TERMS OF SERVICE AGREEMENT
Welcome to the Berkley Mid-Atlantic Group® and Berkley Southeast Insurance Group® E-Pay Express on-line bill payment services website, which provides bill payment options and services (such website, options and services are individually and collectively referred to herein as the “E-Pay Express Services”) available to customers of Berkley Mid-Atlantic Group® and Berkley Southeast Insurance Group®, operating units of Berkley Insurance Company, and affiliated companies (referred to herein as “BMG/BSE”). BMG/BSE is willing to provide the E-Pay Express Services to you, a customer of BMG/BSE, only upon your agreement that your access to and use of the E-Pay Express Services will be subject to the following E-Pay Express Terms of Service Agreement (the “Agreement”). This Agreement describes the terms and conditions under which BMG/BSE will make E-Pay Express Services available to BMG/BSE’s customers (“you”). The Agreement may be revised without notice and will become effective upon posting on this site and your use of the E-Pay Express Services.
The following defined terms are used in this Agreement:
E-Pay Express is a service you can use to securely view and pay your BMG/BSE bill online. BMG/BSE has licensed the right to use E-Pay Express from an unaffiliated third-party, Fifth Third Bank. and/or its affiliates (“Fifth Third”).
Account means the Account with BMG/BSE to which you authorize a bill payment to be directed.
Payment Instruction means your instruction and authorization to E-Pay Express to make a bill payment to your Account.
Payment Account means the bank account that you authorize E-Pay Express to debit when you make your bill payment using account information from your personal or business checking or savings account.
Payment Card means the credit or debit card that you instruct E-Pay Express to charge to pay your bill payment.
Business Day means Monday through Friday, excluding Federal Reserve holidays.
Scheduled Payment Date means the Business Day of your choice upon which E-Pay Express will attempt to complete your bill payment and initiate the appropriate debit to your Payment Account or Payment Card.
BMG/BSE includes the following affiliated companies of Berkley Insurance Company: Acadia Insurance Company, Continental Western Insurance Company, Firemen’s Insurance Company of Washington, D.C., Tri-State Insurance Company of Minnesota, and Union Insurance Company (collectively referred to herein as “Insurers”). All payments processed through E-Pay Express Services are paid to BMG/BSE on behalf of itself or one of the Insurers listed above; however, each of the Insurers has sole financial responsibility for its own products and services, including the E-Pay Express Services provided in connection with those products and services. You should refer to your insurance policy for the applicable Insurer.
- DESCRIPTION OF E-PAY EXPRESS SERVICES
- The E-Pay Express Services provide you with access to various on-line resources, including applications that allow you to view your BMG/BSE bill. Unless explicitly stated otherwise, any new features that augment or enhance the current E-Pay Express Services, including the release of new services, shall be subject to this Agreement. Upon your acceptance of this Agreement, BMG/BSE grants you a personal, nonexclusive, non-transferable license to access and use the E-Pay Express Services, subject to this Agreement, solely for the purpose of viewing and paying your Account electronically. The forgoing license includes the specific rights to use the available applications and functionalities of the E-Pay Express Services and to print information from the E-Pay Express Services. BMG/BSE and Fifth Third do, however, reserve the right to, without notice: (a) modify, suspend or terminate operation of or access to the E-Pay Express Services at any time for any reason; (b) modify or change the E-Pay Express Services or its applicable operating policies at any time; and (c) interrupt the E-Pay Express Services as necessary to perform routine and non-routine maintenance, error corrections, or other changes. BMG/BSE also reserves the right to modify this Agreement at any time, in which case you will be provided notice that the Agreement has been changed. Your continued use of the E-Pay Express Services after said notice of the changed Agreement constitutes your agreement with and acceptance of the changed Agreement.
- BILL PAYMENT SERVICE
(a) When you initiate a Payment Instruction, you authorize E-Pay Express to charge your Payment Card or debit your Payment Account and remit funds to BMG/BSE on your behalf so that the funds arrive to pay your bill as close to the Business Day designated by you as is reasonably possible. While it is anticipated that most transactions will be processed on the day you choose, it is understood that due to circumstances beyond the control of BMG/BSE and Fifth Third, some transactions may take a day or so longer to be credited to your Account.
