By accessing or using the Services:
You acknowledge that you have read, understood, and accept these Terms and any additional documents or policies referred to in or incorporated into these Terms, whether you are a visitor to our Services or a registered user;
You represent and warrant that (i) you are at least eighteen (18) years of age and have the right, authority, and capacity to enter into these Terms, either on behalf of yourself or the entity that you represent, (ii) you are not located in a country embargoed by the United States and that you are not on the U.S. Treasury Department’s list of Specially Designated Nations, and (iii) you will comply with all applicable laws and regulations in connection with your use of the Services and in accordance with the terms and conditions specified in these Terms;
If these Terms have materially changed since you last access or used the Services, you acknowledge and agree that your continued access or use of the Services constitutes your acceptance of the changed Terms; and
You consent to receive communications from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.
Table of Contents
1. Accessing the Services
Subject to these Terms, and as part of our Services, we may provide to you certain payment services to facilitate payment, including, without limitation, by Automated Clearing House, to Merchants through Merchant’s websites. As part of such payment services, all funds transfer services are provided by Stripe through its Stripe Connect product, as Company does not receive, hold, or transmit funds. A “Merchant” means a merchant that has been authorized by us to accept the Services as a method to facilitate payment for purchases of goods and services, subject to these Terms.
The Services are controlled or operated (or both) from the United States and are not intended to subject Company to any non-U.S. jurisdiction or law. The Services may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Services’ availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
You may only use the Services for your personal, noncommercial use, subject to these Terms, and provided you have a U.S. mobile phone number and U.S. state or federally-chartered bank account. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of these Terms. Unless otherwise agreed in writing by Company, the Services is not available to any users previously removed from the Services by Company. It is a condition of your use of the Services that the information you provide is correct, current, and complete. Your use of the Services is at your own risk, including the risk that you may be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. You are responsible for making all arrangements necessary for you to have access to the Services. We may close your account, suspend your ability to use certain portions of the Services, and/or ban you altogether from the Services for any or no reason, and without notice or liability of any kind. You are responsible for ensuring your access to the Services, and that access may involve third-party fees (such as Internet service provider or airtime charges) and obtaining and maintaining all equipment necessary to access the Services.
In determining whether you may use the Services with Merchants, we reserve the right to verify the required identifying information you provide to us (including, without limitation, your mobile phone number, bank account information, name, and email address). If we are not able to link your bank account at the time of your initial purchase on the Services, you may be offered the option to pay for such purchase using your credit card or debit card. If applicable, you hereby authorize us to make and then promptly reverse a nominal deposit to your Payment Method (as defined below) solely for purposes of verifying your Payment Method.
If you are invited or clearly provided with access to beta testing new tools and resources, which are not made available to the public and users broadly (“Beta Offering”), you should not rely on, nor expect, the continued availability of these new tools and resources. Any information, data, content, or materials provided or displayed to you in any Beta Offering, or any knowledge that you may have from or relating to such Beta Offering (collectively, “Beta Offering Information”), is proprietary and confidential information of Company, and you shall not disclose any Beta Offering Information to any third party or person. Your access to and use of any Beta Offering shall be subject to these Terms.
2. Account Registration and Account Security
Once you have an account, you are responsible for all activities that occur in connection with your account. You will treat as confidential your account access credentials and will not to disclose it to any third-party. You agree to immediately notify us if you have any reason to believe that your account credentials have been compromised or if there is any unauthorized use of your account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your account in a public space, such as a park or cafe or public library, so that others are not able to view or record your access credentials or other personal information. Company will not be liable and you may be liable for losses, damages, liability, expenses, and lawyers’ fees incurred by us or a third party arising from someone else using your account due to your conduct regardless of whether you have notified us of such unauthorized use.
You may not impersonate someone else to create an account, create or use an account for anyone other than yourself, permit anyone else to use your account, or provide personal information for purposes of account registration other than your own. In order to ensure we can protect and properly administer the Services and our community of users, we have the right to disable or close any user account at any time and for any reason or for no reason. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. If your account canceled, terminated or suspended, you and, if applicable, your authorized users, will lose the ability to access and use such account(s) and any of Your Content (defined below) that you have uploaded or stored using the Services. Company may immediately delete Your Content at the time of cancellation, termination or suspension of such account(s), and Company will not be liable to you or any third party in connection with such deletion of Your Content or your loss of access and use of such account(s).
3. Prohibited Uses
You may use the Services only for lawful purposes and in accordance with these Terms. We are under no obligation to enforce the Terms on your behalf against another user. We encourage you to let us know if you believe another user has violated the Terms or otherwise engaged in prohibited or illegal conduct. You agree not to, and will not assist, encourage, or enable others to use the Services:
For any commercial purpose, except as expressly permitted under these Terms.
To violate any applicable national, regional, federal, state, local, or international law or regulation.
