BlueX Pay Services Agreement
Last Modified: September 9, 2021
This BlueX Pay SERVICES AGREEMENT (including all exhibits, schedules and incorporated documents, collectively "Agreement"), is made and entered into as of the date Customer (“Customer” or “you”) submits registration form on the BlueX Pay Website, by and between BlueX Trade, Inc. (sometimes referred to herein and elsewhere on websites (the “Sites”) owned by BlueX Trade, Inc. as “BlueX Pay”, “we” or “us”) and Customer. BlueX Pay and Customer are referred to herein for convenience each as a "Party" and collectively as the "Parties".

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SITES AND/OR SERVICES. BY ACCESSING OR USING THE SITES AND/OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITES OR SERVICES AND SHOULD IMMEDIATELY CEASE SUCH USE. BLUEX PAY MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE SITE OR VIA EMAIL. YOUR USE OF ANY OF THE SITES AND/OR SERVICES FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE AND/OR THE SERVICES SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. IF WE REQUEST, YOU IRREVOCABLY AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
Introduction
  • Our Role: The BlueX Pay service (“BlueX Pay Service(s)” or the “Service(s)”) consist of : (i) payment account boarding; (ii) payment data transmission services that help you integrate with a payment processor (each, a “Processor”), (iii) overnight payments facilitation; and (iii) payment terms as described more fully in this Agreement. You hereby appoint us as your agent to deliver information and instructions on your behalf to the Processor and in some cases act as your OTI (Ocean Transport Intermediary) to deliver payments.

    Neither BlueX Trade, Inc. nor any of its Affiliates is a bank, payment institution, processor, or money services business. BlueX Trade, Inc. is a supplier of the BlueX Pay Services as provided under this Agreement. From time to time, in addition to this Agreement, you may be required to enter into separate contractual relationships with banks, payment processors and/or money services businesses in order to make use of some or all of the Services, as further described herein.
  • The Processors: The initial sole Processor shall be Airwallex US, LLC and/or designated affiliate(s) thereof (collectively, “Airwallex”). BlueX Pay may add or substitute Processors from time to time. Each Processor will offer services to you on its own or as an agent of one or more banks or other financial institutions in the regions Services are offered (each such financial institution, a “Financial Services Provider”). Additionally, each Processor will have a contractual relationship with BlueXPay. The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under one or more separate Processor Account Agreements(s), and to the extent you use a payment method that is subject to additional terms, the related Payment Terms (collectively, the “Processor Terms”). By entering into this Agreement and using the Services, you also agree to enter into and be bound by the applicable Processor Terms, which will be the legal agreement between you and the Processor. BlueX Pay on behalf of the Processor, or the Processor itself, will provide you with one or more means by which you can review and agree to the Processor Terms. If you do not agree to the Processor Terms, you may not use the Services, and you thereby authorize BlueX Pay to terminate this Agreement with you.

    BlueX Pay will not be a party to the Processor Terms and is not liable to you in respect thereof. By entering into this Agreement and the Processor Terms, you will authorize the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to add additional Processors or to change any Processor, subject to the terms of our agreement with any such Processor. In the event we require you to enter into additional or amended Processor Terms with existing, additional or different Processors, you agree to do so in order to continue using the Services. If you do not agree to do so, you may not continue to use the Services, and you authorize BlueXPay to terminate this Agreement with you. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail.
  • Additional Requirements of You: In order to utilize the Services, Customer must be a business located in an approved jurisdiction listed on the Site linked to within Exhibit A. You represent, warrant and covenant that Customer’s entry into and performance under this Agreement will not conflict with, violate, result in a breach of any contract to which Customer is a party or any law applicable to Customer.
  • The Services: BlueX Pay desires to make the BlueX Pay Services available to Customer in accordance with and subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
  • Definitions and Construction. The following terms have the meanings set forth below. Certain other terms are defined elsewhere in this Agreement and are used with the meanings ascribed to them. In this Agreement, the singular includes the plural and the plural the singular; the terms "including" and "include" shall mean "including without limitation"; any gender used includes any other gender, and references to a "Section" shall mean a section of this Agreement, unless otherwise expressly provided herein. Headings and captions contained in this Agreement are for convenience of reference only. The Introduction contained herein is incorporated into, and forms a part of, this Agreement and Customer acknowledges that BlueX Pay is relying on the statements in such Introduction in entering into this Agreement.
    • “Approved Transaction” means a Valid Invoice which has been submitted by either the Payer or the Biller via the BlueX Pay Service and which the Payer has approved payment by selecting the “Approve” button (or similar online or automated functionality).
    • “Authorized Signer” means the person(s) who has been duly authorized by Customer to complete the Registration Application and/or Payment Terms Application and to execute this Agreement.
    • “Authorized Users” means only those employees of Customer who are designated and authorized by Customer to use the Services as specified under the terms of this Agreement.
    • “Biller” means a Person who receives payments for Valid Invoices using the BlueX Pay Services.
    • “BlueX Pay System” means a web based application accessible at www.BlueXPay.com that is used by Fully Registered Payers and Fully Registered Billers to access the BlueX Pay Services including those in Exhibit B.
    • “Customer” is a Fully Registered Payer or Fully Registered Biller, including Non-Asset Based Customers.
    • “Customer Information” refers to any information provided in the Registration Application and the Payment Terms Application as well as information regarding Customer’s business operations, including invoices and bills of lading, that is provided by Customer to BlueX Pay or obtained by BlueX Pay in accordance with this Agreement.
    • “Fees” means the Transaction Fees and other charges due to BlueX Pay listed on the Fee Schedule in Exhibit C, as modified from time to time.
    • “Fully Registered Biller” means a Biller who has completed the steps necessary to receive Wallet payments on the BlueX Pay System.
    • “Fully Registered Payer” means a Payer who has completed the steps necessary to pay a Valid Invoice from their Wallet.
    • “Legal Requirements” means any laws, regulations, judicial or administrative decisions, executive orders, rules or interpretations applicable to using the Services in connection with Customer’s business.
    • “Non-Asset Based Customer” (or “N-ABC”) means a Customer, including an NVOCC (Non-Vessel Operating Common Carrier) or a freight forwarder who brokers or serves as a facilitator of Transactions, but does not actually provide transport services or ship goods it owns.
