This Terms of Use Agreement ("Agreement") is between the Clareon division of Fleet National Bank ("Clareon") and the business or governmental entity executing this Agreement (the "Client"), and relates to your enrollment to use the PayMode^® transaction processing service for non-consumer payments offered by Clareon (the "Processing Services") to members ("Members") of the PayMode Network (the "Network").

A. General

A.1. Certain Definitions. As used in this Agreement, the words "we," "us" and "our" refer to Clareon and the words "you" and "your" refer to the Client. In addition to the capitalized terms defined above or otherwise in this Agreement, the terms below refer to the following:

"Agreement and Rules" refers collectively to this Agreement and the Operating Rules; "Authorized Signer" means the person signing this Agreement on your behalf and any person who is, on your behalf, authorized to amend this Agreement; "Clareon Software" refers to any software provided to you by Clareon for your use in connection with using the Processing Services; "Collector" refers to a Network Member that is enrolled to receive payments; "Disburser" refers to a Network Member that is enrolled to make payments; "DPA" (or "digital payment authorization") refers to a payment instruction sent by a Disburser to Clareon; “Membership Administrator” means the employee of the Client who is responsible for enrolling the Client with Clareon and overseeing the Client’s membership (including adding and deleting users). "Network Member" refers to a Client that has enrolled in the Network; "Operating Rules" refers to the Operating Rules of the Network; "Party" means Client or Clareon (as the context requires), and "Parties" means both Client and Clareon; and "Transaction Account" refers to a bank account designated by a Disburser or a Collector and against which DPAs are debited or credited pursuant to the Agreement and Rules.

A.2. Health Care Information Privacy. If you are a "Covered Entity" or a "Business Associate" under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and provide "Protected Health Information," as defined in HIPAA, to Clareon, both Clareon and you shall be bound by the terms of the Health Care Information Privacy Amendment to Clareon Terms of Use. In the event of a conflict between the terms of this Agreement and the terms of the Health Care Information Privacy Amendment, the terms of the Health Care Information Privacy Amendment shall prevail.

A.3. Health Care Transactions. If you use the Network in connection with the conduct of any Health Care Payment and Remittance Advice transactions, as defined in 45 C.F.R. Part 162, Subpart P, both Clareon and you shall be bound by the terms of the Health Care Transactions Amendment to Clareon Terms of Use. In the event of a conflict between the terms of this Agreement and the terms of the Health Care Transactions Amendment, the terms of the Health Care Transactions Amendment shall prevail.

A.4. Scope. Subject to the terms of this Agreement and the Operating Rules of the Network, Clareon shall provide the following Processing Services:

If you are a Collector, Clareon will:

	a.	transmit payments from Disbursers to the Transaction Account you have specified based on DPAs that Clareon has accepted from Disbursers;
	b.	provide you with secure access to the status and history of payments made to you by Disbursers; and
	c.	in electronic form, provide you with the remittance information provided by your Disbursers to us in connection with the payments made by your Disbursers.

If you are a Disburser, Clareon will:

	a.	issue, or cause to be issued, to certain of your authorized representatives a digital signature certificate (a "Digital Signature Certificate") so that you may send DPAs to us for processing;
	b.	provide you with software so that you may securely transmit DPAs to Clareon;
	c.	execute the payment instructions in a DPA accepted by us by debiting the Transaction Account that you have specified and crediting the applicable Collector's Transaction Account;
	d.	make remittance information related to accepted DPAs available to your Collectors in a secure manner; and
	e.	give you and your Collectors secure access to the status and history of payments made by you through the use of the Processing Services.

A.5. Enrollment. When you enroll in the Network, you will choose to enroll as a Disburser or a Collector, or both. Provisions of this Agreement that uniquely apply to Collectors or Disbursers are highlighted below in Sections F and G respectively. Your Authorized Signer should confirm your enrollment choices with the Client's Membership Administrator. You may change your enrollment status.

B. Client Representations and Warranties

B.1 Authority of Authorized Signer. You represent and warrant that your Authorized Signer is, and any new or replacement Authorized Signers will be, a person with full authority on your behalf to:

	a.	enter into and amend an agreement of this type;
	b.	open and transact business in bank accounts (or direct other employees to do so);
	c.	decide which security procedures are appropriate for your use of the Services; and
	d.	delegate banking responsibilities and accounts payable and accounts receivable responsibilities to the PayMode Membership Administrator named in your enrollment application.