(b) If E-Pay Express is unable to obtain funds for a bill payment for any reason associated with your Payment Card or Payment Account (for example, there is not a sufficient balance available on your Payment Card or in your Payment Account to cover the transaction), then we will not be able to complete your bill payment transaction. If there is a problem in processing your Payment Instruction, BMG/BSE or Fifth Third may attempt to contact you, using the telephone number you have provided
(c) If E-Pay Express makes a bill payment to your Account, but is unable to obtain funds for that payment from your Payment Card or Payment Account, you agree that your bill payment will be reversed.
III. LIABILITY FOR FAILURE TO COMPLETE TRANSACTIONS
- E-Pay Express will use commercially reasonable efforts to process your bill payments in accordance with your Payment Instructions. However, BMG/BSE and Fifth Third shall incur no liability if a bill payment is not made in a timely manner or if any payments initiated by you through the E-Pay Express Services cannot be completed because of any one or more of the following circumstances:
- Sufficient funds are not available through your Payment Account or your Payment Card;
- Any failure on the part of BMG/BSE or Fifth Third to account correctly for or credit the payment in a timely manner, or any other mishandling of your payment by BMG/BSE or Fifth Third;
- The E-Pay Express Services are not working properly and you know or have been advised by BMG/BSE or Fifth Third about the malfunction before you execute the transaction;
- You do not provide BMG/BSE or Fifth Third with all required information to complete the bill payment, such as your correct name, telephone number, or your complete and correct Payment Card or Payment Account information; or
- Circumstances over which BMG/BSE or Fifth Third have no control including, but not limited to, large-scale technical malfunctions, including, but not limited to, loss of access to the Internet or loss of access to the Federal Reserve System, prolonged outages of telephone lines, electricity or similar infrastructure, acts of God, war, riot, civil disobedience or similar events of insurrection, governmental or court orders, regulatory or legislative changes by any local, state or federal governmental agency, strikes, work stoppages or other similar occurrences or circumstances.
- USER NAMES AND PASSWORDS
- During the registration process for the E-Pay Express Services, a User Name and Password (collectively, “Authentication Materials”) will be established for your use in accessing the E-Pay Express Services. The Authentication Materials are intended for your use only. You agree: (a) not to disclose such Authentication Materials to any third party, (b) to take reasonable care to protect such Authentication Materials from inadvertent disclosure to third parties, and (c) to immediately notify BMG/BSE of any loss or unauthorized use of such Authentication Materials. You agree that you will be responsible for all actions taken using your Authentication Materials.
- YOUR REPRESENTATIONS.
- You hereby represent to BMG/BSE and agree that:
- any and all information that you provide to BMG/BSE or Fifth Third to use the E-Pay Express Services will be accurate and complete;
- you will not use the E-Pay Express Services to access information about any account unless you have authority to do so by the person or company whose account you are accessing;
- you will not provide any information to BMG/BSE or Fifth Third or in your use of the E-Pay Express Services, including account information, unless you have the authority to communicate such information;
- you will not use the E-Pay Express Services for any illegal or improper purposes;
- you will not use: (i) any robot, spider, other automatic device to monitor or copy portions of the E-Pay Express home page or the E-Pay Express Services or the content contained therein, or (ii) any device, software or routine to interfere or attempt to interfere with the proper working of the Payer Express home page or the E-Pay Express Services;
- you will not download, reproduce, duplicate, copy or otherwise extract any portion of the E-Pay Express home page or the E-Pay Express Services for the purpose of sale or resale, or making other commercial use thereof, and
- BMG/BSE or Fifth Third may send you electronic correspondence describing changes to the E-Pay Express Services and this Agreement.
- RELIANCE ON THE INFORMATION FROM THE E-PAY EXPRESS SERVICES
- While we exercise reasonable efforts to ensure the accuracy of information on the E-Pay Express home page and accessibility through the E-Pay Express Services, you acknowledge and agree that your use of the E-Pay Express home page or the E-Pay Express Services, and your reliance upon any data or information accessed using the E-Pay Express home page or the E-Pay Express Services, is at your own risk. You agree to make and rely on your own independent investigation of the completeness, accuracy and suitability of any information, data, or analytical product available on the E-Pay Express home page or the E-Pay Express Services before reliance thereon.