    • “NRC” means a Non-Registered Customer (Biller or Carrier, as applicable).
    • “Payer” means a Person who pays Valid Invoices of a Biller using the BlueX Pay Services.
    • “Payment Terms” means when Payer receives more time to pay their Valid Invoice, including Overnight Payments.
    • “Payment Terms Limit” means the maximum limit BlueX Pay has determined, in their sole discretion, that shall be extended to a Payer for BlueX Pay Payment Terms Transactions, including Overnight Payments.
    • “Person” means a corporation, limited liability company, association or partnership.
    • “Registration Application” means the online application available on the BlueX Pay System that must be completed by Customer before the Customer may be approved to participate in the BlueX Pay Service.
    • “Settlement” means the payments process by which funds are disbursed to Billers on behalf of Payers, in connection with Transactions.
    • “Settlement Account” means the bank accounts or Wallet designated by Customer to be used for the purpose of Settlement of BlueX Pay Transactions.
    • “Sites” means websites or uniform resource locators owned by BlueX Trade, Inc. or any of its affiliates, including the BlueXPay System.
    • “Transaction(s)” means a separately identifiable invoice or other item submitted by a Biller for payment by a Payer.
    • “Valid Invoices” means a current and valid invoice (or similar statement of amount due) for freight charges and related expenses, and services, provided by a Biller.
    • “Wallet” is a Settlement Account accessible on the BlueX Pay Service but held with a Processor’s Financial Services Provider.
  • Customer Authorization.
    • Verification of Information. Customer hereby authorizes BlueX Pay, the Processor or any of their designated agents, to verify the information on the Registration Application, the Payment Terms Application, if any, and information concerning any corporate officer, principal, partner or owner of Customer as requested, including for purposes of satisfying requirements under applicable law concerning “know your customer,” anti-money laundering, Bank Secrecy Act and related matters. Customer agrees to supply requested information to BlueX Pay, the Processor or any of their designated agents to carry out the foregoing purposes, and represents, warrants and covenants that any such information shall be true, complete and accurate. Customer agrees that if the information it supplies pursuant to this Section 2.1 is deemed deficient by BlueX Pay, the Processor or any of their designated agents, it will supply additional information promptly upon request. Customer agrees that BlueX Pay, the Processor, any Financial Services Provider or any of their designated agents may at their sole discretion decline to perform services under this Agreement, the Processor Terms or any related agreement or set of terms and conditions if any of the foregoing persons believe the information supplied by Customer pursuant to this Section 2.1 deficient, inaccurate, a violation of any of their policies or unlawful in any manner.
    • Authorization. Customer grants to (i) BlueX Pay (ii) the Processor, (iii) the Financial Services Provider, (iv) Customer’s trade references and bank references provided by Customer, and (v) consumer credit services, consumer reporting agencies, permission and authorization to verify, receive, and obtain business and other information, including without limitation criminal background checks of Customer (including any corporate officers thereof), as part of BlueX Pay’s and Processor’s ongoing evaluation of Customer throughout the Term of this Agreement.
    • Electronic Documents. A Customer who is executing this Agreement online will complete the Registration Application, Payment Terms Application, and the Agreement online with electronic signatures shall be as effective and binding as signing a paper Agreement.
    • Payer Documents. A Customer who is executing a paper copy of the Agreement (including as required by Section 5.6) agrees and acknowledges that certain parts of this Agreement, including the Registration Application and Payment Terms Application, must be completed electronically online on the BlueX Pay System. Customer further acknowledges that those applications are incorporated into this Agreement and made a part hereof and are relied upon by BlueX Pay, the Processor and any of their agents.
  • Services. The BlueX Pay Services are made available to Customer through the BlueX Pay System, which is composed of various applications which store, manage, deliver, download and display information related to Transactions between Billers and Payers, the payments associated with such Transactions and the funds available in Customer’s Wallet. Fully Registered Billers and Fully Registered Payers will access the BlueX Pay Service in accordance with this Agreement and the Program Schedules for the Settlement of Transactions. The Services are provided on an “as is” and “as available” basis, and BlueX Pay makes no warranty concerning the business results that may be obtained from use of the Services nor assumes any responsibility or liability for (i) the timeliness of communications or the deletion or the failure to store payments or other data, whether or not caused directly or indirectly by BlueX Pay, or (ii) any third party’s unauthorized access to the BlueX Pay Services account and passwords through Customer.
    • Third Party Services. To the extent the Sites provide links or access to Third Party Products and services, You expressly acknowledge and agree that Third Parties are intended third-party beneficiaries of this Agreement pertaining to Your use of the Third Party Products/services and will have the right to enforce this Agreement directly against You in their own names. BlueX Pay expressly disclaims any responsibility for the content of third-party sites and disclaims any and all liability resulting from Your use of such sites or the services offered by such third parties.
    THE SITES AND THE SERVICES AVAILABLE THEREON AND/OR PROVIDED THEREFROM ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE SITES AND THE SERVICES ARE AT YOUR OWN RISK. BLUEX PAY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. BLUEX PAY DOES NOT WARRANT THAT YOUR USE OF THE SITES WILL BE UNINTERRUPTED OR ERROR-FREE. BLUEX PAY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE INFORMATION YOU OBTAIN FROM THE SITE, INCLUDING THE CAPABILITY, CORRECTNESS, ACCURACY, OR RELIABILITY OF THE INFORMATION. YOU EXPRESSLY ACKNOWLEDGE THAT BLUEX PAY SHALL IN NO EVENT BE HELD LIABLE FOR ANY DAMAGES, SUITS OR CLAIMS RELATING TO THE INFORMATION OBTAINED BY YOU FROM THE SITES, OR THE USE BY YOU OF SUCH INFORMATION. NO ORAL OR WRITTEN REPRESENTATION OR ADVICE GIVEN BY BLUEX PAY WILL BE DEEMED TO CREATE SUCH A WARRANTY. BLUEX PAY MAY PROVIDE LINKS OR OTHER ACCESS TO WEBSITES MAINTAINED BY THIRD PARTIES, WHICH ALLOW A USER TO LEAVE THE SITE TO ACCESS THIRD PARTY MATERIAL OR TO INCORPORATE THIRD PARTY MATERIAL INTO THE SITE VIA “INVERSE” HYPERLINKS AND FRAMING TECHNOLOGY (A “LINKED SITE”). BLUEX PAY ASSUMES NO RESPONSIBILITY FOR THE AVAILABILITY OF SUCH THIRD- PARTY SITES OR FOR THE CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE ON A LINKED SITE AND THE PROVISION OF SUCH A LINK SHALL NOT BE CONSTRUED AS AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION WITH RESPECT TO SUCH THIRD-PARTY SITE, ITS CONTENTS, OWNERS OR PROVIDERS
  • Requirements for Use of the BlueX Pay Service.
