BillGO Exchange Terms and Conditions

BillGO, Inc.

BILLGO EXCHANGE TERMS AND CONDITIONS

Effective Date: August 15, 2024

1. Scope. These BillGO Exchange Terms and Conditions (the “Terms”) govern the access to and use of the Services offered by BillGO, Inc., BillGO MT, Inc., or our affiliates, as applicable (collectively, “BillGO”, “we”, “our”, or “us”) by you and your end users (together, “you”, “your”, or “Biller”). Policies, instructions, or guidelines (“Policies”) made accessible by BillGO to you in writing are incorporated in these Terms by reference. By enrolling in the BillGO Exchange, we will provide you with access to the BillGO Exchange portal (the “Portal”) to enable you to better manage payments from your customers (“Payors”), such as by converting checks into electronic payments so that you can be paid faster, as well as any related features offered by BillGO (the “Services”). We hereby grant you the right to access and use the Services in accordance with these Terms.
2. Acceptance of Terms. By electronically accepting these Terms or using the Services after the effective date of these Terms (the “Effective Date”), you consent to and agree to comply with these Terms. If you are using the Services on behalf of a legal entity, you represent that you have the authority to bind that legal entity to these Terms and that legal entity accepts these Terms.
3. Changes to Terms. We may change these Terms at any time in our sole discretion by posting the updated Terms on the Portal, distributing via email to the email address associated with the administrator of your account in our systems (the “Administrator Email”), or any other reasonable manner of notice. You will be deemed to have agreed to the changes to the Terms when you (i) electronically accept the revised Terms; or (ii) use the Services after the Effective Date of the updated Terms. If the updated Terms are not acceptable to you, your sole and exclusive remedy will be to stop using the Services.
4. Privacy Policy. During registration and through the Services, we collect Personal Information (as defined in BillGO’s Privacy Policy, located at https://www.billgo.com/privacy-policy which is incorporated into these Terms) from you. We will process Personal Information in accordance with these Terms and our Privacy Policy.
5. Data Transfers and Accuracy. You may, via the Portal, request that we transfer certain financial account information data (e.g., bill amount data, remittance data, or payment, balance sheet, or other accounting information) (collectively "Payment Data") (a) to one or more of your designated agents; (b) to one or more of BillGO's third party providers that process such data to provide certain features of the Services, including, but not limited to, automatic synchronization and reconciliation of financial data with your accounting software or other Enterprise Resource Planning (“ERP”) solutions; or (c) directly to Payors to present bill or invoice information for the applicable transaction (collectively, a "Data Transfer"). We will use commercially reasonable efforts to process a Data Transfer, subject to these Terms. It is your sole responsibility to ensure that all Payment Data is accurate and complete before you initiate a Data Transfer. Failure to provide accurate and complete information may result in errors in Data Transfers, including without limitation: (i) a failure or incorrect synchronization with your ERP solution or (ii) the failure to present, or the incorrect presentation of, a bill or invoice to Payors in a timely manner or at all.
6. Fees; Payment.There is no fee to enroll in the Services and begin receiving digital payments. However, there are fees associated with processing payments through the Services depending on the payment method selected. When enrolling in the BillGO Exchange, you will be prompted to identify whether you would like payments to be processed manually or automatically.
   1. Manual Card Processing. If you choose to process card payments manually, you must affirmatively accept processed payments through the Portal. We will provide you with the card number and other details needed for you to manually input and transmit payment to your merchant acquirer. We will not charge you a processing fee for manual processing, but you will remain responsible for any other fees and costs associated with such payment processing, such as interchange and other fees and charges from third parties. Your merchant acquirer may have further details on these fees and charges. You will only have a limited period of time to use such card numbers, which will be identified in the Portal or via email to the Administrator Email. If you do not input the card numbers to the third-party processor or acquirer in the allotted timeframe, we may process the payment for you by other means or return the payment to the Payor, but you acknowledge that: (i) payment may be delayed or may not occur if the Payor fails to renew the payment; (ii) you may incur third-party costs, such as an interchange fee, and will not be entitled to reimbursement of any fees associated with processing any returned payment; and (iii) Payors may not be charged for costs associated with delays..
