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These are the Terms and Conditions ("Terms") governing use of Direct Insite Corp. ("Direct Insite") services. These services provide payment processing capabilities (the "DI Services") between merchants providing goods and services for sale ("Sellers") and customers purchasing or paying for such goods and/or services ("Buyers"); Sellers and Buyers, their employees, agents, contractors or otherwise designated entities that may use DI Services are collectively called a "System User".
PLEASE READ THIS AGREEMENT AND DISCLAIMERS CAREFULLY.
BY VIRTUE OF A SYSTEM USER'S USE OR CONTINUED USE OF THE DI SERVICES, SUCH SYSTEM USER AGREES TO AND BECOMES SUBJECT TO THESE TERMS.
DI Services are provided through software developed and owned by Direct Insite and/or its licensors, including any corrections, updates, or upgrades thereto (the "Software").
DI Services and Application Program Interfaces ("APIs") are documented by interface specifications and help manuals (the "Documentation"), which shall be deemed "Confidential Information" of Direct Insite.
With regard to the Software and Documentation, System Users are hereby granted a limited, revocable, non-exclusive, non-transferable license without right to sublicense by Direct Insite or its third party licensors, providers or suppliers, to use the Software as part of, or for use with, the DI Services and for no other purpose and subject to the Terms herein.
1.0 ELIGIBILITY, USE AND TERMINATION
The DI Services and related services are available only to registered System Users. Direct Insite may immediately modify, restrict, or terminate access to any System User whose business activity or foreseeable use of the DI Services, in Direct Insite's reasonable opinion and sole discretion, presents a legal or business risk including, without limitation, on any of the following grounds.
- Said use or foreseeable use of the DI Services infringes on any intellectual property or other third party rights;
- Said use or foreseeable use of the DI Services would introduce software viruses or any other computer code, files or programs that are intended to disrupt, damage or limit the functioning of any computing equipment or to damage or obtain access to any third party information; or
- Said use or foreseeable use of the DI Services is or could be deemed to be unlawful, threatening, abusive, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or contains explicit or graphic descriptions or account of sexual acts;
- Said use or foreseeable use of the DI Services is for the purpose of enabling competitors or potential competitors of Direct Insite to gain competitive intelligence concerning the design, product attributes, or other aspects of the DI Services itself;
- Said use or foreseeable use of the DI Services is used or suspected of being used to provide service bureau or time-sharing services; or
- System User's systems, business processes, practices or controls are deemed insufficient to comply with the Terms of this Agreement or the information privacy and security requirements defined by the Merchant Acquiring organization, the Payment Card Industry (PCI) Security Standards Council, MasterCard, Visa, American Express, Discover, or similar entities.
1.2 Application for Use.
Each System User must apply to use DI Services under the Terms herein. Application may be made directly to Direct Insite, or through an approved merchant acquiring organization, financial institution, or other channel authorized by Direct Insite. System User agrees to provide true and accurate information about itself when applying and to maintain and promptly update information as applicable. System User agrees not to impersonate any person or use an individual or business name that it is not authorized to use. If any information provided by System User is untrue, inaccurate, not current, or incomplete, Direct Insite has the right to terminate System User's use of the services.
1.3 Use of APIs for Integration with Host Services.
When System User employs Direct Insite's APIs to use DI Services, the design, development, implementation and maintenance of such interface and functionality shall be the System User's sole responsibility. System User shall employ such competent resources as it deems necessary to ensure that the APIs function correctly with the System User's platform, operating environments and business processes (the "Integration"). System User shall be responsible for ongoing support of its own development and implementation costs associated with such Integration.
1.4 Bank/Financial Institution Relationships.
A System User will have an agreement with an appropriate financial institution. When the System User is a Seller that wants to process credit or debit card transactions, it has or will obtain a merchant processing account from an approved merchant acquiring organization. Such account shall be enabled with the capability to process one or more Visa, MasterCard, American Express, Diner's Club, Discover or other financial transaction processing capabilities that may be offered. System User has rights, duties and obligations related to one or more of the card systems named above and, with respect to which, System Users has and shall maintain a Bank Card Member Agreement during the term of this Agreement.
