) related to any of the unsupported industries listed in Section 3 of the eEndorsements Payment Services, which is incorporated into these Terms here by reference and may be updated from time to time.
You further agree you will not use the Services, or encourage, promote, facilitate, or instruct others to use the Services, to send messages that contain, offer, promote, reference, or link to any content prohibited by the Carrier Policies or Applicable Marketing and Communications Laws or to any of the following categories of activities or information:
Illegal, Fraudulent, or Harmful Activities. Any activities that are illegal, violate the rights of others, or may be harmful to others and/or to eEndorsements, our operations, or reputation, including, but not limited to, offering, disseminating, promoting, or facilitating:
An illegal lottery or other promotion in violation of Applicable Marketing and Communications Laws and/or Carrier Policies regarding gambling, contests, sweepstakes, and gaming;
Illegal activities or goods, including paraphernalia that may be used for illegal activity;
child sexual abuse material (“CSAM”), child pornography, or other sexually exploitative content;
“SHAFT-C” (Sex, Hate, Alcohol, Firearms, Tobacco, and Cannabis) content, as defined under the CTIA Short Code Monitoring Guidelines;
Phishing or pharming activity;
Scams;
Fraud;
Malicious content, such as malware or viruses; or
Fireworks.
Infringing Content: Content, including images, that infringes or has the potential to infringe the intellectual property, privacy, or other proprietary rights of another, or that may be libelous, slanderous, or otherwise defamatory;
Offensive or Violent Content: Content we determine, in our discretion, is inappropriate, offensive, harassing, abusive, or violent;
Evasive Content: Content that is designed to evade filters, detection, monitoring, rate limits, and other content or service restrictions, including those imposed or managed by telecommunications providers, partners, or vendors. This includes intentionally misspelled words, “snowshoeing” (spreading similar or identical messages across many phone numbers with the intent or effect of overcoming carrier filtering systems and/or evading unwanted messaging detection and prevention), and the use of shared public Uniform Resource Locator (“URL”) shorteners, such as Bitly or TinyURL; and
Spam: Content that is sent using spam bots or other similar systems, has altered or hidden mail headers, falsely identifies the sender, or assumes a sender’s identity without permission. You agree that you will not create a false identity or attempt to mislead others regarding the identity of the sender or the origin of any data or communications.
(v) Reporting. To report violations of this Policy, you may contact eEndorsements Support. You agree to notify us and provide assistance as requested if you become aware of any violation of this Policy, including, but not limited to, the improper or unauthorized use of a DMTN.
(vi) Monitoring and Enforcement. We reserve the right, but do not assume any obligation, to monitor your Content, and to investigate any violation of this policy and these terms of service. We may disable, suspend, or terminate access to any user, Messages Content, or resource that violates these Terms or any other agreement we have with you for use of the Services. We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We may also cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing information related to alleged violations of this Policy or other applicable law or regulation.
eEndorsements Messaging- Text Services
A. Number Verification Process.
When you sign up for eEndorsements, you may be asked to submit information about your business, including, but not limited to, your business name, contact information, and business website. You agree that eEndorsements may provide this information and any other information you have previously provided to eEndorsements in the course of your relationship with us to our service providers to verify the DMTN for use in connection with eEndorsements Messaging Services.
You agree to provide truthful and accurate information at the time of signup, throughout the DMTN verification process, and at all times during the course of your use of Messaging Service, and to supplement that information at our request. eEndorsements may, but has no obligation to, contact you in the event of delays or interruptions in the number verification process.
You agree that eEndorsements may make multiple attempts to verify a DMTN with our service providers on the basis of the information you provide and/or have previously provided to eEndorsements. We will make reasonable efforts to retry failed verifications, including on the basis of supplemental information regarding your business, but we do not guarantee that number verification will ultimately be successful. If eEndorsements is unable to verify your DMTN with our service providers, we will notify you and terminate your Messaging Service account as applicable.
B. Number Restrictions.
eEndorsements Messaging may provide a DMTN to enable text messaging, voicemail, and other services. You agree to use the eEndorsements Messaging DMTN solely in connection with the Messaging Services to facilitate direct one-to-one communication with Buyers via text message, inbound voicemail, and other features as may be added to Messages. eEndorsements Messaging is not intended for group texting and you agree not to use eEndorsements Messaging to send coordinated marketing messages to multiple recipients. eEndorsements reserves the right to limit, suspend, or terminate your access to the DMTN for uses inconsistent with its intended use.
eEndorsements may provide a DMTN intended for text message marketing services, including sending the same or similar marketing texts to multiple single recipients. Your use of Text Message Marketing is subject to these terms of use.
eEndorsements makes no representations or warranties as to the operability or fitness of the DMTN for any particular purpose, including, but not limited to, any uses of the DMTN outside of eEndorsements. You are responsible for ensuring that any telephone numbers you provide to third parties are eligible for their intended purpose. You acknowledge and agree that the DMTN provided through the eEndorsements does not support two-way calling or outbound voice communication, and you agree not to use the DMTN to sign up for any other services that depend on the ability of a third party to contact you directly through two-way calling on the DMTN, including but not limited to emergency calling or messaging to any emergency services personnel or public safety answering points (“Emergency Services”), and any registrations, applications, or filings with external businesses or government agencies. You acknowledge and agree that the DMTN may not be transferred, assigned or “ported” to third-party service providers or other service platforms.
