Terms and Conditions of Service

THE SOFTWARE SUBSCRIPTION AGREEMENT AND THESE TERMS AND CONDITIONS OF THE SUBSCRIPTION (as may be amended from time to time, “Agreement”) contain the Agreement and conditions that apply to each subscriber and user (“User, “you” or “your”) of the software (the “Subscription”) offered now and in the future by BlueHill Payments, Inc, (the “Company” or “we”). The Company owns and makes the Subscription available through its software products BlueHill Payments, BlueHill, and BlueHill Care (the “Products”).

This Agreement is between you and Company. Please read this Agreement carefully as it governs your use of the Subscription.

By using the Subscription, you acknowledge that you have read, understood and agreed to all of the terms of this Agreement, as such terms may be amended from time to time in the sole discretion of Company, and that you have agreed to become a party to, and legally bound by, this Agreement. If you do not agree to all of the terms and conditions of the most current version of the Agreement, you may not use the Subscription.

If you are using the Subscription on behalf of a company or other organization, by using the Subscription, you represent and warrant that you are authorized to bind such entity to this Agreement.

You will not be notified of amendments to this Agreement. The most current version of this Agreement will be posted on the Sites. It is your responsibility to review the Sites periodically to determine if this version of the Agreement has been updated by Company. This Agreement and any active Order Forms constitute the entire agreement, and supersedes all prior agreements, between Company and User regarding the subject matter hereof. If you disagree with any terms of the updated Agreement, you must immediately cease use of the Subscription.

If you have any questions regarding this Agreement, please contact hello@bluehillcare.com.

Grant of Rights

The Products and Subscription are owned and provided by Company. Company hereby grants to you a non-exclusive, non-transferable, non-sublicensable, world-wide right to use the Subscription solely for your internal business purposes subject to the terms and restrictions in this Agreement. Company reserves any rights not expressly granted herein. You shall be solely responsible for all hardware, internet connections and telecommunications necessary to access the Subscription. You are not a licensee of Company and all rights, title, and interests in and to the software powering the Subscription are retained exclusively by Company.

Restrictions

You may not: (a) copy the Subscription or any software or programming related thereto; (b) permit other individuals or companies to use the Subscription or use the Subscription to provide services for other individuals and companies as a consultant or outsourced service provider; (c) modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon the Subscription or any software or programming related thereto; (d) rent, lease, transfer, resell and/or or otherwise transfer rights to the Subscription; (d) attempt to gain unauthorized access to the Subscription or Company’s networks or computer systems, or the networks or computer systems of any third party via the Subscription; (e) delete or write over any portion of any software relating in any manner to the Subscription or (f) post, transmit, email, re-transmit or store any data or materials through the Subscription which, in the sole judgment of the Company (i) is in violation of any local, state, federal or foreign law or regulation, (ii) is threatening, obscene, indecent, defamatory, (iii) violates the rights of any person, including but not limited to rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, or (iii) is harmful or potentially harmful to the Company’s or a third party’s networks or computer systems. You shall be responsible for determining what laws or regulations are applicable to your use of the Subscription. In addition, you may only use the Subscription in a manner that, in Company’s sole judgment, is consistent with the purposes of the Subscription. Any forbidden use shall immediately and automatically terminate your right to use the Subscription without notice and without any refunds of fees paid for the use of the Subscription.

Price Changes

Company may change prices for the Subscription and Services from time to time, in its sole discretion. Any price changes for the Subscription Fees will be effective upon the commencement of User’s next Renewal Term. For all other Services, The Company will provide an opt-out period before the pricing change goes into effect.

Discounts and Promotional Pricing

Prices specified in the Order Form may include discounts or promotional pricing. These discounts or promotional pricing amounts may be temporary and may expire upon the commencement of a Renewal Term, without additional notice. BlueHill reserves the right to discontinue or modify any promotion, sale or special offer at its sole and reasonable discretion.

