Bottomline's Operating Terms

Bottomline Technologies, Inc’s (“Bottomline”) Operating Terms (the “Operating Terms”) apply to Customer’s use of the NexusPayments Solution Services for payments (the “Payment Services”).  These Operating Terms shall control to the extent of any conflict between the Terms of Service or the Order Form and these Operating Terms.  Bottomline and Customer may be referred to in the Program Documents individually as a “Party” or, collectively, as the “Parties.”

1.   General.

1.1           Authorized Jurisdiction. The Payments Services may be operated and used only in the United States.

1.2           Use of Payments Services for Payment Obligations; Use as an Agent. The Payments Services enable Customers to make payments to designated Payees, as defined by these Operating Terms. Bottomline processes such payments as an agent of the Payee and does not provide any payments or funds transfer services to the Customer. The Customer may only use the Payments Services to make commercial payments that relate to Customer’s own rights or obligations or where the Customer is an authorized agent or third-party property manager, and the Customer may not submit Payment Instructions to satisfy the obligations of any third party unless so authorized. Customer acknowledges and agrees that: (a) Bottomline has no obligation to inquire into whether Customer is properly authorized as an agent, (b) neither Bottomline nor Bank, as defined below, owe Customer any duties of oversight or duty to inquire with respect to payment information received from Customer regarding payments to or therefrom Customer’s accounts and (c) Customer shall be solely liable for any damages or claims from any third party, including any principal or owner of the settlement account, for any use of the Payment Services by Customer.

1.3           Enrollment Information; Designation of Customer Account. Customer agrees to fully and accurately complete any enrollment forms separately provided by Bottomline and to submit such completed Enrollment Information as directed by Bottomline. Without limiting Bottomline’s liability limitations under the Terms of Service, Customer shall exclusively bear all liability to the extent that such liability arises due to inaccurate or incomplete information provided by Customer in its Enrollment Information. Customer agrees to use the procedures specified in the Program Documents to promptly notify Bottomline of any changes to the Enrollment Information and to provide Bottomline with such other information as Bottomline may reasonably request from time to time in connection with Customer’s use of the Payment Services.

1.4           Authorized Agents and Representatives. The Customer will include a list of the Customer’s Authorized Representatives in the Enrollment Information. The Customer authorizes Bottomline to deal with, including to accept Payment Instructions and/or changes to Enrollment Information from the Customer’s designated Agents or Authorized Representatives as if they were the Customer and agree that any action taken by Bottomline with respect to any Agent or Authorized Representative shall be deemed action taken by Bottomline with respect to the Customer. The Customer acknowledges that the Customer is responsible for the acts and omissions of the Customer’s Agents and Authorized Representatives, and the Customer agrees to ensure that any Agent or Authorized Representative complies with the Program Documents. Without limiting Bottomline’s liability limitations under the Terms of Service, Customer shall exclusively bear all liability to the extent that such liability arises due to the acts or omissions of a Customer Authorized Representative. The Customer shall notify Bottomline, in writing and at least fifteen (15) business days in advance, of any proposed changes to Customer’s Authorized Representatives and/or other Enrollment Information, including Settlement Account and/or Funding Account information.

2.   Rights and Obligations of Customer.

2.1           Customer Submission of Payment Instructions. Customer acknowledges and agrees that submission of a Payment Instruction to Bottomline constitutes Customer’s irrevocable request to Bottomline to execute such Payment Instruction and initiate Settlement on behalf of the Payee in the amount indicated in such Payment Instruction to the Payee designated in the Payment Instruction. Customer acknowledges that Payment Instructions are not reversible and that, upon funding of Settlement in accordance with Section 2.3, the constructive or actual receipt of funds by Bottomline as agent of the Payee is deemed the receipt of funds by the Payee. Customer acknowledges and agrees that it may only select methods of payment on any Payment Instruction that are supported by the applicable Payee, and it is ultimately the Payee’s decision as to which method of payment may be utilized for the applicable transaction. Any Payment Instructions issued in Customer’s name and accepted by Bottomline shall be effective as the Payment Instructions of Customer, and Customer agrees to be bound by any such Payment Instructions, whether or not authorized. In the event of an unauthorized Payment Instruction, Customer agrees to cooperate with Bottomline and to provide such information as Bottomline may reasonably request in connection with any discretionary investigation of such unauthorized Payment Instructions undertaken by Bottomline as a courtesy to Customer.