You agree not to use the DMTN to sign up for any text messages from third party services, including any transactional messages, marketing messages, or alerts, including but not limited to automated notices, reminders, or messages from other businesses, organizations, political campaigns, news services, or subscription services. You agree not to use the DMTN in connection with any services outside of the Messaging Services, including but not limited to those that could incur financial charges or for which bills or other notices relating to financial charges would be sent to your DMTN.
For the avoidance of doubt, you may not use your DMTN to send or receive messages with parties other than your buyers and prospective buyers from whom you have obtained consent under Applicable Marketing and Communications Laws (as defined in section II below within the Messages Acceptable Use Policy) to send a message. For services other than eEndorsements Email and Text Message Marketing, you may not use your DMTN for any one-to-many email or text marketing campaigns.
eEndorsements reserves the right to change or reclaim the DMTN(s) assigned to you in the event of a breach of these Terms, and/or where necessary for compliance with applicable law or regulation.
C. Telephone Carrier Policies.
From time to time, telecommunication providers may change or modify their rules, requirements, and policies (collectively, the “Carrier Policies”). You are responsible for complying with all Carrier Policies that apply to your use of the Messaging Services and, by using the Services, you acknowledge that your failure to comply with the Carrier Policies may result in the termination of your ability to use the Services.
You agree that in no event shall eEndorsements have any liability to you for any damages of any kind or nature that arise out of: (i) your failure to comply with the Carrier Policies; and/or (ii) action or inaction on the part of any telecommunications carrier, including, but not limited to, a carrier’s failure or refusal to deliver any text messages sent through the Services.
You also agree that if eEndorsements is fined by a carrier or other regulatory body as a result of your failure to comply with applicable laws or Carrier Policies, eEndorsements may charge you for, and you will pay, the amount of such fine.
D. Emergency Calling and Messaging Not Supported. You acknowledge that the Messaging Services: (i) are not an Integrated Public Alert and Warning System; (ii) do not support or transport Emergency Services, such as calls or texts to 911 or enhanced 911, and will not be used to determine the physical location of you or your devices; and (iii) are not a replacement for traditional voice, telephone or mobile phone services, including, but not limited to, calling, texting, or otherwise contacting Emergency Services, and does not function as such.
E. Compliance with Applicable Marketing and Communications Laws and Industry Guidelines
You will comply with all applicable laws, rules, and regulations related to unsolicited or unwanted communications or telemarketing, including, but not limited to, the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), the Controlling the Assault of Non-Solicited Pornography and Marketing Acts (“CAN-SPAM”), and any other applicable federal, state, or local laws, rules, and regulations (collectively, the “Applicable Marketing and Communications Laws”). You will also comply with all Carrier Policies, including, but not limited to, the most current version of the Cellular Telecommunications Industry Association (“CTIA”) Messaging Principles and Best Practices Guidelines and any other generally accepted industry policies or rules adopted by carriers, or other practices enforced by carriers.
F. Your Data.
By using the Messaging Services, you acknowledge our data practices that apply to you, as set out in the Privacy Policy (the “Privacy Notice”). The Privacy Notice explains how eEndorsements collects, uses, and protects personal information about you and your customers. You are required to familiarize yourself with the Privacy Notice prior to using the Services.
eEndorsements reserves the right to withhold, remove, or discard any information on, sent through, or otherwise provided via the Messaging Services and/or your eEndorsements Messaging account (“Messages Content”), with or without notice, if deemed by us, in our sole discretion, to be contrary to these Terms or as may otherwise be required by law. For the avoidance of doubt, we have no obligation to store, maintain, or provide you with a copy of any Messages Content that you or others provide when using the Service.
G. Use of Twilio.
In order to provide the Text Messaging Services, we currently use Twilio’s API as a Third Party Service. Your use of the Text Messaging Services is governed by Twilio’s terms and policies, including, without limitation, Twilio’s Terms of Service and Privacy Policy are in addition to these Terms, and you will comply with both as applicable to the Email Services.
eEndorsements Messaging- Email Services
A. Email Marketing
For the use of Email Services provided directly to you by us as part of the eEndorsements Messaging Services, the following terms and conditions also apply. Your use of eEndorsements Messaging serves as your consent to these terms. eEndorsements may suspend or terminate your access to and use of the Email Services if you do not comply with these terms.
B. Email Marketing Responsibilities.
Your use of the Email Services must comply with all applicable domestic and international laws and regulations. This includes the laws applicable to you and also laws applicable to eEndorsements and all recipients to whom you intend to send emails (each a “Recipient”). Examples of applicable laws include laws relating to spam or unsolicited commercial email (hereinafter “Spam” or “UCE”), privacy, security, obscenity, defamation, intellectual property, pornography, terrorism, homeland security, gambling, child protection, consumer protection and other applicable laws. It is your responsibility to know, understand, and comply with the laws applicable to your use of the Email Services and the emails you generate and send through the Email Services. You are solely responsible for your products and services and any other promotion and Content contained in or referred to in your emails sent through the Email Services. You agree to use the Email Services in a lawful, safe, and professional manner, consistent with industry best practices, including keeping reliable records.