    • Compliance with Import and Export Laws. The BlueX Pay Service uses software and technology subject to United States laws that impose export restrictions or economic sanctions on, or otherwise prohibit or penalize, dealing with the governments, nationals, Specially Designated Nationals (SDNs) and products and services originating from or owned and controlled by certain countries or in which such governments, nationals or SDNs have an interest. These laws include the Export Administration Act of 1979 administered by the U.S. Department of Commerce and the economic sanctions regulations administered by the U.S. Treasury’s Office of Foreign Assets Control (“OFAC”) (all such laws, collectively the “Sanctions Laws”). Customer warrants, for the period during which Customer utilizes the Services, that it and its Authorized Users are (i) not located in or under the control of the government of a country subject to U.S. sanctions (which presently includes Cuba, Iran, Myanmar (Burma), North Korea, Sudan and Syria); (ii) are not on OFAC’s SDN list or the Department of Commerce’s denied persons list. Customer further warrants that the information, software and technology used by the BlueX Pay Service will not be transferred, exported or re-exported to a sanctioned country, SDN or denied person or otherwise used in violation of the Sanctions Laws. Customer is responsible for ensuring that any necessary licenses for its business (including import and export licenses) are obtained from the relevant governmental authority.
    • User Access. Customer shall grant access to the BlueX Pay Services only to those employees who are designated by Customer to use the Services as Authorized Users.
    • Use of BlueX Pay Service. Customer and its Authorized Users may use the BlueX Pay Services only for purposes specified in this Agreement, as amended from time to time.
    • Prohibited Use. Customer may not use the BlueX Pay Services in order to transmit, distribute, store or destroy material (a) in violation of any Legal Requirements (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of third parties or violate the privacy, publicity or other personal rights of third parties, (c) that is defamatory, obscene, threatening, abusive or hateful or (d) that otherwise may violate BlueX Pay’s, any Processor’s or any Financial Service Provider’s acceptable use policies.
    • Prohibited Conduct. Customers are prohibited from violating or attempting to violate the security of the BlueX Pay System, including, without limitation: (a) accessing data not intended for such Customer, or logging into a server or account which the Authorized User is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network; (d) sending unsolicited or unauthorized e-mails, including promotions and/or advertising of products or services; (e) inputting information which they are not authorized to input because they are neither the lawful owner of nor an authorized user of such information.
    • Prohibited Information. Customers are expressly prohibited from (a) providing any incomplete, false or inaccurate biographical information, when completing the Registration Application or Credit Application; (b) using any device, software or routine to interfere or attempt to interfere with the proper working of the BlueX Pay Services or any activity being conducted on the BlueX Pay Services; (c) taking any action which imposes an unreasonable or disproportionately large load on the BlueX Pay Services infrastructure; (d) disclosing or sharing passwords with any non-authorized users or third parties or using passwords for any unauthorized purpose; (e) using or attempting to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the BlueX Pay System other than the search engine and search agents provided by BlueX Pay, if any, on the BlueX Pay Services and other than generally available third party web browsers (e.g., Google Chrome, Firefox, Microsoft Edge); and (f) attempting to modify, decipher, decompile, disassemble, create derivative works or reverse engineer any of the software comprising or in any way making up part of the BlueX Pay Services.
    • BlueX Pay Service Customer Account and Passwords. Customer is responsible for maintaining the confidentiality of its BlueX Pay System user name and passwords and for ensuring that only Authorized Users have access to the BlueX Pay System. Customer is responsible for actions taken using the BlueX Pay System by Customer’s employees or those acting on behalf of Customer or using passwords obtained from Customer. All usernames and passwords are the property of BlueX Pay, in its sole discretion, may revoke them (or otherwise restrict Customer’s access to the BlueX Pay Service) or require Customer to change its usernames and/or passwords. Customer agrees that the information you provide to us will be accurate and that you will keep it up-to-date at all times. Users of BlueX Pay Services will be asked to create a strong password and provide a device on which to receive a multi-factor authentication code, one-time password or similar authentication token or mechanism (collectively, the User’s “Login Credentials”). Users are solely responsible for maintaining the confidentiality of Login Credentials, and to the extent allowed by law, you accept responsibility for all activities on your account authenticated through User Login Credentials, whether authorized or not. Each User agrees to keep User Login Credentials confidential and secure, and Users will not give or make Login Credentials available, directly or indirectly, to any unauthorized individual. You acknowledge and agree that if Users allow, whether through action or inaction, a person to gain access to Login Credentials, with or without permission, the User is authorizing that person to use the Service, and You will be responsible for all transactions that result from such access, even if You did not want the transactions performed, and even if they are unauthorized or fraudulent. From time to time, BlueX Pay may request that you change your password or otherwise cooperate with security protocols designed to ensure the security of the Services, and you agree to comply with such requests. Commercially Reasonable Security Procedures. You acknowledge and agree that BlueX Pay's and the Processor’s security procedures are commercially reasonable methods of verifying your identity and payment instructions, providing security against unauthorized payment instructions and fraud, and protecting your BlueXPay and/or Processor accounts. You agree to notify BlueX Pay and the applicable Processor immediately of any unauthorized use of your account or any other breach of security, including suspected theft or compromise. BlueX Pay will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by BlueX Pay or another party due to someone else using your account or password. You acknowledge and agree that by providing any information to BlueX Pay which is untrue, inaccurate, not current or incomplete, BlueX Pay reserves the right to terminate this Agreement and your continued access and use of the Sites and/or the Services. To the extent allowed by law: You agree to be bound by all payment instructions or transactions initiated in compliance with BlueX Pay's security procedures and this Agreement, whether or not authorized. You agree that You will be liable for all losses or payments resulting from the theft, loss, compromise, or unauthorized use of Your BlueX Pay account or User Login Credentials, unless (1) You have notified BlueX Pay of possible theft, loss, compromise or unauthorized use, and (2) We have had a reasonable opportunity to act on that notice. You will also be responsible for any losses or unauthorized payments resulting from any fraudulent or illegal compromise of Your systems. You agree that You will be responsible and liable for payments or transfers containing inaccurate instructions or other errors, unless limited by law. Upon Your timely report, We may, in our sole discretion, use good faith measures to attempt to reverse and recover any unauthorized or erroneous payments or transfers on Your behalf, but BlueX Pay will have no responsibility, obligation, or liability in relation to such payments or transfers or any reversal or recovery attempts.