B.2 Accuracy of Information. The Client and the Authorized Signer represent and warrant that:

	a.	the information you provided in your enrollment application is, and your representations in this Agreement are, true, complete and not misleading;
	b.	you have provided us with all facts material to our ability to confirm your identity and to enroll you in the Network; and
	c.	you will promptly notify us if any information submitted in your enrollment application changes.

B.3 Other Matters. The Client and the Authorized Signer represent and warrant that:

	a.	your execution, delivery and performance of this Agreement do not contravene any law, regulation or governmental rule applicable to you;
	b.	you will use the Processing Services only for business or governmental payments or transactions that are lawful and not for personal, family or household purposes or to send payments to or receive payments from consumers; and
	c.	your PayMode Membership Administrator has the full authority to (A) upgrade your membership to be both a Disburser and Collector; (B) perform, and delegate to others authority to perform, Transaction Account maintenance; (C) view and copy information about DPAs; and (D) accept amendments to the Agreement and Rules.

C. Network Operational Matters

C.1 Operating Rules. The Operating Rules are binding on all Network Members. If there is any conflict between the terms of this Agreement and the Operating Rules, the terms of this Agreement shall govern. Copies of the Operating Rules are available at www.fleet.paymode.com/policies. The Operating Rules may be amended pursuant to Section I.2.

C.2 Applicability of Payments Systems' Rules. The Network operates in conjunction with, and Network Members are bound by the rules governing, the banking system (either the rules of the National Automated Clearing House Association ("NACHA") and any applicable regional Automated Clearing House Association, or the applicable clearinghouse or wire transfer service), except as the Agreement and Rules may conflict with such rules. We may rely on information about your Transaction Accounts provided by banks under such rules. Except as described in the Operating Rules, properly formatted and accepted DPAs require at least three business days from the date the payment enters the banking system for completed funds transfer through the banking system.

C.3 Applicability of Other Rules and Laws; Certain Agents. The Network operates in conjunction with, but is not technically part of, the funds transfer system governed by Article 4-A of the Uniform Commercial Code ("UCC"). Except as the Agreement and Rules may conflict, the provisions of Article 4-A of the UCC shall govern any unauthorized or misdirected DPA as if each Disburser and its agents were a "sender," Clareon were a "receiving bank," a DPA were a "payment order," and a "Collector" were a "beneficiary," all as those terms are defined in Article 4-A. You acknowledge that Clareon is not a bank and that we are not regulated as such, and that in order to process payments associated with DPAs, we may use such banks or other financial intermediaries as we determine appropriate in our sole discretion ("Payment Processing Agents"). Any Payment Processing Agent is acting as agent for Clareon, and in so doing is not acting as agent or fiduciary for any Network Member.

C.4. Underlying Transaction; Taxes. We provide Network Members with information in our records about the DPAs to which they are a party. We do not warranty any aspect of the underlying transactions with respect to which payments are made through the Processing Services, including, for example, whether goods or services for which payment is being made are conforming or satisfactory or whether payment has been made in the right amount or within the time agreed between a Disburser and a Collector. You are responsible for determining whether taxes are applicable and to pay all applicable taxes relating to the underlying transaction.

D. Security Procedures and Notices

D.1 Use and Compliance with Security Procedures. Incident to your enrollment in the Network, we have offered you and you have chosen security procedures that you agree are commercially reasonable for your business. You agree to:

	a.	comply with the security procedures described during your enrollment or otherwise set forth in the Operating Rules;
	b.	keep all passwords and security devices secure and contact us immediately if you suspect that they have been compromised; and
	c.	notify us immediately if any individual designated by you as authorized to represent you is no longer authorized to do so.

D.2 Reporting. You agree to notify us about all actual or suspected DPA-related errors or inaccuracies related to the information in our records promptly after you become aware of or suspect the error or inaccuracy, including known or suspected misdirected or unauthorized DPAs.

D.3 Risk Assessments. We may assess the risk of DPAs, as well as Disbursers and Collectors. We may also assess whether DPAs are submitted in compliance with the Agreement and Rules. We or our agents (including any applicable Payment Processing Agent) may suspend or reject DPAs based on these assessments. We will notify Disbursers about any suspended or rejected DPAs.