C. Email Marketing Guidelines.
Your use of the Email Services must follow all applicable guidelines and restrictions established by eEndorsements, which are presented as follows (“Email Marketing Guidelines”):
YOU WILL NOT:
Use the Email Services in violation of these Terms or of any law applicable to you or your Recipients;
Use the Email Services to send Spam. You must ensure that all Recipients have explicitly granted permission to receive emails from you by affirmatively opting-in to receive those emails.
Use the Email Services to request, collect or send any non-public or personally identifiable information about another user or any other person without their express prior written consent (or the parent’s consent in the case of a minor), illegal information, or any other information you do not have the right to request, collect or distribute;
Use the Email Services to send email campaigns that link to or display pornography, other sexually explicit content, illegal goods or services, or any other Content that eEndorsements deems inappropriate in its sole discretion;
Transmit any message, information, data, text, software or image, or other Content that is not owned by you or legally licensed to you, or is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may violate another’s right of privacy or publicity;
Send through the Email Services any unethical, false or misleading advertising, promotions, or sales efforts and practices;
Post or transmit any Content that contains a virus or corrupted data;
Use purchased or rented email contact lists;
Use third party email addresses, domain names, or mail servers without proper permission;
Send emails to non-specific addresses (e.g., webmaster@domain.com or info@domain.com) or distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses;
Send emails that result in an unacceptable number of Spam or UCE complaints (even if the emails themselves were not actually Spam or UCE);
Disable or fail to include a working “unsubscribe” link in every email, which allows the Recipient/s to remove themselves from your mailing list. Each such link must remain operational for at least 60 days after the date on which you send the message, and you agree that you will not remove, disable or attempt to remove or disable the link;
Disable or fail to comply with any request from a Recipient to be removed from your mailing list within seven (7) calendar days of receipt of the request. You cannot charge a fee, require the Recipient to give you any personally identifiable information beyond an email address, or make the Recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the U.S. CAN-SPAM Act and other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account, for any;
Disguise the origin or subject matter of any email or falsify or manipulate the originating email address, subject line, headers, or transmission path information for any email. For any email or message sent by you using the Email Services, (a) the “from” line must accurately and in a non-deceptive manner identify your identity or your organization’s identity; and (b) the “subject” line of your email must relate to the email’s actual content and must not contain any deceptive or misleading content regarding the overall subject matter of the email message. You agree that you are the sole or designated sender of any email you send through the Email Services, pursuant to any law or act applicable to your use of the Email Services (e.g., U.S. CAN-SPAM Act of 2003, Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 and Directive 2003/58/EC of the European Parliament and of the Council of 12 July 2002), and as such you are required to comply with such laws and any other laws in other jurisdictions that apply to your use of the Email Services, and be responsible for any violation of any such applicable laws.
Fail to include in each email your valid physical mailing address (which if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service) or a link to that information. For Recipients based in the EU, each email must additionally include the sender’s business registration number and VAT ID or a link to that information;
Include “junk mail”, “chain letters”, “pyramid schemes”, incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any email that encourages a Recipient to forward the email to another recipient; or
Fail to comply with export and import regulations for the U.S. and other countries.
Some industries yield higher than normal abuse rates for Spam. Thus, you may not use the Email Services, if you intend to use such service for the following:
Pharmaceutical products;
Work from home, make money online, “get rich schemes”, and lead generation opportunities;
Online trading, day trading tips, or stock market-related content;
Mortgage and loan content;
Nutritional, herbal and vitamin supplements;
Gambling services, products, or tips;
Multi-level marketing;
Affiliate marketing or any type of performance marketing, in which a business rewards or otherwise incentivizes one or more affiliates for each visitor or customer brought by the affiliate’s own marketing efforts;
Credit repair and get out of debt opportunities; and
Counterfeit or “knock-off” products.
It is your responsibility to ensure that the Content you put in your emails does not violate these Email Marketing Guidelines. Although eEndorsements has no obligation to do so, we may monitor your account to ensure compliance with these Terms and operation within the acceptable industry standards. In our sole discretion, we reserve the right to block emails, remove Content, or prohibit use of the Email Services that may be in violation of the foregoing or of these Terms (including Third Party Mail Service Terms, as defined below). You understand and agree that we and any applicable third party that supports, posts, publishes or distributes your emails and Content also has the right to reformat, edit, monitor, reject, block or remove any of your emails and Content and suspend or terminate the Email Services, in whole or in part, permanently or temporarily. In no case will the foregoing make us responsible or liable to you for compliance with any such laws or obligations, for which you remain solely responsible and liable.
If you know of or suspect any violations of these Terms, please notify us here.
You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all customer information (such as contact lists) (“Customer Information”) . You are responsible for maintaining, securing and storing all Customer Information in accordance with applicable law and your contractual obligations, including these Terms. You represent and warrant that you own or have rights in the material in your emails and the Customer Information required for us to use the Customer Information as contemplated by these Terms.
