1. Modifications
FastPay may modify or discontinue any Supplier Service or any feature thereof and any other existing service or feature and may provide new or additional services or features through the FastPay Network, in each case at any time and in its sole discretion. FastPay may modify these Terms and Conditions and the FastPay Supplier Services Procedures at any time and in its sole discretion. FastPay may change the fees it charges for the Supplier Services and any other fees it charges for access to the FastPay Network, in each case at any time and in its sole discretion.
2. Limited License and Use
FastPay grants Supplier a non-exclusive, limited, non-transferable, and revocable license to use and access the Supplier Services and to access the FastPay Network to use the Supplier Services, in each case solely for its own internal business purposes and subject to these Terms and Conditions. Any other use is strictly prohibited. Supplier agrees to comply with all applicable laws and regulations and all third-party payment network or payment clearinghouse rules, guidelines, requirements, and prohibitions when using or accessing the Supplier Services or the FastPay Network. Supplier further agrees that it will not (i) license, sublicense, sell, resell, rent, transfer, assign or distribute its rights to access and use the Supplier Services or the FastPay Network to any other party or otherwise commercially exploit (beyond those rights explicitly provided to Supplier in the Supplier Services Agreement) the Supplier Services or the FastPay Network or (ii) access or use the Supplier Services or the FastPay Network in order to (a) build a competitive service or product; (b) build a service or product using similar ideas, features, functions or graphics; (c) monitor its availability, performance or functionality or for any other benchmarking or competitive purposes; or (d) copy any ideas, features or functions of the Supplier Services or the FastPay Network. Upon request, Supplier will permit FastPay to reasonably investigate or audit Supplier’s compliance with the foregoing in connection with Supplier’s use of the Supplier Services or the FastPay Network.
3. Intellectual Property Rights
Except for the limited license granted to Supplier in the Supplier Services Agreement and these Terms and Conditions, FastPay and its third party licensors retain all right, title and interest, including all intellectual property rights, relating to or embodied in the Supplier Services and the FastPay Network, any related technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by Supplier or any other party. Neither the Supplier Services Agreement or these Terms and Conditions convey to Supplier or any other Person any rights of ownership in or related to the Supplier Services or the FastPay Network or any other intellectual property rights of FastPay or any other Person. FastPay’s name, logos and the product names are trademarks or service marks of FastPay or third parties, and no right or license is granted for Supplier to use them. Except for Supplier’s Data which is owned by Supplier and subject to the confidentiality and privacy obligations set forth in these Terms and Conditions (Supplier Services – Section 10), Supplier agrees that all data available from or related to the FastPay Network and the use thereof by Supplier that is not specific to and does not identify Supplier, including all technical, aggregated or anonymized data, is owned exclusively by FastPay. Supplier further agrees that any communication or materials it sends to FastPay in connection with its use of the FastPay Network, electronically or otherwise, including but not limited to data, questions, comments, survey responses, suggestions or submissions, but excluding Supplier’s Data, is and will be treated as non-confidential and non-proprietary and may be used by FastPay for any purpose including, but not limited to modification, reproduction, transmission, disclosure, publication, broadcast, and posting.
4. Designated Bank Account
In order to receive electronic payments through the FastPay Network, and to use certain Supplier Services, Supplier will need to complete one or more ACH authorization forms provided by FastPay and return fully executed copies of the forms signed by its authorized representative to FastPay and Supplier’s bank. Supplier must promptly notify FastPay of any changes to its designated bank account information. If FastPay incurs any costs, expenses or fines as a result of Supplier’s failure to provide accurate bank account information, its failure to execute ACH authorization forms, its failure to promptly notify FastPay of any changes to its bank account information, its failure to take corrective actions as reasonably requested by FastPay or its failure to notify its bank of the ACH authorization which results in rejected transactions, Supplier will reimburse and indemnify FastPay for these costs, expenses or fines. In addition, FastPay reserves the right to suspend or terminate Supplier’s access to any Supplier Services pending resolution of any issues with Supplier’s ACH authorizations or bank accounts.