D.4 Authentication of Enrollment Information. In connection with your enrollment in the Network, we may review your credit history and contact your credit references. The Client and the Authorized Signer agree to let us or our agents (including any applicable Payment Processing Agent) verify the identity of your Authorized Signer, your PayMode Membership Administrator, and your organization's identity and line of business by any reasonable means, such as: (1) checking public or private databases or other sources to verify the information submitted by you and persons acting on your behalf, and (2) contacting your human resources department or other departments to verify the affiliation and authority of your representatives. We may also store and keep any information we collect about you during the enrollment process, which information shall become our property, subject to our confidentiality obligations. We may, in our sole discretion and without incurring liability, deny an application for enrollment or refuse to complete your enrollment. In such case, you shall not be required to pay any Fees under this Agreement.

D.5 Notices and Electronic Communications. Notices between you and us about the Agreement and Rules and your use of the Processing Services may be sent through electronic messages or by mail. Unencrypted electronic messages that we send to your authorized representatives may direct the recipient to additional information on the Network Member Web site. Notices shall be deemed sent and received in accordance with the terms of the Operating Rules. This Agreement and electronic signatures and records delivered and maintained under the Agreement and Rules shall be effective to the fullest extent permitted by law. You agree to maintain a copy of this Agreement for your records.

E. Confidentiality. We will take reasonable care to keep confidential any private information about you that we obtain in connection with your enrollment in the Network. We will keep Disbursers' DPAs and related information confidential and will not disclose the same, except to the Disburser, the relevant Collector, the banks involved in the fund transfer system, and our agents and employees that have agreed with us to keep such information confidential, or otherwise as required by law. In order to increase the utility of the Services to all Network Members, if you give us any information about your trading partners we may use such information for the sole purpose of encouraging them to become, and enrolling them as, Network Members. For more information, see our Privacy Practices at www.fleet.paymode.com/policies.

F. Terms Applicable to Collectors

F.1 Effect of DPAs; Certain Agreements. If you have enrolled as a Collector, you agree to maintain a Transaction Account for crediting DPAs and that you will credit to Disbursers the funds you receive in connection with DPAs. If you do not receive the funds associated with a DPA, or if you are required to pay such funds to Clareon under paragraph F.2 below, then any debt intended to be extinguished by such DPA remains unsatisfied, except in the following circumstance: you supply or allow us to continue to use (after you have reasonable notice of our use of such information) inaccurate information about your Transaction Account and we credit a DPA to the wrong bank account in reliance on such information; in this circumstance we will cooperate with you to collect the amount of such DPAs from the actual recipient(s), but you understand that this may not be possible.

F.2 Corrections. If you have enrolled as a Collector, you agree to repay to us and that we may debit your Transaction Account(s) for the amount of any DPAs that we incorrectly credit to your account, such as (1) unauthorized or misdirected DPAs for which we, or our agents, would be liable; or (2) DPAs that we must return to a participant in the payments system because the Disburser's Transaction Account was closed or contained insufficient funds to process the DPA; we will debit your Transaction Account(s) only under these circumstances or, with your consent, to collect our service fees. You also agree that our records about which DPAs (if any) must be returned to a participant in the payments system are final.

G. Terms Applicable to Disbursers

G.1 Certain Agreements. If you have enrolled as a Disburser, you agree that (1) you will maintain bank accounts for debiting DPAs; (2) Clareon or its agents may debit and credit such accounts in compliance with the Agreement and Rules; and (3) your PayMode Membership Administrator may initiate and delegate to others authority to initiate DPAs. You also acknowledge and agree to the terms of Section F.1 above relating to the effect of DPAs.

G.2 Agency Relationship. If you have enrolled as a Disburser, you acknowledge and agree that upon execution of this Agreement, an agency relationship is created between us and that:

	a.	your funds will be held by Clareon as agent for transmission in accordance with your instructions and pursuant to the Agreement and Rules;
	b.	pending transmission, at all times your funds will be segregated from the general funds of Clareon in a special account with the other funds of Disbursers and that this account will be named in a manner that indicates that it contains the funds of Clareon's customers;
	c.	income (if any) earned on all such funds belongs to Clareon; and
	d.	in the ordinary course of business, we may transmit a DPA to a Collector when the corresponding debit to the Disburser's account is still subject to processing under NACHA or other applicable rules.