2.2           Effect on Invoices and Agreements with Customers. Customer acknowledges that Customer’s use of certain payment types in connection with the Payment Services may have the effect of altering or amending the agreement between Customer and the applicable Payee, including with respect to the payment terms for the applicable invoice. Customer hereby agrees that, notwithstanding the foregoing, Bottomline is not a party to any agreement between Payee and any Customer and shall in no way be responsible for, or required to resolve, any dispute between Payee and any Customer.

2.3           Payment Providers and Payees. Bottomline receives Payment Instructions from Customer and transmits such Payment Instructions to Payment Providers to facilitate, on behalf of Payees, receipt of funds for payments from the Customer. Customer acknowledges and agrees that the Settlement Amount funds may be commingled with other funds maintained by a Payment Provider prior to settlement to Payee. Customer acknowledges and agrees that Bottomline shall have no liability with respect to the acts or omissions of Payment Providers and Payees. Bottomline is not engaged in the business of funds transmission, funds settlement, card authorization, or other financial services on behalf of Customers.

2.4           Virtual Card Rebates. The Customer shall be eligible to receive rebates with respect to each qualified Virtual Card payment (i.e., some Virtual Card payments are not eligible for rebates) processed by Bottomline on behalf of a Payee to facilitate acceptance of payment from the Customer in accordance with the schedule set forth on the Order Form, provided that Bottomline may change the applicable schedule of rebates from time to time upon notice to Customer.

2.5           Security and Fraud Issues. Bottomline may be required to obtain information regarding Customer, Customer’s affiliates, and/or other Persons under Customer’s control that are involved in the operation of the Payment Services. The Customer shall promptly provide all such information that is reasonably requested by Bottomline to ensure compliance with Applicable Law. Bottomline reserves the right to refuse to provide the Payments Services to any Customer, any Payee, or any other payer if such Person is a sanctioned Person and/or if such action would cause its noncompliance with Applicable Law. The Customer shall promptly inform Bottomline of any enforcement actions or penalties issued against the Customer and/or any failure to comply with any Applicable Law relevant to its use of the Payment Services.

2.5.1       Security Procedures. The Customer is solely responsible for the authenticity and accuracy of Payment Instructions submitted to Bottomline or its Agents by the Customer or its Agents or Authorized Representatives. The Customer shall ensure that only Authorized Representatives and authorized Agents of the Customer are permitted to submit Payment Instructions. The Customer is solely responsible for implementing security procedures designed to prevent any unauthorized access to the Payment Services through the Customer’s systems.

2.5.2       Data Security. The Customer shall implement and maintain data security procedures and processes that comply with industry standards applicable to payments, including PCI-DSS (as applicable), data encryption, network firewall protection, intrusion detection systems, up-to-date anti-virus software, and monitoring of remote user access, user authentication, and physical access, in each case, that are designed to limit unauthorized access to the creation, maintenance, and transmission of Payment Instructions, and that permit access to the creation of and changes to Enrollment Information.

2.5.3       Cooperation on Investigations of Suspected Illegal or Suspicious Activity. The Customer shall cooperate, to the extent permitted by Applicable Law, with Bottomline in the investigation of any suspected money laundering, terrorist financing, fraud, or other suspicious activity. The Customer shall acknowledge its inquiry within five (5) days from the date of its request, and a satisfactory response to the inquiry shall be provided within fifteen (15) days of the date of its request unless an extension is granted by Bottomline. Bottomline may assess noncompliance fees and/or exercise its right to terminate these Operating Terms immediately if Customer does not respond to its inquiries within the timeframes set forth above.