    • Customer Information. The Services shall be provided in reliance upon Customer Information provided to BlueX Pay. Customer shall be responsible for ensuring the validity, accuracy and completeness of all Customer Information, data and instructions provided by Customer. BlueX Pay shall not be required to act on instructions provided by Customer if BlueX Pay has a reasonable basis for believing the Customer Information provided by Customer is not accurate, or that Customer has failed to comply with this Agreement or any Legal Requirements.
  • Settlement; Transactions.
    • Settlement. Using the BlueX Pay Service, BlueX Pay will facilitate the processing and disbursement of payments through the Processor on behalf of Customers according to the Settlement and payment terms outlined in Program Schedules for Billers and Payers attached hereto as Exhibits A and B. BlueX Pay reserves the right to modify the Program Schedules (by removing, adding new or editing terms) as required by BlueX Pay, applicable banking rules and regulations or Legal Requirements. In the event of a modification to the Program Schedules, BlueX Pay shall provide Customer the revised Program Schedules with reasonable advance notice prior to their effective date.
    • Outstanding Transactions Following Termination. Upon termination of this Agreement for any reason, BlueX Pay shall cancel all Transactions that have not been submitted for processing.
    • General Authorization. Customer hereby authorizes BlueX Pay to initiate credit and/or debit entries, as applicable, from Customer’s Settlement Account(s) designated on the Registration Application. If any funds relating to a debit Transaction are returned for any reason, Customer (Biller or Payer) agrees that BlueX Pay may (in addition to rights and remedies provided elsewhere in this Agreement) initiate subsequent debits or credit card charges for such Transaction amount and any corresponding Fees. Customer agrees that its failure to ensure sufficient funds are available in Customer’s Settlement Account(s) for any debit transaction, or that sufficient credit is not available on their Wallet for such a transaction, may result in additional charges from the Processor or Financial Institution, and/or BlueX Pay, which amounts will be subsequently deducted from Customer’s account(s) or collected as otherwise permitted herein.
    • Customer will immediately provide BlueX Pay with notice of any changes to Customer’s Settlement Account(s), and Customer shall hold BlueX Pay harmless from liabilities resulting from Transactions processed using outdated or incorrect Account information. The authorizations provided in this Section 5.3 and 5.4 shall remain in effect until the later of (i) thirty (30) days after this Agreement has been terminated, or (ii) BlueX Pay has completed processing Customer’s pending Transactions. Notwithstanding anything to the contrary herein, the authorizations shall survive any termination for a time period reasonably necessary for BlueX Pay to complete the processing of Customer’s pending Transactions, but in no event less than such time period required by then-applicable laws and regulations, including, but not limited to, NACHA regulations.
    • Payment Terms Limit. Upon completion of the Application for BlueX Pay Payment Terms, BlueX Pay shall determine, in their sole discretion, the monetary Funds Limit allowed for a Customer’s Transactions. The Payment Terms Limit will be based on information BlueX Pay may deem appropriate. Customer acknowledges that BlueX Pay provides no assurance that available Payment Terms Limit will be established for Payers, or that it will be maintained, if granted. The Customer agrees not to request or permit Transactions in excess of the Payment Terms Limit.
    • Customer acknowledges that BlueX Pay is not a money services business or money transmitter and that BlueX Pay will never receive or store money or monetary value for transmission. All money and monetary value will be received, stored, and transmitted through a financial institution owned settlement account, including without limitation a Processor or Financial Services Provider. To the extent that BlueX Pay is construed to receive money or monetary value for transmission under any state or federal law, Biller hereby appoints BlueX Pay as its freight forwarder agent (OTI) for the limited purpose of receiving payment from Payers on behalf of the Biller. In the event that BlueX Pay does not make any such payment to Biller as described in this Agreement, Biller will have recourse against only BlueX Pay and the Processor and not against any Payer.
  • Valid Invoices. Customer agrees and represents to BlueX Pay that (i) only Valid Invoices will be submitted in connection with the BlueX Pay Services, and (ii) any and all BlueX Pay Payment Terms extended by BlueX Pay to a Payer shall be applied in its entirety and exclusively to payment of Valid Invoices of Billers. Customer further agrees that it will not submit Transactions or invoices for payment with entities affiliated with Customer.
  • Disputes.
    • Disputes after Approval. If a dispute occurs with respect to any Transaction, Customer agrees that it will settle the dispute directly with the other parties to a Transaction and not involve BlueX Pay.
    • WITHOUT LIMITATION OF THE FOREGOING, BLUEX PAY IS NOT AFFILIATED WITH ANY OTHER PAYER, BILLER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND YOU ACKNOWLEDGE AND AGREE THAT ANY DISPUTE YOU HAVE WITH ANY OTHER PAYER, BILLER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM SUCH TRANSACTION OR OTHERWISE FROM YOUR USE OF THE SERVICEIS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE BLUEX PAY (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. BLUEX PAY WILL NOT, AND WILL NOT ATTEMPT, TO REVERSE OR OTHERWISE RECOVER ANY PAYMENT OR TRANSACTION THAT IS SUBJECT TO A BONA FIDE DISPUTE.
  • Lien Rights.
    • Payer Lien Rights. Each Customer that is a Payer agrees to have sufficient funds available in its Settlement Account to (i) repay all extensions of BlueX Pay Payment Terms and Fees when they become due and payable; and (ii) to settle approved Overnight Payment Transactions.