5. Access
Supplier is responsible for all activities that occur through its access to and use of the Supplier Services and the FastPay Network. Supplier shall: (i) keep all related passwords and user ID’s confidential and promptly notify FastPay after discovery of any unauthorized use of any password or user account or any other known or suspected breach of security and (ii) impersonate another user or provide false information to gain access to or use the Supplier Services or the FastPay Network. Any person accessing any portion of the Supplier Services or the FastPay Network or taking any action on behalf of Supplier represents and warrants to FastPay that it has full authority to do so.
6. No Warranty
THE SUPPLIER SERVICES ARE PROVIDED AND MADE AVAILABLE STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. FASTPAY DOES NOT WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE SUPPLIER SERVICES OR THE FASTPAY NETWORK AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS RELATED THERETO. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM COMPUTER VIRUSES OR ANY OTHER HARMFUL OR CORRUPTED FILES, ARE HEREBY DISCLAIMED AND FASTPAY SHALL HAVE NO LIABILITY OR RESPONSIBILITY RELATED THERETO, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7. Limitation of Liability
SUPPLIER’S USE OF THE SUPPLIER SERVICES AND THE FASTPAY NETWORK IS AT ITS OWN RISK. FASTPAY, ITS REPRESENTATIVES AND LICENSORS, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS OF THE FOREGOING PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, PUNITIVE, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR EXAMPLE, LOSS OF GOODWILL, DATA, REVENUE, PROFITS, SAVINGS, USE OR ECONOMIC ADVANTAGE), OR CLAIMS OF THIRD PARTIES ARISING OUT OF, OR RELATING TO, SUPPLIER’S USE OF OR ACCESS TO THE SUPPLIER SERVICES OR THE FASTPAY NETWORK, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY, OR OTHERWISE AND SUPPLIER HEREBY WAIVES ANY AND ALL RELATED CLAIMS AGAINST FASTPAY, ITS REPRESENTATIVES AND LICENSORS, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS OF THE FOREGOING PARTIES.
8. Indemnification
Supplier agrees to indemnify and hold harmless the Indemnified Parties against any and all manner of suits, claims, liabilities, demands and expenses (including reasonable attorneys’ fees and collection costs) resulting from or arising out of the Supplier Services Agreement and use of the Supplier Services and the FastPay Network, whether directly or indirectly, including the transactions or relationships contemplated thereby and hereby (including the enforcement of the Supplier Services Agreement), and any failure by Supplier to perform or observe its obligations under the Supplier Services Agreement and these Terms and Conditions. Supplier’s obligations hereunder shall exclude any suits, claims, and liability arising solely from FastPay’s fraud, gross negligence, or willful misconduct. These obligations shall survive termination of the Supplier Services Agreement.
9. Representations
Supplier represents and warrants that: (a) it agrees to be bound by these Terms and Conditions; (b) it is fully authorized to enter into the Supplier Services Agreement and to perform under the Supplier Services Agreement; (c) the Supplier Services Agreement constitutes its legal, valid and binding obligation; and (d) Supplier is solvent and in good standing in the jurisdiction of its organization.
10. Confidentiality
Supplier agrees that certain non-public information provided by FastPay to Supplier, including information relating to the Supplier Services and business processes, that is identified by FastPay as confidential or that a reasonable person would understand to be confidential will be held by Supplier in strict confidence and treated as the confidential and proprietary property of FastPay. Supplier will not, except in the due performance of its duties or the enforcement of its rights under the Supplier Services Agreement, disclose any of the foregoing to any Person, unless specifically authorized to do so in writing by FastPay or unless required by law. FastPay will make reasonable efforts to maintain Supplier’s Data in confidence. Unless authorized by Supplier or required by law (including in response to any subpoena or other order of a court), FastPay will not disclose confidential and non-public records and information of Supplier to any Person except as may be required (i) to provide services to Supplier and to Supplier’s customers using FastPay services, (ii) to make payments to Supplier, (iii) to conduct OFAC screenings, to comply with the Bank Secrecy Act or Anti-Money Laundering regulations, or to respond to a demand or request from a government agency, banking partner of FastPay, or processing partner of FastPay in connection with FastPay’s or any such partner’s compliance with such screenings, acts, or regulations, or (iv) to enforce its rights under the Supplier Services Agreement.
