Effective as of March 22, 2019
1. YOUR USE OF THE WEBSITE AND SERVICES
1.1. Terms Governing Website Use. By visiting and/or accessing the Vendor Premium Payment Assistance, LLC (“VPPA”) website at https://www.vendorpayment.com (“Website”) and accessing any information on the Website, you acknowledge and agree to: (a) be bound by and comply with (i) the following terms and conditions (“Terms”), (ii) the terms and conditions as stated in our privacy statement available at https://www.vendorpayment.com/privacy-statement (“Privacy Statement”), (iii) the State of Illinois Vendor Payment Program Terms dated December 13, 2012 (available at https://www2.illinois.gov/cms/About/VendorPayment/Documents/Vendor%20Payment%20Program%20Terms.pdf as of the Effective Date), as amended by the State of Illinois from time to time in its discretion (“Program Terms”, and such program, the “Payment Program”) that apply to “Participating Vendors” (as such term is defined in the Program Terms), and (iv) the terms governing any other programs or services that VPPA may, in its sole discretion, offer from time to time through the Website; (b) use any information, communications or advice (whether expressed, implied, oral or written), material, content, resources, services, products (including software), and tools the VPPA Persons (as defined below) provide or make available to you, either directly or indirectly (“Services”) only for the purposes permitted by these Terms and applicable laws and regulations (“Laws”) and generally accepted online practices and guidelines; (c) accurately furnish all contact and other information either requested by us or provided by you and notify us immediately of any change in such information; (d) not use the Services or Website in any manner that could harm (i) VPPA, (ii) VPPA’s affiliates and subsidiaries, and (iii) the parent companies, brands, business partners, agents, directors, officers, managers, employees, contractors, content providers, merchants, sponsors, licensors, and service providers of VPPA and its affiliates and subsidiaries (collectively, the “VPPA Persons”) or any other entity or person; and (e) comply with any other reasonable requirements or restrictions requested or imposed by us. PLEASE READ THESE TERMS CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.2. Participation in the Payment Program. Please note that your participation in the Payment Program will be subject to your submission to VPPA of a completed application (in the form specified by VPPA), VPPA’s acceptance, in VPPA’s sole discretion, of your application to participate in the Payment Program, and your entering into a separate agreement provided by VPPA for participation in the Payment Program (such agreement, the “Program Agreement”). These Terms do not cover your participation in the Payment Program applied for through the Website, unless otherwise stated herein. In addition to all other agreements that VPPA may provide to you, these Terms set forth the legally binding terms for your use of the Services and Website. In the event of a conflict between these Terms and the Program Agreement, the terms of the Program Agreement shall control.
1.3. Electronic Signature and Disclosure Consent Notice. You agree to the use of electronic documents and records in connection with your registration for the Services and Website and all future documents and records in connection with the Services, the Payment Program and the Website—including without limitation this electronic signature and disclosure notice—and that this use satisfies any requirement that we provide you these documents and their content in writing. If you do not agree, do not accept these Terms and immediately cease your use of the Website. Your continued use of the Website or your clicking on any “I agree” button presented on the Website indicates your signature and your acceptance of this notice.
1.4. Updated Terms. We reserve the right to change these Terms from time to time without notice. You acknowledge and agree that it is your responsibility to review these Terms on the Website periodically to familiarize yourself with any changes to these Terms (“Updated Terms”). Such changes to these Terms shall be effective immediately upon posting to the Website. If there is a conflict between these Terms and any future Updated Terms, the Updated Terms will control over these Terms. Your inaction or continued use of the Services or Website, including logging into any account with VPPA, the Services or the Website that may be created for you or that you may access (“your VPPA account”) after Updated Terms are posted to the Website, or your acceptance of any changes for which we request your prior approval, will constitute your agreement to the Updated Terms.
