Blue Penguin Payments Corp. Terms of Service
Last updated January 19, 2022
BluePenguin Payments Corporation (“BluePenguin,” “we” or “us”) enables business-to-business payments and related services (individually “Service” and collectively, “Services.”) These Terms of Service (“Terms”) are an agreement between BluePenguin, you and any organization you represent (“Customer” or “you”) governing your use of the Services.
Certain of the Terms, including those in this Overview and the following General section, apply to all Services that we provide. Terms that are specific to a particular Service are set forth in their respective sections. By accessing any portion of any Service provided to you by BluePenguin, you are agreeing to the Terms governing that Service in their entirety. If you don’t agree to the Terms for a particular Service, your sole recourse is not to use that Service.
By accessing the Services, you agree to the following:
- You warrant that you have authority to agree to the Terms for BluePenguin’s Services on behalf of the Customer that you represent;
- You and the Customer you represent will comply with all the Terms governing any Service you access;
- You and the Customer you represent are not entities that are prohibited or restricted from accessing the Services in any jurisdiction where BluePenguin conducts business; and
- You will comply with all laws and regulations governing the utilization of the Services.
These Terms are incorporated into any agreement you sign with us or one of our marketing partners by reference.
Grant of License. BluePenguin grants you a limited, non-exclusive, non-transferable license to use the Services only for the purposes described in these Terms, so long as you comply with these Terms as well as any other obligations set forth in any agreement between us and you. If you violate the Terms of a given Service, your license to use that Service, or the Services in their entirety, shall immediately terminate, at our sole discretion. You will not reproduce, reverse-engineer, copy, trade, rent or resell the Services.
Permissible Use. Our Services are provided to facilitate business-to-business payment transactions only. You will not use any portion of any Service we provide for any illegal or prohibited activity, or for any consumer purpose.
Accurate Representation. As a condition of accessing the Services and to comply with applicable regulation and law, you are required to provide current and complete written information about the Customer you represent, including corporate structure, ownership and control. You agree to provide this information prior to first access of the Services, and to update us with 7 days if any information changes or upon request. You acknowledge and agree that BluePenguin bears no responsibility or liability for any omission or falsification of this information for the duration of when the Services are provided to you.
Your Responsibilities. You acknowledge that it is your responsibility to access the Services in a way that is consistent with your disclosed business requirements, and to audit your usage to verify adherence to your policies and goals. You agree that we will not bear any responsibility or liability for any act or omission by you or the Customer you represent. Any act or instruction related to the Services which we carry out on your behalf shall be construed to have been made or given in good faith, and any representative of Customer who carries out such acts or gives such instructions shall be deemed to have proper authority to do so. Additionally, your use of our Services does not constitute a multi-party agreement between you, us, and any of your payees. You bear sole responsibility for the relationship with your payees and any terms or disputes of payments thereto.
Key Contact. At all times, you must designate and make available to us a representative empowered to make decisions on behalf of your company related to the Service, and ensure we have reasonable access to that representative by email and telephone.
Limitation of Liability. Notwithstanding anything to the contrary in any agreement between you and BluePenguin, in no event shall BluePenguin, our parents, affiliates or any of our or their directors, officers, employees, resellers or sub-contractors be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether either party or any entity has been advised of the possibility of such damages. The Services are provided on an “As-Is” basis and we do not warrant they are free from bugs, viruses, interruptions or errors.
Term and Termination. These Terms are effective as of the earlier of (1) the date you sign an agreement with us or one of our marketing partners, or (2) the date you begin accessing any of our Services, and will remain in full force and effect as long as you continue to use the Services, or have any outstanding obligations thereunder. For the avoidance of doubt, while you may cease using the Services at any time, the Terms will continue to apply for as long as necessary to fulfill any processing, reconciliation, payment, deconversion, or any other obligation associated with any Service we have provided to you. We reserve the right to limit or terminate your access to the Services, at any time and at our sole exclusive discretion.