   2. Automatic Processing. If you choose to have us process payments automatically, then unless otherwise set forth in the Portal, BillGO will charge, and you will pay, a processing fee. The processing fee applicable will be identified in the Portal or via email to your Administrator Email. We will process automatic payments using our own payment methodology, ACH, or using a branded network (e.g., Visa, Discover, Mastercard) credit, debit, prepaid, or virtual card. We will withhold processing fees from the total payment amount disbursed to you unless otherwise communicated to you through the Portal or to your Administrator Email. In the event you owe us any additional amounts, such amounts must be paid within thirty (30) days from the date of our invoice.
   3. Modifications. We may modify fees associated with payment processing by providing you with five (5) days' written notice in accordance with Section 3.
   4. Fee Disputes.To dispute any fees under these Terms, you must notify us in writing within five (5) business days of the payment due date and provide a description of the nature of the dispute and the disputed dollar amount. You must provide notice pursuant to Section 6 below. If you fail to notify us as required by this subsection 6.4, the dispute is irrevocably waived. You agree that we may, in our discretion, assess a late payment fee equal to the lesser of: (i) one and one-half percent (1.5%) of the delinquent amount for each thirty (30) days it is delinquent or (ii) the greatest amount allowed by applicable law (plus all costs of collection).
   5. Chargebacks. You will notify us of any chargeback requests from a Payor, which must be submitted directly to you. We will promptly investigate chargeback requests. If we determine that chargeback rights exist, we will process a chargeback to the appropriate card issuer and return such amount to the Payor.
   6. Right of Set Off. To the extent permitted by law, you grant to us the right to apply or set off any money or credit balance in which you have an interest but is in our possession, custody or control, in satisfaction of any amounts or liabilities that you owe to us.
7. Payment Reversal and Return.We may reverse or return any electronic payment that has been initiated to or by you, without liability to us, if: (i) a payment amount is incorrect; (ii) you are not entitled to the payment or are the mistaken recipient of such payment; (iii) we detect evidence of fraud in the transaction; (iv) we believe such reversal or return is required by law; or (v) such reversal or return is otherwise permitted by the relevant payment network rules.
8. Restrictions. Except where prohibited by law, you may not, nor may you permit any third party, directly or indirectly, to: (a) export the Services, which may be subject to export restrictions imposed by United States ("US”) law, including US Export Administration Regulations (15 C.F.R. Chapter VII); (b) engage in any activity that may violate regulations administered by the US Department of the Treasury’s Office of Asset Control (“OFAC”) (31 C.F.R. Parts 500-599). Prohibited activity includes but is not limited to the provision of Services to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Syria, or the Crimean Region of Ukraine. If found to be in apparent violation of these restrictions, your access to the Services could be terminated and your funds could be held for an indefinite period of time; (c) access or monitor any material or information on any BillGO system using any robot, spider, scraper, or other automated means; (d) except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services; (e) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by other Billers, Payors or Partners, or impose an unreasonable or disproportionately large load on our infrastructure; (f) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from BillGO; (g) use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm; (h) use the Services for any illegal activity or goods or in any way that exposes you, other Billers, Payors, Partners, or BillGO to harm; (i) use the Services for or in support of a prohibited business, which includes, but is not limited to: bearer share entities and other anonymous ownership entities; virtual exchange or virtual currency businesses; criminal offenders (anyone prosecuted, convicted, or indicted for a serious crime specific to felonies and certain misdemeanors involving financial crimes, narcotics trafficking, or terrorist financing); crowdfunding or crowdsourcing entities; embassies, consulates, or diplomatic missions; politically exposed persons; foreign government agencies; informal value transfer systems; internet gambling entities; internet pharmacies; marijuana dispensaries or related businesses; OFAC specially designated nationals and blocked persons; shell banks; shell corporations; and title and payday lenders; or (j) otherwise use the Services except as expressly allowed under these Terms.
9. Your Representations and Warranties. You represent and warrant that: (i) you are a legally organized entity in good standing under the laws of the state in which you were formed; (ii) you have the power and authority to execute, deliver, and perform your obligations under these Terms; (iii) you are in compliance with, and will comply with, all applicable laws and regulations (including, without limitation, with respect to consumer protection and related practices) and third party rights (including privacy rights) in connection with these Terms; (iv) all data uploaded to the Services or subject to a Data Transfer is true and accurate, to the best of your knowledge; (v) you will only use the Services to facilitate receipt of commercial payments and will not use the Services to facilitate receipt of payments that do not relate to the sale of your own goods or services.