2.5.4       Fraud Reporting. The Customer shall report fraudulent Payment Instructions and/or Settlements to Bottomline via e-mail to  SIRT@Bottomline.com  as soon as possible but not later than twenty-four (24) hours following the Customer’s discovery of such fraud.

2.6           Check Production Service. The Customer agrees to provide Bottomline with the information and materials Bottomline requests in connection with the Customer’s use of the Check Production Service, including: (a) an image of a logo designated by the Customer, in the file format requested by Bottomline, to be printed on Customer’s Checks, and (b) an image of the signature of the Customer’s Authorized Representative, in the file format requested by Bottomline, to be printed on the Customer’s Checks. The Customer acknowledges that Bottomline may request additional information and materials from time to time to enable Bottomline to fulfill its obligations to the Customer in connection with the Check Production Service, and the Customer agrees to provide such information and materials promptly upon its request.

2.6.1       License to Check Images. Customer hereby grants to Bottomline and its Affiliates a limited, non-exclusive, sublicensable, assignable, transferable, royalty-free, fully paid worldwide right and license to use the materials, including any trademarks and service marks, provided to Bottomline. Customer agrees that Bottomline may sublicense any materials, including any trademarks and service marks, provided by Customer in connection with the Check Production Service to its Affiliate or any Payment Provider in connection with the Check Production Service. For clarity, Bottomline does not provide the Check Production Service as the payments agent of Payee and Bottomline is not responsible for acts or omissions of Payment Providers and Payees with respect to the Check Production Service. The Check Production Service involves only a check drawn on Customer’s bank account and is an obligation of the Customer’s bank and not Bottomline.

2.7           Representations, Warranties, and Covenants. Throughout the Term:

2.7.1                Consents. Customer represents and warrants throughout the Term that it has obtained all material licenses, consents, or permissions needed from any applicable governing authority or other Person to (a) participate as a Customer in the Payment Services and (ii) perform its duties in connection with these Operating Terms.

2.7.2                Accuracy of Information. Customer represents, warrants, and covenants that the information Customer has provided to Bottomline in connection with Customer’s participation in the Payment Services is complete and accurate. Further, Customer agrees that all information Customer will provide to Bottomline in connection with Customer’s participation in the Payment Services, including in any Order Form or Payment Instruction, is complete and accurate, and that Bottomline may rely on the completeness and accuracy of such information provided by Customer.

2.7.3                Payments. The Customer represents, warrants, and covenants that the Customer’s use of the Payments Services is for commercial business purposes only and represents payments for goods or services consumed by the Customer from the Payee in compliance with Applicable Law.

2.7.4                Ownership of Settlement Account. Customer represents, warrants, and covenants (a) that Customer owns the Settlement Account used to fund Settlement or is authorized by the Settlement Account owner to access and debit the Settlement Account; (b) that Customer has the right to use the funds in the Settlement Account to fund Settlement; and (c) that, except for a deposit account control agreement or lien established by a lender against the Settlement Account, the Settlement Account will not be subject to any lien, security interest, control agreement, or other limitation or restriction that may prevent a Payment Provider from accessing the funds in the Settlement Account.

2.7.5                Customer represents and warrants that it has reviewed the Program Documents concerning Bottomline’s provision of the Payment Services and that Bottomline’s procedures are a commercially reasonable method of (a) processing Payment Instructions, (b) limiting Bottomline’s access to the Settlement Account, and (c) confirming the validity of proposed changes to the Enrollment Information.

3.   Bottomline Rights and Obligations.

3.1           No Extension of Credit. Neither Bottomline nor any Payment Provider is required to extend credit or make any credit accommodation for the Customer in connection with the Payment Services.