    • BlueX Pay shall have a lien on any and all goods of each Customer that is a Payer (also referred to as consignee or bill to party) in the possession (constructive, in-transit or otherwise), custody, control of such Payer or the related Biller to secure payment of BlueX Pay Payment Terms extended to such Payer for Approved Transactions, Fees, charges and all other amounts owed or due to BlueX Pay in connection with using any Services. When the Customer is a Non-Asset Based Carrier, BlueX Pay shall have a lien on the accounts receivable from the customers of the Non-Asset Based Carrier. The subject lien may be asserted against any such goods without regard to whether the monies claimed as owed relate to the prior shipment of goods or goods currently being shipped. BlueX Pay reserves the right to foreclose and/or satisfy its lien rights by selling the goods at public auction or private sale (or collecting or selling accounts receivable of an N-ABC) at the sole discretion of BlueX Pay upon proper and due notice to the Payer (or N- ABC), and upon receipt of notice in accordance with these provisions, Payer will undertake to notify any other parties with a beneficial interest in the subject goods.
    • Biller Lien Rights. Once a Customer that is a Biller has been paid in a given Approved Transaction, such Biller agrees not to object to any notice of lien submitted by BlueX Pay in connection with BlueX Pay asserting its lien rights on any and all goods of the related Payer (also referred to as consignee or bill-to party) in the possession (constructive or otherwise), custody, control of such Biller or the related Payer for extensions of BlueX Pay Payment Terms and all other amounts owed or due to BlueX Pay.
    • Grant of Security Interest. As security for any existing and future indebtedness of Customer (whether in its capacity as a Payer or a Biller) to BlueX Pay, including claims for charges, expenses or advances incurred by BlueX Pay in connection with any shipment or transaction of Customer, and whether or not presently contemplated by such Customer, any related Biller or Payer and/or BlueX Pay, such Customer hereby grants, assigns, transfers, conveys, pledges and mortgages to BlueX Pay a first perfected priority security interest/lien in/upon all goods, documents of title and other property for which such Customer provides for its customers and clients and for which settlement of Overnight Payment Transactions are extended hereto (collectively, with proceeds of the foregoing, the "Collateral"). Customer expressly warrants and represents to BlueX Pay that it holds and maintains valid and perfected liens, title and/or security interests in the Collateral by way of (as applicable): (a) carrier's and/or warehouse liens upon the Collateral under Article 7 of the Uniform Commercial Code, U.S. maritime law, and/or other applicable law; (b) consensual security interests in the Collateral under Article 9 of the Uniform Commercial Code or other applicable law; and/or (c) general and continuing liens pursuant to contractual agreements with its customers and/or its tariffs in effect governing the services provided by Biller or Payer to its customers. Customer expressly agrees that it holds the Collateral as bailee for BlueX Pay’s benefit to secure Customer’s obligations under the terms of this Agreement and that BlueX Pay shall have a security interest and a general and continuing lien on any and all Collateral, wheresoever located, in the possession, custody or control of Customer or its agents, for any amounts owed by Customer to BlueX Pay with regard to the shipment on which the lien is claimed, a prior shipment(s) or both, and without regard to the services performed by Customer for its customer. BlueX Pay is hereby granted power of attorney to execute and file appropriate financing statements or to otherwise effect any other means of perfection of security interests pursuant to applicable law on Customer’s behalf. This lien and security interest shall be in addition to any other rights BlueX Pay has or may acquire under other agreements, conventions, tariffs and/or applicable laws, and shall survive delivery or releases of any Collateral. In the event of any failure to fund or in the event of an non-sufficient funds notification or failure to pay any amounts due hereunder, Biller or Payer shall notify all parties having an interest in its shipment(s) of BlueX Pay 's rights and/or the exercise of such lien. Unless, within thirty days of receiving notice of BlueX Pay’s intent to exercise such lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of BlueX Pay, guaranteeing payment of the monies owed, plus all charges accrued or to be accrued, BlueX Pay shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
  • Term and Termination.
    • Term. This Agreement commences on the date BlueX Pay approves this Agreement and will extend for an initial term of one (1) year (“Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”), unless BlueX Pay or Customer gives the other Party written notice of its intent not to renew this Agreement at least ninety (90) days prior to the end of the Initial Term or then current Renewal Term. Collectively the Initial Term and Renewal Term are referred to as the “Term” of this Agreement.
    • Termination.
    • Breach. Either Party may terminate this Agreement if the other: (a) breaches a material representation, warranty, term, condition or obligation under this Agreement, and fails to cure such breach within ten (10) days after receiving written notice of such breach, or (b) the other party is dissolved, becomes insolvent, files bankruptcy, or generally fails to pay or admits in writing its general inability to pay its debts as they become due.
    • Additional Termination Rights. BlueX Pay may terminate this Agreement or suspend all or a portion of its Services immediately if (i) Customer’s performance of its obligations or use of the Services violates any federal, state or local law, rule or regulation; (ii) BlueX Pay reasonably determines, based on its evaluation of Customer’s financial condition or business prospects, that a material adverse change has occurred in Customer’s financial condition, or that such a change is reasonably likely to occur and to adversely impact BlueX Pay; (iii) Customer fails to pay any amount due within five (5) days of its due date; or (iv) Customer submits an invoice for payment that is not for a Valid Invoice, from a person other than Customer, for products provided or Services rendered. Customer may terminate this Agreement if it does not consent to a prospective amendment thereto following delivery of notice of such prospective amendment by BlueX Pay pursuant to Section 19.5 of this Agreement. Further, this Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that BlueX Pay, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Sites or Services, and remove and discard any content within the Sites, at any time and for any reason. You agree that any actions taken under this Section may be effective without prior notice to you. In the event of termination, however, those Sections in this Agreement which provide for continuing obligations on your part shall survive indefinitely.
    • Survival of Rights. Termination of the Agreement will not limit or affect BlueX Pay right to recover any amounts for which Customer is liable or obligated arising under this Agreement. Termination of the Agreement will not affect Customer’s responsibility to pay all amounts for which it is liable or obligated in connection with the Services provided under this Agreement.
  • Fees, Invoicing and Payment.
    • Fees and Payment. Payer agrees to pay BlueX Pay for all Approved Transactions and Fees incurred for the Services provided by BlueX Pay as provided in this Agreement.
    • Fee Payments. BlueX Pay is hereby directed and authorized, without further action by Customer, to collect for any and all Approved Transactions and Fees due and payable by Customer by: (i) deducting such Transactions and Fees from any Settlement funds due between BlueX Pay and Customer, or (ii) debiting Customer’s Settlement Account for the amount of such Transactions and Fees as they become due.