10. Appointment of BillGO as Your Agent. You hereby designate BillGO as your payment collection agent for the limited purpose of receiving, holding, settling, and processing payments from Payors pursuant to these Terms. You further agree and understand that a payment from a Payor received by us through the Services shall be considered the same as payment made directly to you. Such payment shall be deemed to satisfy the Payor’s obligation to pay you, and you will provide your products or services to the Payor in the agreed-upon manner as if you had received the payment directly from the Payor. You understand that our obligation to pay you is subject to, and conditional upon, successful receipt of the associated payments from the Payor. You further agree that we are not required to settle such payment to you if the Payor initiates a chargeback, ACH return, or otherwise disputes the payment. If we do not make a payment to you as required by these Terms, you will have recourse against only us and not against the Payor. In accepting appointment as your limited payment collection agent, we assume no liability for any of your acts or omissions. This agency relationship shall remain in effect unless terminated by either party.
11. Security Procedures. You shall ensure that only your authorized representatives and agents are permitted to access the Portal or Services, submit Data Transfers, or accept payments on your behalf through the Services. You are solely responsible for implementing security procedures designed to prevent any unauthorized access to or use of the Services on your behalf, including without limitation, safeguarding its credentials to the Portal. We strongly recommend that you take advantage of enhanced security features that we may offer you from time to time, such as multi-factor authentication, and we do not assume liability for any losses or damages that could have been prevented or mitigated if recommended security features were utilized. You will immediately notify us of any unauthorized use of the Services or the Portal. You will immediately take all reasonable steps to mitigate the effects of a security breach and will cooperate with us and provide all information we request to remediate the breach. Any assistance we provide in relation to a security breach does not operate as acceptance or acknowledgement that we are in any way responsible or liable to you or any other party in connection with such breach. We assume no liability or responsibility, and you agree to indemnify us and hold us harmless, for any unauthorized access to or use of the Services through your systems.
12. Relationships. No provisions of these Terms, except where otherwise noted, will modify or supersede existing relationships between you and a Payor. We are not a debt collector, nor do we assume legal responsibility regarding Payors’ financial obligations. Accordingly, we assume no responsibility and will have no liability for any consequences resulting from your interactions or contracts with Payors, including but not limited to payment terms, the proper and timely delivery of goods or services, or any associated disputes which may arise. We in no way endorse, recommend, or bear any responsibility or liability for any products, services or statements presented by you. You acknowledge and agree that your use of the Services does not constitute a tri-party agreement between you, us, and Payors. You and us are independent contractors hereunder and are responsible for our own actions.
13. Use of Electronic Records and Signatures. You agree that we may provide notices, disclosures, electronic records, and other communications through the Services, by email, or by regular mail to your address on file. Communications to you will be considered received when sent by us to the address or phone number that you have provided through the Services.
14. SMS Messaging and Telephone Calls. You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) with Services-related information from us, our agents, representatives, affiliates or anyone calling on our behalf (together, “Representatives”) at the number(s) you provide to us. You represent and warrant that the telephone number you provide to us is your business contact number and not someone else’s and that you are permitted to receive calls and text messages at that number. You agree to promptly alert us whenever you stop using a telephone number. We and our Representatives may use such means of communication described in this Section even if you will incur costs to receive such communications. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services, for any reason and without notice, without liability to you.
15. Intellectual Property.
    1. License We Grant to You. Subject to these Terms, including payment of all fees, we grant you a personal, limited, non-exclusive, non-assignable, non-transferable and non-sublicensable license to access and use the Services, including without limitation the software that enables the Services, together with any updates, bug fixes, help content, and other related materials that we provide you solely for your own use for so long as you are authorized to use the Services. You acknowledge and agree that if you violate these Terms or these Terms are otherwise terminated, we may, in our sole discretion and without notice to you, immediately suspend or terminate your license and/or access to the Services.
    2. IP Rights to the Services.We retain all right, title, and interest in and to the Services, including without limitation to the Portal, all software used to provide the Services, and all graphics, user interfaces, logos, and trademarks reproduced through the Services. These Terms do not grant you any intellectual property license or rights in or to the Services or any of its components. You acknowledge that the Services and its components are protected by copyright and other laws.
    3. Feedback. You hereby grant us a perpetual, irrevocable, worldwide license to use any suggestions or ideas for modifying or developing any aspect of the Services (“Feedback”) you communicate to us, without compensation, without any obligation to report on such use, and without any other restriction. Our rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any way, as well as the right to grant sublicenses.
16. Mark Usage. You agree that we may use your name and logo on our website and in our promotional materials as part of a general list of Billers. If you provide us with written or verbal quotes or other statements regarding the Services, you hereby grant us a non-exclusive, perpetual, irrevocable right and license to use such quotes and statements on our website and for promotional purposes.