Payment

Upon entering this Agreement, you must choose to pay either by direct charge to a credit card, debit card, or other electronic payment system approved for use by the Company (e.g. PayPal). You hereby authorize Company to charge your credit card, debit card or other accepted electronic payment system to pay for any charges that may apply to your account as they accrue on a monthly or yearly recurring basis, as applicable. There will be a 5% service fee added to all credit and debit card charges. There will be no service fee added for ACH payments via a bank account. You must notify Company of any changes to your card or electronic payment system account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Company from charging your account. If your credit card authorization fails for any reason (for example, expired credit card, exceeding credit limits etc.), Company will charge $50 fee for each billing cycle. Any invoice due over 7 days will incur a late fee charge of $50 plus 12% per month of the amount of such invoice remaining unpaid shall also become payable. Company reserves the right to offer certain qualified customers to pay by invoice. If you are approved by Company to pay by invoice, payment shall be due within seven (7) days of receipt. After such seven (7) day period, a late fee of $50 plus late charges of 12 % per month of the amount of such invoice remaining unpaid shall also become payable. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assesses, other than taxes based on Company’s net income. Company reserves the right to suspend your access to the Subscription immediately in the event that any payments owed to Company with respect to your account are past due.

Term and Termination of Services

Unless specifically stated in the Software Subscription Order Form, the duration of the Subscription is 36 months from the Start Date on the Order Form. After the subscription period ends, unless you notify the Company in writing at least 14 days prior to the expiration of the Subscription, your Agreement will renew automatically for the same duration as the previous term at the pricing that is in place at the time of the renewal. If you terminate the Agreement, you will be responsible for the payment for the Subscription fee and other outstanding balances for the remaining duration of the Agreement and you will not be entitled to a refund of any fees paid.

If we terminate your access to the Subscription as a result of your breach of the terms of this Agreement, you will be responsible for the payment for the Subscription fee and other outstanding balance for the remaining duration of the Agreement and you will not be entitled to a refund of any fees paid. Upon any termination of your subscription, you shall immediately discontinue use of the Subscription. Except for those provisions of this Agreement which, by their nature, are intended to survive the termination of this Agreement, this Agreement shall terminate upon the termination of your subscription. At your written request, which must be submitted to Company within thirty (30) days of the date that your subscription terminates, Company shall provide to you at your expense, a copy of all of your Data in Microsoft Excel or CSV format. If you have not made such request within the thirty (30) period, Company reserves the right to destroy your Data at any time or, if such Data has not been destroyed, to charge you for a copy of such Data that you might subsequently request.

The Company uses Stripe, PayPal, Braintree Payments, Authorize.NET and Forte as PCI compliant payment processors to support various payment methods such as credit cards; BlueHill Payments to process payments, and ACH, ApplePay, Google Pay, Venmo, PayPal etc. to manage online and billing transactions performed through our Software. The Company and our customers must abide by the terms and conditions stipulated by each processor. Violation of any terms stipulated by the payment processors may result in restriction, suspension, or cancellation of your online payment options available through our Software.

Your Information

You agree to provide true, accurate, current and complete transactional, subscriber and user information as requested by the Company in its registration forms or elsewhere. You agree to maintain and promptly update such information to keep it true, accurate, current and complete.

Username and Password

You will receive one or more usernames and passwords during the implementation process. You are fully responsible for maintaining the confidentiality of your user names and passwords and all activities that occur under your user names and passwords. Your user names and passwords are for your use only.

Authorized Users

You may designate and provide access to the Subscription to employees, agents, or authorized contractors (each an “Authorized User”). You agree to promptly notify BlueHill Payments of any unauthorized access or use of which you become aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this Agreement.

Modification or Discontinuation of Services

Company may, in its sole discretion and at any time, modify or discontinue the Subscription, or any part thereof. For a modified Subscription, you may be requested to accept a modification or new Agreement when you login to your account. If you do not accept the amended Agreement, you will not have access to the Subscription. While Company will be responsible for contracting for or establishing the host facilities for the Service, from time to time, Company may relocate the hosting site or add additional hosting sites as necessary at its sole discretion. Also, from time to time, Company may add, delete, change, or modify features of its software powering the Subscription, including the release of additional versions.

