Terms & Conditions

Last Modified: June 22, 2022

This Terms of Service Agreement (this “Agreement”) is a legal agreement entered into by and among SpendCare, Inc., a Delaware corporation (“Company”), the person or entity who registered with the Company to receive certain invoicing, payment, and related software services (“Agency”), and all customers or designated employees of Agency (“End Users”; and each, “End User”; and together with Client, “Users”; and each, “User”), and govern each User’s access to and use of the Services (as defined below) offered on or through the Company’s software platform (the “Platform”).

  1. Description of the Services. In accordance with this Agreement, the Company shall provide use of the Platform to the Agency and End User to permit Agency to provide one or more of the following service offerings (“Services”):

    1. Bill Pay Service Agency to invoice End User and End User to make payments to Agency, as described in further detail below (the “Bill Pay Service”):

      1. Agency may invite End Users to enroll and establish accounts on the Platform through Agent’s Platform account. 

      2. Each User will have its own account on the Platform with a digital wallet and linked bank account. 

      3. The Platform permits Agencies to invoice End Users through the Platform, and upon payment by the End User, the Platform facilitates the payment via automated clearing house from End User’s bank account through the Platform to Agency’s linked bank account. Payments made by End User are debited from the End User’s linked bank account, and payments received by Agency are credited to the bank account that Agency has linked. 

      4. The Company is providing the Platform and software support services and is not a payment processor. Any payment processing in connection with the Services is provided by the applicable third-party payment processor, and User agrees to accept and abide by such third-party payment processor’s terms and conditions as set forth in Section ‎2(d) below.

    2. ​The Company may occasionally develop and incorporate additional Services. Use of such additional Services, if any, is governed by this Agreement.

  2. User Responsibilities

    1. Invoice Handling   Agency agrees to provide accurate and complete information on which invoices to End Users are based, including, without limitation, the identity of, and contact information for, the End User being invoiced, the transactions for which Agency is invoicing them, and the cost thereof. The Company shall not be responsible for any errors or inaccurate information in Agency’s invoices. Agency shall be responsible for promptly handling any and all disputes with End Users. It is solely Agency’s obligation to inform the Company as to any errors contained in any invoices created using the Services.

    2. Application, Enrollment, and Processor Changes. The Company reserves the right to reject any application for enrollment on the Platform. In addition, the Company reserves the right to change its primary processor(s) for ACH and/or other electronic payment processing at any time in its sole discretion, and the Users shall be subject the terms and conditions applicable to the services provided by such processor(s). User’s enrollment information must be accurate and complete, and User shall update enrollment information as necessary to keep it accurate and complete, and failure to provide accurate and complete information may result in the termination of its ability to use the Services and result in errors. The Company is not responsible or liable for any processing delays or damages which may result from any delays in the Services or User’s enrollment therein. No User shall use a username or password that the Company, in its sole discretion, deems offensive or inappropriate. The Users are solely responsible for maintaining the confidentiality and security of usernames and passwords for their accounts and assume all liability for sharing or disclosing such usernames and passwords. Each User agrees to immediately contact the Company it becomes aware that the security of the usernames and/or passwords for its account may have been compromised or if there has been unauthorized access to its account or its data. 

    3. Fee Charges.

      1. Agency shall be charged a monthly subscription fee for the Services based on the number of End Users the Agency has enrolled to use the Platform. Additionally, Agency may be subject to additional fees if optional services are implemented as outlined in a separate service order.

    4. Sila and Evolve.  The Company partners with financial services software company Sila Inc. (“Sila”) and banking services provider Evolve Bank & Trust (“Evolve”), member FDIC, to offer Client electronic fund transfers (EFTs). By creating a Company account and initiating bank deposits or withdrawals, User agrees to Sila’s terms of service, https://silamoney.com/terms-of-service/, and Evolve’s demand deposit account agreement, https://silamoney.com/evolve-bank-deposit-agreement/, (together, the “Partner Terms”). User must comply with the Partner Terms when creating or using its Company account. The Partner Terms may be modified from time to time, and the governing versions are incorporated by reference into this Agreement. Any term not defined in this section but defined in the Partner Terms assumes the meaning as defined in the Partner Terms. IT IS USER’S RESPONSIBILITY TO READ AND UNDERSTAND THE PARTNER TERMS BECAUSE THEY CONTAIN TERMS AND CONDITIONS CONCERNING USER’S ACCOUNT, INCLUDING BUT NOT LIMITED TO LIMITATIONS, REVERSALS, AND ARBITRATION PROVISIONS, AND USER’S RELEVANT RIGHTS AND LIABILITIES.