When using the Email Services, you agree that any emails and messages and Content contained therein are non-confidential, and you automatically grant or warrant that the owner of such Content or intellectual property has granted to us (or sub-licensed to us through you) a non-exclusive, royalty-free, perpetual, transferable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Content or intellectual property in any manner or in any media now known or hereafter created, including in connection with our marketing and promotional activities.
To the extent permitted by law, we may make and preserve copies of all Customer Information as necessary to provide the Email Services and for internal back-up and other legal or regulatory purposes. However, we are not obligated to preserve copies of your Customer Information, emails and messages, Content or other data. You are responsible for backing up your Customer Information.
D. Use of Mailgun.
In order to provide the Email Services, we currently use Mailgun’s API as a Third Party Service. Your use of the Email Services is governed by Mailgun’s terms and policies, including, without limitation, Mailguns Terms of Service and Privacy Policy are in addition to these Terms, and you will comply with both as applicable to the Email Services.
Payment Services
eEndorsements enables you to accept Credit and Debit Cards from customers for the payment for goods and services. We are not a bank and do not offer banking services. We are not a payment facilitator or merchant acquirer.
In order to serve in this role, we must integrate with payment gateways, processors and acquiring banks. The Networks require that any person that signs up for an eEndorsements Account to use Payment Services (a “Seller”) and processes Card sales enter into an agreement directly with a compatible merchant processor. eEndorsements is not responsible or liable for Merchant processing as a third party service as referenced in the General Terms of service section 26.
I. eEndorsements Commerce Features
A. Commerce Activities. The Services include Commerce Features that enable you to sell goods and services through webpages or web widgets hosted by eEndorsements (such goods and services, “Commerce Products”), and otherwise enables you to collect payments from your customers and end users (such activities, collectively, “Your Commerce Activities”). You agree that we are not liable or responsible for any of Your Commerce Activities, or any compliance with any laws or regulations related to it, which includes the following:
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Taxes. You are solely responsible for: (a) all taxes and fees associated with Your Commerce Activities, including taxes related to the purchase or sale of products and/or services in connection with Your Commerce Activities; (b) all reporting, collection and remitting obligations to applicable governmental authorities in connection with Your Commerce Activities; (c) notifying your customers or end users of required taxes, and providing them with tax invoices as required by applicable law; (d) monitoring and complying with any distance sale thresholds in the EU or other indirect taxes (such as value added taxes or goods and services taxes) in the countries where your customers or end users may receive your products or services; and (e) any registration obligations for indirect taxes in countries where you are required to register. You also acknowledge that we may provide you with certain tax estimates, reports, invoices, or other tax-related materials in connection with the Services (“Tax Materials”). You may not rely on such Tax Materials to comply with your tax related obligations. We do not give tax advice, and nothing we say or provide should be interpreted as such. For any tax-related inquiries, we strongly encourage you to engage legal counsel or assistance from a tax and accounting expert.
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Fulfillment, Delivery and Refunds. You are solely responsible for fulfilling and delivering all orders made by your customers or end users in connection with Your Commerce Activities. You also agree to make available to your customers a refund policy applicable to their online purchases.
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Product and Service Claims and Warranties. You are solely responsible for all product or service related claims and warranties you make in connection with Your Commerce Activities. eEndorsements will not be liable or responsible for any product or service-related claims made against you by your customers or end users.
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Customer Service. You are solely responsible for any complaints, inquiries or comments related to Your Commerce Activities, including without limitation any issues related to payments, promotions, refunds, chargebacks or product and service satisfaction. You agree to provide complete and accurate contact information on your eCommerce websites so that your customers or end users may submit comments, complaints or inquiries to you.
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Site Terms, Policies, and Legal Compliance. Your Commerce Activities will comply with all applicable laws and regulations, including consumer, eCommerce and related laws. You acknowledge that we will not be liable for your omission of such policies and terms or non-compliance, and we will not provide any legal advice regarding such terms, policies, or compliance.
B. eCommerce Restrictions. In addition to the restrictions set forth in these Additional Product Terms, the General Terms and Payment Terms, YOU WILL NOT offer or sell any Commercial Products that:
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are illegal or potentially illegal, including those that are counterfeited, stolen, or fraudulent. Commercial Products sold using the Services must comply with all applicable laws or regulations, including with respect to intellectual property, trade secrets, privacy or publicity rights, consumer protection laws, product safety or trade regulations or export controls, regulations or sanctions;
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infringe or have the potential to infringe the intellectual property or privacy rights of another or that may be libelous, slanderous, or otherwise defamatory;
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we determine, in our discretion, are inappropriate, offensive, pornographic, sexually explicit, or violent;
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or use images, names, or likeness of any third party (including notable personalities or celebrities) when offering or selling Commercial Products without the third party’s prior consent.
You agree to the terms and policies of the payment processor that you use.
C. Third Party Payment Processors. eEndorsements connects with third party payment gateways and payment processors to enable you in securely processing your eCommerce payments in connection with Your eCommerce Activity. Your relationship with a third party payment processor is governed by the third party payment processor’s terms and policies. We do not control and are not liable for any third party payment processor or for any transaction you may enter into with or through any third party payment processors. All third party payment processors constitute “Third Party Services” as defined in Section 26 of the General Terms.
