Customer Terms Of Service
Last Modified: February 1, 2016
As a current or prospective customer of the merchant(s) with whom you have conducted or plan to conduct business (the “Company” or, if more than one, the “Companies”) and who has directed you to this website (the “Site”), you have the option to use certain Performance West services (the “Service”), which may include Performance West’s invoicing service (the “Invoice Service”) and Performance West’s payment service (the “Payment Service”). If you (“You”, “Your” or “Customer”) wish to receive electronic copies of the Company’s invoices, and make electronic payments for those invoices, You must agree to the terms and conditions as provided herein (these “Terms of Service”) regarding Your use of the Service.
1. Description of Service
The Service may include an online invoicing, payment, scheduling, and related tool to assist the Company in its business. The Invoice and Payment Service allows You to electronically receive invoices via email from the Company, and allows You to make electronic payment on such invoices using one of the electronic payment methods made available to You by the Company (for example, via payment card or automated clearing house (“ACH”)). The payment will be charged to the payment card or bank account for which you provide account information and will be deposited into the bank account selected by the Company. From time to time, Performance West may develop and incorporate other features into the Service. Your use of such additional features, if any, is governed by these Terms of Service.
2. Representations and Warranties; Acknowledgments
You represent and warrant to Performance West and the Company, and you covenant, that: (a) the person who has applied to use the Service on Your behalf or on behalf of any company, organization or entity for whom You are using the Service to pay an invoice, as applicable, has the power and authority to accept and enter into these Terms of Service on Your behalf or on behalf of any company, organization or entity for whom You are using the Service to pay an invoice, as applicable; (b) the Service, the Site or content contained on the Site are not an endorsement of the Company by Performance West; and (c) Performance West is not responsible for any repercussions arising from Your use of the Service and You shall seek remedies arising from disputes in connection with invoices delivered to You, and Your payment thereof, solely from the Company.
If you access the Site to use the Invoice Service or the Payment Service, you further represent and warrant to Performance West, and covenant, that: (i) You do business in the United States and will use the Invoice Services or the Payment Service to receive invoices, and make payment(s) thereon, in the United States only for transactions that were made in the United States; (ii) you are willing and capable of electronically receiving, reviewing, printing and saving all invoices, materials, disclosures, terms or other content delivered to You through the Invoice Service and consent to the disclosure by the Company of the information and invoice details required to create and distribute invoices to, and receive payment from, You; (iii) You will provide Your complete and accurate information regarding payment information; (iv) Your liability for any payment you make through the Payment Service using a credit or debit card or ACH will be governed by the agreement for the credit or debit card company or bank You use.
3. Changes to Terms of Service
Performance West reserves the right to revise these Terms of Service and the documents referenced herein at any time in its sole discretion and will notify the Company that changes to such documents have been made by sending an e-mail message to that effect. It is the Company’s responsibility, and not that of Performance West, to notify You of such changes. You may view the current version of the terms governing your use of the Service by clicking on the Terms link at the bottom of the page of your web experience. Any changes shall be effective immediately after the time at which such changes are posted on the Site. Your continued use of the Service after the terms have been changed constitutes Your affirmative acknowledgment of, and agreement to abide and be bound by, the modified terms and conditions.
4. License and Use of the Site
You are hereby granted a limited license to use during the Term (as described below) to utilize, including making incidental copies arising from the operation of Your browser, the Service, the Site and the content contained on the Site solely to receive invoices and make payments. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works from, decompiling, reverse engineering, disassembling, transferring or using the Service or any content available on the Site for any other purpose.
5. Term of Cancellation
These Terms of Service, as amended, changed and modified from time to time, remain in effect until the earlier of (a) such time as You no longer use the Service to pay invoices and (b) such time as it is canceled or terminated, as provided herein (the “Term”). The Company and Performance West each may cancel Your access to, or any aspect of, the Service at any time by providing written notice to You at the most current email address the Company or Performance West, as applicable, has for You.
6. Property Rights
Performance West and other third parties other than You, as applicable, own all rights, title and interest in and to Service and the Site, and all portions thereof, including, without limitation, all intellectual property rights in connection therewith.
7. No Warranties
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE AND ALL CONTENT MADE AVAILABLE ON OR THROUGH THE SITE OR VIA THE SERVICE ARE PROVIDED TO YOU BY PERFORMANCE WEST, AT THE REQUEST OF THE COMPANY, ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. THE COMPANY AND PERFORMANCE WEST MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
THE COMPANY AND PERFORMANCE WEST ARE NOT RESPONSIBLE FOR (A) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY INVOICE, APPOINTMENT, STATEMENT OR OTHER ITEM GENERATED THROUGH THE SERVICE OR (B) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY PAYMENT MADE THROUGH THE SERVICE.
OTHER THAN AS REQUIRED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL THE COMPANY OR PERFORMANCE WEST, OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SERVICE OR ON INFORMATION OBTAINED THROUGH THE SERVICE OR THE SITE, OR BY YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE.
THE COMPANY AND PERFORMANCE WEST DO NOT WARRANT THAT THE SITE IS COMPATIBLE WITH YOUR EQUIPMENT OR THAT THE SITE IS FREE OF VIRUSES, WORMS, BOTS OR ANY OTHER HARMFUL, INVASIVE OR CORRUPTED FILES.