11. Counterparts and Use of Electronic Records and Signatures
Electronic records and signatures may be used in connection with Supplier’s acknowledgement, acceptance, and execution of various agreements, disclosures and other documentation related to the services provided by FastPay, including, without limitation, the Supplier Services Agreement, ACH authorization forms, acceptance of these Terms and Conditions or acceptance of applicable fees. The Supplier Services Agreement and other agreements may be executed in as many counterparts as necessary or convenient, including both counterparts that are executed on paper and counterparts that are electronic records and executed electronically, and by the different parties on separate counterparts each of which, when so executed (and any copy of an executed counterpart that is an electronic record) shall be deemed an original but all such counterparts shall constitute but one and the same agreement. Delivery of a manually executed paper counterpart of the Supplier Services Agreement (or of any agreement or document required by the Supplier Services Agreement and any amendment to the Supplier Services Agreement) by telecopy or other electronic imaging means shall be as effective as delivery of such manually executed paper counterpart of the Supplier Services Agreement. Supplier hereby agrees to the electronic delivery and receipt of all agreements, authorizations, notices, disclosures or other communications in connection with the services provided by FastPay, including via any portal or application it may use on the FastPay platform or to email or text contact addresses or phone numbers that Supplier has provided to FastPay. All such communications are deemed to have been received at the time they are sent to Supplier. In order to access and retain electronic information provided by FastPay, Supplier will need a computer or similar device with an internet connection, a compatible web browser, access to the email that Supplier has provided to FastPay for its account and sufficient storage space to save any of the documents or other communications provided electronically by FastPay or a printer to print them. Supplier may request a paper copy of any electronic communication or documents or may withdraw its consent to receive communications electronically, by contacting us at [email protected]. FastPay reserves the right to charge a fee for each paper copy, or copy in alternative media, requested and to close Supplier’s user account if Supplier elects to withdraw its consent to receive additional electronic communications. Supplier expressly agrees to immediately update its account information if it changes. If Supplier’s email account becomes invalid or FastPay has reason to believe that it has been compromised in any way, FastPay reserves the right to close the account and Supplier will need to re-enroll with a valid email account, subject to FastPay’s compliance requirements.
12. Notice; Contact Authorization
FastPay may give notices regarding the Supplier Services, including any such changes to these Terms and Conditions, by sending notice through the FastPay web portal used by it in connection with providing the Supplier Services, by email, or by any other reasonable means of communication. Such notices are deemed given 24 hours after transmission. Supplier agrees that its continued use of the Supplier Services or the FastPay Network thereafter will constitute Supplier’s agreement to any such changes. Any legal notice concerning Supplier’s obligations or rights under the Supplier Services Agreement shall be sent by FastPay in writing by nationally recognized overnight delivery service, via the FastPay Supplier Hub, or by email and shall be deemed given upon receipt. FastPay shall use Supplier’s then current contact information on record in FastPay’s account information for all notices. Supplier may give notice to FastPay (such notice shall be deemed given when received by FastPay) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to FastPay at the following address: FastPay Payment Technologies, Inc., 1210 AvidXchange Lane, Charlotte, NC 28206, addressed to the attention of: Legal Department, or by email to [email protected]. By accessing or using any Supplier Services or the FastPay Network, Supplier further agrees and authorizes that FastPay and its partners may from time to time contact Supplier regarding FastPay’s payment processing services. This contact could be made using an automated dialing system.
13. Assignment
Only FastPay may assign its rights and delegate its duties under the Supplier Services Agreement. Further, FastPay may assign any such rights or duties separately from any other of its rights or duties hereunder. Upon any such assignment, Supplier shall be deemed to have attorned to such assignee and shall owe the same obligations to such assignee and, if applicable, shall accept performance under the Supplier Services Agreement by such assignee as if such assignee were FastPay.