II. Your Content and Content Restrictions
In addition to the provisions governing your “Content” in Section 5 of the General Terms you agree to the following:
A. Content Ownership. You are responsible for all Content that you upload, post, transmit or otherwise make available through the Services. Your Content does not include non-personally identifiable e-Commerce transaction or behavioral data derived from your use of our Services (collectively, “Platform Data”). eEndorsements owns all Platform Data and uses it to operate and improve the Services. Regarding your Content, you are solely responsible for backing up your Content. We may also preserve your Content and disclose it to the applicable governmental authority if required by law.
B. Content Restrictions. In addition to the restrictions set forth in the General Terms and applicable additional product terms you will not:
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upload, post, transmit or otherwise make available any Content that: (i) is hateful and dehumanizing of a protected class (ii)is unsolicited commercial email or “spam”, including unethical marketing, advertising, or any other practice that is in any way connected with “spam”; (iii) is intended to take advantage of a user such as “get rich quick,” “get paid to surf,” pyramid/multi-level marketing (MLM), or other dubious schemes; or (iii) is pornographic or reveals exposed genitalia.
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harm minors in any way;
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“stalk,” “bully,” or otherwise harass another;
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impersonate any person or entity, including, but not limited to, a eEndorsements employee, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
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forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
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interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
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intentionally or unintentionally violate any applicable local, state, federal or foreign laws or regulations. You must comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. If you use the Services outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation, rules regarding acceptable online conduct, data privacy, and export and import regulations of other countries;
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promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
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use the Services as a forwarding service to another website, or to fraudulently manipulate Google or other SEO rankings or Facebook or other social networking or website “likes” and similar voting mechanisms;
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solicit a third party’s passwords, personally identifiable information or sensitive user credentials for unlawful or phishing purposes;
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exceed the scope of the Services that you have signed up for (e.g., by accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other user comments or content);
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abuse our customer support email, chat, or telephone services or agents;
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or take any other action while using the Services which is detrimental to the Services or eEndorsements’s reputation, as determined by eEndorsements in its sole discretion.
We retain the right to terminate any account or user who has violated any of the prohibitions above.
III. Fees for Payment Services
Payment of Fees and Fee Taxes. Payment Service fees are “A La Carte” transactional fees relative to your subscription plan. All Fees are in USD and do not include any taxes, levies, duties or similar governmental assessments of any nature. If you purchase any Services that we offer for a Fee, you provide your consent to us, or our third party service providers, storing your payment card information and you authorize us to charge you (a) any Fees for the Services you may purchase, and (b) any applicable Fee Taxes in connection with your use of the Services to the payment card you provide, and you will reimburse us for all costs associated with the collection of any overdue amounts, including any interest due for the same. If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you and you will remain responsible for any uncollected Fees and associated Fee Taxes.
IV. eEndorsements Gratuity Feature
You, and not eEndorsements, shall be responsible for verifying the accuracy, timeliness, and completeness of any gratuities. eEndorsements shall not be responsible for maintaining employment or contractor distributions. Employee and independent contractor access to such Services does not create any customer, employment or third-party beneficiary relationship between us and your employees or your independent contractors.
You are ultimately responsible for your compliance with all federal, state, and local laws, or applicable collective bargaining agreements, and any citations, fines, penalties or costs associated with noncompliance or with inaccuracies in providing that data to your employees and independent contractors. You acknowledge and agree that eEndorsements may not include all features and functionality necessary to run your business, to meet all federal, state, and local reporting obligations applicable to your business, and for you to comply with all applicable laws, including but not limited to laws related to overtime and premium pay requirements, time-keeping requirements, tip distribution requirements, pay period and payment of wages laws, notice and record-keeping requirements, laws about team member document storage and employment files, scheduling laws, and employee privacy. You are responsible for determining whether eEndorsements meets your reporting needs. We are not providing any legal, financial, accounting, tax or other professional advice to you by providing the Services.
Any estimated gratuity distribution calculations provided through the Services are provided exclusive of taxes and social security charges. This feature may not be compatible with tip distribution, pay period, and payment of wages requirements in your jurisdiction. Before implementing this feature, be sure to check your state and local laws regarding tip distribution to ensure you are fully compliant with all applicable laws, including all notice and recordkeeping requirements. eEndorsements is not liable for any decision made by you to use this feature in a manner that is not compliant with state and local laws.
You understand and agree that we make the eEndorsements Services available to your employees or independent contractors on your behalf as a convenience. You agree to obtain any necessary consent from your employees and independent contractors for eEndorsements to provide the eEndorsements Services and to process personal information. You acknowledge and agree that eEndorsements may transfer personal information over international borders as necessary for processing in accordance with eEndorsements’s standard business practices, and consistent with eEndorsements Privacy Policy
2. Gift Cards
If you purchase and offer e-gift cards to your Buyers through eEndorsements, you (and not eEndorsements) are the issuer and administrator of your gift cards. If you have multiple business locations and do not manage your locations through a single eEndorsements account, you must separately order gift cards for each business location where you wish to issue and redeem gift cards.