3.2           Permission to Use Information. Bottomline shall have the right to use any information provided by Customer or any of its Agents, Authorized Representatives, officers, employees, directors, or service providers in connection with Customer’s participation in the Payment Services. Bottomline shall have the right to share any such information with its own or Customer’s Agents, Authorized Representatives, officers, employees, directors, or service providers, as well as with Payees using the Payments Services, that have a reason to receive or know such information in connection with Bottomline’s provision of, or Customer’s participation in, the Payment Services. The Customer shall obtain any necessary or appropriate consents from its Agents, Authorized Representatives, officers, employees, directors, or service providers sufficient to ensure that Bottomline may exercise its rights under this Section 3.3.

3.3           Use of Payment Providers. Bottomline may use any Payment Provider and any means of transmission, funds transfer system, clearinghouse, or intermediary bank that Bottomline determines so long as such action is consistent with the payment method specified in the Payment Instructions.

4.   Settlement.

4.1           Designation of Settlement Accounts. The Customer shall designate one or more commercial deposit account(s) at a financial institution located in the United States to serve as Customer’s Settlement Account(s). The Customer may not designate a consumer account as the Settlement Account.

4.2           Funding of Settlement for Payment Instructions. For each Payment Instruction submitted by Customer, Customer shall ensure that the Settlement Account has sufficient funds to fund Settlement for the full amount of each Payment Instruction and the Customer shall not otherwise block or prevent execution of the Payment Instructions. The Customer shall not submit a Payment Instruction that will cause the Customer to exceed the available funds in the Customer’s Settlement Account at the time such Payment Instruction is submitted to Bottomline (after accounting for the principal amount of the commercial payment, together with any applicable Fees). Neither Bottomline nor any Payment Provider shall be obligated to provide the Payment Services or otherwise process a payment on behalf of the Payee until Customer has irrevocably provided good funds in the full amount of such Payment Instruction, plus any applicable Fees, in the Settlement Account.

4.3           Permission for Payment Providers to Access Settlement Account. Customer authorizes Bottomline and its Agents and Payment Providers to credit and debit the Settlement Account on behalf of the applicable Payee for Payment Instructions Bottomline receives, and for past due Fees, pursuant to the Program Documents, and in accordance with the rules and procedures of the applicable clearinghouse association and/or other payment system and the Settlement institution. This authority will remain in effect until the later of a) five (5) business days after Bottomline receives written notice of Customer’s cancellation of such authorization or b) after all in process Payment Instructions are fully funded and all Fees paid to Bottomline.

4.4           Changes to Settlement Account Information. To ensure prompt Settlement of funds, the Customer shall use the procedures specified to notify Bottomline, in writing and at least fifteen (15) business days in advance, of any changes to the Customer’s Settlement Account information. Such changes must be communicated to Bottomline by the Customer, the Customer’s Agents, and/or the Customer’s Authorized Representatives, and the Customer agrees that Bottomline may rely on information in its records regarding the Customer’s designated Authorized Representatives. Bottomline will not be responsible for debits or credits to an incorrect bank account due to the Customer’s failure to notify Bottomline or due to any errors in the information provided to Bottomline.

4.5           Settlement Adjustments. Bottomline may process adjustments to Customer with respect to Payment Instructions and/or Settlement Amounts that have been improperly processed, including due to any error by Bottomline, its Agent, Customer, or a Payee.

4.6           Suspension of Settlement. Bottomline may, in its discretion, withhold or suspend the processing of Payment Instructions, without prior notice, as required by Applicable Law and/or in order to exercise its rights under the Program Documents.

4.7           No Defenses to Payment. The Customer agrees that the Customer shall fully, completely, and timely satisfy the Customer’s payment obligations in accordance with the Program Documents, without offset or deduction and without asserting any defense to payment (including any defenses the Customer may have at law, in equity, or otherwise against a Payee or Bottomline).