- By Direct Insite: Direct Insite reserves the right to terminate System User's access or Agreement if System User is in breach of any Terms of this Agreement. If Direct Insite is required to use any collection agency or attorney to collect money owed or assert any other rights due Direct Insite, System User agrees to pay the reasonable costs of collection or other action including legal fees and or collection agency costs. If System User's service is terminated because of lack of payment, Direct Insite may require that System User pay all past-due charges and/or assess additional setup fees to reestablish System User's account.
- By System User: System User may terminate DI Services at any time either by (i) having the System User's merchant acquiring organization provide Direct Insite with written or email notice of such termination, or (ii) System User may send such termination request directly to Direct Insite, but such termination shall not be effective until it is confirmed by Direct Insite with the System User's merchant acquiring organization or other channel authorized by Direct Insite.
2.0 LICENSED INFORMATION OF SYSTEM USER
2.1 License Grant.
Solely for the purpose of presenting all materials and information provided by System User to describe its products and/or services, including, but not limited to, all descriptions for goods and services ("Level-3 Detail Data"), System User marks, trade names, graphics, photographs, or similar content, along with any updates, revisions, and corrections thereto (collectively, "Licensed Information"), System User grants to Direct Insitie a limited, nonexclusive, non-transferable, worldwide license to use, reproduce, distribute, perform, display and transmit the Licensed Information. Direct Insite is also granted the limited right to modify the format, structure, and organization of the Licensed Information solely for the purpose of integrating the Licensed Information into its databases pursuant to Direct Insite's technical requirements.
2.2 Removal of Licensed Information.
Without limiting the foregoing, if all or part of the Licensed Information becomes the subject of an actual or threatened law suit brought by a third party, or Direct Insite believes the Licensed Information may violate the rights of a third party, Direct Insite will be entitled to immediately remove such Licensed Information from its databases without incurring any liability to System User.
3.1 System User Rights.
System User will retain all right, title, and interest in the Licensed Information as delivered by System User to Direct Insite, including all copyrights, patents, trademarks, and other intellectual property right therein.
3.2 Direct Insite Rights.
As between System User and Direct Insite, System User acknowledges that Direct Insite (together with its licensors) owns all right, title and interest in and to the Direct Insite APIs, the Software, Documentation, technology used to develop the Software and to customize the Software, the marks, graphical designs, names, icons, interfaces, and other design elements (e.g., the selection and arrangement of materials therein and the "look and feel" thereof) and that System User shall not acquire any right, title, or interest, except as expressly set forth in this Agreement. System User shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Software or Documentation provided by Direct Insite. System User will not remove, obscure, or alter Direct Insite's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Software or any Direct Insite Software or Documentation. Direct Insite reserves all rights not specifically granted to System User herein.
4.0 INFORMATION ASSURANCES, ACCESS, PRIVACY AND CONFIDENTIALITY
4.1 Information Assurance.
System User and Direct Insite have access to third party credit card information and/or other protected or proprietary information ("Sensitive Data") and both parties agree to respect the sensitive nature of this information and take all prudent steps to safeguard its privacy and security. Consistent with the Payment Card Industry (PCI) Data Security Standard, Visa Cardholder Information Security Program, MasterCard Site Data Protection program, and similar initiatives sponsored by the merchant acquiring organization and similar entities, System User and Direct Insite agree to institute and maintain appropriate technical and procedural security measures to protect the Sensitive Data. These security measures shall include, but are not limited to:
- Installing and maintaining a working firewall to protect data
- Keeping security patches up-to-date
- Protecting stored data
- Encrypting data sent across public networks
- Using and regularly update anti-virus software
- Restricting access by "need to know"
- Assigning a unique ID to each person with computer access
- Prohibiting the use of vendor-supported defaults for passwords and security parameters