Gift cards sold by you are “closed loop” gift cards that are only redeemable from you for your goods and services. You may not issue a gift card with a value in excess of $250. Further, you may not issue more than $1000 in gift cards to any single person in any one day. You may not provide a cash refund from or cash back on gift cards except to the extent required by applicable law. If a purchase exceeds the holder’s gift card balance, the holder must pay the remaining amount with another payment method. All gift cards and the funds associated with gift cards are your sole property.
Any liability for the use or misuse of your gift cards, and any third party claims arising from or relating to your gift cards, are your sole responsibility.
You are solely responsible for compliance with federal, state, and local laws that apply to your gift cards, including but not limited to notice and disclosure requirements, expiration dates and fees, refunds, unclaimed property or escheat requirements (such as tracking, reporting, and remittance of unclaimed property balances in all states), and customer service for Buyers and holders of gift cards.
7. Survival
Sections 2 (Gift Cards) will survive termination of these Additional Payments Services Terms, in addition to those that survive under Section 13 of the General Terms.
HIPPA Business Associate Agreement
The HIPAA Business Associate Agreement (“HIPAA BAA”) is a legal agreement made between you and eEndorsements for the purpose of implementing the requirements of HIPAA to support the parties’ compliance requirements under HIPAA. The “Agreement” refers to the General Terms of Service entered into between you and eEndorsements governing your use of eEndorsements’s mobile applications, websites, software, hardware, and other products and services (collectively, the “Services”). Together with the Agreement, this HIPAA BAA will govern each party’s respective obligations regarding Protected Health Information (defined below).
You represent and warrant that: (i) you have full legal authority to enter into this HIPAA BAA, (ii) you have read and understand this HIPAA BAA, and (iii) you agree to the terms of this HIPAA BAA.
We recommend that you print a copy of this HIPAA BAA and the Agreement that incorporates it and retain copies for your records.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual and conditions contained herein and the continued provision of PHI by Covered Entity to Business Associate under the Agreement in reliance on this BAA, the Parties agree as follows:
1. Definitions. For the purposes of this BAA, the Parties give the following meaning to each of the terms in this Section 1 below. Any capitalized term used in this BAA, but otherwise defined, has the meaning given to that term in the Privacy Rule or pertinent law.
A. “Affiliate” means a subsidiary or affiliate of Covered Entity that is, or has been, considered a covered entity, as defined by HIPAA.
B. “Breach” means the acquisition, access, use, or disclosure of PHI in a manner not permitted under the Privacy Rule which compromises the security or privacy of the PHI, as defined in 45 CFR § 164.402.
C. “Breach Notification Rule” means the portion of HIPAA set forth in Subpart D of 45 CFR Part 164.
D. “Data Aggregation” means, with respect to PHI created or received by Business Associate in its capacity as the “business associate” under HIPAA of Covered Entity, the combining of such PHI by Business Associate with the PHI received by Business Associate in its capacity as a business associate of one or more other “covered entity” under HIPAA, to permit data analyses that relate to the Health Care Operations (defined below) of the respective covered entities. The meaning of “data aggregation” in this BAA shall be consistent with the meaning given to that term in the Privacy Rule.
E. “Designated Record Set” has the meaning given to such term under the Privacy Rule including 45 CFR § 164.501.B.
F. “De-Identify” means to alter the PHI such that the resulting information meets the requirements described in 45 CFR §§164.514(a) and (b).
G. “Electronic PHI” means any PHI maintained in or transmitted by electronic media as defined in 45 CFR § 160.103
H. “Health Care Operations” has the meaning given to that term in 45 CFR § 164.501.
I. “HHS” means the U.S. Department of Health and Human Services.
J. “HITECH Act” means the Health Information Technology for Economic and Clinical Act, enacted as part of the American Recovery and Reinvestment Act of 2009, Public Law 111-005.
K. “Individual” has the same meaning given to that term in 45 CFR §§164.501 and 160.130 and includes a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
L. “Privacy Rule” means that portion of HIPAA set forth in 45 CFR Part 160 and Part 164, Subparts A and E.
M. “Protected Health Information” or “PHI” has the meaning given to the term “protected health information” in 45 CFR §§164.501 and 160.103, limited to the information created or received by Business Associate from or on behalf of the Covered Entity.
N. “Security Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.
O. “Security Rule” means the Security Standards for the Protection of Electronic Health Information provided in 45 CFR Part 160 & Part 164, Subparts A and C.
P. “Unsecured Protected Health Information” or “Unsecured PHI” means any “protected health information” as defined in 45 CFR §§164.501 and 160.103 that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the HHS Secretary in the guidance issued pursuant to the HITECH Act and codified at 42 USC § 17932(h).
2. Use and Disclosure of PHI.
A. Except as otherwise provided in this BAA, Business Associate may use or disclose PHI as reasonably to provide the services described in the Agreement to Covered Entity, and to undertake other activities of Business Associate permitted or required of Business Associate by this BAA or as required by law.