4.8           Disclaimer of Bottomline Responsibility for Funding Settlement. Bottomline is not liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties, including Payment Providers or Payees. If the Customer’s financial institution, any other payment system operator, or the Customer’s Agents return clearinghouse or other Settlement items for any reason, including for insufficient funds, a closed account, or an invalid account number, the Customer agrees to pay the outstanding amounts Customer owes with respect to Payment Instructions and the processing of Settlement, including any Fees Bottomline may assess for the returned clearinghouse or other Settlement items, and Customer agrees to immediately transmit such amounts by wire transfer to Bottomline upon demand. Bottomline may offset any amounts payable by Customer, including but not limited to refunds of payment transactions, with respect to Payment Instructions and the processing of Settlement for a particular Payee from amounts payable by Customer to another Payee.

5.   Term and Termination.

5.1           Triggering Event. Bottomline may terminate these Operating Terms and an Order Form immediately following the occurrence of a Triggering Event.  Each of the following constitutes a Triggering Event: (a) notice by Customer or Bottomline of intent to terminate these Operating Terms; (b) any material adverse change in Customer’s financial condition as determined by Bottomline in its sole discretion; (c) Customer failure to comply with any of the material terms and conditions of the Program Documents; (d) Customer attempt to assign or delegate Customer’s rights or obligations under the Program Documents in violation of such Program Documents; (e) Customer is the subject of any governmental investigation or action relating to Customer’s business; or (f) Customer, in connection with a Payment Instruction or Settlement, (i) provides false, inaccurate, or misleading information; (ii) engages in fraud; (iii) violates any Applicable Law; or (iv) sends communications that contain any viruses, worms, time bombs or other harmful or damaging computer code or programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information of any person.

5.2           Termination upon Third Party Claim. Either Party may, upon thirty (30) days written notice to the other Party, terminate Customer’s participation in the Payment Services, in the event that a third party asserts claims arising out of, or directly related to, the Payment Services and such claims, in either Party’s reasonable judgment, would present material adverse economic or legal exposure to such Party and would materially impact the economic feasibility of the Payment Services; provided, however, any written notice to terminate a Payment Services pursuant to this Section 5.2 must be accompanied by a detailed written explanation of such claims.

5.3           Mutual Termination Rights. Either Party may terminate these Operating Terms at any time during the Term:

5.3.1                Immediately upon written notice in the event of a breach, or series of breaches, by the other Party under the Program Documents and such breach or breaches are material individually or in the aggregate; provided, however, that such termination shall be automatically rescinded if such breach or breaches are capable of cure and the other Party cures such breach or breaches within thirty (30) days of receiving written notice from the other Party of such alleged breach; or

5.3.2                Immediately upon written notice in the event that the other Party is the subject of any bankruptcy, conservatorship, receivership, wind down, dissolution, liquidation, or reorganization proceedings and such proceedings are not dismissed within thirty (30) days.

5.3.3                Immediately following ten (10) days notice in the event that (a) any material change in any Applicable Law, any material change in the interpretation of any Applicable Law, or any regulatory or audit inquiry or decision makes continued performance by either Party under these Operating Terms illegal or otherwise causes a substantial risk of noncompliance with a Party’s obligations hereunder; or (b) the acts or omissions by one Party causes the other Party to risk noncompliance with any Applicable Law, and the Parties, using their reasonable best efforts, are unable to agree upon modifications to these Payment Services Operating Terms or the affected Program Documents to avoid such illegality or risk of noncompliance.

5.4           Effect of Termination or Expiration. Each Party will continue to be responsible for any obligations incurred in connection with the Program Documents prior to any expiration or termination of the Payment Services or these Operating Terms, including, but not limited to, the obligation to pay any amounts that accrued prior to termination or expiration of the Payment Services or these Operating Terms that remain owed to the other Party after such termination or expiration. Bottomline shall use reasonable efforts to require Payment Providers to execute upon Payment Instructions accepted by Bottomline prior to the effectiveness of any termination of the Payment Services or these Operating Terms.