VII. WARRANTY DISCLAIMERS
- YOU ACKNOWLEDGE AND AGREE THAT THE E-PAY EXPRESS SERVICES AND THE E-PAY EXPRESS HOME PAGE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT USE OF THE E-PAY EXPRESS SERVICES OR THE E-PAY EXPRESS HOME PAGE IS AT YOUR SOLE RISK. BMG/BSE DOES NOT MAKE ANY WARRANTY WHATSOEVER ABOUT THE E-PAY EXPRESS SERVICES, THE E-PAY EXPRESS HOME PAGE, THE OPERATION OR AVAILABILITY OF EITHER, THE ACCURACY OF INFORMATION PROVIDED ON OR THROUGH THE E-PAY EXPRESS SERVICES OR E-PAY EXPRESS HOME PAGE, OR THE SECURITY OF THE E-PAY EXPRESS SERVICES OR E-PAY EXPRESS HOME PAGE. MOREOVER, BMG/BSE AND FIFTH THIRD EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND REGARDING THE E-PAY EXPRESS HOME PAGE AND THE E-PAY EXPRESS SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMG/BSE MAKES NO WARRANTY THAT (A) THE E-PAY EXPRESS HOME PAGE OR E-PAY EXPRESS SERVICES WILL MEET YOUR REQUIREMENTS, (B) ACCESS TO THE E-PAY EXPRESS HOME PAGE OR E-PAY EXPRESS SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) TRANSMISSION OF DATA TO AND FROM THE E-PAY EXPRESS HOME PAGE OR PERTAINING TO E-PAY EXPRESS SERVICES WILL BE TIMELY OR ERROR-FREE, OR (D) THE RESULTS OBTAINED FROM THE USE OF THE E-PAY EXPRESS HOME PAGE OR E-PAY EXPRESS SERVICES WILL BE ACCURATE OR RELIABLE. YOU AGREE THAT NEITHER BMG/BSE NOR ITS AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, OPINION, ADVICE OR STATEMENT PERTAINING TO THE E-PAY EXPRESS SERVICES OR THE E-PAY EXPRESS HOME PAGE.
VIII. LIMITATIONS OF LIABILITY
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT BMG/BSE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BMG/BSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OF, OR THE INABILITY TO USE, THE E-PAY EXPRESS HOME PAGE OR THE E-PAY EXPRESS SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (iv) ANY OTHER MATTER RELATING TO THE E-PAY EXPRESS HOME PAGE OR THE E-PAY EXPRESS SERVICES.
- Subject to the foregoing Warranty Disclaimers and Limitations of Liability, it shall be BMG/BSE’s or Fifth Third’s responsibility to correct any transactions not completed in accordance with your Payment Instructions. In the event that BMG/BSE or Fifth Third are unable to correct the transaction, the amount of funds received from you shall be refunded to you and this refund shall constitute your sole remedy. In no event shall BMG/BSE’s or Fifth Third’s liability to you ever exceed the amount of funds that we receive from your Payment Account or Payment Card for a bill payment.
- THE FOREGOING SHALL CONSTITUTE BMG/BSE’S AND FIFTH THIRD’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY. IN NO EVENT SHALL BMG/BSE OR FIFTH THIRD BE LIABLE FOR ANY OTHER LOSS, INJURY OR DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY, INCLUDING LOST PROFITS (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF YOUR USE OF THE E-PAY EXPRESS SERVICES. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN, BMG/BSE SPECIFICALLY DISCLAIMS AND YOU UNDERSTAND THAT BMG/BSE AND FIFTH THIRD MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESSED OR IMPLIED, AND THE SAME ARE HEREBY EXCLUDED FROM THESE TERMS AND CONDITIONS AND ALL TRANSACTIONS CONTEMPLATED HEREBY.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD BMG/BSE AND ITS AFFILIATES, FIFTH THIRD AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE SHAREHOLDERS, UNDERWRITERS, MEMBERS, PARTNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (“INDEMNITEES”) HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING ATTORNEYS’ FEES, MADE BY YOU OR ANY THIRD PARTY DUE TO OR ARISING OUT OF INFORMATION YOU SUBMIT, POST TO OR TRANSMIT THROUGH THE E-PAY EXPRESS SERVICES, YOUR USE OF THE E-PAY EXPRESS SERVICES, YOUR CONNECTION TO THE E-PAY EXPRESS SERVICES, YOUR VIOLATION OF THIS AGREEMENT OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER, EVEN IF SUCH CLAIM OR DEMAND ALSO ARISES OUT OF THE NEGLIGENCE OR OTHER FAULT OF ONE OR MORE OF THE INDEMNITEES.
