Updated on January 13, 2020.
For the purposes of the Agreement, the following terms and words have the meaning ascribed to them, unless the context clearly indicates otherwise.
1.1 “Agreement “or “Master Agreement” means the Master Services Agreement between the parties, as amended from time to time.
1.2 “Average Bill Amount” means the total amount of Payments processed through Paymentus in a given month divided by the number of the Payments for the same month.
1.3 “Effective Date” is the date the last party to execute the Agreement does so, or if the Agreement is submitted to Client for acceptance in a manner that does not call for Paymentus to execute it, the date Client agrees to the Agreement.
1.4 “Excess Payment Amount” shall mean the amount by which the total of all Payment Amounts from Non-Qualified Transactions processed in a calendar month exceeds 5% of the total of the Payment Amounts of all card Payments processed that month.
1.5 “Fee Assumptions” shall mean information used to calculate the Paymentus Fee (as defined in Section 3.2), including the projected Average Bill Amount, projected payment method mix (credit vs debit vs e-check) and that the total Payment Amount processed each month resulting from Non-Qualified Transactions shall not exceed 5% of the total Payment Amount of all card Payments processed that month.
1.4 “Initial Setup” means the first personalization and activation of the standard service with respect to each channel described on Schedule A as specified during the impletion process.
1.5 “IPN” or “Instant Payment Network” means the network developed by Paymentus to enable customer engagement, bill presentment and receipt of payments by businesses through multiple channels as enabled from time to time by Paymentus.
1.6 “Launch Date” means the date on which Client completes the introduction to Users of all Services selected by Client as of the Effective Date.
1.8 “Non-Qualified Transaction” shall mean (i) a Payment made with a card or payment method generally issued for business use that results in interchange fees or other processing charges assessed by a Paymentus Authorized Processor or card payment association that are higher than those charged for transactions with cards payment methods issued for consumer use; or (ii) a Payment that does not qualify for reduced interchange fees under programs that Client may be participating in. These high-cost cards payment methods may include, among others, corporate cards, virtual cards, purchase cards, business cards, and travel and entertainment cards.
1.7 “Payment” means payment by a User through the Platform for Client’s services, Client’s bills, or other amounts owed to Client.
1.8 “Payment Amount” means the amount of a Payment.
1.9 “Paymentus Authorized Processor” means a Paymentus authorized merchant account provider or payment processing intermediary or gateway.
1.10 “Paymentus Fee” is defined in Section 3.2.
1.11 “Platform” is defined in Section 2.1.
1.12 “Reversed or Chargeback Transactions” means cancelled transactions due to User error, a User’s challenge to Payment authenticity, or action by a financial institution or a Paymentus Authorized Processor (commonly referred to as ACH or eCheck returns or credit/debit card chargebacks).
1.13 “Services” means the performance by Paymentus of the payment and related services selected by Client as set forth in Schedule A and as provided in Section 2.3.
1.14 “User” means a user of Client’s services.
2 Description of Services to be Performed
2.1 Scope of Services
When selected on Schedule A, Paymentus will provide Users the opportunity to view and receive bills, make Payments using the payment methods provided under Schedule A and other payment methods and wallets as offered by Paymentus from time to time. The payment methods and other services provided may be used within the channels described on Schedule A or on other websites or mobile/web apps or chatbots or voice assistants that are part of the Instant Payment Network, (collectively referred to as the “Platform”). Paymentus will provide a mechanism by which Client may select channels and payment methods it wishes to offer Users. Paymentus will be the exclusive provider to Client of services included in the Services.
Paymentus will perform in a professional manner all Services required to be performed under the Agreement.