Proprietary Rights

The Subscription, including, without limitation, any of the Company’s Internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, goodwill, moral rights, trade secrets trademarks, service marks, patents, copyrights, and any related intellectual property rights throughout the world, and any derivative works, improvements, modifications, enhancements or extensions thereof shall remain the sole and exclusive property of Company or their respective licensors, and you shall have no interest in them whatsoever. You will own all data collected through your use of the Subscription (“Data”). Company will not sell or license the Data to any person and, except as provided in this Section, shall not permit the Data to be used by any person other than with your express written permission. Company reserves the right to aggregate non-attributed customer data for the purposes of monitoring system performance, performing capacity planning analysis, and analyzing industry trends, subject to Company’s Privacy Policy.

Incorporation of Anti-Spam Policy

You agree to follow and be bound by all of the terms and conditions contained in Company’s Anti-Spam Policy, which is incorporated into and made a part of this Agreement by reference. You may view the Anti-Spam Policy by clicking http://bluehillcare.com/anti-spam-policy

Incorporation of Privacy Policy

You agree to follow and be bound by all of the terms and conditions contained in Company’s Privacy Policy, which is incorporated into and made a part of this Agreement by reference. You may view the Privacy Policy by clicking http://bluehillcare.com/privacy-policy

User Conduct

You are solely responsible for the contents of your transmissions through the Subscription. Your use of the Subscription is subject to all applicable local, state, national and international laws and regulations. You are responsible for all activities that occur under your user name and password. You shall: (a) have the sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all data you utilize or collect through use of the Service; (b) use commercially reasonable efforts to prevent unauthorized access the Service and notify Company promptly of any such unauthorized use; (c) comply with all applicable local, state, federal, and foreign laws in using the Service, including, but not limited to those addressing intellectual property rights and consumer privacy, the Children’s Online Privacy Protection Act of 1998, and spamming laws and regulations. You agree that you will uphold current privacy standards as defined by the industry. In the event that industry standards change, you agree to conform to those new standards. You acknowledge that the Subscription has not been designed to receive, store, hold, or accept any highly sensitive customer data such as social security numbers, credit card numbers or other similar data. You also acknowledge and agree that the Subscription will not be used to receive, store, hold or accept data that would be or is considered illegal or unlawful.

We are under no obligation to review any campaign before it is sent. However, we reserve the right to review any email campaign before it is sent. We may hold or cancel any campaign if we believe that the campaign is in violation of the terms and conditions defined in this Agreement or if we make a determination that a particular campaign may be deemed as SPAM by the recipients. Campaigns that may be held or cancelled may be evaluated on a number of factors including but not limited to the content, frequency, size of the recipient list, history of previous campaigns or impact on the sender’s IP address. Additionally, we may request that you complete an Email List Verification Form prior to sending a campaign. We may send the campaign to a small portion of your recipients to test the validity of the recipient list and content. If the resulting bounce rate exceeds our threshold, which is based on the factors mentioned above, the campaign will be canceled and will not be sent to any further recipients. You are still responsible for the payment of any fees associated with the full recipient list size, regardless of if the campaign was sent, canceled or sent to a portion of the list. You remain solely liable and responsible for compliance with all applicable laws while using our software and Subscription. We, under no circumstances, will be liable or responsible for any of your actions while using our software and Subscription.

Indemnification

You agree to immediately notify Company of, and indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Subscription, (including the unauthorized use of your user name and/or password or any other breach of security known to you), the violation of this Agreement by you, or the infringement by you, or another user using your computer, on any intellectual property or other right of any person or entity.

Disclaimer of Warranties

You agree that the use of the Subscription is at your sole risk. The Subscription is provided on an “as is” and “as available” basis, and Company (including, without limitation, its independent consultants, subcontractors, distributors, or any client of Company (collectively, “Company Third Parties”) assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any of your communications, data, or personalization settings.

Company and Company Third Parties hereby disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, quiet enjoyment, title, merchantability of computer programs and informational content.