6.   Financial Information; Security for Payment Obligations.

6.1           Customer’s Financial Information. If the Customer is a privately held entity, the Customer shall, if requested by Bottomline, provide Bottomline with information, including audited annual financial statements, concerning the Customer’s financial condition, general solvency, and ability to perform Customer’s obligations under the Program Documents within ninety (90) calendar days after the close of each fiscal year and/or upon its request, unless otherwise specified in the Program Documents. The Customer also shall provide additional information, including unaudited quarterly financial statements, concerning the Customer’s financial condition, general solvency, and ability to perform the Customer’s obligations under the Program Documents within forty-five (45) calendar days of its request.

6.2           Certain Notices. The Customer agrees to immediately send Bottomline written notice, via overnight courier, if the Customer becomes insolvent or discontinues Customer’s business or if the Customer or any of the Customer’s creditors file a petition for bankruptcy where the Customer is the debtor in the bankruptcy case.

6.3           Additional Assurances. Upon the occurrence of a Triggering Event, Bottomline may require the Customer to provide and maintain security to assure payment of any unpaid amounts. Bottomline shall determine the amount and type of security required and, if requested by Bottomline, Customer shall promptly execute all documents required to establish a lien for Customer’s payment obligations. Bottomline may, without notice to Customer, withdraw funds from such security and/or funds held by Bottomline for the purpose of providing or funding Customer’s security for payment obligations.

6.4           Amount of Security. The Customer shall provide and maintain security in an amount calculated as the sum of the following amounts based on the Customer’s activity during the preceding twelve (12) months or such shorter period as these Operating Terms has been in effect: (a) Outstanding amounts payable by Customer in connection with Payment Instructions and the processing of Settlement; plus (b) Bottomline’s projection of amounts to be payable by Customer.

6.5           Sponsored Account. Bottomline may request to a non-fiduciary bank custodian (“Bank”) to open and maintain an internal deposit account in Bank’s name, for funds paid by the Customer and held for the benefit of the Payee (“Sponsored Account”) in accordance with separate terms. Bank requires Bottomline to require Customer to make the following acknowledgments and covenants:

6.5.1                Customer acknowledges and agrees that Bank is not a fiduciary or agent of Customer, without regard to whether the Sponsored Account records contain a statement that its balance is “for benefit of” Customer or that the Sponsored Account is a “custodial” account.

6.5.2                Customer hereby authorizes Bottomline to process Payment Instructions with respect to the funds in such Sponsored Account.

6.5.3                Customer acknowledges and agrees that such Bank is the sole legal owner of the Sponsored Account and all funds therein, and Customer is not the legal owner of, nor has any legal, equitable, or other beneficial entitlement, interest, or other claims to the Sponsored Account or any portion of the funds therein, and will not earn any economic benefit from such funds in the Sponsored Account.

6.5.4                The Customer does not have, waives, and relinquishes any control over the Sponsored Account and related funds.

6.5.5                The Customer is not a signatory on the Sponsored Account and shall not and cannot access the Sponsored Account or any related funds (notwithstanding the fact that the Bank may distribute funds from the Sponsored Account to Customer, Bottomline, or third parties on behalf of the Customer, based on payment information provided to the Bank by Bottomline).

6.5.6                Customer acknowledges all amounts deposited into the Sponsored Account relate to a transaction from services provided by Bottomline to Payee with the intent that such amounts will be paid out of the Sponsored Account to the designated Payee in connection with such transaction.

7.   Other Provisions.

7.1           Disclaimer of Warranties. Without limiting any disclaimer under the Terms of Service, Bottomline makes no warranty, express or implied, or will be liable with respect to (a) the availability or timeliness of the Payments Services; (b) the availability of the systems, links, lines, and/or services provided by third parties in connection with the Payments Services; (c) the content or accuracy of any Payment Instruction issued by a Customer; or (d) the acts or omissions of third parties, including Payment Providers, in connection with the ACH Services, the Check Production Service, or the Virtual Card Services.

7.2           No Other Rights or Obligations. Customer’s rights and its obligations in connection with the Payment Services are solely as set forth in the Program Documents, and Bottomline is not bound by, and Customer may not enforce against Bottomline, any rules, regulations, or agreements, except as otherwise explicitly provided in the Program Documents. Bottomline shall not perform collection activities or collect any debts owed by any Party or Person, including any Payee, to another Party; provided, however, that the foregoing shall not limit or restrict its ability to pursue collection of amounts owed to Bottomline.