G.3 Digital Certificates. Incident to your enrollment in the Network as a Disburser, your representatives may be issued Digital Signature Certificates. By accepting a Digital Signature Certificate, you and each person to whom a certificate is issued agree to abide by our Certificate Policies, which are available at www.fleet.paymode.com/policies. and may be amended pursuant to Section I.2.

G.4 DPAs and Liability. If you have enrolled as a Disburser, you agree to be bound by any DPA that is issued in your name and authenticated (either individually or within a file) with an unrevoked Digital Signature Certificate issued to your representative and accepted by us in compliance with the security procedures you have chosen and our Operating Rules. If you use an electronic agent to create and deliver a DPA, you agree that any such DPA is legally attributable to you and that you will be bound by such a DPA. In certain circumstances, as further detailed in the Operating Rules, a Disburser may not be bound by a DPA that it has not authorized if it resulted from circumstances beyond its control, and in such circumstances we would be liable as limited below:

	a.	our liability for all unauthorized DPAs (and interest thereon) is limited to the lesser of (i) $1,000,000 or (ii) the net amount lost by the Disburser in connection with the unauthorized DPAs, and you agree not to make any claim against any financial institution for any greater amount; and
	b.	(i) each Disburser will be deemed to have authorized any DPA executed against its Transaction Account(s) unless it notifies us that the DPA was not authorized within 30 days of the date it knew or should have known of such DPA, and (ii) we will not be liable to a Disburser for any unauthorized DPAs arising from a recurring security breach (and each Disburser must pay those DPAs) that occur more than 30 days after the Disburser knew or reasonably should have known of the first unauthorized DPA related to such security breach, unless it notifies us of the unauthorized DPA or security breach within 30 days of such initial, unauthorized DPA.

H. Term and Fees; Warranties

H.1 Effectiveness of this Agreement. After you sign and submit this Agreement, it will be effective only after we complete the security verifications that we deem appropriate and accept your enrollment application. Your enrollment in the Network shall continue for a one-year period, and shall automatically renew for additional one-year periods until terminated by either you or us.

H.2 Procesing Fees. Our Processing Services are presently provided without charge, unless specific fees are set forth in a separate addendum you agreed to. We reserve the right to add a nominal transaction fee in the future and to otherwise change our fee structure by giving you notice in the manner described in section I.2.

H.3 Warranty. Subject to the limitations below, we promise to fulfill our obligations as set forth in the Agreement and Rules, but we will not be liable to you for any damages unless our failure to perform such obligations amounts to gross negligence or willful misconduct.

WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. We shall not be responsible for errors of third parties, such as errors by a digital certifying authority or Internet service provider, errors by a bank in the payments system, errors by your employees or agents or your software or hardware, or errors by Disbursers or Collectors. IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall our liability exceed the Fees we receive in the six months preceding the event complained of, except as set forth in Section G.4 above.

You agree to indemnify and hold Clareon and its affiliates, officers, directors, employees and agents harmless from and against any claims or damages (including attorney fees) arising directly or indirectly from your use of the Processing Services or the Network, unless and to the extent that the claim or damages arise out of Clareon's failure to perform its obligations in a manner that would subject us to liability for a breach of our obligations as set forth above. In addition, you agree to indemnify and hold Clareon and any Payment Processing Agent and any of their affiliates, employees and agents harmless from and against any claims or damages (including attorney fees) arising directly or indirectly from (i) the underlying transactions with respect to which payments are made through the Network, (ii) the transfer of funds by the Payment Processing Agent pursuant to a DPA, (iii) if you are a Disburser, any rejection, return, dishonor or charge-back of a funds transfer executed by the Payment Processing Agent pursuant to a DPA and any overdraft resulting therefrom, and (iv) your use of the Processing Services or the Network.

H.4 Termination. Either you or we may terminate your enrollment and this Agreement upon 15 days' notice. We may terminate your enrollment without advance notice if we believe you have breached the Agreement and Rules or your financial condition has deteriorated. Termination shall not affect our respective obligations with respect to any DPA executed by us or your other obligations under the Agreement and Rules.