    5. Other Third-Party Terms. In addition to the foregoing, User shall accept and abide by any other third-party providers of the Company (“Third-Party Terms”), if required by such third-party provider. Third-Party Terms may include, without limitation, ACH acceptance agreements or other electronic payment method agreements. Third-Party Terms are a legal agreement between User and the applicable third-party provider only, and the Company is not subject to, or responsible for, Third-Party Terms.

  3. Acceptable Use

    1. Prohibited Conduct. No User shall:

      1. use the Services in any way that violates any applicable federal, state, local, or international law or regulation.

      2. use the Services to impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).

      3. use the Services to disseminate fraudulent goods or services, schemes, promotions, or similar fraudulent activities.

      4. use the Services to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by the Company, may harm the Company or other Users, or expose them to liability.

      5. use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other user’s use of the Services, including their ability to engage in real time activities through the Services.

      6. use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material in connection with the Services.

      7. use any manual process to monitor or copy any of the material in connection with the Services, or for any other purpose not expressly authorized in this Agreement, without the prior written consent of the Company.

      8. use any device, software, or routine that interferes with the proper working of the Services.

      9. introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

      10. attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services. 

      11. attack the Services via a denial-of-service attack or a distributed denial-of-service attack.

      12. otherwise attempt to interfere with the proper working of the Services.

  4. Representations and Warranties.

    1. Each User represents and warrants to the Company that: (1) if User is an individual, he or she is eighteen (18) years of age or older; (2) User or the person accessing the Services on behalf of User is accessing the Services from a computer (and/or mobile device) with a U.S. IP address (and/or U.S. network connection) and is a U.S. citizen; and (3) User or the person that enters into this Agreement on behalf of User has full power and authority to enter into this Agreement on behalf of User.

    2. User acknowledges that the Internet is an inherently insecure medium and the reliability of hosting services, Internet intermediaries, User’s service provider, and other service providers cannot be assured. User represents and warrants that it accepts the risks and the responsibility in connection with choosing to use a technology that does not provide perfect security and reliability.

    3. End User represents and warrants to the Company that the Company is not responsible for any repercussions arising from End User’s use of the Services and End User shall seek remedies arising from disputes in connection with invoices delivered to End User, the amounts End User is charged, and End User’s payment thereof, solely from Agency.

  5. Changes to the Services and this Agreement. The Company may update the Services and this Agreement from time to time, in its sole discretion. The most recent date that this Agreement has been modified will be posted with the date indicated as “Last Modified” at the beginning of this Agreement. User’s continued use of the Services from the date the modified version is posted shall be deemed to constitute affirmative acknowledgment of, and agreement to abide and be bound by, the modified terms, conditions, and obligations therein by User. Therefore, User should regularly check for updates and/or changes. If there is any objection to any of these revisions, modifications, or supplementations or any dissatisfaction with the Services in any way, User’s sole recourse is to immediately discontinue use of the Services.

  6. License. User is hereby granted a limited license during the portion of the Term (as defined below) to utilize, including incidental copies arising from the operation of User’s browser and the Services, solely as expressly permitted by the Company. User may only use the Services for their intended purposes. Client may not resell or sublicense the Services to any other person or entity. User is prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works from, decompiling, reverse engineering, disassembling, transferring, or using the Services, or any other materials available on or through the Services, for any other purposes. User agrees that its use of the Services is voluntary, non-assignable, and non-transferable.

  7. Term. This Agreement remains in effect until cancelled by either the Company or the User (each, as applicable, the “Term”).