    • Invoicing. If invoices are not paid in full when due, BlueX Pay will impose a late charge equal to one and one-half percent (1-1/2%) per month if permitted by applicable law, or if not, the maximum amount allowed by law, on the unpaid balance. Invoice discrepancies must be identified in writing by Customer within twenty (20) days of the invoice date.
    • Fee Adjustment. BlueX Pay may adjust the Fees at any time. Any such adjustments will become effective upon written notice to Customer.
    • Renewal Term Fees. The Fees charged during any Renewal Term will be based on BlueX Pay’s then-current standard rates at the time of renewal, which will be provided to Customer.
    • Monthly User Fee. A MonthlyUser Fee will be automatically debited from Customer’s Settlement Account once per month period. By agreeing to these Terms and Conditions, you consent to the Monthly User Fee being charged and the withdrawal of the Monthly User Fee from your Settlement Account once per month period. Notice is hereby given that the amount of the Annual User Fee is subject to change.
  • Compliance with Law and Acceptable Use Policies.
    • Legal Requirements. The Parties agree to comply with, and not use the Services in violation of Legal Requirements, and each Party will be solely liable for their respective violation of Legal Requirements. Customer will use the Services in accordance and compliance with this Agreement and the written policies and procedures provided by BlueX Pay from time-to-time. Customer will not use the Services in violation of BlueX Pay’s, any Processor’s or any Financial Institution’s acceptable use policies.
  • Representations and Warranties. Customer represents and warrants that: (a) it has the requisite power and authority to execute this Agreement; (b) executing this Agreement does not constitute a material conflict with, breach or default under any applicable law, its respective charter or bylaws, or any documents, agreements or other instruments which are binding upon Customer; (c) this Agreement creates valid, legal and binding obligations that are enforceable against Customer; (d) it has, and shall have, the lien rights and/or security interests as set forth in Section 8 hereof; (e) it has notified its customers of the transfer and assignment of the aforementioned lien rights and security interests in the Collateral to Company to secure its obligations hereunder; (f) it has notified its customers that Company or its affiliated entity holds and maintains a general and continuing lien and security interest in the Collateral to secure Customer’s obligations hereunder and under; (g) it has not entered into any contract or agreement with any person or entity, including but not limited to, its customer, which provides that Customer shall not assign or otherwise transfer said liens and security interests; (h) its customers have agreed or otherwise consented to the transfer and assignment of said lien rights and security interests in the Collateral to Company or its affiliated entity; (i) it has a contract with its customers and/or maintains and publishes a tariff which (1) provides for the assertion of the liens over the Collateral; (2) puts its Customers on notice that third parties such as Company or its affiliated entity may have liens or security interests over the Collateral; and (3) provides for the right of Customer and/or such third parties to execute on such lien to sell or otherwise dispose of the Collateral; (j) it will defend the Collateral against all claims and demands of all persons and entities, and will not permit any circumstances to exist under which the Company or its affiliated entity may lose its lien or lien priority on the Collateral; (k) it will promptly pay all potential taxes upon the Collateral that might result in the imposition of a lien upon the Collateral; (l) it will not sell, assign, mortgage, lease, pledge, lend, transfer, allow any third party to use or otherwise dispose of the Collateral without the prior written consent and at the sole discretion of the Company; (m) it shall allow Company or its representatives free access to and right of inspection of the Collateral at any time; (n) all of the information supplied and statements made to Company by or on behalf of Customer relating to Customer’s financial information, capacity to make payments hereunder or the Collateral are and shall be true and complete and accurate, whether supplied or made prior to, contemporaneously with or subsequent to the execution of this Agreement; and (o) that no tangible document of title can be substituted for an electronic record, and that Customer’s customers have acknowledged and agreed to same. Customer expressly agrees and acknowledges that Company shall have the right to instruct the underlying carrier(s) to release any Collateral in their possession, or the possession of their agents, to the custody of Company or its agents, and that the carrier(s) are directed to follow all such instructions by Company with respect to the disposition of any portion of the Collateral, regardless as to whether Company is in possession of the applicable bill(s) of lading.
  • Disclaimer of Warranties. Except as specifically set forth in this Agreement, BlueX Pay disclaims all warranties, express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose, which relate to the Services provided under this Agreement. Further, BlueX Pay does not warrant that Customer’s use of the Services or any component thereof will be uninterrupted or error-free.
  • Limitation of Liability.
    • Limitation of Liability. NEITHER BlueX Pay NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITES OR THE SERVICES; (ii) ANY CONTENT CONTAINED ON THE SITES AND/OR THE SERVICES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITES AND/OR THE SERVICES; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE SITES; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITES OR THE SERVICES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITES OR THE SERVICES, or (vii) ANY OTHER MATTER RELATING TO THE SITES AND/OR THE SERVICES. IN NO EVENT SHALL BlueX Pay'S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING ANY OF THE SERVICES OR THE SITES.
    • BLUEX PAY WILL HAVE NO LIABILITY TO YOU OR THIRD PARTIES IN CONNECTION WITH THE USE OF THE SITES. IN ADDITION, YOU ACKNOWLEDGE THAT BLUEX PAY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OTHER PORTIONS OF THE INTERNET. ACTIONS OR INACTIONS OF THIRD PARTIES MAY RESULT IN SITUATIONS IN WHICH YOUR CONNECTION TO THE INTERNET, USE OF SOFTWARE SERVICES, OR INFORMATION AND SYSTEMS MAY BE IMPAIRED, DISRUPTED OR DAMAGED. ALTHOUGH BLUEX PAY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, BLUEX PAY CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, BLUEX PAY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
    • This limitation of liability does not limit in any way the amounts owed by Customer (i) in connection with Settlement for Transactions, (ii) for BlueX Pay Payment Terms extended to Customer, or (iii) from willful or fraudulent conduct by Customer in connection with the use of the Service.
    • No Consequential Damages. BlueX Pay will not be liable under any theory for special, indirect, incidental, consequential (including lost profits), exemplary or punitive damages; regardless of whether such damages were foreseeable or if the parties were advised of the possibility of such damages whether arising from third party claims or direct claims by the other Party.
  • Indemnification.