Security. You are responsible for securing your access to the Services and will immediately notify us if you believe your access has been compromised. You agree to review any and all access logs and transaction reports to confirm that the Services are only being used in the manner you intend.
No Subaccounts. Your license of the Services is exclusive to you and the Customer you represent. You will not allow or enable any other entity other than the Customer you represent, and its authorized agent(s), to utilize the Services, nor will you utilize the Services on behalf of any other legal entity that is not known to and approved in advance by us, and subject to the terms of a master services agreement between you and BluePenguin.
Trademarks. You acknowledge that BluePenguin is the owner of the trademark for the use of the term “BluePenguin Payments” and variations thereof as more fully set forth in such registration (the “Trademarks”). You will not use our Trademarks without our express written permission.
Subcontractors. You acknowledge that we may utilize subcontractors or third parties to perform portions of our Services, at our sole and exclusive discretion.
Changes and Notification. We may modify our Services and these Terms at any time at our sole discretion for any purpose we deem appropriate. We will provide reasonable notice of any material modifications to Services and Terms via email to the key contact you provide, and such email shall constitute appropriate notification. If you have any questions about changes to our Services or Terms or need to notify us of a change in your use of the Services, contact us at email@example.com.
Feedback. From time to time, you may choose to share ideas, suggestions and thoughts (collectively, “Feedback”) on our Services. If you do, you agree that we may use such Feedback in any way we deem appropriate, including but not limited to existing or future products, services or marketing materials, without conferring to you any right or interest in any product, service or materials where Feedback is utilized. To the extent any portion of the Feedback you provide is your intellectual property, you grant us a perpetual, worldwide, transferable, sublicensable, non-revocable, royalty free license to use it in any way we deem appropriate, including sharing with subcontractors if appropriate.
Tax. You are responsible for any and all taxes applicable in any jurisdiction where you are subject to tax, arising from your use of our Services.
Severability. If any portion of these Terms is held invalid or unenforceable by any court, you acknowledge that all other provisions of these Terms remain fully valid, enforceable and binding.
Governing Law, Venue and Waiver of Jury Trial. Notwithstanding anything to the contrary in an agreement between you and BluePenguin, the following paragraph applies. These Terms shall be governed by and construed in accordance with Florida law and the federal laws applicable therein. You agree (i) that any legal action or proceeding relating to these Terms must be brought in any court of competent jurisdiction in the state of Florida, and for that purpose now irrevocably and unconditionally agree and submit to the jurisdiction of such Florida court; (ii) that you irrevocably waive any right to, and will not, oppose any such Florida action or proceeding on any jurisdictional basis, including forum non conveniens; and (iii) not to oppose the enforcement against it in any other jurisdiction of any judgment or order duly obtained from an Florida court as contemplated by this section. You irrevocably waive any and all rights you may have to a trial by jury in any judicial proceeding involving any claim relating to these Terms.
Presumption of Accuracy. We have certain controls in place to help identify processing errors such as duplicate payment requests, incorrect transaction amounts, invalid customer or vendor information, and improper payment instructions. While we will use reasonable efforts to protect you and us from such errors, you understand that no error-trapping is foolproof, and you agree that any information or instructions supplied by you shall be presumed by BluePenguin to be accurate, and release us from liability for acting upon the information or instructions you supply, even if at any time it is found to be in error.
No Breach. You warrant that your use of the Services will not constitute a breach of any other agreement to which you are or may have been a party.
OFAC Compliance. The Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. OFAC acts under Presidential wartime and national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze foreign assets under US jurisdiction. BluePenguin complies with these regulations and regularly reviews the OFAC sanctions list generated and developed by OFAC and other Federal agencies. In accordance with OFAC regulations, we will not offer our Services to facilitate sending payments to any persons or entities listed or any persons or entities residing in any country that is listed on the OFAC sanctions list. Additionally, you understand and acknowledge that we may be required by law to cooperate with the appropriate authorities to disclose certain information about your transactions. This may include Federal and State agencies, as well as banking authorities. Unless otherwise prohibited by law, such disclosures may include, without limitation, company and administrator information, transaction information, IP address, communications and usage history.
