Updated March 3, 2021
BIRCHSTREET PAY TERMS
This BirchStreet Pay Terms (the “BirchStreet Pay Terms”) between BirchStreet Systems, LLC (“BirchStreet”) and the entity (“Customer”) identified in the corresponding BirchStreet Master Services Agreement (the “Agreement”) is incorporated into the Agreement. All terms used but not defined in these BirchStreet Pay Terms shall have the meaning ascribed elsewhere in the Agreement. In the event of a conflict between these BirchStreet Pay Terms and the other terms of the Agreement, these BirchStreet Pay Terms shall control with respect to the Payment Services.
- Payment Services; Appointment. BirchStreet agrees to use commercially reasonable efforts to provide the Customer, and Customer agrees to accept from BirchStreet and certain BirchStreet Pay Partners and other third-parties (“TPP(s)”), certain payment execution services and other payments-related services set forth in the applicable Statement of Work (both BirchStreet and third-party services collectively referred to as the “Payment Services” or “BirchStreet Pay”) to Customer solely for Customer’s own internal purposes. As further set forth in the Statement of Work, and subject to change from time to time, the Payment Services may enable Customer to print checks, perform ACH payments, make payments using a virtual card, and perform other similar or related activities. Customer hereby appoints BirchStreet, and, to the extent necessary or appropriate, the TPPs, as its agents with regard to the Payment Services to the extent necessary for BirchStreet or the TPPs to provide the Payment Services on behalf of Customer.
- BirchStreet Services; Third-Party Services. Certain of the Payment Services may be provided by BirchStreet, while other parts of the Payment Services may be provided by TPPs (“Third Party Services”). Third Party Services are provided or otherwise made available “AS IS” without warranty, express or implied, of any kind. Third Party Services may be subject to additional terms and conditions, either with BirchStreet or the TPP, and BirchStreet shall be excused from performance with respect to such Third Party Services and any other dependent Payment Services if Customer does not agree to such additional terms. Customer shall also use all Third Party Services in accordance with any documentation related thereto that is made available to Customer.
- Authorizations. Customer hereby appoints BirchStreet as Customer’s authorized agent for the purposes of providing the Payment Services and performing any additional duties as set forth herein, and BirchStreet hereby accepts such appointment. Customer authorizes: (a) BirchStreet to provide instructions to any TPP or bank on behalf of Customer as necessary to transfer funds to or from the account as contemplated herein or otherwise specified by Customer from time to time; and (b) BirchStreet and TPPs to initiate payment transactions on Customer’s behalf through and in connection with the Payment Services as directed or authorized by Customer or its authorized users or their use of the Services. Customer acknowledges and agrees that the payment transactions may be initiated, processed, or otherwise facilitated by one or more TPPs of BirchStreet’s choosing, which BirchStreet may (a) share Customer Data and other information with as necessary or appropriate to provide or enable the Payment Services, and (b) change in its sole discretion from time to time. Additionally, the TPPs are hereby designated as third party beneficiaries to this Agreement. Notwithstanding the foregoing, BirchStreet assumes no liability for any acts or omissions of Customer or any third party. Customer will cooperate with BirchStreet and execute all documents which may be necessary to enable BirchStreet to perform its obligation or exercise its rights in connection with the Payment Services.
- Demand Deposit Account/ACH Permission. Upon BirchStreet’s request, Customer will establish and maintain one or more demand deposit or similar accounts (“DDA”) to facilitate the provision of the Payment Services and the funding of transactions. Customer will at all times maintain sufficient funds in the DDA to accommodate all transactions and other amounts due. Customer must obtain BirchStreet’s prior written consent before changing the DDA, and if Customer changes the DDA, the authorization given below will apply to the new account, and Customer will provide BirchStreet such information regarding the new DDA as BirchStreet deems necessary to effect payments to and from such new DDA. In accordance with the NACHA Operating Rules and the NACHA Operating Guidelines, Customer hereby irrevocably authorizes BirchStreet to initiate credit and debit entries to the DDA and to credit and debit the same. The foregoing authorization will remain in effect after termination of the Agreement until all of Customer’s obligations to BirchStreet, and BirchStreet’s obligations to the TPPs with respect to Customer’s payment transactions, have been paid in full. Customer will indemnify and hold harmless BirchStreet, TPPs and their respective financial institutions for any action they take against the DDA pursuant or related to this Agreement, and Customer will also indemnify and hold harmless the depository institution at which it maintains the DDA for acting in accordance with any instruction from BirchStreet, TPPs or their respective financial institutions regarding the DDA.