    • Customer Indemnity. Customer will indemnify, defend and hold harmless BlueX Pay, its directors, officers, employees, affiliates and agents against any third party claims, losses, costs, fines, penalties or damages (including court costs and reasonable attorneys’ fees) (collectively, “Claims”) to the extent arising out of or connected with Customer’s (and affiliates, employees, agents or representatives of Customer) (i) negligence or willful misconduct; (ii) material breach of or any provision of this Agreement or the Processor Terms; (iii) use of the Services or any component thereof for any purpose not permitted by the Agreement; (iv) infringement of any patent, copyright, trademark, service mark, trade secret or other proprietary right of a third party; and (v) failure to comply with its obligations and representations under this Agreement.
  • Confidential Information; Information Security.
    • "Confidential Information" means all data or information that is competitively sensitive material or not generally known to the public; including, without limitation, a Party’s data or information whether or not marked confidential or proprietary, customer lists, technology, inventions, systems, operations, facilities, products, services, discoveries, ideas, concepts, research, development, processes, operating procedures, marketing, business and development plans, pricing, policies and financial information. Confidential Information does not include information which: (i) is or becomes part of the public domain; (ii) was already known to the receiving Party prior to its disclosure; (iii) is lawfully obtained from a third party without obligations of confidentiality; (iv) is independently developed by the receiving Party; or (v) is otherwise excluded under the terms of this Agreement.
    • Disclosure and Use Restrictions. Neither Party will disclose, reproduce, transfer nor use the other Party’s Confidential Information except (i) as necessary in connection with providing or using the Services; (ii) as specifically allowed under this Agreement; or (iii) to the extent necessary to comply with Legal Requirements or a valid court order, provided the disclosing Party must use reasonable efforts to notify the other Party prior to disclosure (unless such notification is prohibited by Legal Requirements or a valid court order) so the other Party may seek a protective order or otherwise prevent or limit disclosure of its Confidential Information. Each Party’s employees, affiliates, agents, advisors or subcontractors with access to the other’s Confidential Information will comply with the confidentiality provisions of this Agreement; and each Party will be responsible for the performance of its employees, affiliates, agents, advisors or subcontractors with respect to the foregoing requirement. Each Party will take such steps to prevent disclosure of the other Party’s Confidential Information as it would take to prevent disclosure of its own; including, at a minimum, commercially reasonable steps.
    • Information Security. Each Party agrees to employ appropriate safeguards to protect Confidential Information residing on their respective technology systems or under their control, including through their use of third party vendors or subcontractors, if any, in connection with the Services. Each Party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure or alteration of Confidential Information (collectively, a “Security Incident”). In the event of a Security Incident involving the other Party’s Confidential Information, the affected Party will promptly (a) assess the nature and scope of the Security Incident; (b) identify the Confidential Information involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d), in the event Confidential Information was compromised, promptly notify the other Party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation. BlueX Pay LLC is not responsible for and does not control third party telecommunication lines used to provide the Services; and will not be responsible for the security of any transmissions using these lines.
    • Ownership. This Agreement does not provide either Party with any right, title or interest in or to the Confidential Information of the other Party. Each Party will return or destroy (and certify the destruction of) the other Party's Confidential Information at the request of the other Party.
  • Intellectual Property.
    • Grant of License. BlueX Pay hereby grants Customer and its employees a limited, revocable, non-exclusive, non-transferable, license to use the BlueX Pay Service as described herein, and subject to the terms and conditions of this Agreement. Customer is expressly prohibited from renting, leasing, sublicensing, assigning, transferring, reselling and/or or otherwise transferring rights to the BlueX Pay Service.
    • Title; Intellectual Property. Except for the rights expressly granted in this Agreement: (a) this Agreement does not transfer from BlueX Pay to You any right, title or interest in or to any intellectual property owned by BlueX Pay or any Third Party, and all right, title and interest in such intellectual property will remain solely with BlueX Pay or such third parties, as applicable; and (b) no license, right or interest in any BlueX Pay trademark, copyright, trade name or service mark is granted herein. Further, You agree that you will not, directly or indirectly copy, modify, translate, transmit, distribute, adapt, reproduce, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Sites.
    • Use of Marks and Publicity. Neither Party will use any trademark, service mark, trade name nor other proprietary designation (collectively, "Marks") owned, licensed or registered by the other Party without prior written consent; provided, however, BlueX Pay may use Customer’s name in publicity indicating that Customer and BlueX Pay have entered into a contractual relationship, as well as customer lists or other advertising identifying the customers of BlueX Pay. Neither Party will use or reference the other's Marks in any manner that disparages or portrays the other in a negative light. Neither Party may alter, modify, or change the other’s Marks in any way. A breach of the terms of this Agreement related to the use of a Party’s Marks will cause irreparable harm such that the non-breaching Party will not have an adequate remedy at law and, in addition to any other rights or remedies available at law or in equity, will be entitled to seek injunctive relief against the breaching Party (without posting a bond or other security).
  • Verification; Audit and Inspection.
    • BlueX Pay may periodically select certain of Customer’s Transactions for audit. To assist with this process, Customer agrees to provide requested supporting documentation for the Transaction(s), such as bills of lading or invoices reflecting dollar amounts due and the date. Customer further agrees to assist BlueX Pay in obtaining and verifying invoices and bills of lading submitted for payment using the BlueX Pay Service.
    • Audit and Inspection. During the term of this Agreement and for one (1) year thereafter, BlueX Pay may audit or inspect Customer’s records related to its performance, duties or obligations under this Agreement, during normal business hours and upon reasonable notice.
    • Examinations. To the extent permitted by law, BlueX Pay and Customer will cooperate with each other in providing information or records in connection with examinations, requests, or proceedings of regulatory or law enforcement authorities.
  • General.
    • Governing Law. California law will govern the interpretation, validity and enforcement of this Agreement, without regard to its conflicts of law.
    • Jurisdiction and Venue. Each of the Parties hereto irrevocably submits to the exclusive jurisdiction of the State and Federal courts in the state of California for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each Party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the Parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in San Francisco. Each Party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
    • Attorneys’ Fees and Costs. In the event of a dispute between or among the Parties with respect to this Agreement, the prevailing party shall be entitled to recover such party’s reasonable attorney’s fees and costs, whether incurred during pre-litigation, trial, on appeal or in bankruptcy proceedings.
    • Severability. Any provision of this Agreement that is determined to be illegal, invalid or unenforceable will be deemed void; and the remainder of this Agreement will continue in full force and effect. The Parties will substitute a valid provision approximating the intent and economic effect of any invalidated provision.