I. Miscellaneous

I.1 Binding Effect of Agreement and Rules. By submitting this Agreement, you agree that the Agreement and Rules, including any proper amendments thereto, shall be binding upon you and shall govern your use of the Network and Clareon's obligations and rights. If any provision of the Agreement and Rules is void or unenforceable, it shall not affect the enforceability of any other provision thereof.

I.2 Amendments. We may amend this Agreement, the Operating Rules, the Fee Schedule, the Privacy Practices, or the Certificate Policy. Amendments may be made by posting revisions on our Network Member Web site and shall be effective against you fifteen (15) days after you have been notified about them. Your continued use of the Processing Services will be deemed your acceptance of any such amendments. This Agreement supersedes any prior agreement accepted by you, and may be subject to additional addenda, which, when executed by both Parties, shall be considered part of this Agreement for all purposes.

I.3. Intellectual Property. You may use the Clareon Software exclusively to access and use the Processing Services during the term of this Agreement. Except as expressly stated otherwise in this Agreement, all Clareon Software and all content included on or made available to you through our Web site, such as text, graphics, logos, button icons, images and software, is the property of Clareon or its licensors and is protected by U.S. and international copyright laws. You may use the Clareon Software and such content only pursuant to the Operating Rules, and any other use is strictly prohibited. Clareon and PayMode are registered trademarks of Clareon Corporation. These and Clareon's other marks may not be used without our express written consent.

I.4 Arbitration and Governing Law. Any controversy or dispute arising out of or relating to performance under this Agreement shall be resolved by arbitration conducted pursuant to the commercial arbitration rules of the American Arbitration Association. The dispute and any construction or interpretation of this Agreement generally shall be governed by and construed in accordance with the laws of the State of Maine, including the Maine UCC, without regard to choice of law rules. In any arbitration and in any litigation under this Agreement, the prevailing party shall be entitled to its costs and reasonable attorneys' fees.

I.5 Force Majeure. Neither Client nor Clareon shall be liable for any failure or delay of performance arising out of a cause beyond the reasonable control of such party, such as fire, flood, act of God, war, civil commotion, technical failure of either the software or hardware used to provide the Services, telecommunications infrastructure or of the Internet, or any other force majeure. We will try within reason to tell you about known service unavailabilities and to provide you with reasonable notice of downtime.

I.6 Certain Acknowledgements. In connection with your decision to use the Services, you acknowledge that:

	a.	you have not relied on any statements made other than in the Agreement and Rules, including specifically statements made by any person or entity other than Clareon ("third parties");
	b.	your decision is based solely on your own research and information received from Clareon;
	c.	you will not hold any third parties liable in connection with any alleged failure by Clareon to meet any alleged obligations to you of disclosure or performance under or related to this Agreement, including specifically any third parties that may have recommended that you use the Processing Services; and
	d.	all third parties may rely on your acknowledgements as stated above.

I.7 No Waiver. The failure of either party to exercise any right granted herein, or to require the performance by the party hereto of any provision if this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.

I.8 Assignment. Neither party may assign this Agreement or any license granted hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Clareon may make such an assignment to one of its affiliates.

I.9 Benefit. Subject to provisions hereof restricting assignment, this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns. In addition, any Payment Processing Agent may rely upon your undertakings, representations and warranties herein as fully as if you had made them directly to such Payment Processing Agent.

I.10 Interpleader. In the event of a dispute about any funds associated with the DPAs held by us or our Payment Processing Agents from time to time under this Agreement, we or such Payment Processing Agents may commence an action in interpleader and pay the disputed funds into a court of competent jurisdiction. Upon such payment into such court, all obligations that we (or any applicable Payment Processing Agent) may have with regard to such funds shall be fully discharged, and the applicable Disburser(s) and Collector(s) associated with the DPA(s) related to such funds shall be jointly and severally liable for paying the reasonable attorney's fees of Clareon and any such applicable Payment Processing Agent in connection with such matter.

I.11 Survival. Sections B through H and I.3, I.4, and I.6 through I.11 hereof shall survive any termination of this Agreement.

View the Terms of Use Agreement in pdf format.

 

TOU Agreement Ver. 4.2 (Issue Date 09-24-03)