7.3           Books and Records; Examination of Customer Performance. During the Term, each of Bottomline and Customer agree to maintain books and records, including financial records, relating to its provision and Customer’s receipt of the Payments Services and the performance of Customer’s and its obligations under the Program Documents. Subject to the confidentiality terms herein and upon written notice, Bottomline and Customer agree to make such books and records available for audit review. Upon its request, Customer agrees to provide a written attestation of Customer’s compliance with the Program Documents on an annual basis.

7.4           Regulatory Audits. Each of Customer and Bottomline, as applicable, will promptly make available to a governmental or regulatory body, or to the other Party’s independent auditors, any and all information relating to its compliance with Applicable Law upon written request made by, or on behalf of, a governmental or regulatory body.

7.5           Limitation of Liability. Notwithstanding anything to the contrary in the Terms of Service, Customer’s liability in connection with the Payment Services shall not be limited.

7.6           Indemnification. In addition to Customer’s obligations under the Terms of Service, Customer, on behalf of itself, Customer’s officers, directors, employees and each of Customer’s Agents (collectively, the “Customer Indemnifying Party”) shall indemnify and hold Bottomline, its officers, directors, employees, and Agents (collectively, the “Bottomline Indemnified Party”) harmless from and against any and all third-party claims, actions, demands, losses, costs, expenses, fines, penalties, liabilities and other amounts, including legal fees, costs, and expenses in connection with litigation and appeals, that are imposed upon, incurred by, or asserted against Bottomline relating to (a) the terms of any agreement or understanding or dispute between Payee and any Customer, (b) any Customer Indemnifying Party’s use of the Payment Services, or (c) infringement of a third party’s intellectual property used by a Customer Indemnifying Party.

7.7           Taxes. The Customer is solely responsible for remitting to any federal, state, or local tax authority with jurisdiction over the Customer or Customer’s participation in the Payment Services (in each case, a “Tax Authority”) any applicable taxes and duties payable by Customer or Bottomline based on payments processed from Customer by Bottomline on behalf of a Payee pursuant to the Program Documents, excluding taxes based upon net income payable by Bottomline. The Customer is solely liable for any fees, charges, fines, or assessments attributable to or levied against Bottomline without offset or deduction (including any offset or deduction for taxes). The Customer shall indemnify and hold Bottomline harmless from and against any and all tax liabilities paid, payable, or incurred by Bottomline, including penalties and interest, costs, and expenses, to any Tax Authority relating in any way to the taxes and/or tax treatment of payments made under the Program Documents. Customer acknowledges and agrees that Bottomline may withhold taxes from any payments made by Bottomline to Customer if Bottomline determines that such tax withholding is required by applicable law. If the Customer is not a United States Person (as determined under applicable United States federal income tax principles), the Customer agrees that the Customer shall complete any applicable tax forms as requested by Bottomline.

7.8           Relationship. The Parties intend to create an independent contractor relationship, and nothing contained in these Operating Terms will be construed to make either Bottomline or Customer a partner, joint venturer, principal, agent, or employee of the other. Except as otherwise expressly provided herein, neither party will have any right, power, or authority, express or implied, to assume or create any obligation of any kind on behalf of the other party, to make any representation or warranty on behalf of the other Party, or to bind the other Party in any respect whatsoever.

8.   Definitions.

As used in these Operating Terms, the following capitalized terms shall have the following meanings (which in the case of capitalized terms used in such definitions shall incorporate the defined meanings of such capitalized terms). All other terms used herein and not otherwise defined shall have the meanings commonly ascribed thereto in general business practice. To the extent that any capitalized term is not defined herein, it shall have the meaning ascribed to it within the Terms of Service.

ACH Services: Any of the Settlement payment options that are effectuated via ACH, specifically including Standard ACH, EFT Early, DD EFT, and CPX Direct.