2.3 New or Enhanced Services
From time to time Paymentus may offer Client new or enhanced services, such as new functionality within the IPN, the ability to accept other payment methods, methods of bill presentment, the ability to access alternative payment processors or other service providers or Paymentus Authorized Processors or otherwise modify the terms and conditions under which the Services are provided (“Service Enhancements”). Paymentus will provide Client with notice by email to the person designated as provided in Section 7.2 disclosing the terms, including any contracts or contract amendments, under which the Service Enhancements will be made available. If the Service Enhancements will result in additional fees to or impose additional obligations on Client or Users, Client will have at least thirty (30) days after the date of the notice to opt-out of the Service Enhancements in the manner provided in the notice. If Client does not opt-out, then when the Service Enhancements are introduced they will form part of the Services and Client will be bound by the additional terms as disclosed in the notice, and Schedule A will be deemed amended to reflect changes in the Services and fees.
3.1 No Fee Installation
Paymentus will charge no fees related to the Initial Setup of standard service.
3.2 Paymentus Fee
Client will be billed the fees as provided in Schedule A (“Paymentus Fee”), unless a fee is User paid, in which case Paymentus will charge each User the Paymentus Fee as provided in Schedule A to be collected in addition to the corresponding Payment as part of the transaction. Paymentus will pay the corresponding processing and related fees (“Transaction Fees”) except for fees related to Reversed or Chargeback Transactions.
The Paymentus Fee is based on the Fee Assumptions. Client will be billed additional Paymentus Fees equal to 3.5% of the Excess Payment Amount for each month during which there is an Excess Payment Amount. Paymentus may amend Schedule A upon prior written notice to Client if there are changes in the card or payment system rules or changes in payment processing fees or other events that increase the cost of processing transactions, such as changes in the average Payment Amount, the mix of payment methods or of interchange rates applied to transactions. The amended Paymentus Fee will take effect 30 days after written notice to Client.
4 Payment Processing
4.1 Integration with Client’s Billing System
At no charge from Paymentus to Client, Paymentus will develop one (1) file format interface with Client’s billing system using Client’s existing text file format currently used to post payments to Client’s billing system. Client will be responsible to provide Paymentus with the one file format specification and will fully cooperate with Paymentus during the development of the said interface. If Client chooses to create an automated file integration process to download the posting file, due to Paymentus security requirements, Client will use Paymentus specified integration process. As such, the Paymentus platform does and can function independent of any billing system integration. A payment posting file can be emailed or downloaded from the Paymentus Agent Dashboard. If Client chooses to have the Paymentus platform integrated with its billing system, Paymentus offers two options:
(i) Paymentus standard integration specification that Client can use to integrate its billing systems with Paymentus platform (“Standard Integration”); or
(ii) Paymentus to either customize or configure its platform to integrate with Client using file specification or APIs supported by Client’s billing system (“Client Specific Integration”).
If Client chooses Standard Integration, Paymentus agrees to fully cooperate with Client and provide its specification to Client. Paymentus also agrees to participate in meetings with Client’s software vendor to provide any information or clarifications needed to understand Standard Integration. Paymentus agrees to provide all integration/interface specifications within 30 days from the Effective Date. Client will take commercially reasonable steps to develop the integration within 60 days from the date on which Client has received all integration specifications from Paymentus.
If Client chooses Client Specific Integration, Paymentus agrees to develop that integration at no charge from Paymentus to Client, provided however, Client agrees to fully cooperate with Paymentus and cause its software vendors and other service providers to fully cooperate with Paymentus. Client agrees to provide all specifications required for Client Specific Integration. Client further agrees to participate in testing with Paymentus and if needed, cause its billing software vendors and other service providers to participate in testing. Client agrees to provide or make available all integration/interface specifications within 30 days from the Effective Date. Paymentus will take commercially reasonable steps to develop the integration within 60 days from the date on which Paymentus has received all the integration specifications from Client or its vendors.
Parties agree that if the parties do not cooperate fully, it can lead to each party being unable to perform its duties to deliver the integration in time.
Based on Client’s use of the Platform and its respective modules selected under the Agreement, Paymentus will require the following integration points:
(i) For one-time Payment Module:
a. Customer Information – Text File or Real-time
b. Payment Posting – Text File or Real-time
(ii) For Recurring Payment Module
a. Text File
(iii) For E-billing Module
a. Billing Data – Text File or Real-time link to billing data
(iv) For Outbound Notification
a. Audience File – Text File for customer engagement messages
Each of these can be based on Standard Integration or Client Specific Integration.