- Tracking all access to data by unique ID
- Regularly testing security system s and processes
- Implementing and maintaining an information security policy
- Restricting physical access to data
4.2 Access and Interference.
The Software contains robot exclusion headers and System User agrees not to use any robot, spider, other automatic device, or manual process to monitory or copy the web pages or the content contained herein without Direct Insite's prior expressed written permission. System User agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the DI Services or any transaction being conducted hereon. System User agrees not to take any action that imposes an unreasonable or disproportionately large load on the Direct Insite infrastructure that might be construed as a denial of service action. System User agrees not to copy, reproduce, alter, modify, create derivative works, or publicly display any content (except, in the case of a System User, such System User's Licensed Information) from the DI Services without the prior expressed written permission of Direct Insite.
The privacy policies applicable to the DI Services are posted and accessible from the log-in page of the Direct Insite application and are deemed incorporated by reference in these Terms.
Neither Party shall disclose the Confidential Information to any third party, or use the Confidential Information in any manner except as explicitly authorized under this Agreement. Both Parties agree to use the same degree of care to prevent disclosure of the Confidential Information as they use to protect their own confidential information, but no less than a reasonable degree of care. In the event of any unauthorized disclosure of Confidential Information, the disclosing party shall immediately provide the other party with written notice of the details of such disclosure (including but not limited to the identification of the receiving party).
5.0 FEES AND PAYMENTS
5.1 Service Fees.
DI Services are made available to System User through Direct Insite, its third party solution-provider relationships, its merchant acquiring channel-partner(s), or other channels as defined by Direct Insite.
DI Services feature a variety of capabilities that are available to System User, some are included in the basic monthly service fee, and other require additional payment. Any offering of fee-based services may be presented via email, a posted notice on the DI Services, or other published means and shall be provided upon System User's acceptance of the Terms and fees. System User shall pay the designed fees for each month that System User utilizes the DI Services. Unless otherwise agreed to by the parties in writing, Direct Insite's services are provided on a month-to-month basis and will continue until terminated by Direct Insite or by System User. Any fees charged by Direct Insite are considered earned as of the first day of the monthly biling period. Any fees collected in advance at the time of setup of the service or designed specifically as setup fees are considered earned at the time unless Direct Insite materially fails to provide the service within a reasonable period after initial registration by System User.
5.2 Account Setup.
Once an account has been set up and properly configured, subsequent requests by System User to change the functionality of, suspend, and/or reactivate, the account may be subject to an administrative charge. Setup fees are non-refundable after account setup has been substantially completed.
5.3 Special Charges.
Rates are special charges or supplementary fees may be presented via email, a posted notice on the DI Services, or other published means.
5.4 Billing Issues.
Disputes concerning improper billing should be brought to the attention of Direct Insite or the System User's acquiring bank, as appropriate, within sixty (60) days of the billing in question. Direct Insite shall not be obliged to address any issues not brought to its attention during such period.
5.5 Change of Rates and Services.
The fees charged are subject to change and Direct Insite may change the nature of its services offered from time to time. Notice of such changes may be presented via a posted notice on the Direct Insite website, by email, through Seller's merchant acquirer or through other Direct Insite channel-partner(s), or by other published means.
6.0 REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of System User.
System User represents and warrants that it has the full power and authority to enter into these Terms and to grant Direct Insite the rights granted herein and to the best of its actual knowledge (a) it is the sole owner or a permitted user of the Licensed Information and the System User Marks and has secured all necessary rights with respect to use of the Licensed Information and the System User Marks to the full extent contemplated herein; (b) no part of the Licensed Information or the System User Marks violates or infringes upon any intellectual property rights or other rights of a person or entity or constitutes defamation, invasion of privacy, or the violation of any right of publicity of other rights of any person or entity or is otherwise subject to any claims relating thereto; and (c) System User has complied and shall continue to comply with all legislation, rules, and regulations regarding the Licensed Information.