1.5. Prohibited Uses. By accessing the Services and the Website you are prohibited from using the Services and Website in any way that:
1.5.1. is unlawful, threatening, violent, abusive, hateful, defamatory, slanderous, libelous, deceptive, fraudulent, tortious, indecent, vulgar, profane, obscene, or that VPPA deems in its sole discretion to be inappropriate;
1.5.2. accesses, collects or stores personal information about others;
1.5.3. violates or infringes the rights of anyone else, including, for example, another person’s right to privacy or intellectual property rights of VPPA Persons or a third party;
1.5.4. impersonates any person, business, entity, or IP address (e.g., IP spoofing);
1.5.5. involves uploading, posting, emailing, transmitting or otherwise making available any materials that you do not have a right to make available under any Law;
1.5.6. constitutes data mining, data gathering, data extraction, advertising, marketing or promotional activities, or involves spam, phishing or other unsolicited messages;
1.5.7. misuses, reproduces, duplicates, copies, sells, resells, makes any derivative use of, or otherwise exploits the Services or Website for any commercial purpose without prior, express written consent of VPPA;
1.5.8. uses any meta tags or any other “hidden text” utilizing any VPPA Person’s name or trademarks without the prior, express written consent of such VPPA Person;
1.5.9. gains or tries to gain unauthorized access to the Services, Website, associated computers and networks, or user data, or that otherwise modifies or interferes with the use or operation of the Services or Website;
1.5.10. gains or tries to gain unauthorized access to any software contained in the Services or Website, including by reverse engineering software or installing software not approved by VPPA;
1.5.11. imposes an unreasonable or disproportionately large load on any VPPA Person’s infrastructure, including but not limited to transmitting spam or using other unsolicited mass emailing techniques;
1.5.12. alters, damages, or deletes any materials or content provided by VPPA;
1.5.13. frames or utilizes framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of any VPPA Person without prior, express written consent of such VPPA Person;
1.5.14. contains computer viruses or other disruptive, damaging or harmful files or programs; or
1.5.15. otherwise violates these Terms, the Program Terms or any other guidelines or policies provided by VPPA, including the Privacy Statement.
1.6. Age and Location Restrictions. You represent, warrant and covenant to VPPA that (a) your use of the Website and Services is not prohibited in your jurisdiction or geographical location and (b) you are 18 years of age or older. Your profile, if any, may be deleted and your VPPA account, if any, may be terminated without notice or warning, if VPPA believes in its sole discretion, that you are less than 18 years of age.
1.7. Uploaded Information; Qualified Status. You represent, warrant and covenant to VPPA that (a) you are either the owner of, or authorized to use, any and all invoices, documents, and other materials and information submitted, uploaded, posted, transmitted, or made available by you via the Website or the Services (collectively, “Uploaded Information”); (b) the Uploaded Information is correct and accurate; and (c) any invoice included in the Uploaded Information is (i) an “Account Receivable” (as defined in the Program Terms) and (ii) correctly and accurately identifies amounts due and payable to you by the State of Illinois.
1.8. No Advice. Nothing on the Website constitutes financial, legal or other advice to you and should not be relied upon by you in that regard.
1.9. Monitoring of the Website and the Services. VPPA has no obligation to monitor access to or use of the Website, however, you acknowledge that VPPA has the right to monitor the Website and the Services electronically at any time and from time to time, including without limitation, in order: (a) to satisfy any applicable Law or governmental request; (b) to operate the Website and the Services; or (c) to protect itself or other users of the Website or the Services.
2. COMPLIANCE WITH TERMS
You are responsible for not only your own compliance with these Terms but also for the compliance of all users of your VPPA account, whether or not authorized by you. You agree to make all other users of your VPPA account aware of these Terms and subject to these Terms. You are solely responsible for the use of the Services related to your VPPA account, even if you are not the one using the Services and even if you claim later that another person’s use was not authorized.
3. OWNERSHIP OF INTELLECTUAL PROPERTY
As between you and VPPA Persons, VPPA Persons (and each of their respective successors and assigns) own the patents, copyrights, trademarks, service marks, trade dress rights and all other proprietary or intellectual property rights to all components of the Services and the Website (collectively referred to as “Intellectual Property”). You may not reproduce, modify, create derivative works from, display, frame, perform, publish, distribute, disseminate, transmit, broadcast or circulate any such components to any third party (including displaying or distributing such components using a third party website) without VPPA’s express, prior written consent except to use the Services and the Website for purposes expressly identified on the Website until any suspension or termination described in Section 7. VPPA and the other VPPA Persons retain all rights that are not otherwise expressly granted in these Terms.