14. General
Except as otherwise set forth herein, the Supplier Services Agreement and these Terms and Conditions shall be deemed made in, and governed by the laws of, the state of North Carolina without regard to the choice or conflicts of law provisions of any jurisdiction. THE PARTIES AGREE THAT ALL DISPUTES AND CONTROVERSIES OF ANY NATURE (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING OUT, RELATING TO, OR IN CONNECTION WITH THE SUPPLIER SERVICES AND SUPPLIER’S USE THEREOF AND THE FASTPAY SUPPLIER NETWORK, THE SUPPLIER SERVICES AGREEMENT AND THESE TERMS AND CONDITIONS WILL BE GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA WITHOUT REGARD TO THE CHOICE OR CONFLICTS OF LAW PROVISIONS OF ANY JURISDICTION AND WILL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND NOT CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. THE PARTIES AGREE THAT ALL ACTIONS ARISING OUT, RELATING TO, OR IN CONNECTION WITH THE SUPPLIER SERVICES AGREEMENT, THE SUPPLIER SERVICES AND SUPPLIER’S USE THEREOF AND THE FASTPAY NETWORK, AND THE RELATIONSHIPS RESULTING THEREFROM OR THE VALIDITY, SCOPE, INTERPRETATION OR ENFORCEABILITY OF THE CHOICE OF LAW AND VENUE PROVISION OF THE SUPPLIER SERVICES AGREEMENT AND THESE TERMS AND CONDITIONS SHALL BE BROUGHT IN EITHER (I) THE STATE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBERG COUNTY OR (II) THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA OR (III) ANY STATE COURT OF FASTPAY’S CHOOSING, AND THE PARTIES EXPRESSLY AGREE TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS. If any provision of the Supplier Services Agreement or the Terms and Condition is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. The parties are independent contractors and no joint venture, partnership, employment, or agency relationship or lender-borrower relationship exists between Supplier and FastPay as a result of the Supplier Services Agreement or use of the Supplier Services or the FastPay Network. The failure of FastPay to enforce any right or provision in the Supplier Services Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by FastPay in writing. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly so stated in writing. FastPay’s rights and remedies herein are cumulative and not exclusive of each other or of any rights or remedies that FastPay would otherwise have. All provisions of the Supplier Services Agreement and these Terms and Conditions which by their nature should survive termination shall survive termination, including Supplier Services – Sections 2, 3, 6, 7, 8, 10 and 14.
The FastPay Supplier Hub is a web-based, self-service portal that allows Suppliers to access and view enhanced invoice and payment details. The use of the portal is subject to the website terms of use contained or referenced in the portal. The terms of use are in furtherance, and not in limitation, of the Supplier Services Agreement, these Terms and Conditions and the Supplier Services Procedures.
FastPay may establish Supplier Services Procedures from time to time related to the terms and administration of the Supplier Services Agreement and use of the Supplier Services. The Supplier Services Procedures will be included in and be deemed a part of these Terms and Conditions and will be communicated to Supplier in accordance with these Terms and Conditions. Supplier Services Procedures, if any, may be amended, changed, added to or deleted at any time by FastPay, in its sole discretion. Any such amendments, changes, additions or deletions are effective when provided or made available in accordance with these Terms and Conditions.
1. Notification of Order Amounts
An Obligor may from time to time notify FastPay (such notification, an “Order Notification”) that a payable owing by the Obligor to Supplier has been approved for payment to Supplier. Upon receipt of an Order Notification and payment(s) related thereto, FastPay shall notify Supplier (such notification, a “Supplier Notification”) of: (a) the name and address of the Obligor as contained in the Order Notification, (b) any account or invoice number or other information (if applicable in each case) contained in the Order Notification to identify the invoice, payment request or purchase order (if applicable in each case) giving rise to the payable, and (c) the amount of the invoice, payment request or purchase order (if applicable in each case) that has been approved by the Obligor for payment as set forth in the Order Notification, exclusive of the amount of any sales, use or other taxes, shipping charges, customs or import duties or like incidental charges to the extent that payment thereof imposes collection or reporting requirements or duties on the payor (the “Order Amount”).
2. Payment and Reconciliation
Upon FastPay’s receipt of the applicable good and clear funds from an Obligor, FastPay shall promptly pay the applicable Order Amount to Supplier via ACH (or other alternative method as determined by FastPay in its reasonable discretion) to Supplier, subject in all respects to the representation and warranty from Supplier set forth in Supplier Services Procedures – Section 7. Supplier shall provide complete and accurate remittance instructions and shall notify FastPay at least three (3) business days prior to any changes in the foregoing remittance instructions, including but not limited to any required changes resulting from or in connection with Supplier’s assignment (collateral or otherwise) of any of its Accounts owed by any Obligor. FastPay will provide a reconciliation file (the format of such reconciliation file to be mutually agreed between Supplier and FastPay) with respect to any date on which a payment is made to Supplier pursuant to this Agreement.