6.2 Compliance with Law.
System User agrees that it will not perform any act that would violate any State or Federal law, including, but not limited to, the Federal Equal Credit Opportunity Act, implementation of Regulation B, the Federal Fair Credit Reporting Act, and the Federal Truth-In-Lending Act. System User also agrees that it will not fail to perform any act that is necessary to avoid a violation of any State or Federal law, including, but not limited to, the laws listed in this Section 6.2. System User explicitly recognizes that the Federal Truth-In-Lending Act and its implementing Regulation Z require, and System user agrees to provide, a brief description of the goods or services purchased with a credit card, together with other disclosures.
6.3 Representations and Warranties of Direct Insite.
Direct Insite represents and warrants that: (a) it has the full power and authority to enter into these Terms and to grant System User the rights granted herein; (b) it has complied and shall continue to comply with all applicable laws, rules and regulations regarding the DI Services.
6.4 Disclaimers and Warranties.
OTHER THAN AS PROVIDED HEREIN, THE SOFTWARE AND DI SERVICES ARE PROVIDED "AS IS," AND WITHOUT REPRESEENTATION OR WARRANTY OF ANY KIND. EXCEPT FOR THE EXPRESS WARRANTIES HEREIN, DIRECT INSITE HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMIITATION ANY IMPLIED WARRANTIES OF SYSTEM USABILITY, SECURITY, TITLE OR FITNESS FOR A PARTICULAR USE OR PURPOSE WITH RESPECT TO THE SOFTWARE, OR THE DI SERVICES. DIRECT INSITE DOES NOT WARRANT THAT THE DI SERVICES OR DIRECT INSITE APIS WILL OPERATE WITHOUT INTERRUPTION, THAT THEY ARE ERROR FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. DIRECT INSITE MAKES NO WARRANTIES WITH RESPECT TO THE TIMELINESS OR ACCURACY OF ANY RESULTS, DOCUMENTS, DATA OR INFORMATION THAT MAY BE OBTAINED OR RETRIEVED THROUGH USE OF THE SOFTWARE.
Some jurisdictions do not permit the disclaimer of certain implied warranties, so some of the foregoing may be inapplicable. Top the extent that Direct Insite may not, as a matter of law, disclaim any warranty, the scope and duration of such warranty shall be the minimum permitted under the applicable law.
7.0 INDEMNITY / LIMITED LIABILITY
7.1 By System User.
System User shall indemnify, defend and hold harmless Direct Insite and Direct Insite's directors, officers, employees, agents, consultants, customers, shareholders, distributors and sublicensees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including, but not limited to, reasonable attorneys' fees, that may at any time be incurred by reason of: (a) any claims arising out of the conduct of System Users business or use; (b) any transaction submitted through Direct Insite's Services for payment processing; (c) any third party claim arising out of or related to breach or alleged breach of System Users' obligations hereunder; (d) any claim based upon alleged errors or omissions or misrepresentations in the information provided by System User; or (e) any viruses, Trojan horses, worms, time bombs, cancelbots, other computer malware or programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, that are contained in the information provided by System User.
7.2 By Direct Insite.
Direct Insite shall indemnify, defend, and hold harmless System User and System User's directors, officers, employees, agents, consultants, shareholders, distributors, and sublicensees from and against all claims, actions, liabilities, losses, expenses, damages, and costs, including, but not limited to reasonable attorneys' fees, that may at any time be incurred by reason or any third party claim arising out of or relating to breach or alleged breach of, or any claim that is otherwise inconsistent with Direct Insite's representations or warranties contained in these Terms, or any damages suffered by System User and System User's directors, officers, employees, agents, consultants, distributors, and sublicensees on account of System User's user of the Services in accordance with these Terms.