8. Limitation of Liability
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICE, SITE, CONTENT ON THE SITE, AND DESCRIPTIONS OF THE SERVICE PUBLISHED ON THE SITE OR A LINKED SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND THE COMPANY AND PERFORMANCE WEST SPECIFICALLY DISCLAIM ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. THE COMPANY AND PERFORMANCE WEST DO NOT WARRANT OR REPRESENT THAT THE CONTENT ON THE SITE IS COMPLETE OR UP-TO-DATE. THE COMPANY AND PERFORMANCE WEST ARE UNDER NO OBLIGATION TO UPDATE THE SITE, THE SERVICE OR THE CONTENT ON THE SITE. PERFORMANCE WEST MAY CHANGE THE SITE, THE SERVICE AND THE CONTENT CONTAINED ON THE SITE, AND MAY MAKE IMPROVEMENTS OR CHANGES THERETO, AT ANY TIME WITHOUT NOTICE.
YOU AGREE THAT THE NEITHER THE COMPANY NOR PERFORMANCE WEST, NOR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY) ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF THE SITE, THE SERVICE, THE CONTENT ON THE SITE OR A LINKED SITE, OR ARISING OUT OF, OR IN CONNECTION WITH, THE DELAY OR INABILITY TO USE THE SITE OR A LINKED SITE, EVEN IF THE COMPANY OR PERFORMANCE WEST, OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WERE MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, WITHOUT LIMITATION, THE TRANSMISSION OF ANY VIRUSES THAT MAY INFECT A USER’S EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, DATA LOSS, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE EVENT. THE COMPANY AND PERFORMANCE WEST CANNOT, AND DO NOT, GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE, THE SERVICE OR THE CONTENT RELATED THERETO.
9. Violations of Service Terms
The Company or Performance West may, each in their respective sole discretions, immediately terminate Your use of the Site if it believes that You are violating or have violated these Terms of Service or the terms and conditions of the other documents referenced herein. Any such termination will be without prejudice to any other rights that Performance West may have against You arising from a violation of these Terms of Service or of the other documents referenced herein.
10. Governing Law
The laws applicable to the use of the Site and the interpretation of these Terms of Service shall be the laws of the State of Colorado, United States, and applicable federal law, without regard to any conflict of law provisions.
You, the Company and Performance West agree that any and all disputes, claims or controversies arising out of or related to the use of the Site, the provision of the Service or these Terms of Service, including any claims under any statute or regulation (“Disputes”), shall be submitted for binding arbitration. Unless the parties agree otherwise, any arbitration shall take place in the State of Colorado, City and County of Denver, and shall be administered by, and pursuant to the commercial arbitration rules of, the American Arbitration Association.
Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve Disputes and to make awards is limited to Disputes between You, the Company and Performance West alone, and is subject to the limitations of liability set forth in these Terms of Service. Disputes brought by either You, the Company or Performance West against the other party(ies) may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by You, the Company and Performance West. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this paragraph be stricken from these Terms of Service or deemed otherwise unenforceable, then the entire section of these Terms of Service labeled “Arbitration” shall be stricken from these Terms of Service.
The provisions of the section of these Terms of Service labeled “Arbitration” and all arbitration awards duly made in connection therewith may be enforced in a court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party(ies) against whom enforcement is ordered. All arbitration awards duly made under these Terms of Service shall not be subject to review or appeal except as permitted by applicable law. Any provision of these Terms of Service to the contrary notwithstanding (a) You, the Company or Performance West may seek interim relief from a court located in the State of Colorado, City and County of Denver to protect such party’s rights or property while arbitration is pending, and (b) Performance West may bypass the aforementioned arbitration process in cases of fraud or other crimes against Performance West, interference with Performance West’s technical operations or violations of Performance West’s rights or property.
You are solely responsible for maintaining the confidentiality and security of the username(s) and password(s) for Your account(s) with the Companies who use the Service, and You assume all liability for sharing or disclosing such username(s) and password(s). You agree to immediately contact the applicable Company if You become aware that the security of the username(s) and password(s) for Your account(s) with such Company may have been compromised or if there has been unauthorized access to the username(s) and password(s) for Your account(s) with such Company. You are solely responsible for all activity occurring under the username(s) and password(s) for Your account(s) with the Companies who use the Service. Access to and use of password-protected and/or secure areas of the Site and the Service is restricted to authorized users only.
You acknowledge that this is an online service. A printed version of these electronically presented Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You agree that regardless of any statute or law to the contrary, any claim or cause of action You bring arising out of or related to Your use of the Site, the provision of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Notwithstanding any cancellation or termination of this Service, or of Your account or Your enrollment, Sections 6-8, 10-12, and 14 of these Terms of Service shall survive any such cancellation or termination.
Your acceptance of these Terms of Service and use of the Site do not create a joint venture, partnership, employment or agency relationship between You and Performance West. You shall not represent in any way that You are in partnership with, are a joint venture of, or have any employment of agency relationship with Performance West. You may not assign, delegate or transfer Your rights or obligations under these Terms of Service and any such prohibited assignment, delegation or transfer shall be null and void.
The section titles in this Terms of Service are solely used for the convenience of the parties and have no legal or contractual significance.