17. Confidential Information. Any business, technical or other information we disclose and that is identified as confidential or that you should reasonably understand to be confidential, including but not limited to fee and pricing information and Service performance metrics, will be our confidential information ("Confidential Information"). You will (i) hold our Confidential Information in confidence (not disclosing it to any third party) and (ii) not use Confidential Information for any purpose except in furtherance of these Terms. This Section will not apply to information that is generally available to the public without your fault, or information that you independently develop.
18. Applicable Law. You shall comply with applicable law and shall not use the Services in a manner that would cause us to violate applicable law. We may be required to obtain information regarding you, your affiliates, or other persons under your control that are involved in the operation of the Services. You shall promptly provide all information that is reasonably requested by us to ensure compliance with applicable law. We reserve the right to refuse to provide the Services to you if such action would otherwise cause us to be noncompliant with applicable law. Without limiting the foregoing, you shall comply with all US economic sanctions laws, regulations, and orders administered by OFAC.
19. Taxes. You are solely responsible for remitting to any federal, state, or local tax authority with jurisdiction over you or your participation in the Services (each, a “Tax Authority”) any applicable taxes and duties owed based on payments processed to you by us, excluding taxes based upon net income payable by us. You are solely liable for any fees, charges, fines, or assessments attributable to or levied against us without offset or deduction (including any offset or deduction for taxes). You shall indemnify and hold us harmless from and against all tax liabilities paid, payable, or incurred by us, including penalties and interest, costs, and expenses, to any Tax Authority relating in any way to the taxes or tax treatment of payments made under the Services. You acknowledge and agree that we may withhold taxes from any payments made by us to you if we determine that such tax withholding is required by applicable law. If you are not a US person (as determined under applicable US federal income tax principles), you agree that you shall complete any applicable tax forms as requested by us.
20. Disclaimer. THE SERVICES ARE PROVIDED "AS IS" AND WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THE SERVICES WILL BE FREE OF ERRORS OR DEFECTS, OPERATE WITH ALL SYSTEMS, NETWORKS OR EQUIPMENT, OR BE SECURE FROM UNAUTHORIZED INTRUSIONS. WE FURTHER DISCLAIM ALL WARRANTIES AND ASSUME NO LIABILITY OR RESPOSIBILITY FOR DISPUTES, CHARGEBACKS, OVERCHARGES, DELAYED PAYMENTS, INSUFFICIENT FUNDS, OR EXPIRED CARDS. YOU ACKNOWLEDGE THAT HOSTING AND PROCESSING DATA ONLINE INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE AND THAT, IN ACCESSING AND USING THE SERVICES, YOU ASSUME SUCH RISKS. WE OFFER NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT DATA PROVIDED TO OR VIA THE SERVICES WILL NOT BE EXPOSED OR DISCLOSED THROUGH ERRORS OR THE ACTIONS OF THIRD PARTIES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
21. Third-Party Disputes and Release. YOU SPECIFICALLY ACKNOWLEDGE THAT (I) WE RELY ON PAYMENT INSTRUCTIONS FROM YOUR PAYORS OR THEIR AGENTS AND DO NOT INDEPENDENTLY VERIFY AMOUNTS DUE TO YOU; AND (II) WE RELY ON PAYMENT AND ACCOUNTING INFORMATION PROVIDED BY THIRD-PARTY SOFTWARE PROVIDERS OR YOUR ERP PROVIDERS OR THEIR AGENTS FOR PURPOSES OF DATA SYNCHRONIZATION AND DO NOT INDEPENDENTLY VERIFY THE ACCURACY OR VALIDITY OF TRANSACTIONS, OR WHETHER THEY EVEN OCCURRED. THEREFORE, ANY SUBSTANTIVE DISPUTE YOU HAVE WITH A PAYOR ABOUT AMOUNTS ALLEGEDLY OWED TO YOU IS BETWEEN YOU AND SUCH PAYOR AND ANY SUBSTANTIVE DISPUTE YOU HAVE WITH A THIRD-PARTY SOFTWARE PROVIDER ABOUT THE VALIDITY OR ACCURACY OF PAYMENT DATA IS BETWEEN YOU AND SUCH THIRD-PARTY SOFTWARE OR ERP PROVIDER. YOU IRREVOCABLY RELEASE US (AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES) FROM ALL CLAIMS, DEMANDS AND DAMAGES (INCLUDING BUT NOT LIMITED TO DIRECT AND CONSEQUENTIAL DAMAGES AND OTHER SPECIAL, INDIRECT OR INCIDENTAL DAMAGES) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. WE WILL NOT, AND WILL NOT ATTEMPT, TO REVERSE OR OTHERWISE RECOVER ANY PAYMENT OR TRANSACTION THAT IS SUBJECT TO A BONA FIDE DISPUTE BETWEEN YOU AND ANY THIRD PARTY.