To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material which:
Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
Infringe any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;
Promotes suicide or self-harm, incites hate or violence against others, or doxes another individual;
Contain any unsolicited or unauthorized advertisements, promotional material, “junk mail,” “spam,” “chain letter,” “pyramid scheme” or investment opportunity, or any other form of solicitation that is not expressly approved in writing by Company in advance;
Be likely to deceive or confuse any person.
Additionally, you agree not to, and will not assist, encourage, or enable others to:
Violate these Terms or any other rules or policies posted by us.
Reverse engineer any portion of the Services.
Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Services, except as expressly authorized by Company.
Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services.
Record, process, harvest, collect, or mine information about other users.
Access, retrieve, or index any portion of the Services for purposes of constructing or populating a searchable database.
Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose.
Use the Services to transmit any invalid data, computer viruses, worms, defects, Trojan horses, or other items of a destructive nature.
Use the Services to violate the security of any computer network, crack passwords or security encryption codes.
Use the Services for any commercial solicitation purposes.
Take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure.
Remove, circumvent, disable, damage, or otherwise interfere with any security-related features or other restrictions of the Services.
Bypass or ignore instructions that control access to the Service, including attempting to circumvent any rate limiting systems by using multiple API keys, directing traffic through multiple IP addresses, or otherwise obfuscating the source of traffic you send to the Services.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.
Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Services.
Permit direct or indirect access to or use of the Services in a way that circumvents any contractual usage limit.
Copy the Services or any part, feature, function, graphics or user interface thereof.
Frame or mirror any part of any Services, other than framing on your own internal intranets.
Access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service.
Impersonate another person, misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity.
Any other activities we may notify you of from time to time.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing thirty (30) days’ prior written notice to us email@example.com, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
You will not, without Company’s prior written consent, use the Services to purchase Restricted Goods or Services, and Company reserves the right to prohibit the use of the Service to purchase goods and services. “Restricted Goods or Services” means goods or services which Company considers, in its sole discretion, to be dangerous, inappropriate for the Services, or high risk, for example, but not in limitation, (i) goods or services that are illegal under applicable law (i.e., goods or services that infringe third-party intellectual property, including without limitation counterfeit goods and pirated content); (ii) inherently dangerous goods, including without limitation illegal drugs or derivatives thereof, cannabidiol products and nutraceuticals, psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions for making explosives or harmful products, or tobacco products; (iii) pornographic materials; (iv) products that enable dishonest behavior, including without limitation hacking software or instructions, fake documents, and academic cheating products; (v) without limiting the foregoing, any goods or services which are prohibited by law to be sold to customers under 18 years of age; and (vi) any other goods or services designated by Company, from time to time, as prohibited or restricted
We are not responsible or liable to any third-party for the content or accuracy of any materials posted by you or any other user of the Services. You understand that when using the Services, you will be exposed to text, images, photos, audio, video, location data, and all other forms of data or communication (“Content”) from a variety of sources, and that Company is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. We do not endorse any Content made available through the Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with such Content.
You understand and acknowledge that you alone are responsible for Content that you submit or transmit to, through, or in connection with the Services or that you publicly display or displayed in your account profile (collectively, “Your Content”), and you, not Company, assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, reliability, appropriateness, or any disclosure by you of information in Your Content that makes you or anyone else personally identifiable. You represent that you own or have the necessary rights, consents, and permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Company. You represent and warrant that Your Content does not violate these Terms. You hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. By “use” we mean use, make, have made, sell, offer for sale, import, practice, copy, publicly perform and display, reproduce, perform, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content. Pursuant to this grant, you agree that we may use Your Content in a number of different ways, including by publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, and distributing it. Please note that you also irrevocably grant the users of the Services the right to access Your Content in connection with their use of the Services. Finally, you irrevocably waive, and cause to be waived, against Company and its users any claims and assertions of moral right or attribution with respect to Your Content. We are not and shall not be under any obligation, except as otherwise expressly set forth in these Terms or our other policies, (1) to maintain Your Content in confidence; (2) to pay you any compensation for Your Content; (3) to credit or acknowledge you for Your Content; (4) to respond to Your Content; or (5) to exercise any of the rights granted herein with respect to Your Content.
We respect the intellectual property rights of others, and we ask our users to do the same. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, in appropriate circumstances and in our sole discretion, we may terminate the rights of any user to use the Services (or any part thereof) who infringes the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or if you are aware of someone so infringing on your rights, please provide the following information to the “Copyright Agent”:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
A description of the copyrighted work that you claim has been infringed upon.
A description of where the material that you claim is infringing is located on the Services.
Your address, telephone number, and email address.
A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, and/or the law.
A statement by you, made under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
All notices of copyright infringement claims should go to our Copyright Agent at firstname.lastname@example.org.