Neither Company nor any Company Third Parties make any warranty that the Subscription will meet your requirements, or that the Subscription will be uninterrupted, timely, secure, error or virus free; nor does Company make any warranty as to the results that may be obtained from the use of the Subscription or as to the accuracy or reliability of any information obtained through the Subscription or that defects in the software powering the Subscription will be corrected.

You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Subscription is done at your own discretion and risk and that you will be solely responsible for any damage to a computer system or loss of data that results from the download of such material and/or data.

No advice or information, whether oral or written, obtained by you through the Subscription shall create any warranty not expressly made herein.

Limitation of Liability

Neither Company, nor its parents, subsidiaries, affiliates, officers and employees, or any Company Third Parties shall be liable for any indirect, incidental, special or consequential damages, resulting from or concerning the use or the inability to use the Subscription or your failure to comply with this Agreement, including but not limited to, damages for loss of profits, use, data or other intangibles, even if advised of the possibility of such damages. In no event shall the total and aggregate liability of Company under this Agreement for any cause of action or reason whatsoever exceed a cumulative aggregate of $100. In no event will attorneys’ fees be awarded or recoverable. Your sole and exclusive remedy under this Agreement is to discontinue the use of the Subscription. The liability of any party under this Agreement shall be cumulative and not per incident.

Authority

Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

Anti-Corruption

Customer represents and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of BlueHill Payments employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly give notice to BlueHill.

Notices

Unless otherwise provided herein, notices given by Company to you will be given by e-mail or by conventional mail. Notices will be sent to the e-mail address or mailing address you provide to Company as part of the registration process, or to updated addresses which you provide to Company via notice consistent with this paragraph, or provided to you via pop-up(s) within the software. Notices given by you to Company must be given by e-mail to hello@bluehillcare.com or such updated address as Company may provide you consistently with this notice provision. Notwithstanding anything herein to the contrary, it is your sole responsibility to update your address for notices hereunder, and notice sent to the e-mail or conventional mailing address last provided by you to Company shall be valid and binding on you regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts notwithstanding any conflict of laws provisions.

Mandatory Arbitration

ALL DISPUTES UNDER THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION IN BOSTON, MASSACHUSETTS, BEFORE A SINGLE ARBITRATOR PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION “ASSOCIATION”). ARBITRATION MAY BE COMMENCED AT ANY TIME BY ANY PARTY HERETO GIVING WRITTEN NOTICE TO THE OTHER PARTY THAT SUCH DISPUTE HAS BEEN REFERRED TO ARBITRATION UNDER THIS AGREEMENT. THE ARBITRATOR SHALL BE SELECTED BY THE JOINT AGREEMENT OF YOU AND COMPANY, BUT IF YOU AND THE COMPANY ARE UNABLE TO AGREE ON AN ARBITRATOR WITHIN 20 DAYS AFTER THE DATE OF THE NOTICE REFERRED TO ABOVE, THE SELECTION SHALL BE MADE PURSUANT TO THE RULES MAINTAINED BY SUCH ASSOCIATION.

ANY AWARD RENDERED BY THE ARBITRATOR SHALL BE CONCLUSIVE AND BINDING UPON THE PARTIES HERETO; PROVIDED, HOWEVER, THAT ANY SUCH AWARD SHALL BE ACCOMPANIED BY A WRITTEN OPINION OF THE ARBITRATOR GIVING THE REASONS FOR THE AWARD. THIS PROVISION FOR ARBITRATION SHALL BE SPECIFICALLY ENFORCEABLE BY THE PARTIES AND THE DECISION OF THE ARBITRATOR IN ACCORDANCE HEREWITH SHALL BE FINAL AND BINDING AND THERE SHALL BE NO RIGHT OF APPEAL THEREFROM. EACH PARTY SHALL PAY ITS OWN EXPENSES OF ARBITRATION AND THE EXPENSES OF THE ARBITRATOR SHALL BE EQUALLY SHARED; PROVIDED, HOWEVER, THAT IF IN THE OPINION OF THE ARBITRATOR ANY CLAIM OR ANY DEFENSE OR OBJECTION THERETO WAS UNREASONABLE, FRIVOLOUS, AND/OR BROUGHT FOR AN IMPROPER PURPOSE, THE ARBITRATOR MAY ASSESS, AS PART OF HIS AWARD, ALL OR ANY PART OF THE ARBITRATION EXPENSES OF THE OTHER PARTY (INCLUDING REASONABLE ATTORNEYS’ FEES) AND OF THE ARBITRATOR AGAINST THE PARTY RAISING SUCH UNREASONABLE CLAIM, DEFENSE OR OBJECTION.