22. Limitation on Liability.
    1. IN NO EVENT SHALL WE OR OUR FINANCIAL INSTITUTIONS, SERVICE PROVIDERS, OR LICENSORS (COLLECTIVELY, “PARTNERS”) BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICES, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT WE OR OUR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. WE AND OUR PARTNERS WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW.
    2. NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS: (A) SUBJECT TO SUBPART ‘(B)’, IN NO EVENT SHALL OUR OR OUR PARTNERS’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICES EXCEED THE LESSER OF (1) THE TOTAL DOLLAR AMOUNT OF TRANSACTIONS THAT WE PROCESSED ON YOUR BEHALF IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT(S) THAT GAVE RISE TO SUCH LIABILITY, OR (2) ONE THOUSAND DOLLARS ($1,000.00) (AS APPLICABLE, THE “INDIVIDUAL CAP”, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION; AND (B) YOU ACKNOWLEDGE AND AGREE THAT, NOTWITHSTANDING SUBPART ‘(A)’, IN THE EVENT THERE IS AN INCIDENT (I.E., AN ISSUE, ERROR, GLITCH, OR SIMILAR EVENT) AFFECTING MULTIPLE USERS OF BILLGO EXCHANGE OR THE PORTAL (E.G., OTHER BILLERS), (I) OUR MAXIMUM CUMULATIVE LIABILITY FOR SUCH INCIDENT FOR EVERYONE AFFECTED (INCLUDING YOU AND ALL APPLICABLE THIRD PARTIES) IS ONE MILLION DOLLARS ($1,000,000.00) (“INDIVIDUAL  CAP”), (II) WE RESERVE THE RIGHT IN OUR SOLE DISCRETION TO DESIGNATE A SPLIT OF THE INCIDENT CAP BETWEEN ALL AFFECTED USERS, IN WHICH CASE YOUR DESIGNATED PORTION THEREOF (“YOUR  DESIGNATED  PORTION”) MAY BE LESS THAN THE INDIVIDUAL CAP SPECIFIED ABOVE, AND YOU WILL ONLY RECEIVE YOUR DESIGNATED PORTION, AND (III) IN NO EVENT WILL YOUR DESIGNATED PORTION EXCEED THE INDIVIDUAL CAP. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY, OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, IN THOSE JURISDICTIONS, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.
23. Term; Termination.These Terms will begin on the Effective Date and will remain in effect until terminated as set forth below.
    1. We may terminate your access to the Services or these Terms at any time for any reason. If we terminate your access to the Services or these Terms, we will use commercially reasonable efforts to provide notice to you but will not be required to do so and will not be liable for our failure to do so.
    2. You can cancel the Services, and terminate these Terms, at any time by contacting our support team by phone at 1-800-941-8997 or email at exchangesupport@billgo.com; except that you acknowledge: (i) it may take up to ten (10) business days for us to process your cancellation; (ii) we will continue to process payments during this time; and (iii) and these Terms will continue to apply until the effective date of termination. 
24. Suspension. We may, with or without notice, immediately suspend the Services without incurring liability to you if we: (i) determine (in our sole discretion) you may be in violation of these Terms, or any laws, regulations, or third-party rights; (ii) are required to do so by any applicable laws, regulations, industry standards, or financial institutions, or by any Payor or other partner instructions, policies, or guidelines; (iii) determine (in our sole discretion) that you may have perpetrated (or are perpetrating) any fraud, or any acts or omissions which may damage, interfere with, or cause loss to, any of our networks, systems, data, or equipment; or (iv) determine (in our sole discretion) any of your acts or omissions may cause damage to our, or our Partners’, reputation(s).