The Initial Setup for the Web or IVR interface will be considered complete when the first Standard Integration or Client Specific Integration, as applicable, is completed such that Paymentus and Client are able to exchange files relevant to that interface, as contemplated in this Section 4.1. In the event the Services are implemented without integration, the Initial Setup will be considered complete when a User is able to access the Platform to process a payment.
The parties agree that the Services are provided on a “platform as a service” basis, and not as a result of custom software development. Paymentus’ standard Platform will be personalized to achieve certain additional functional requirements of Client, as clarified and agreed during implementation (“Enhancements”). Enhancements may include some or all of the features included in any technical requirements or similar document provided to Paymentus. The parties will fully co-operate with one another to: a) ensure that requirements with respect to Enhancements are clarified as needed; b) accept Paymentus proposed reasonable alternatives to achieve Client’s functional objectives within the limits of the Paymentus platform; and c) accept Paymentus’ reasonable estimates of time for completion, designs and plans with respect to agreed Enhancements. There will be no fee charged by Paymentus to Client for Enhancements, provided Paymentus designs and plans are accepted by Client. If the Services are to be offered at multiple locations, or if the Services include multiple Enhancements, the parties will agree to a phased implementation.
4.3 PCI Compliance
To the extent that either party receives payment card information subject to the Payment Card Industry Data Security Standards (“PCI-DSS”) in connection with providing the Services, it will comply with all requirements of the PCI-DSS with respect to storage, transmission and disclosure of payment card information.
4.4 Explicit User Confirmation
Paymentus will confirm the dollar amount of all Payments, and when paid by the User, the corresponding Paymentus Fee to be charged and electronically obtain the User’s approval of the charges prior to initiating payment authorizations transaction. Paymentus will provide User with electronic confirmation of all transactions.
4.5 Merchant Account
Paymentus will arrange for Client to have a merchant account with the Paymentus Authorized Processor for processing and settlement of transactions.
4.6 Payment Authorization
Paymentus together with a Paymentus Authorized Processor will forward the payment transactions, and when paid by User, the corresponding Paymentus Fee to the appropriate organizations for settlement (other than the Paymentus Fee) directly to Client’s depository bank account previously designated by Client (“Client Bank Account”). When Client pays the Paymentus Fee, Paymentus will invoice Client and debit the fees from the Client Bank Account on a monthly basis.
Paymentus together with the Paymentus Authorized Processor will continuously review its settlement and direct debit processes for its simplicity and efficiencies. Client and Paymentus agree to fully co-operate with each other if Paymentus were to change its settlement and invoicing processes.
4.8 Reversed or Chargeback Transactions
With respect to all Reversed or Chargeback Transactions Client authorizes Paymentus and Paymentus Authorized Processor (and/or the respective payment organizations) to debit the Client Bank Account for the Payment Amount and Paymentus will refund to the payment organization for credit back to the User the corresponding Paymentus Fee, if any.
Paymentus together with Paymentus Authorized Processor will continuously review its processes for Reversed or Chargeback Transactions for simplicity and efficiencies. Client and Paymentus agree to reasonably co-operate with each other if Paymentus requires any change to its settlement and invoicing processes for these transactions.
5 General Conditions of Services
5.1 Service Reports
Paymentus will provide Client with reports summarizing use of the Services by Users for a given reporting period.
5.2 User Adoption Communication by Client
Client will communicate the Services as a payment option to its customers wherever Client usually communicates its other payment options.
Client will make the Services known or available to its customers by different means of customer communication including a) through bills, invoices and other notices; b) if direct payments have been activated, by providing IVR and Web payment details on Client’s website including a “Pay Now” or similar link on a mutually agreed prominent place on the web site; c) if IVR payments have been activated, through Client’s general IVR/Phone system; and d) other channels deemed appropriate by Client.
