Terms of Service ("Terms")

Version Date: January 19, 2017

Summary of Changes of our Terms of Service

We have updated our Terms of Service. These new Terms of Service will be effective immediately for first time customers on or after January 19, 2017. Existing customers as of January 19, 2017 will be subject to the updated Terms of Service effective 30 days thereafter (February 19, 2017). These new Terms of Service supersede and replace the Terms of Service dated August 5, 2015, available for review here. You will be deemed to have agreed to these amended Terms of Services through your continued use of our Services.

Please read these Terms of Service (“Terms”, “Terms of Service”) carefully before using the www.itspayd.com website and our platform (the “Service”) operated by Altus Global Marketing, Inc. (“us”, “we”, or “our”). All references to “You” or “you” include: (i) visitors of the www.itspayd.com website, (ii) the merchants who utilize Services to send communication using our Services (“Merchants”), (iii) individuals who effect payments to Merchants using our Service (“Consumers”), and (iv) authorized individuals who use Services on behalf of the Merchants.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the Terms then you do not have permission to use the Service.

I. Our Services

We provide a software platform that enables Merchants to transmit payment-related communication to the Consumers, the Consumers to effect electronic payments to the Merchants via third-party service providers, and the Merchants to accept payments from the Consumers. We do not receive, hold, or transmit funds. All funds transfer services are provided by third-party service providers. We are not a collection agency or debt collector as defined by the Fair Debt Collection Practices Act or other applicable laws and regulations and do not collect any funds on behalf of the Merchants.

I. Communications

By using our Service, you agree to receive newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all of these communications from us by following the unsubscribe link or instructions provided in any email communication we send.

I. Use of Service

If you wish to use our Service, you may be asked to supply certain information relevant to your use including, without limitation, your credit card number, the expiration date of your credit card, the Card Verification Value (CVV), your billing address, your bank account information, and other information necessary to facilitate your use of the Service.

You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any use of the Service; and that (ii) the information you supply to us is true, correct and complete.

We may employ third party services for the purpose of facilitating your use of the Service. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.

We reserve the right to refuse or cancel your use of the Service at any time for reason including but not limited to: Service availability, errors in the description or price of the Service, errors in the information provided by you or other reasons.

We reserve the right to refuse or cancel your use of the Service if fraud or an unauthorized or illegal transaction is suspected.

For the purposes of reviewing the risk associated with your use of our Services we may request at any time, and you agree to provide, any information about your identity, business, operations, financial condition. We reserve the right to reassess your eligibility to use our Service based on such information and our confidential risk management policies.

I. Merchant Communication

We do not create the content of communications transmitted to the Consumers. This content is created by Merchants and Merchants are solely responsible for its accuracy and compliance with applicable laws.

To send commercial email messages or certain types of text messages, Merchants must obtain consent from Consumers. Merchants who utilize the Service to send email or text communication to the Consumers represent and warrant that they have obtained appropriate consent from the Consumers. Merchants bear all risks for failing to obtain required consent.

Merchants represent that any transmission of information to the System including transmission of certain financial information of the Consumers complies with their privacy policies and applicable laws and that the Merchants have all appropriate consents to share such information.

Merchants understand that any communication to Consumers they initiate through the Service is intended to facilitate a Merchant’s ability to receive payments from Consumers in connection with sale of products or services, and is not intended to serve as a marketing communication to the Consumers. Accordingly, Merchants are not permitted to use the Service to distribute marketing materials.

Federal laws impose stringent requirements on any commercial text communication sent to cellular phones. Accordingly, Merchants represent that they have obtained a prior express written consent, as defined by applicable laws and regulations, to use the Service to initiate text communication to Consumer’s cellular phones.

Merchants represent that any information provided does not contain information regarding any Consumer under the age of 18.

I. Fees and Payments

Merchants may offer Consumers an opportunity to establish a payment plan. Payment plans are installment payment arrangement agreed upon between Consumers and Merchants at their own discretion and with repayment terms agreed upon among them in order for a Consumer to pay the amount due on an invoice.

If Consumer accepts a payment plan from the Merchant, Consumer is also consenting to have regular, scheduled Automatic Clearing House (ACH) payments deducted from their bank accounts or credit card payments charged to their credit card accounts on the schedule agreed upon in the payment plan. We are not a party to payment plan agreements between Consumers and Merchants and our role is only limited to providing platform to facilitate the agreements. Any changes made to the repayment plan schedule must be made directly between the Merchant and the Consumer.

If the Consumers elected an ACH payment directly from their checking account as the funding source for any payment plan, they are requesting that we, through third-party service providers, initiate on the Consumers’ behalf an electronic transfer from a particular bank account on a particular schedule. For these transactions, third-party service providers will make ACH transfers from the Consumers’ bank account in the amount agreed upon between the Merchant and the Consumer on the agreed upon date. Consumers agree that such requests constitute authorization to us to make the ACH transfer, through third-party providers, and once they have provided their authorization for the transfer, they will not be able to cancel the electronic transfer and we may resubmit any ACH debit that was authorized and returned for insufficient or uncollected funds, except as otherwise provided by applicable rules or law.