    • Entire Agreement; Amendments. This Agreement constitutes the entire agreement between Customer and BlueX Pay, and supersedes all prior agreements, written or oral, related to the Services. This Agreement incorporates and includes any related attachments, schedules or exhibits or links, as amended from time to time, as well as any Registration or Credit Application completed by Customer online, which are incorporated herein by reference. BlueX Pay reserves the right to modify or change this Agreement, as well as its policies relating to the Services, at any time, in Our sole discretion. BlueX Pay will post revised Terms or policies on Our Website, and will provide notice to You of material changes to this Agreement. You will be deemed to have accepted and agreed to any revisions or changes to this Agreement at the time of (i) Your electronic acceptance of the revised, changed or new Agreement, or (ii) Your use of the Service after the effective date of the revised, changed or new Agreement. If the revised, changed or new Agreement is not acceptable to You, Your sole and exclusive remedy will be to stop using the Service and terminate this Agreement as provided in Section 9.
    • Counterparts. This Agreement may be executed in two or more counterparts, each of which is deemed an original, and all of which together constitute one and the same instrument. Facsimile, electronic or other copies of the executed Agreement are deemed valid and effective.
    • No Third-Party Beneficiaries. Except as expressly stated herein, there are no third-party beneficiaries to this Agreement and it will not be construed to create such rights, benefits or remedies generally.
    • Assignment. This Agreement may not be assigned, voluntarily or by operation of law, by either Party without prior written consent from the other Party, which will not be unreasonably withheld. Consent, however, is not needed for BlueX Pay to assign this Agreement to an affiliate or in connection with a merger, acquisition or sale of BlueX Pay’s of all or a portion of the stock of BlueX Pay or its parent. Any assignment in violation of this subsection will be deemed null and void. This Agreement will extend to and be binding upon any permitted successors and assigns.
    • Subcontractors. BlueX Pay may subcontract all or any portion of the Services using vendors both within and outside the United States; provided, BlueX Pay will remain responsible for the performance of the Services provided through its vendors (if any).
    • Notices. All notices or other communications under this Agreement will be deemed given when mailed by (i) first class registered or certified mail, postage prepaid, return receipt requested; or (ii) by nationally recognized courier service. All notices or other communications will be effective upon receipt. Any notice to (a) BlueX Pay shall be directed to the attention of Comptroller, BlueX Pay, 2F, #47, Lane 441, Section 6, Zhongshan N. Rd, Taipei, TW 111 (ROC), (b) notice to Customer shall be sent to the person and address listed on the Registration Application, or such other address as a Party may designate in writing.
    • Survival of Obligations. All Sections of this Agreement which, by their nature, should survive termination of the Agreement will survive, including Sections 2, 5, 7, 8, 9, 10, 14 and 15.
    • Independent Contractors. BlueX Pay and Customer are independent contractors. Nothing in this Agreement will be deemed to create a joint venture, partnership, employment or similar relationship between the Parties. Except as specifically provided for herein, neither Party is an agent or representative of the other; and neither Party will represent otherwise.
    • Waiver. No delay or single, partial, failure, abandonment or discontinuance of either Party to exercise any right, power or privilege hereunder will affect such right, power or privilege. The Parties’ rights and remedies under this Agreement are cumulative and not exclusive. Any waiver, consent or approval of any failure to comply, breach or default under this Agreement must be in writing, will be effective only to the extent set forth in such writing and will not continue to apply to additional failures to comply, breaches or defaults.
    • Force Majeure. Neither Party will be in default under this Agreement, and will be excused from performing its obligations, if its performance is prevented, restricted, delayed or interfered with due to a Force Majeure Event, whether foreseen or not. A “Force Majeure Event” includes (i) labor disputes, strikes, riot or other civil unrest; (ii) flood, hurricane, tornado, lightning, severe weather, earthquake or other natural disaster; (iii) rationing or other shortage of materials; (iv) utility failures, electronic transmission failures or other electronic or communication failures or delays; (v) terrorism, embargo, blockade, revolution or other acts of war; (vi) any change in laws, orders, rules, regulations, ordinances or other governmental or judicial acts impairing performance, or (vii) other acts of God, all of which are beyond the Parties’ reasonable control. For the avoidance of doubt, an epidemic or pandemic shall not be construed to be a Force Majeure Event.
Exhibit A - Approved Jurisdictions
Initial approved jurisdictions include United States and Hong Kong, SAR of PRC.
Exhibit B - BlueX Pay Program Schedule: Payment Methods
The following are the payment methods available to Customer:
  • “Wallet Payment” refers to the payment method using the BlueX Pay Service to facilitate the payment of Transactions using “Good Funds”. Good Funds are available for immediate use for any payment on the BlueX Pay Service.
  • “Overnight Payment” refers to the payment method using the BlueX Pay Service to facilitate the payment of Transactions (using Payment Terms funds), once Payer has approved the Transaction for payment. Payer’s approval of the Transaction serves as Payer’s assurance that funds sufficient for payment of the Transaction and applicable Fees to Fully Registered Billers are available in the Payer’s designated Settlement Account(s) and will be moved to the Wallet within 72 hours of Payer approval of transaction. Because BlueX Pay will be advancing payment to Biller prior to the Payer’s cancellation deadline, and because BlueX Pay may subsequently receive charges in connection with a cancellation by the Payer, BlueX Pay is authorized to initiate a debit to Fully Registered Biller’s Settlement Account for the amount BlueX Pay credited to Biller, and debit any associated Fees on the Transaction from Payers Settlement Accounts.
  • “Payment Terms” refers to a payment method in which BlueX Pay advances 30 day terms to the Payer by payment of Transactions on the Payer’s behalf. The Payer must be approved for the BlueX Pay Payment Terms payment method, in accordance with BlueX Pay’s Payment Terms approval procedures. The Payer agrees that funds will be available in the Payer’s Settlement Account for payment to BlueX Pay by Wallet for the Transaction Amount and Fees within thirty (30) days after the payment is made on Payer’s behalf, unless these payment terms are amended pursuant to a written Fee Amendment specifying different terms. BlueX Pay Payment Terms may not be used for any purpose not expressly provided herein.
Exhibit C - BlueX Pay Program Fee Schedule
Please reference the fees here, as these may change from time to time.