5. LIMITATIONS OF LIABILITY
5.1. WAIVER AND RELEASE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND THE PROGRAM TERMS, YOU HEREBY WAIVE AND RELEASE THE VPPA PERSONS FROM LIABILITY FOR ANY AND ALL LOSSES, LIABILITIES, DAMAGES (INCLUDING PUNITIVE AND EXEMPLARY DAMAGES), FINES, PENALTIES, INTEREST AND CLAIMS (INCLUDING TAXES), AND ALL RELATED COSTS AND EXPENSES (INCLUDING LEGAL FEES AND DISBURSEMENTS AND COSTS OF INVESTIGATION, LITIGATION, EXPERTS, SETTLEMENT, JUDGMENT, INTEREST AND PENALTIES) (“LOSSES”) ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE AND THE SERVICES (EVEN IF CAUSED BY THE ACTS, OMISSIONS, OR NEGLIGENCE OF VPPA PERSONS), INCLUDING, BUT NOT LIMITED TO LOSSES ARISING OUT OF OR IN CONNECTION WITH THE FOLLOWING:
5.1.1. YOUR USE OF THE WEBSITE AND THE SERVICES (INCLUDING SUSPENSION OR TERMINATION OF YOUR ACCESS TO THE WEBSITE OR SERVICES);
5.1.2. ANY UPLOADED INFORMATION (INCLUDING ANY SECURITY BREACH WITH RESPECT TO UPLOADED INFORMATION);
5.1.3. FAILURE TO SAFEGUARD ANY PASSWORDS OR OTHER ACCOUNT INFORMATION;
5.1.4. VIOLATING THESE TERMS, THE PRIVACY STATEMENT, THE PROGRAM TERMS OR ANY OTHER POLICY REFERENCED IN THESE TERMS, ANY APPLICABLE LAW OR REGULATION, OR THE RIGHTS OF ANY THIRD PARTY;
5.1.5. ANY ACTIONS OF THE STATE OF ILLINOIS (INCLUDING CHANGES BY THE STATE OF ILLINOIS TO THE PROGRAM TERMS) OR ANY OTHER GOVERNMENTAL ENTITY OR THIRD PARTY;
5.1.6. YOUR USE OF ANY LINKED SITES; OR
5.1.7. THE TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF THE WEBSITE OR THE SERVICES, OR THE MALFUNCTION OF THE WEBSITE OR THE SERVICES.
YOU FURTHER AGREE THAT SUCH WAIVER AND RELEASE SHALL EXTEND TO ANY PARTY CLAIMING UNDER YOU AND THAT NO INSURANCE COMPANY WILL HAVE ANY RIGHT OF SUBROGATION.
5.2. EXCLUDED DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND THE PROGRAM TERMS, YOU ACKNOWLEDGE AND AGREE THAT NO VPPA PERSON WILL BE LIABLE TO YOU OR ANY OTHER PARTY FOR GENERAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION), REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THE WEBSITE (INCLUDING LOSSES ARISING OUT OF OR IN CONNECTION WITH CIRCUMSTANCES DESCRIBED IN SECTIONS 5.1.1 – 5.1.7), EVEN IF ANY VPPA PERSON IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
5.3. DISCLAIMER. Without limiting the foregoing, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND THE PROGRAM TERMS, YOU ACKNOWLEDGE AND AGREE THAT (A) the Services AND THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) ANYTHING YOU DOWNLOAD OR OTHERWISE OBTAIN AS PART OF OR THROUGH THE USE OF THE WEBSITE OR SERVICES IS DONE AT YOUR SOLE DISCRETION AND SOLE RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICES OR FOR ANY LOSS OF DATA THAT MAY RESULT THEREFROM; AND (C) VPPA DOES NOT REPRESENT OR WARRANT THAT:
5.3.1. THE SERVICES OR THE WEBSITE WILL: (I) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (II) MEET YOUR NEEDS OR REQUIREMENTS; (III) BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERRORS OR OMISSIONS; OR (IV) BE ACCURATE, ADEQUATE, USEFUL, COMPLETE, CURRENT, TIMELY, UP-TO-DATE, OR RELIABLE; OR
5.3.1. ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE WEBSITE OR ANY SERVICES WILL BE REPAIRED OR CORRECTED.
5.4. LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND THE PROGRAM TERMS, YOU ACKNOWLEDGE AND AGREE THAT (A) IF ANY VPPA PERSON(S) ARE FOUND LIABLE TO YOU FOR ANY REASON, THE TOTAL AGGREGATE LIABILITY OF ALL VPPA PERSONS TO YOU FOR ANY AND ALL LOSSES IS LIMITED TO $100.00; (B) SUCH AMOUNT IS THE SOLE AND EXCLUSIVE LIABILITY OF THE VPPA PERSONS TO YOU, AND IS PAYABLE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY; AND (C) WITHOUT LIMITATION OF THE OTHER PROVISIONS OF THESE TERMS (INCLUDING SECTION 5.1), YOU MAY NOT BRING ANY CLAIM AGAINST ANY VPPA PERSON MORE THAN ONE (1) YEAR AFTER SUCH CLAIM ARISES.