B. Except as otherwise limited by this BAA or federal or state law, Covered Entity authorizes Business Associate to use the PHI in its possession for the proper management and administration of Business Associate’s business and to carry out its legal responsibilities. Business Associate may disclose PHI for its proper management and administration, provided that (i) the disclosures are by law; or (ii) Business Associate obtains, in writing, prior to making any disclosure to a third party (a) reasonable assurances from this third party that the PHI will be held confidential as provided under this BAA and used or further disclosed only as required by law or for the purpose for which it was disclosed to this third party and (b) an agreement from this third party to notify Business Associate immediately of any breaches of the confidentiality of the PHI, to the extent it has knowledge of the breach.
C. Business Associate will not use or disclose PHI in a manner other than as provided in this BAA, as permitted under the Privacy Rule, or as required by law. Business Associate will use or disclose PHI, to the extent practicable, as a limited data set or limited to the minimum necessary amount of PHI to carry out the intended purpose of the use or disclosure, in accordance with Section 13405(b) of the HITECH ACT (codified as 42 USC § 17935(b)) and any of the act’s implementing regulations adopted by HHS, for each use or disclosure of PHI.
D. Upon request, Business Associate will make available to Covered Entity any of Covered Entity’s PHI that Business Associate or any of its agents or subcontractors have in their possession.
E. Business Associate may use PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR §164.502(j)(1).
3. Safeguards Against Misuse of PHI. Business Associate will use appropriate safeguards to prevent the use or disclosure of PHI other than as provided by the Agreement or this BAA and Business Associate agrees to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the Electronic PHI that it creates, receives, maintains or transmits on behalf of Covered Entity. Business Associate agrees to take reasonable steps, including providing adequate training to its employees to ensure compliance with this BAA and to ensure that the actions or omissions of its employees or agents do not cause Business Associate to breach the terms of this BAA.
4. Reporting Disclosures of PHI and Security Incidents. Business Associate will report to Covered Entity in writing any use or disclosure of PHI not provided for by this BAA of which it becomes aware and Business Associate agrees to report to Covered Entity any Security Incident affecting Electronic PHI of Covered Entity of which it becomes aware. Business Associate agrees to report any such event within 30 business days becoming are of the event.
5. Reporting Breaches of Unsecured PHI. Business Associate will notify Covered Entity in writing promptly upon the discovery of any Breach of Unsecured PHI in accordance with the requirements set forth in 45 CFR § 164.410, but in no case later than 30 calendar days after the discovery of a Breach. Business Associate will reimburse Covered Entity for any costs incurred by it in complying with the requirements of Subpart D of 45 CFR §164 that are imposed on Covered Entity as a result of a Breach committed by Business Associate.
6. Mitigation of Disclosures of PHI. Business Associate will take reasonable measures to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of any use or disclosure of PHI by Business Associate or its agents or subcontractors in violation of the requirements of this BAA.
7. Agreements with Agents or Subcontractors. Business Associate will ensure that any of its agents or subcontractors that have access to, or to which Business Associate provides, PHI agree in writing to the restriction and conditions concerning uses and disclosures of PHI contained in this BAA and agree to implement reasonable and appropriate safeguards to protect any Electronic PHI that it creates, received, maintains or transmits on behalf of Business Associate or, through the Business Associate, Covered Entity. Business Associate shall notify Covered Entity, or upstream Business Associate, of all subcontracts and agreements relating to the Agreement, where the subcontractor or agent received PHI as described in section 1.M of this BAA. Such notification shall occur within 30 calendar days of the execution of the subcontract by placement of such notice on the Business Associate’s primary website. Business Associate shall ensure that all subcontracts and agreements provide the same level of privacy and security as this BAA.
8. Audit Report. Upon request, Business Associate will provide Covered Entity, or upstream Business Associate, with a copy of its most recent independent HIPAA compliance report (AT-C 315), HITRUST certification or other mutually agreed upon independent standards based third party audit report. Covered Entity agrees not to re-disclose Business Associate’s audit report.
9. Access to PHI by Individuals.
A. Upon request, Business Associate agrees to furnish Covered Entity with copies of the PHI maintained by Business Associate in a Designated Record Set in the time and manner designated by Covered Entity to enable Covered Entity to respond to an Individual’s request for access to PHI under 45 CFR §164.524.
B. In the event any Individual or personal representative requests access to the Individual’s PHI directly from Business Associate, Business Associate within 10 business days, will forward that request to Covered Entity. Any disclosure of, or decision not to disclose, the PHI requested by an Individual or a personal representative and compliance with the requirements applicable to an Individual’s right to obtain access to PHI shall be the sole responsibility of Covered Entity.
10. Amendment of PHI.
A. Upon request and instruction from Covered Entity, Business Associate will amend PHI or a record about an Individual in a Designated Record Set that is maintained by, or otherwise within the possession of, Business Associate as directed by Covered Entity in accordance with procedures established by 45 CFR §164.526. Any request by Covered Entity to amend such information will be completed by Business Associate within 15 business days of Covered Entity’s request.
B. In the event that any Individual requests that Business Associate amend such Individual’s PHI or record in a Designated Record Set, Business Associate within 10 business days will forward this request to Covered Entity. Any amendment of, or decision not to amend, the PHU or record as requested by an Individual and compliance with the requirements applicable to an Individual’s right to request an amendment of PHI will be the sole responsibility of Covered Entity.