7.3 Limitation of Liability.
DIRECT INSITE DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY PRODUCT OR SERVICE OFFERED BY ANY SYSTEM USER THROUGH DIRECT INSITE SERVICES, NOR TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION SUPPLIED THROUGH DIRECT INSITE SERVICES BY ANY SYSTEM USER. EXCEPT WHEN DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF DIRECT INSITE, DIRECT INSITE WILL NOT BE LIABLE TO ANY SYSTEM USER OR ANY THIRD PARTY FOR LOSS OF PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THESE TERMS, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY. EXCEPT WHEN DUE TO THE GROSS NOGLIGENCE OR WILLFUL MISCONDUCT OF DIRECT INSITE, IN NO EVENT SHALL DIRECT INSITE'S TOTAL LIABILITY IN CONNECTION WITH THESE TERMS OR THE USE OF DIRECT INSITE SERVICES, WITH REGARDS TO A PARTICULAR SYSTEM USER, EXCEED THE TOTAL AMOUNTS PAID TO DIRECT INSITE BY SUCH SYSTEM USER HEREUNDER.
Some states do not allow the limitation of liability, so the foregoing limitation may not be applicable. Please consult legal counsel as to the specific legal rights that may be applicable from state to state.
8.0 GENERAL PROVISIONS
8.1 Governing Law.
These Terms will be interpreted and governed by the laws of the State of Florida, USA, without giving effect to its principles relating to conflicts of laws.
8.2 Relationship to Parties.
The relationship of Direct Insite and System User established by these Terms is that of independent contractors, and nothing contained in these Terms will be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
8.3 Amendments and Modifications.
Direct Insite may change these Terms at any time; provided, however, that such changes shall not become effective for thirty (30) days from the notice thereof. Notice of changes may be provided via email, posted on the DI Services website(s), or otherwise published to the System User. System User's continued use of the DI Services thereafter shall constitute acceptance of such changes.
8.4 Waiver of Breach.
The waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default.
If any provision of these Terms is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect.
8.6 Force Majeure.
Neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil distrubances, sabotage, terrorist activity, governmental actions, unavailability of transportation, acts or omissions of third parties, delays, failure, or substantial failure involving the Internet or World Wide Web or similar services including network traffic, or any other cause beyond its reasonable control.
8.7 No Assignment.
Neither this Agreement nor any of the rights or obligations arising from it shall be assigned or delegated, in whole or in part, by contract, action of law or otherwise, by either Party without the prior written consent of the other Party, and any such attempted assignment shall be void and unenforceable. No Party will unreasonably withhold or delay its consent to an assignment. Notwithstanding the foregoing, either Party may assign this Agreement to a parent or subsidiary corporation or to a successor in interest to substantially all assets of such Party without express written consent of the other Party, except in the event that a successor in interest is reasonably believed to be a substantial and material competitor of the other Party, in which case the assignment hereof shall require the other parties prior written consent. If such consent is not given the party seeking consent may terminate the Agreement. This Agreement, together with the rights and obligations in connection to it, shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns and legal representatives.
8.8 Email Correspondence and Notices.
System User agrees that email may be used for routine correspondence regarding their use of the DI Services and for offers, solicitations, newsletters or similar correspondence from Direct Insite.
Except as otherwise provided herein, all notices required or permitted under these Terms will be in writing and will be deemed given when: (a) delivered personally; (b) sent by confirmed telex or facsimile; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier specifying next day delivery, with written verification or receipt. If the communication is to Direct Insite, it shall be addressed to Direct Insite Corp., Sawgrass Lake Center, 13450 West Sunrise Boulevard, Suite 510, Sunrise, Florida 33323.
8.9 Entire Agreement.
These Terms and the privacy incorporated in Section 4.3 constitute the entire and exclusive agreement between the parties, and supersedes and cancels all previous and contemporaneous registrations, agreements, commitments and writings, with respect to the subject matter hereof.
The parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither party will have any obligation to do so. In addition, neither party will issue such publicity and general marketing communications concerning this relationship or the DI Services without the prior written consent of the other party (not to be unreasonably withheld or delayed). System User grants permission for Direct Insite to issue a mutually agreed upon press release announcing the business relationship between the Parties.