As between the parties, we own the Services, any Feedback (as defined below), all of our trademarks, logos, and branding, and any Content that we create in connection with the Services (“Company Content”), including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with the foregoing, including all improvements, enhancements, and derivatives thereto (collectively, “Company IP”). Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Company IP are retained by us. Use of the Company IP for any purpose not expressly permitted by this Agreement is strictly prohibited.
(a) You may link or unlink your payment method, which may include a U.S. state or federally-chartered bank account or debit card (“Payment Method”) to your account. You authorize Bank, us and/or our payment service provider (individually and collectively, as applicable, the “Payment Provider”) to make a payment to Merchant using funds debited from your Payment Method, and you hereby authorize your Bank to initiate an electronic transfer from your Payment Method in the amount you specify, if applicable. You are solely responsible for complying with any and all terms set by your Bank with respect to your Payment Method, including without limitation any fee terms, such as insufficient fund or overdraft fees. You further acknowledge that payments made from your Payment Method via normal Automated Clearing House are subject to clearing times, and Merchants may wait until they have received your funds before fulfilling your purchases. To the extent we accept or process funds on behalf of Merchant in connection with a purchase you make from the Merchant using the Services, you understand that we are acting as the payment collection agent of Merchant, and that upon our receipt of funds from you for such purchase, your obligation to the Merchant ceases with respect to the amount of funds we receive from you. In the event that we do not remit any such amounts to Merchant, Merchant will have recourse only against us and not you.
(b) In connection with all transactions through the Services, you are responsible for both (i) providing accurate, complete, and current information to us and (ii) maintaining sufficient funds in your Payment Method, and you acknowledge and agree that otherwise, we will not be able to provide the Services to you and Merchants will not be able to accept your payments through the Services. You represent and warrant that you are the owner or authorized user of the Payment Method and you have all rights and privileges to authorize transfers from the Payment Method. You agree to pay all charges incurred by all individuals who use your Payment Method in connection with transactions through the Services, at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such transaction.
(c) We may review payments facilitated through the Services in our sole discretion. When we identify a potentially high-risk payment to a Merchant, we reserve the right to suspend and review the transaction more closely before determining whether to allow it to proceed. When this happens, we may suspend or delay processing the transaction request and notify the Merchant to delay or cancel shipping of the item or provision of the service. If, in our sole discretion, we process the transaction request, we will notify the Merchant and direct them to ship the item or provide the service, as applicable, if the item or service is still available. If we do not process the transaction request, we will cancel it and (as applicable) instruct Payment Provider to return the applicable funds to your Payment Method, unless we are legally required to take other action. We assume no responsibility, and disclaim any and all liability, for your inability to obtain the item or service originally transacted for as a direct or indirect consequence of the process described above, and you hereby release Company, each Merchant, Payment Provider and their respective affiliates, agents, licensors, managers, employees, contractors, agents, officers, and directors of Company and of each Merchant from any and all such liability.
(a) A Merchant may offer discounts and credits to you from time to time in connection with the Services, which may be used by you to make payments to the Merchant for your purchase of goods or service from the merchant (“Credits”); provided that a participating Merchant will be solely and exclusively responsible for honoring any and all Credits. From time to time, we may, in our sole discretion and on behalf of Merchant, offer to you discounts and credits to be used as Credits. You may redeem Credits only when (i) you make a subsequent purchase from the Merchant that offered and supports the Credit, (ii) use Services to effect the subsequent purchase, and (iii) complete such purchase in advance of the Credit’s expiration date as set forth in your Services account. Participating Merchants and offer terms may be changed from time to time without notice; provided that the terms applicable to Credits that have already been accrued by you will change only if such change is required by applicable law and upon notice. Credits that you earn will be posted to your account based on the information we receive from participating Merchants. Credits may be subject to restrictions, conditions or limitations as may be described in your account or otherwise communicated by Company from time to time.
(b) Credits are not owned by you, and you have no rights to any Credits until they are redeemed at a particular Merchant. Credits have no monetary value and if the Services are canceled or discontinued, the Credits immediately expire. You acknowledge and agree that regardless of terminology used, Credits are also subject to these Terms and any additional Merchant terms. You acknowledge that you do not own the account you use to access the Service. You agree that, in the event that a Merchant modifies and/or eliminates Credits, in any general or specific case, Company will have no liability to you based on any such modification or elimination, and you hereby release Company from any and all such liability. All data on Company’s servers are subject to deletion, alteration or transfer.
(c) Without limiting the generality of the foregoing, you may transfer any Credits (subject to the foregoing limitations) in your account to other individuals (your “Friends”) for their personal, non-commercial use. A Friend must create their own account and link their own Payment Method in order to receive and use such transferred Credits. If your Friend claims such transferred Credits, you will no longer have rights to use those Credits. So long as your Friend fails to claim such transferred Credits, you will continue to have rights to use those Credits, subject to the terms of this Agreement. You acknowledge and agree that, subject these Terms, if and after you claim transferred Credits, you may receive marketing emails from the Merchant providing such Credits.