Paymentus will provide Client with logos, graphics and other marketing materials for Client’s use in its communications with its customers regarding the Services and/or Paymentus.
5.3 Independent Contractor
Paymentus is an independent contractor.
5.4 Client’s Responsibilities
In order for Paymentus to provide the Services outlined in the Agreement, Client will co-operate with Paymentus by:
(i) Entering into (and authorizing Paymentus to do so on its behalf) all applicable merchant processing, cash management, ACH origination, or kiosk agreements, provided that Client is given notice of and approves any additional fees associated with those agreements, and providing information and consents reasonably requested in connection with the agreements.
(ii) Keeping throughout the duration of the Agreement during which direct payments via the web is activated, a bill payment link connecting to the Paymentus Platform at a prominent and mutually agreed location on Client’s website. If the IVR channel is activated, the phone number for IVR payments will also be added to the web site and as an option as part of Client’s general phone system.
(iii) Sharing User Adoption marketing as described in Section 5.2.
(iv) Launching the Service within 30 days of Paymentus making the system available.
(v) Dedicating sufficient and properly trained personnel to support the implementation process and its use of the Services in compliance with all laws applicable to its use of the Services.
(vi) Providing Paymentus with the file format specification currently used to post payments to the billing system to allow Paymentus to provide Client with a posting file for posting to Client’s billing system.
(vii) Fully cooperating with Paymentus and securing the cooperation of its software and service providers and providing the information required to integrate with Client’s billing system.
(viii) Fully cooperating with Paymentus to integrate its systems with the Paymentus Platform through the use of Paymentus’ APIs to enable Client’s access to the IPN, if selected.
6 Indemnification and Limitation of Liability
6.1 Paymentus Indemnification and Hold Harmless
Paymentus agrees to defend and indemnify Client and its directors, officers or governing officials, or employees (collectively, the “Client Indemnitees”) from and against all liabilities, demands, losses, damages, costs or expenses (including reasonable attorney’s fees and costs), incurred by any Client Indemnitee arising from a claim or demand brought by a third party to the extent the claim or demand alleges that the Services provided under this Agreement infringe the intellectual property rights of the third-party.
6.2 Client Indemnification and Hold Harmless
Client agrees to defend and indemnify Paymentus and its directors, officers, or employees (collectively, the “Paymentus Indemnitees”) from and against all liabilities, demands, losses, damages, costs or expenses (including reasonable attorney’s fees and costs), incurred by any Paymentus Indemnitee arising from a claim or demand brought by a third party to the extent the claim or demand relates to the underlying relationship or obligations of Client and its Users.
6.3 Indemnification Procedure
The indemnified party will give the indemnifying party prompt written notice of any claim for which indemnification is sought. The indemnifying party will have the right to control the defense and settlement of any claim, provided that any settlement that adversely affects the indemnified party requires the indemnified party’s consent, which will not be unreasonably delayed or withheld. The indemnified party will not settle any claim without the consent of the indemnifying party, which will not be unreasonably delayed or withheld.
6.4 Warranty Disclaimer
Except as expressly set forth in the Agreement, Paymentus disclaims all other representations or warranties, express or implied, made to Client or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness, for a particular purpose or otherwise of any services or any good provided incidental to the Services provided under the Agreement.
6.5 Limitation of Liability
Notwithstanding the foregoing, Paymentus will not be liable for any lost profits, lost savings or other special, indirect or consequential damages, even if it has been advised of or could have foreseen the possibility of these damages. In no event will Paymentus be liable for any losses or damages resulting from the acts, omissions or errors of third parties or of Client or for providing agreements, instructions or information to Users as instructed by Client. Paymentus’ total liability for damages for any and all actions associated with the Agreement or the Services will in no event exceed (i) for an error or other action affecting the processing of one or more Payments, the amount of the Paymentus Fee associated with each Payment, (ii) for other claims, the amount of the Paymentus Fee (net of direct processing and other fees paid by Paymentus) paid to Paymentus (“Net Fees”) in the six (6) months before the events given rise to the claim or claims arising from the same circumstances; and (iii) in no event more than the lesser of $1,000,000.00 or the Net Fees under the Agreement.