- Comments, suggestions and questions about the E-Pay Express home page or the E-Pay Express Services are welcomed. BMG/BSE desires that you do not send, post or upload any information that is confidential or proprietary to you or to any other person or company. By submitting comments, messages, suggestions, ideas, concepts or other information (collectively, “Materials”) to BMG/BSE, you thereby (a) represent and warrant that such information is not confidential or proprietary to you or to any other person and (b) grant BMG/BSE, Fifth Third and each of their respective affiliates an irrevocable, perpetual, royalty-free, non-exclusive, unrestricted worldwide license to: use, copy, publish, transmit, perform and display the Materials for any purpose; create derivative works from such Materials; and implement and use the Materials and any suggestions, concepts or ideas contained therein without compensation to you. Furthermore, you agree that BMG/BSE and Fifth Third are not responsible for the confidentiality of the Materials that you send through the E-Pay Express home page or the E-Pay Express Services.
- As a service to you and for your convenience, the E-Pay Express home page and the E-Pay Express Services may include links to web sites operated by third parties. By providing links to third party web sites, BMG/BSE and Fifth Third do not endorse or sponsor such third parties or their web sites. YOU AGREE THAT BMG/BSE AND FIFTH THIRD ARE NOT RESPONSIBLE FOR THE AVAILABILITY OF OR CONTENT ON ANY WEB SITES OPERATED BY THIRD PARTIES THAT MAY BE ACCESSIBLE THROUGH THE E-PAY EXPRESS SERVICES OR LINKED TO THE E-PAY EXPRESS HOME PAGE, EVEN IF ARISING OUT OF THE NEGLIGENCE OR OTHER FAULT OF BMG/BSE OR FIFTH THIRD.
XII. TRADEMARKS, COPYRIGHTS & RESTRICTIONS
- All materials available through the E-Pay Express Services, including, but not limited to, text, images, illustrations, audio clips, video clips and other data, are protected by copyrights which are owned or licensed by BMG/BSE or its affiliates or by Fifth Third or its affiliates. Except for the limited license granted above, you may not reproduce, perform, create derivative works from, republish, transmit or distribute in any way whatsoever any materials from the E-Pay Express Services, or any other web site owned or operated by BMG/BSE, without the prior written permission of BMG/BSE.
XIII. MODIFICATION AND TERMINATION
- BMG/BSE and Fifth Third reserve the right at any time to modify or discontinue, temporarily or permanently, the E-Pay Express home page or the E-Pay Express Services (or any part thereof) with or without notice. YOU AGREE THAT BMG/BSE AND FIFTH THIRD SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE E-PAY EXPRESS HOME PAGE OR THE E-PAY EXPRESS SERVICES, EVEN IF ARISING OUT OF THE NEGLIGENCE OR OTHER FAULT OF BMG/BSE OR FIFTH THIRD. You agree that BMG/BSE or Fifth Third, in its sole discretion, may terminate your password, account (or any part thereof) or use of the E-Pay Express Services, and remove and discard any content within the E-Pay Express Services, for any reason, including, without limitation, for lack of use or if BMG/BSE or Fifth Third believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. You agree that any termination of your access to the E-Pay Express Services under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that BMG/BSE or Fifth Third may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the E-Pay Express Services. FURTHER, YOU AGREE THAT BMG/BSE AND FIFTH THIRD SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE E-PAY EXPRESS SERVICES, EVEN IF ARISING OUT OF THE NEGLIGENCE OR OTHER FAULT OF BMG/BSE OR FIFTH THIRD.
XIV. GOVERNING LAW/ARBITRATION
- Use of the E-Pay Express home page or the E-Pay Express Services and this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and controlling United States federal law without regard to any conflicts of law provisions, unless such law cannot be applied in a particular jurisdiction under prevailing applicable law. Unless a dispute would be governed by the arbitration clause below, you agree to submit to the personal and exclusive jurisdiction of the courts located within the City of Wilmington and County of New Castle, State of Delaware. If any provision herein is deemed by a court of competent jurisdiction to be unlawful or unenforceable, it will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.
- COMPLETE AGREEMENT/SEVERABILITY/NO THIRD PARTY BENEFICIARIES
- This Agreement and any agreements governing use of specific portions of the E-Pay Express Services constitute the entire understanding between you and BMG/BSE with respect to the E-Pay Express Services and your use thereof, superseding all prior written and oral communications and understandings. If any provision or portion of this Agreement is not given legal effect by a court of competent jurisdiction, such provision or portion shall drop out of the Agreement and the remaining provisions and portions of the Agreement shall be construed and enforced. The Agreement shall not be interpreted or construed to confer any rights or remedies upon any third parties, except for those that expressly apply to Fifth Third.
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