5.5. CLARIFICATION. YOU AGREE THAT NEITHER VPPA NOR ANY OTHER VPPA PERSON WOULD HAVE AGREED TO PROVIDE ACCESS TO THE WEBSITE OR THE SERVICES TO YOU IF YOU DID NOT AGREE TO THE LIMITATIONS OF THIS SECTION 5.
To the maximum extent permitted by applicable Law, and the Program Terms, you shall indemnify, defend, and hold all VPPA Persons harmless from all Losses and threatened Losses arising out of or in connection with (a) the Website and the Services (even if caused by the acts, omissions, or negligence of VPPA Persons), (b) other users of the Website or the Services or (c) any violation of these Terms or of any Law or the rights of any third party, including, but not limited to Losses and threatened Losses arising out of or in connection with circumstances described in Sections 5.1.1 – 5.1.7; provided, however, that VPPA reserves the right (in its sole discretion upon notice to you) to take over the exclusive defense of any third party claim subject to indemnification hereunder, and in such event, you shall provide VPPA with reasonable cooperation in such defense upon VPPA’s request.
7. SUSPENSION AND TERMINATION
7.1. Suspension or Termination by VPPA. VPPA may suspend or terminate your access to all or any part of the Website or the Services at any time and for any reason, including for violation of these Terms. In the event of termination and for the duration of any suspension:
7.1.1. You shall no longer be authorized to use or access the Services or the Website.
7.1.2. We reserve the right to remove or delete any information that you may have on file with us, including any account or login information.
7.1.3. Any provision of these Terms that contemplates performance or observance during or subsequent to any such termination or suspension shall survive any such termination or suspension and continue in full force and effect, including, but not limited to, provisions relating to disclaimers of warranties, indemnities, proprietary rights, and limitations of liability (including waivers and releases of liability). Any obligations of VPPA or you, or any accrued rights of VPPA or you, under or pursuant to the Program Terms and related Laws, shall survive any such termination or suspension and continue in full force and effect in accordance with the Program Terms and such Laws.
8. DISPUTE RESOLUTION
All disputes, differences or questions arising out of or relating to these Terms will be finally and solely resolved by binding and confidential arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association or, if applicable, the Consumer Arbitration Rules. Said arbitration will be conducted in the English language, and if the amount in controversy exceeds $100,000.00, will be conducted by a panel of three arbitrators (one arbitrator selected by you, one arbitrator selected by VPPA, a third arbitrator selected by the first two arbitrators), otherwise said arbitration will be conducted by a single arbitrator. Arbitration shall take place on an individual rather than class-wide or representative basis. YOU AND VPPA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and VPPA agree otherwise, the arbitrator(s) may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. All issues are for the arbitrator(s) to decide, except that issues relating to the scope and enforceability of the arbitration provision, including the interpretation and enforceability of the prior sentence requiring individual arbitration, are for the court to decide. Any in-person arbitration shall take place in New York, New York, USA, unless VPPA and you agree otherwise or the arbitrator(s) concludes that a different location would be appropriate. Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. Notwithstanding the foregoing, VPPA may seek injunctive or other equitable relief or seek to enforce these Terms and to enforce an arbitration award or other judgment in any court of competent jurisdiction. You irrevocably submit to the sole and exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in New York, New York in personam, generally and unconditionally with respect to any judicial action, suit or proceeding that may be brought by you or against you by VPPA with respect to these Terms or your use of the Website or the Services.
9. GOVERNING LAW
These Terms and performance under these Terms (including the arbitration provisions set forth in Section 8) shall be governed by and construed in accordance with the applicable Laws of the State of New York, without giving effect to any choice-of-law provision or rule (whether of such State or any other jurisdiction) that would cause the application of the Laws of any other jurisdiction.
If any provision of these Terms conflicts with applicable Law or the Program Terms or is held void, invalid or unenforceable by a court with jurisdiction over you and VPPA, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of these Terms in accordance with applicable Law and the Program Terms. The remaining provisions of these Terms and the application of the challenged provision to persons or circumstances other than those as to which it is void, invalid or unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable to the full extent permitted by applicable Law and the Program Terms.
11. ENTIRE AGREEMENT
These Terms and the Privacy Statement constitute the entire agreement between VPPA and you with respect to the Website and the Services. There are no agreements, representations, warranties, promises, covenants, commitments or undertakings other than those expressly set forth herein or in the Privacy Statement with respect to the Website and the Services. These Terms and the Privacy Statement supersede all prior agreements, representations, warranties, promises, covenants, commitments or undertakings, whether written or oral, with respect to the Website and the Services; provided, however, that these Terms do not supersede the Program Agreement.
12. CONTACT INFORMATION
Any questions regarding these Terms may be directed to firstname.lastname@example.org.