3. Discharge and Recourse
Payment by FastPay of an Order Amount shall discharge and release the Obligor’s obligation to pay the Order Amount to Supplier to the extent of the Order Amount. Supplier acknowledges that each Obligor is an intended third-party beneficiary of this Supplier Services Procedures – Section 3.
4. Return Payments
Any payments, in part or in whole, made by FastPay to Supplier in manifest error shall be promptly (in any event within two (2) business days upon FastPay’s written request) returned by Supplier to FastPay.
5. Taxes
FastPay assumes no responsibility for payment of any sales, use or other taxes, shipping charges, customs or import duties or like incidental charges in connection with the supply of goods or services by Supplier to an Obligor to the extent that payment thereof imposes collection or reporting requirements or duties on the payor. Supplier shall be responsible for any such taxes or charges or shall look to the Obligor for payment thereof.
6. Payment Agent
Notwithstanding anything to the contrary set forth in Supplier Services Procedures – Section 3, Supplier hereby (a) appoints FastPay in applicable jurisdictions as Supplier’s limited agent authorized to (i) receive payments from Obligors on Supplier’s behalf for goods or services that Supplier provides and deliver such payments to Supplier and (ii) process Refunds (as defined and as set forth in Supplier Services Procedures – Section 8), and (b) agrees that receipt by FastPay of any such payment constitutes receipt by Supplier.
7. Representation and Warranty
Supplier represents and warrants to FastPay that Supplier has not assigned (collateral or otherwise) any of its Accounts owed by an Obligor to any third party.
8. Refunds
Subject to FastPay’s program requirements and availability, which are subject to change from time to time in FastPay’s sole discretion, FastPay may enable an Obligor to request the return of all or a portion of the Order Amount that has been paid to Supplier with respect to the Order Notification, but in no event more than the Order Amount (a “Refund”) via the services should the Obligor elect to do so (a “Refund Request”). In submitting a Refund Request, the Obligor must specify the dollar amount of the Refund sought. Once a Refund Request has been made, Supplier will be notified of such Refund Request and may accept or reject the Refund Request via the services. If Supplier accepts the Refund Request, Supplier’s account will be debited accordingly and the same will be credited to the Obligor’s account. With respect to ACH transactions, FastPay reserves the right at all times to establish and maintain ACH credit limits subject to amendment in FastPay’s sole discretion. The Obligor and Supplier must each have opted into the refund service for such functionality to be available.
9. No Responsibility for Provision of Goods or Services
FastPay provides a payment intermediation service for the benefit of Obligors and Suppliers and is not a seller or other provider of goods or services giving rise to payables owing by Obligors to Supplier. Any dispute that Supplier may have arising out of goods or services provided to an Obligor shall be settled between Supplier and the Obligor. Supplier shall not assert any claim or defense against FastPay that Supplier has against an Obligor arising out of the sale or other provision of goods or services by Supplier to the Obligor, including any claim resulting from the failure of the Obligor to authorize a different amount for payment to Supplier other than that approved in an Order Amount. Supplier shall indemnify FastPay from and hold FastPay harmless against any loss, cost or expense sustained or incurred by FastPay on account of a claim by any third party against FastPay relating to the goods or services provided by Supplier to the Obligor.
10. No Responsibility for Circumstances Beyond FastPay’s Reasonable Control
FastPay will not be liable for any failure or delay in performance of its obligations hereunder to the extent caused by any event or circumstance beyond its reasonable control, including without limitation acts of God, war, terrorism, fire, flood, or failure of communications. FastPay will not be liable for any failure or delay in the servicing of payables or Refunds to the extent caused by any event or circumstance beyond FastPay’s reasonable control, including without limitation, insufficient funds in the Obligor’s or Supplier’s accounts (as the case may be) or erroneous or incomplete information with respect to an Order Notification, Supplier Notification, or Refund Request.
11. Termination
Upon termination of the Supplier Services Agreement, Supplier shall no longer be entitled to accept Order Amounts. Termination shall not otherwise affect the rights and obligations of the parties arising out of events occurring prior to termination, and all terms and provisions of the Supplier Services Agreement shall continue in full force and effect until the respective obligations of the parties hereto have been satisfied in full.
Capitalized terms used herein, in the Supplier Services Agreement, or in the FastPay Supplier Services Procedures shall have the following meanings, unless otherwise defined in such documents or the Uniform Commercial Code:
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