11. Accounting of Disclosures.
A. Business Associate will document any disclosures of PHI made by it to account for such disclosures as required by 45 CFR §164.528(a). Business Associate also will make available information related to such disclosures as would be required for Covered Entity to respond to a request for an accounting of disclosures in accordance with 45 CFR §164.528. At a minimum, Business Associate will furnish Covered Entity the following with respect to any covered disclosures by Business Associate: (i) the date of disclosure of PHI; (ii) the name of the entity or person who received PHI, and, if known, the address of such entity or person; (iii) a brief description of the PHI disclosed; and (iv) a brief statement of the purpose of the disclosure which includes the basis for such disclosure.
B. Business Associate will furnish to Covered Entity information collected in accordance with this Section 10, within 10 business days after written request by Covered Entity, to permit Covered Entity to make an accounting of disclosures as required by 45 CFR §164.528, or in the event that Covered Entity elects to provide an Individual with a list of its business associates, Business Associate will provide an accounting of its disclosures of PHI upon request if the Individual, if and to the extent that such accounting is required under the HITECH ACT or under HHS regulations adopted in connection with the HITECH ACT.
C. In the event an Individual delivers the initial request for an accounting directly to Business Associate, Business Associate will within 10 business days forward such request to Covered Entity.
12. Availability of Books and Records. Business Associate will make available its internal practices, books, agreements, records, and policies and procedures relating to the use and disclosure of PHI, upon request, to the Secretary of HHS for purposes of determining Covered Entity’s and Business Associate’s compliance with HIPAA, and this BAA.
13. Responsibilities of Covered Entity. With regard to the use and/or disclosure of Protected Health Information by Business Associate, Covered Entity agrees to:
A. Notify Business Associate of any limitation(s) in its notice of privacy practices in accordance with 45 CFR §164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
B. Notify Business Associate of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
C. Notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR §164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
D. Except for data aggregation or management and administrative activities of Business Associate, Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity.
14. Data Ownership. Business Associate’s data stewardship does not confer data ownership rights on Business Associate with respect to any data shared with it under the Agreement, including any and all forms thereof.
15. Term and Termination.
A. This BAA will become effective on the date first written above and will continue in effect until all obligations of the Parties have been met under the Agreement and under this BAA.
B. Covered Entity may terminate this BAA, the Agreement, and any other related agreements if Covered Entity makes a determination that Business Associate has breached a material term of this BAA and Business Associate has failed to cure that material breach, to Covered Entity’s reasonable satisfaction, within 30 days after written notice from Covered Entity. Covered Entity may report the problem to the Secretary of HHS if termination is not feasible.
C. If Business Associate determines that Covered Entity has breached a material term of this BAA, then Business Associate will provide Covered Entity with written notice of the existence of the breach and shall provide Covered Entity with 30 days to cure the breach. Covered Entity’s failure to cure the breach within the 30-day period will be grounds for immediate termination of the Agreement and this BAA by Business Associate. Business Associate may report the breach to the HHS.
D. Upon termination of the Agreement or this BAA for any reason, all PHI maintained by Business Associate will be returned to Covered Entity or destroyed by Business Associate. Business Associate will not retain any copies of such information. This provision will apply to PHI in the possession of Business Associate’s agents and subcontractors. If return or destruction of the PHI is not feasible, in Business Associate’s reasonable judgment, Business Associate will furnish Covered Entity with notification, in writing, of the conditions that make return or destruction infeasible. Upon mutual agreement of the Parties that return or destruction of the PHI is infeasible, Business Associate will extend the protections of this BAA to such information for as long as Business Associate retains such information and will limit further uses and disclosures to those purposes that make the return or destruction of the information not feasible. The Parties understand that this Section 14.D. will survive any termination of this BAA.
16. Effect of BAA.
A. This BAA is a part of and subject to the terms of the Agreement, except that to the extent any terms of this BAA conflict with any term of the Agreement, the terms of this BAA will govern.
B. Except as expressly stated in this BA or as provided by law, this BAA will not create any rights in favor of any third party.
17. Regulatory References. A reference in this BAA to a section in HIPAA means the section as in effect or as amended at the time.
18. Notices. All notices, requests and demands or other communications to be given under this BAA will be made via either first class mail, registered or certified or express courier, or electronic mail.
19. Amendments and Waiver. This BAA may not be modified, nor will any provision be waived or amended, except in writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
20. HITECH ACT Compliance. The Parties acknowledge that the HITECH Act includes significant changes to the Privacy Rule and the Security Rule. The privacy subtitle of the HITECH Act sets forth provisions that significantly change the requirements for business associates and the agreements between business associates and covered entities under HIPAA and these changes may be further clarified in forthcoming regulations and guidance. Each Party agrees to comply with the applicable provisions of the HITECH Act and any HHS regulations issued with respect to the HITECH Act. The Parties also agree to negotiate in good faith to modify this BAA as reasonably necessary to comply with the HITECH Act and its regulations as they become effective but, in the event that the Parties are unable to reach an agreement on such a modification, either Party will have the right to terminate this BAA upon 30 days’ prior written notice to the other Party.