PCI Compliance. We have designed the Services to help Customers make vendor payments without influencing their compliance with the Payment Card Industry (PCI) security standards published at https://pcisecuritystandards.org. We undergo annual auditing to confirm our own compliance with the PCI standards as well as to confirm Customers are not required to receive, store or utilize “Account Data” or “Sensitive Authentication Data” (as defined by the PCI Standards) as a consequence of using the Services. However, in the event you wish to receive, store or utilize “Account Data” or “Sensitive Authentication Data” from us, such as by utilizing certain PCI-sensitive API calls, you must maintain a system compliant with the PCI standards and furnish ongoing evidence of your own compliance with the PCI Data Security Standards, or the compliance of any third party service providers you use, prior to accessing such data.
Prohibited Uses. Our Services are designed to facilitate payments to vendors for legitimate goods and services you procure during the ordinary course of business. Accordingly, you will not use our Services to perform or facilitate any payment inconsistent with their intended purpose, including but not limited to:
- Payments to consumers;
- Payments to government entities, including taxes, fees and penalties;
- Payroll payments to employees;
- Payments for purchases made on behalf of a legal entity other than the named customer known to us (factoring);
- Payments for gambling or any illegal purpose;
- Any other payment not otherwise in direct exchange for a vendor-provided good or service.
Additional Terms for Virtual Card and ACH Vendor Payments Service
Definition. BluePenguin provides our customers the ability to request and use Virtual Purchasing Accounts (“Accounts”) for the purpose of making vendor payments. These Accounts may be used to pay vendors by means of prepaid payment cards such as those branded by Mastercard or Visa which vendors then process with their card processing software. Accounts may also be used to effectuate ACH payments to vendors. To provide this Service, we partner with financial institutions (“Bank” or “Banks”) that are member banks in the Mastercard and Visa payment networks as well as Originating Depository Financial Institution (ODFI) sponsorship services to the ACH network. We act as a Program Manager for payment card services and a Third-Party Sender for ACH services.
Bank Approval Required. Our card and ACH services are only available upon approval of you as a customer by the Bank that sponsors the applicable Service. You will need to provide sufficient information about your business, corporate structure, ownership and control to satisfy the Know-Your-Customer (KYC) requirements as defined and amended from time to time by Bank, and you agree to furnish current and complete information upon request or within seven (7) days of any change in such information. Different levels of information may be required to qualify for or access different levels of the service, such as higher transaction limits or velocities, or more rapid payment funding processes. In all cases, the decision of Bank whether to approve or decline you for payment card or ACH services, or to restrict, suspend or revoke such services, shall be final.
Funding Accounts. We support two models to fund Accounts. You can either (1) designate a bank account at a U.S. chartered financial institution of your choosing and use our technology to withdraw funds from it by means of ACH Debit; or you can (2) transmit funds to a custodial FBO account at our Bank sponsor by means of ACH Credit or wire transfer. In either case, you must also identify a bank account you control to receive any returned funds (such as those generated by vendor adjustments) and/or rebate amounts if any are earned, and grant us unrestricted continuous access to post ACH entries, whether credit or debit, to the account(s) you own. All bank accounts must be business accounts in the name of Customer or its parent. For the avoidance of doubt, this paragraph shall serve as a NACHA-compliant authorization of BluePenguin to electronically credit and/or debit your designated DDA account(s) for the purposes of providing this Service, and shall remain in full force and effect as long as you use the Service.
Not a Money Service Business. BluePenguin is not a Money Service Business (MSB) and does not take ownership of customer funds at any time. When you transmit funds to us or request that we debit funds from an account you control, those funds flow directly into one or more custodial FBO accounts at our sponsor bank for the purpose of generating and funding prepaid payment cards or processing ACH credit transactions to your vendor payees.