Agent: Any Person authorized by a Party to perform its obligations or exercise its rights under these Operating Terms; provided that Bottomline is not required to inquire as to whether such a Person is validly authorized by Customer.

Applicable Law: Any law, ordinance, statute, treaty, rule, judgment, decree, regulation, official directive, consent, approval, authorization, order, or other determination or finding of any governmental authority applicable to or binding upon any Person or to which such Person is subject, whether federal, state, county, local, foreign, or otherwise.

Authorized Representative: A Person designated by a Customer as an individual or natural person that is authorized to (i) create, approve, and submit Payment Instructions; and (ii) complete and make changes to Customer Enrollment Information. Customer enters Authorized Representatives as users in their company profile and assigns their security level. Users can only perform the functions provided to them by their security level.

Check Production Service: The preparation, printing, and mailing of a check drawn on the Settlement Account and sent to the Person designated in the Payment Instruction.

Order Form: The transactional document between Customer and Bottomline identifying the Payments Services selection by Customer, which may include the documents that the Customer must complete to provide Bottomline with Enrollment Information to receive Payments Services, as updated or amended from time to time.

Enrollment Information: Information regarding a Customer and requested by Bottomline in the Program Documents or managed online by the Customer to receive the Payments Services, as amended, or revised from time to time by an Authorized Representative of Customer, as indicated in the records of Bottomline.

Fees: The amounts payable by the Customer in connection with the Customer’s receipt of the Payments Services, including such amounts set forth on the Order Form.

Payments Services: As applicable, (i) the processing by Bottomline of Payment Instructions to facilitate payments on behalf of Payees through the ACH Services or the Virtual Card Service, as applicable; (ii) the transmission by Bottomline of the Payment Instructions to third parties for such third parties to provide the Check Production Service; or (iii) such additional processing services as Bottomline may make available from time to time to facilitate payments on behalf of Payees.

Payee: A Person who may be designated by the Customer as a recipient of Settlement.

Payment Instruction: A request in the form and format specified in the Program Documents that is received by Bottomline on behalf of a Payee from a Customer or its Agent or Authorized Representative and that (a) authorizes and directs Bottomline to debit a Customer’s Settlement Account on behalf of a Payee and to credit the Payee’s account, or (b) otherwise authorizes and instructs Bottomline to facilitate a Payee’s receipt of payment from a Customer and thereby extinguish Customer’s payment obligations to a Payee through the Payment Services.

Payment Provider: A Person engaged by Bottomline to execute the Payment Instruction provided by Bottomline to such Person as part of the Payment Services.

Person: Any business entity, individual, natural person, or any other entity of every nature, kind, and description whatsoever.

Program Document(s): These Operating Terms, the Terms of Service, any applicable Order Form, any applicable Statement of Work, any applicable appendices, exhibits, and attachments, company profile managed online by Customer, online help, in each case, as revised from time to time as set forth herein, and any written instructions or requirements provided by Bottomline from time to time in connection with the Payment Services.

Settlement: The settlement of Settlement Amounts due to or from Customer in connection with Payment Instructions that have been received by Bottomline from Customer as an agent of a Payee and facilitated by Bottomline through the Payment Services using a Settlement Account or as otherwise agreed by Bottomline and Customer in writing.

Settlement Account: The commercial bank account(s) designated by the Customer for Bottomline or third parties to debit or credit pursuant to the Payment Instructions processed by Bottomline on behalf of the Payee.

Settlement Amount: The amount of Settlement set forth in a Payment Instruction, including, as applicable, all Fees and other amounts due from Customer in connection with such Payment Instruction, less any applicable rebates or other amounts due to Customer.

Virtual Card Service: The service offered by Bottomline by which Bottomline receives a Payment Instruction from a Customer and, in accordance with the Payment Instruction and the Program Documents, facilitates the processing of the Customer’s payment obligations on behalf of the Payee designated in the Payment Instruction using a virtual card.

 

Last updated: March 2023