- Virtual Cards. If Customer is approved for a virtual card account (“VCA”) and elects to use such VCA, BirchStreet or TPP will establish a credit limit for each VCA and allow Customer to make purchases on credit through virtual cards up to a certain amount within a specific repayment period as set forth herein (as it may be modified by BirchStreet from time to time, the “Payment Term”). BirchStreet or TPP, in their sole respective discretions, shall be responsible for determining the amount of any such credit limit, according to their underwriting criteria and other relevant factors. Not all Customers will be eligible, and BirchStreet reserves the right to reject a Customer, or to revoke, limit, reduce or increase a credit limit in their sole respective discretions. Any credit limit established for a Customer will be subject to periodic review and adjustment by BirchStreet or TPP. BirchStreet shall communicate the initial amount and Payment Term of any approved credit limit to Customer at the time Customer’s VCA is approved or activated, subject to modification as noted above. Existing credit limits and approved Payment Terms and manner of payment are a part of these terms and conditions and incorporated herein, subject to modification as noted above. BirchStreet will invoice the Customer for purchases made using virtual cards according to the Payment Term and credit limit determined by BirchStreet for Customer’s VCA. Customer shall designate a deposit account for the repayment of virtual card transactions (the “Customer VC Bank Account”)[, which unless otherwise expressly agreed shall be the same as the DDA]. Customer must ensure it has at all times sufficient funds in its Customer VC Bank Account to cover the amounts due on any given day according to the repayment terms for the Customer’s VCA. In all cases, Customer will be required to ensure its unpaid balance, including all pending or unbilled transactions, fees, and other charges on the VCA, does not exceed the established credit limit. BirchStreet may require immediate payment of outstanding amounts, suspend further virtual card use, and/or impose additional fees, if Customer exceeds its credit limits or fails to make full or timely payment on any amounts owed. Customer agrees to pay the reasonable costs of collection efforts undertaken with respect to any delinquent amounts payable by Customer or with respect to Services provided hereunder. Credit extended through any virtual card is not revolving and the total amount due on each periodic statement is due and payable in full by the date shown on the statement. This amount includes transactions posted since the last statement date, applicable fees, amounts past due, late payment charges, charges for returned checks and other applicable charges.
- Fees; Charges; Taxes. Fees for the Payment Services shall be set forth in the applicable Statement of Work and governed by the Fees section of the Agreement. Notwithstanding the foregoing, upon notice to Customer, BirchStreet may pass-through any costs, charges or other expenses that (a) were not contemplated as of the date of the Statement of Work for the corresponding Payment Services, and (b) are incurred by BirchStreet in connection with making available the Third Party Services to Customer (e.g. increased ACH transaction pricing billed to BirchStreet), including, without limitation, any charges or other amounts arising due to Customer’s misuse of the Payment Services. Customer is solely responsible for determining any and all taxes and duties, including sales, use, transfer, value added, withholding, income, and other taxes and/or duties (“Taxes”) assessed, incurred, or required to be collected, paid, or withheld in connection with amounts received by Customer in connection with the Payment Services, and for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority.