Merchants represent that payment plans they make available to Consumers comply with all applicable laws regarding consent, notice, interest rates, disclosures and other legal requirements.

If the Consumer disagrees with the amount due or does not recognize the Merchant, they must contact the Merchant directly.

By agreeing to a repayment plan, Consumers consent to receive email or text updates and notices from us for the purpose of notifying Consumers of an upcoming charge or to receive a receipt for a charge.

Merchants represent that they have a process in place to handle any questions, disputes, bounce-backs or other issues or discrepancies that may arise between the consumer and the merchant. The merchant is solely responsible for responding to all communications from the consumer in a timely manner.

Merchants represent that they provided any necessary disclosures to the Consumer and obtained appropriate consent from the consumer if the Merchant establishes and the Consumer accepts an installment payment plan.

Merchant represents that any installment payment plan that is established complies with any state and federal legal and regulatory restrictions or requirements.

I. Availability, Errors and Inaccuracies

We are constantly updating the product and service offerings on the Service. We may experience delays in updating information on the Service and in our advertising on other web sites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service.

We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

I. Contests, Sweepstakes and Promotions

Any contests, sweepstakes or other promotions (collectively, “Promotions”) made available through the Service may be governed by rules that are separate from these Terms & Conditions. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms and Conditions, the Promotion rules will apply.

I. Content

Our Service allows you to post, link, store, share, transmit and otherwise make available certain information, text, graphics, videos, or other material (“Content”). You are responsible for the Content that you post on or through the Service, including its legality, reliability, and appropriateness.

By posting Content on or through the Service, You represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, (ii) that the posting of your Content complies with all applicable federal, state and local laws and regulations, (iii) all information and data provided by you to us is true and correct, and (iv) that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright. You are solely responsible for ensuring that your Content and the posting of your Content is in conformance with applicable federal, state and local laws and regulations.

You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third party posts on or through the Service. However, by posting Content using the Service you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Service.

We have the right but not the obligation to monitor and edit all Content provided by users.

In addition, Content found on or through this Service are our property or used with our permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.

I. Accounts

When you create an account with us, you guarantee that you are above the age of 18 or a duly formed and operating business entity, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service.

You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.

We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.

I. Intellectual Property

The Service and its original content (excluding Content provided by users), features and functionality are and will remain exclusive property of us or our licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without our prior written consent.

I. Links to Other Web Sites

The Service may contain links to third party web sites or services that are not owned or controlled by us.

We have no control over, and assume no responsibility for the content, privacy policies, or practices of any third-party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.

You acknowledge and agree that neither we nor our officers, directors, employees, agents and attorneys shall be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third-party web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.

I. Termination

We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.

You are solely responsible for exporting your Content from our Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content.

If you wish to terminate your account, you may simply discontinue using the Service.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

I. Indemnification

You agree to defend, indemnify and hold harmless us and our licensee and licensors, and our and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees), resulting from or arising out of a) your use and access of the Service, by you or any person using your account and password; b) a breach of these Terms, c) your violation of applicable laws, rules or regulations in connection with your use of the Service, or d) Content posted on the Service.

I. Limitation of Liability

In no event shall we, nor our directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.

I. Disclaimer

Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.

We and our subsidiaries, affiliates, and its licensors do not warrant that a) the Service will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Service is free of viruses or other harmful components; or d) the results of using the Service will meet your requirements.

I. Exclusions

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

I. Governing Law

These Terms shall be governed and construed in accordance with the laws of California, United States, without regard to its conflict of law provisions.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.

I. Waiver of Jury Trial and Forum Selection

TO THE EXTENT ALLOWED BY LAW, YOU AGREE TO IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY OR OTHER COURT TRIAL (OTHER THAN SMALL CLAIMS COURT) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES

You hereby consent to the exclusive jurisdiction and venue of the courts, tribunals, agencies and other dispute resolution organizations in San Diego, California, USA, in all disputes arising out of or relating to use of the Services or these Terms and Conditions.

I. Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.

I. General Legal Terms

There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

You agree that we can provide you notices, including those regarding changes to the Terms by email, SMS to the mobile phone number provided by you, any other electronic notice, regular mail, or posting on this website.

You agree that if we do not exercise or enforce any legal right or remedy which is contained in the Terms (or which we have benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us.

We shall not be liable for failing or delaying performance of our obligations resulting from any condition beyond our reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of our Services upon written notice to the assigning party.

I. Contact Us

If you have any questions about these Terms, please contact us legal@itspayd.com.

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