25. Indemnity. You agree to indemnify, defend, and hold harmless us and any Partners from and against all claims, actions or demands, losses, damages, liabilities, settlements, fines, penalties, costs and expenses (including, without limitation, attorneys' fees), resulting from, arising out of, or related to one or more of the following: (i) any breach or violation, or alleged breach or violation, by you of these Terms or applicable law; (ii) any negligent, reckless, or willful act or omission by you; (iii) any of your products, services, networks, systems, or equipment; (iv) any disputes between you and any third-party including without limitation, Payor; (v) actions taken by us in connection with your requests, including but not limited to any Data Transfer; (vi) any loss or misuse of your login credentials for your BillGO account; or (vii) your violation of any third-party right including any intellectual property right, or publicity, confidentiality, other property or privacy right. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and you agree to cooperate with our defense of that claim.
26. Arbitration.
    1. General. The parties agree that any and all Disputes (as defined below), except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. BILLER AND BILLGO EACH WAIVE ANY RIGHT TO HAVE ITS CASE DECIDED BY A JURY AND WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST THE OTHER PARTY. If any provision of these arbitration provisions is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). For the purpose of these Terms, “Disputes” are defined as any claim, controversy, or dispute between you and us (or our respective affiliates, agents, directors or employees), whether arising before or during the effective period of these Terms, and including any claim, controversy, or dispute based on any conduct of you or us that occurred before the effective date of these Terms, including any claims relating in any way to the Services, these Terms, or any other aspect of the parties’ relationship.
    2. Pre-Filing Requirement to Attempt to Resolve Disputes. Before an arbitration is commenced, the parties agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of these Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to us should be sent in accordance with subsection 27.6. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (i) include the claiming party’s name and address; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that state courts in the City of Fort Collins, Colorado and County of Larimer, Colorado, or federal court for the District of Colorado, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
    3. Scope of Arbitration. If the parties are not able to resolve the Dispute by informal negotiation or, as provided below, in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the Commercial Arbitration Rules for that forum, the parties will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
    4. Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
    5. Arbitration Procedures. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Any arbitration hearing will occur in Denver, Colorado, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
    6. Arbitration Fees. In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to you and us also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.
    7. Opt Out. You may reject the arbitration provisions of these Terms, in which case only a court may be used to resolve any Dispute. To reject this provision, you must send us an opt-out notice (the “Opt Out”) within thirty (30) days after you create a BillGO account or we first provide you with the right to reject the arbitration provisions. The Opt Out must be mailed to 3003 E Harmony Rd., Suite 500, Fort Collins, CO 80528. This is the only way of opting out of the arbitration provisions. Opting out will not affect any other aspect of the Services and will have no effect on any other or future agreements may to arbitrate between you and us.
27. General.
    1. Choice of Law and Forum; Jury Trial Waiver. Subject to and without waiver of the arbitration provisions above, these Terms shall be governed by, and all Disputes resolved in accordance with, the Federal Arbitration Act as set forth above, and by the laws of the State of Delaware without regard to its conflict of law rules. THE PARTIES WAIVE TO THE FULLEST EXTENT BY LAW THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY.
    2. Severability. Except as otherwise set forth in Section 26.1, if any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.
    3. Assignment. You may not delegate or assign these Terms or any of the rights or obligations granted hereunder without our prior written consent. We may freely assign or delegate these Terms. Any purported assignment or delegation in violation of these Terms will be void. These Terms bind and benefit the parties and their respective permitted successors and assigns.
    4. Waiver. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly so stated in writing. Our rights and remedies herein are cumulative and not exclusive of each other or of any rights or remedies that we would otherwise have.
    5. Survival. Sections 4, 5, 15, 17, 20, 21, 22, 23, 25, 26, and 27 of these Terms will survive termination.
    6. Notice. All notices from you to us in connection with these Terms must be sent by registered or first-class mail, return receipt requested, to BillGO - Biller Solutions, 3003 E Harmony Rd., Suite 500, Fort Collins, CO 80528 Attn: Legal. Notices will be deemed delivered when received.
    7. Force Majeure.Other than with respect to your payment obligations, neither party shall be responsible or liable for, or deemed in breach hereof because of, any delay in the performance of their respective obligations due to circumstances preventing performance that are beyond the reasonable control of the party experiencing the delay, including acts of God, severe weather conditions, strikes or other labor difficulties, war, riots, requirements, actions or failures to act on the part of governmental authorities, inability despite due diligence to obtain required licenses, permits or approvals, fire, damage to or breakdown of necessary facilities, or transportation delays or accidents. With respect to us, a force majeure event includes acts and omissions by Partners, or any end customers of either party.
    8. Entire Agreement. These Terms contain the entire understanding of the parties. In the event of a conflict between any of the terms and conditions herein and any terms or conditions in the Policies, the Policies will control.