Not Responsible for Vendor Fees. You are and will remain responsible for all vendor fees, including ordinary invoice amounts, late fees, and processing surcharges, even if such fees are a consequence of your use of the Service.
Disputes. You will have access to transaction data showing, among other things, all debits made by use of the Account(s). You agree to review the data and notify us in writing within 60 days of posting of any transaction, of any disputes regarding any Account transactions.
Return of Funds. Following any termination of this Service, if you have advanced any funds that remain at Bank, we will refund any such advanced deposits within 60 days after all issued Accounts are paid in full, canceled and returned.
Rebate(s). The payments you make to vendors through this Service may be eligible for rebates. A rebate is a monetary value that will be paid to you on a schedule to be determined and agreed amongst the parties. The rebate will be determined by multiplying the net settled spend volume of qualified Vendor payments by the rebate percentage set forth in your applicable Schedule, less any other fees (whether disputed or not) or assessments. Transactions settled at an interchange rate other than the target rate specified in your Schedule will receive a rebate which is calculated based on the difference between the qualified and actual interchange rate and adjusted in kind.
Cards-by-Email. “Cards-by-Email” (“CBE”) is a feature of this Service through which you can send email notifications to individuals that one or more payment cards are available for them to use to pay outstanding vendor invoices. These individuals may be billing representatives at vendors who bill you for goods or services, or accounts payable representatives responsible for making payments for your company. Upon being invited to use the CBE feature, individuals will be prompted to set a secret passcode and only be permitted to access cards upon supplying that passcode from a known and registered device. If you use the CBE feature, you understand and agree that you will only send emails to individuals you know who have a legitimate reason to participate in CBE; furthermore, your use of the CBE feature does not modify or diminish your responsibility to oversee and validate your use of any and all Accounts created on your behalf.
Additional Terms for Physical and Digital Check Service
Definition. BluePenguin provides our customers the ability to generate checks (“Checks”) for the purpose of making vendor payments. Checks may be physically printed and mailed via USPS to a vendor addressee, or digitally generated and sent via email to a vendor contact. We utilize a third party to provide this Service.
Approval Required. To utilize this Service, you will need to provide sufficient information about your business, corporate structure, ownership and control to satisfy the Know-Your-Customer (KYC) requirements as defined and amended from time to time by us, and you agree to furnish current and complete information upon request or within seven (7) days of any change in such information. In all cases, our decision whether to approve or decline you for this Service, or to restrict, suspend or revoke your access to the Service, shall be final.
Funding Account. You must designate a bank account owned by you at a U.S. chartered financial institution of your choosing to fund Checks created using this Service. The account must be a business account in the name of Customer or its parent. Checks will be written directly from this account, meaning that the routing and account information on the physical or digital check shall correspond to the bank account information you provide to us, and when Checks are deposited by your payees, funds will be withdrawn directly from your account according to your own bank’s check processing policies. You are solely responsible for ensuring sufficient funds exist in your bank account to cover any Checks created using this Service, as well as any penalties or fees that may be assessed by your bank for check-related services, such as NSF processing, stop-payment processing, positive-pay services, check image retrieval, and so on. For the avoidance of doubt, this paragraph shall also serve as a NACHA-compliant authorization of BluePenguin to generate physical and/or digital Checks drawn directly upon your designated DDA account(s) for the purposes of providing this Service, and shall remain in full force and effect as long as you use the Service.
Delivery of Checks. We will make commercially reasonable efforts to ensure that requests for printing Checks and any other documents will be made in a timely manner. However, multiple factors both within and beyond our control contribute to when Checks and documents are received by your vendor payees. Accordingly, we make no promises, representations, or warranties regarding the amount of time needed to complete the delivery of Checks and any documents created unless specifically set forth in a separate service level agreement executed by you and us. You understand and agree that we shall not be liable for any actual or consequential damages arising from any claim of delay.