  8. Cancellation.

    1. With respect to Agency, the Company may cancel this Agreement or any aspect of the Services at any time upon thirty (30) days advance notice for any reason. The Company may cancel this Agreement with Agency or any aspect of the Services provided to Client immediately if Agency breaches any obligations required of Agency in this Agreement, or any of the documents described herein.

    2. With respect to End User, Agency and the Company each may cancel End User’s access to, or any aspect of, the Services at any time by providing written notice to End User at the most current email address Agency or the Company, as applicable, has for End User.

    3. Agency may cancel or terminate its account and use of the Services upon a minimum of thirty (30) days advance notice for any reason, in which case, Client must cease using the Services at the end of the notice period. 

    4. Each End User may discontinue use of the Services at any time by providing written notice to the Company at support@spend.care or via the appropriate functionality within the software application provided to the end user or the agency

  9. Data Retention. The Company may retain User’s personal information indefinitely (including after services have been terminated or canceled), as set forth in the Company’s Privacy Policy available at www.spend.care/privacy-policy, in order to retain a record of User’s transactions, maintain such User’s account, and in order to provide the Services. To contact the Company about deleting User’s personal information from the Company systems, please refer to the Privacy Policy available at www.spend.care/privacy-policy.

  10. Intellectual Property.

    1. The Services and all content, features, and functionality provided by the Services (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

    2. User shall not:

      1. Modify copies of any materials from this site.

      2. Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

      3. Access or use for any commercial purposes any part of the Services or any materials provided by the Services except as expressly permitted under this Agreement.

    3. User agrees that the Company’s third-party providers and suppliers are third-party beneficiaries of the above provisions, with all rights to enforce such provision as if they were each a party to this Agreement.​

  11. Trademarks. The Company’s name, the term “SpendCare,” and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. User shall not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans provided by the Services are the trademarks of their respective owners.

  12. Confidential Information

    1. All non-public, confidential or proprietary information of the Company, including, but not limited to, trade secrets, technology, information pertaining to Company operations, and information pertaining to Users (collectively, “Confidential Information”), disclosed by the Company to User, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by User without the prior written consent of the Company. 

    2. User agrees to use the Confidential Information only to make use of the Services and Deliverables.

    3. The Company shall be entitled to injunctive relief for any violation of this Section 

  13. Disclaimer of Warranties.

    1. User understands that the Company cannot and does not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. User is responsible for implementing sufficient procedures and checkpoints to satisfy such User’s particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Company’s site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT USER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO USER’S USE OF THE SERVICES OR ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH USE OF THE SERVICES OR TO USER’S DOWNLOADING OF ANY MATERIAL PROVIDED BY THE SERVICES, OR ON ANY WEBSITE LINKED TO THE SERVICES.

    2. USER’S USE OF THE SERVICES, THEIR CONTENT, AND ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH THE USE OF SERVICES IS AT RISK OF SUCH USER. THE SERVICES, THEIR CONTENT, AND ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH THE USE OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH USE OF THE SERVICES WILL OTHERWISE MEET USER’S NEEDS OR EXPECTATIONS. 

    3. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

    4. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.​

  14. Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH USER’S USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO IT, ANY CONTENT ON PROVIDED BY THE SERVICES OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

  15. Indemnification. User agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, stockholders, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to User’s violation of this Agreement or User’s use of the Services, including, but not limited to, any use of the content and services provided by the Services and products other than as expressly authorized in this Agreement, or User’s use of any information obtained from the Services.

  16. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to the Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within ten days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon ten days’ written notice.

  17. Assignment. User shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves User of any of its obligations under this Agreement.

  18. Relationship of the Parties. The relationship between the Company and User is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Company and User, and neither party shall have the authority to contract for or bind the other in any manner whatsoever.

  19. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.

  20. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee in each case located in the City of Nashville and County of Davidson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

  21. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to address designated by the receiving party. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section ‎21.

  22. Waiver and Severability.

    1. No waiver by the Company of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.

    2. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.

  23. Entire Agreement. This Agreement, the Company’s Privacy Policy, any order confirmation, and all policies and procedures that are incorporated by reference constitute the sole and entire agreement between Users and the Company regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

  24. Survival. Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidential Information (Section ‎12) and Survival (Section ‎24).

  25. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.