TO INCREASE THE EFFICIENCY OF ADMINISTRATION AND RESOLUTION OF ARBITRATIONS, YOU AND THE COMPANIES AGREE THAT IN THE EVENT THAT THERE ARE ONE HUNDRED (100) OR MORE INDIVIDUAL ARBITRATION REQUESTS (“REQUESTS”) OF A SUBSTANTIALLY SIMILAR NATURE FILED AGAINST THE COMPANIES BY OR WITH THE ASSISTANCE OF THE SAME LAW FIRM, GROUP OF LAW FIRMS OR ORGANIZATIONS WITHIN A THIRTY (30) DAY PERIOD (OR OTHERWISE IN CLOSE PROXIMITY), (1) THE ARBITRATOR WILL ADMINISTER THE ARBITRATION DEMANDS IN BATCHES OF 100 REQUESTS PER BATCH (PLUS, TO THE EXTENT THERE ARE LESS THAN 100 REQUESTS LEFT OVER AFTER THE BATCHING DESCRIBED ABOVE, A FINAL BATCH CONSISTING OF THE REMAINING REQUESTS); (2) THERE WILL BE ONE ARBITRATOR FOR EACH BATCH; AND (3) THE RESOLUTION OF EACH BATCH WILL BE AS A SINGLE CONSOLIDATED ARBITRATION WITH ONE SET OF FILING AND ADMINISTRATIVE FEES DUE PER SIDE PER BATCH, ONE PROCEDURAL CALENDAR, ONE HEARING (IF ANY) IN A PLACE TO BE DETERMINED BY THE ARBITRATOR, AND ONE FINAL AWARD (“BATCH ARBITRATION”). ALL PARTIES AGREE THAT REQUESTS ARE OF A “SUBSTANTIALLY SIMILAR NATURE” IF THEY ARISE OUT OF THE SAME EVENT OR FACTUAL SCENARIO AND RAISE THE SAME OR SIMILAR LEGAL ISSUES AND SEEK THE SAME OR SIMILAR RELIEF. YOU AND THE COMPANIES AGREE TO COOPERATE IN GOOD FAITH TO IMPLEMENT THE BATCH ARBITRATION APPROACH, AS WELL AS ANY STEPS TO MINIMIZE THE TIME AND COSTS OF ARBITRATION, WHICH MAY INCLUDE: (1) THE APPOINTMENT OF A DISCOVERY SPECIAL MASTER TO ASSIST THE ARBITRATOR IN THE RESOLUTION OF DISCOVERY DISPUTES; AND (2) THE ADOPTION OF AN EXPEDITED CALENDAR OF THE ARBITRATION PROCEEDINGS. THIS BATCH ARBITRATION PROVISION SHALL IN NO WAY BE INTERPRETED AS AUTHORIZING A CLASS, COLLECTIVE AND/OR MASS ARBITRATION OR ACTION OF ANY KIND, OR ARBITRATION INVOLVING JOINT OR CONSOLIDATED CLAIMS UNDER ANY CIRCUMSTANCES, EXCEPT AS EXPRESSLY SET FORTH IN THIS PROVISION.

General

Any failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. This Agreement and your customer account may be assigned in whole or in part by Company. This Agreement may not be assigned in any manner by you without the express, prior written permission of Company.

Use of Logo

You hereby grant us the express right to use your company name and logo in our marketing, sales, financial, and public relations materials and other communications solely to identify you as our customer.