7.1 Authorized Representative
Each party will designate an individual to act as its representative, with the authority to transmit instructions and receive information. The parties may from time to time designate other individuals or change the individuals.
All notices of any type hereunder will be in writing and except as otherwise provided in these Terms and Conditions will be given by certified mail or a national courier or by hand delivery.
Notices will be considered to have been given or received on the date the notice is physically received. Any party by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which the notice is to be received.
It is the intent of the parties that no portion of the Agreement will be interpreted more harshly against either of the parties as the drafter.
7.4 Governing Law
The Agreement will be governed by the laws of the state of Delaware, without giving effect to any principles of conflicts of law.
If a word, sentence or paragraph herein is declared illegal, unenforceable, or unconstitutional, that word, sentence or paragraph will be severed from the Agreement, and the Agreement will be read as if that word, sentence or paragraph did not exist.
7.6 Attorney’s Fees
Should any litigation arise concerning the Agreement between the parties hereto, the parties agree to bear their own costs and attorney’s fees.
7.8 Intellectual Property
In order that Client may promote the Services and Paymentus’ role in providing the Services, Paymentus grants to Client a revocable, non-exclusive, royalty-free, license to use Paymentus’ logo and other service marks (the “Paymentus Marks”) for this purpose only. Client does not have any right, title, license or interest, express or implied in and to any object code, software, hardware, trademarks, service mark, trade name, formula, system, know-how, telephone number, telephone line, domain name, URL, copyright image, text, script (including, without limitation, any script used by Paymentus on the IVR or the Website) or other intellectual property right of Paymentus (“Paymentus Intellectual Property”). All Paymentus Marks, Paymentus Intellectual Property, and the Platform and all rights therein (other than rights expressly granted herein) and goodwill pertain thereto belong exclusively to Paymentus.
7.9 Force Majeure
Paymentus will be excused from performing the Services to the extent its performance is delayed, impaired or rendered impossible by acts of God or other events that are beyond Paymentus’ reasonable control and without its fault or judgment, including without limitation, natural disasters, war, terrorist acts, riots, acts of a governmental entity (in a sovereign or contractual capacity), fire, storms, quarantine restrictions, floods, explosions, labor strikes, labor walk-outs, extra-ordinary losses utilities (including telecommunications services), external computer “hacker” attacks, and/or delays of common carrier.
7.10 Entire Agreement
The Agreement represents the entire agreement between the parties with respect to its subject matter and supersedes all prior written or oral agreements or understandings related to its subject matter and except as provided in the Agreement may be changed only by agreements in writing signed by the authorized representatives of the parties.
The Agreement and any amendment or other document related to the Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement. The Agreement and any amendment or other document related to the Agreement may be signed electronically. A photographic or facsimile copy of the signature evidencing a party’s execution of the Agreement will be effective as an original signature.
8 Term and Termination
The term of the Agreement will commence on the Effective Date and continue for a period of 5 (five) years (“Initial Term”) from the Launch Date.
At the end of the Initial Term, the Agreement will automatically renew for successive three (3) year periods unless either Client or Paymentus provide the other party with not less than 6 (six) months prior written notice before the automatic renewal date that it elects not to automatically renew the term of the Agreement.
8.2 Material Breach
A material breach of the Agreement will be cured within 90 business days (“Cure Period”) after a party notifies the other of the breach. In the event the material breach has not been cured within the Cure Period, the non-breaching party can terminate the Agreement by providing the other party with a 30 business days’ notice.
8.3 Upon Termination
Upon termination of the Agreement, the parties agree to cooperate with one another to ensure that all Payments are accounted for and all refundable transactions have been completed. Upon termination, Paymentus will cease all Services being provided hereunder unless otherwise directed agreed in writing.