- Customer’s Warranties. Customer represent and warrants that (a) Customer is using the Payment Services for business purposes only and to facilitate payments arising from lawful business transactions; (b) Customer will only access and use the Payment Services in accordance with applicable law and applicable rules, regulations, and policies of regulatory agencies, banks, and card issuers, and will obtain whatever governmental or other third party approvals are necessary in order to perform its duties hereunder; (c) Customer is validly existing, in good standing and is authorized to conduct business in each state in which the nature of Customer’s activities hereunder makes such authorization necessary; and (d) Customer has the full power and authority to execute and deliver the BirchStreet Pay Terms and to perform all its obligations under the BirchStreet Pay Terms. Customer will not, directly or indirectly, attempt, cause, or permit any modification, alteration, decompilation, disassembly, core dumps, reverse engineering, or other internal analysis of the software associated with the Payment Services for any purpose. Customer will not modify or obscure any copyright, trademark, or other proprietary rights notices used in conjunction with the Payment Services. Customer will not brand its products or services or obtain domain names, social media identifiers, email addresses, or trademark registrations with any name, mark, logo or brands (“collectively, “Marks”) that are similar to the Marks of BirchStreet or a TPP.
- Customer Data. Customer shall be solely responsible for the transmission of any Customer Data necessary for BirchStreet or a TPP to perform a Payment Service at Customer’s expense, and shall bear any risk of loss resulting from that transmission until BirchStreet confirms receipt. BirchStreet shall bear the risk of loss resulting from Customer Data transmitted to Customer until Customer confirms receipt. If Customer directs BirchStreet to disclose Customer Data to a third party (other than a TPP), Customer shall provide BirchStreet with written authorization to do so and bear any risk of loss or liability associated with that disclosure. In addition, BirchStreet shall be held harmless from any claim resulting from the third party’s use of that Customer Data. Customer will at all times ensure that all data furnished to BirchStreet in connection with the BirchStreet Pay Terms, including all Customer Data, is complete and accurate in all respects.
- Termination; Suspension. BirchStreet shall have the right to suspend or terminate all or a portion of the Payment Services immediately and without notice to Customer, suspend or terminate online system access and/or refuse to enable or otherwise facilitate payment transactions, at any time, for any reason, or without reason.
- Changes. BirchStreet may amend, alter, modify, or otherwise change all or a portion of the Payment Services or these BirchStreet Pay Terms: (a) immediately upon notice, to the extent required or necessary to comply with (1) applicable laws, (2) the rules, regulations, or requirements of any payment network or association (e.g. card networks, NACHA, PCIDSS, etc.), or (3) the direction or instructions of a TPP, and (b) upon at least fifteen (15) days’ advance written notice with respect to any other change not covered by (a).
- Indemnity. Customer shall indemnify, defend, and hold harmless BirchStreet and its Affiliates, and each of BirchStreet’s and its Affiliates’ respective officers, directors, employees, agents, successors, and assigns against all Losses arising out of or resulting from any claim, suit, action, or other proceeding related to or arising out of or resulting from (a) Customer’s breach of any representation, warranty, covenant, or obligation under these BirchStreet Pay Terms, (b) gross negligence, fraud or willful misconduct on the part of Customer or any of its officers, directors, employees, representatives, or any of their respective officers, directors and employees; (c) any actions taken by BirchStreet in accordance with or in good faith reliance upon information or instructions provided by Customer or any of its agents or representatives; (d) obligations owed to any Customer or other third party by Customer, or any third party retained by Customer; (e) any actual or alleged infringement or misappropriation of any intellectual property rights or trade secrets of any third party by Customer; (f) any acts or omissions of Customer in connection with Customer’s use of any Third Party Services; and (g) acts or omissions of Customer causing BirchStreet to violate its obligations to TPPs. “Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- DISCLAIMERS. IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE AGREEMENT, BIRCHSTREET makes no warranty, express or implied, regarding the PAYMENT services. BIRCHSTREET disclaims all implied warranties, including the warranties of merchantability and fitness for a particular purpose. FURTHER, CUSTOMER ACKNOWLEDGES THAT BIRCHSTREET IS MAKING THE THIRD PARTY SERVICES AVAILABLE TO CUSTOMER FOR CUSTOMER’S BENEFIT AND CONVENIENCE, AND BIRCHSTREET SHALL HAVE NO LIABILITY OR RESPONSIBILITY, and customer hereby holds BirchStreet harmless, WITH RESPECT TO tpps and third party services. without limiting the foregoing, in no event shall BirchStreet be responsible or liable for a tpp’s use or misuse of customer data made available to such tpp in connection with the payment services.