(d) You may earn Credits if you refer Friends to use the Services; provided that such Friends: (a) must create a new account via the unique referral link associated with your account, (b) have not previously created an account for the Services, and (c) complete and pay in full for one (1) purchase on the Services that meets the then-current Company referral minimum spend requirement (as may be updated by Company from time to time in its sole discretion). Subject to the foregoing, and if applicable, we will post Credits that you earn from such referrals to your account.
6.3 Refunds and Adjustments
(a) Subject to the terms herein, if you buy something from a Merchant using the Services and the transaction is ultimately canceled or rescinded in whole or in part for any reason, the applicable funds paid by you will be refunded to the original Payment Method that was used to fund the applicable transaction (if the original Payment Method is no longer supported, we will you to link a new Payment Method for us to use instead); provided, however, we may require you to handle refunds directly with the Merchant, including obtaining a refund from the Merchant. You hereby authorize us and your Bank to credit that Payment Method to complete such refund transaction. If a different Payment Method is linked to your account at the time at which the refund is expected, Company may require you to unlink such different Payment Method from your account and to re-link the original Payment Method to your account before processing your refund. If you receive a refund for a qualifying purchase for which you have already received Credits, we reserve the right to remove all related Credits from your account, or if such Credits are no longer available in your account, to deduct the corresponding amount from the refund to your Payment Method.
(b) We may invalidate and reverse payments through the Services if, among other reasons: (i) we sent the payment in error; (ii) the funding transaction is declined, charged back or reversed by you, your bank, or the applicable Merchant; (iii) the payment was unauthorized or insufficiently funded; (iv) we decided a dispute against you, in our sole discretion; or (v) if the payment was for Restricted Goods or Services. In the event of such invalidation, chargeback, payment dispute or other adjustment, you may be liable to us for the full amount of the payment, and we may recover the amount of the payment plus any fees from you, subject to applicable law. You hereby authorize us to recover any such amounts due by initiating an electronic transfer from your Payment Method or engaging in collection efforts. If you dispute a payment through the Service, you must notify us in writing at email@example.com immediately, and if you fail to do so, we may recover the amount of the reversed payment from you. Upon our receipt of the foregoing notice, we will initiate an investigation into the applicable transaction and, in our sole discretion and subject to your cooperation, we may provide you with a full refund. Notwithstanding anything to the contrary herein, your eligibility for refunds and other adjustments are subject to each Merchant’s terms and conditions.
(c) In the event you initiate a chargeback, payment dispute or other adjustments through your bank, we may notify the Merchant and disclose your personal information to the Merchant in connection with exercising our rights against Merchant and processing or disputing any chargeback, payment dispute or other adjustment. You further authorized Merchant to share any personal information it may have on you in order for us to process or dispute any chargeback, payment dispute or other adjustment.
6.4 Risk of Loss
(a) Company does not sell products; Merchants do. All products that may be purchased via the Services are transported and delivered to you by a Merchant or independent third party not affiliated with, or controlled by, Company. Title to and risk of loss for such products passes to you in accordance with your separate agreements with the applicable Merchant. If you have any issue with a product, please reach out to the applicable Merchant directly. We are not responsible for the quality, safety, legality or any other aspects of the goods or services you purchase from others in connection with the Services. If you have a problem with a purchase you made with the Services, or if you have a dispute with the Merchant, we may require you to handle it directly with the Merchant, including obtaining a refund from the Merchant.
7. Third Party Links
8. No Guarantee of Service; Termination
Although we hope to make the Services available at all times in the future, there may be times when we need to disable the Services either temporarily or permanently. The Services may be modified, updated, interrupted, suspended, or discontinued at any time without notice or liability. Keep this in mind as Company will not be liable if all or any part of the Services is unavailable at any time, for any period of time. Also, from time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users. We cannot and do not make any representations or warranties with respect to the devices you use to access or use the Services, including with respect to device compatibility.
We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, if we believe, in our sole discretion, that you may not be able to pay for transactions initiated through the Service, if you have not timely made any payments, or for no reason. In the event that we suspend or terminate your User Account for your breach of this Agreement, you acknowledge and agree that you will receive no refund or exchange for any Credits or anything else. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You may close your account and terminate your relationship with us without cost, but you will remain liable for all obligations related to your account even after your account is closed and for all activities occurring prior to termination. As soon as you close your account, you immediately forfeit any and all Credits in your account, without refund. You may not close your account to evade an investigation or if you have a pending transaction or an open dispute or claim. We may, with or without cause and without notice (unless required by applicable law), terminate your account or use of the Service at any time in our sole and absolute discretion. If your account is terminated or you request that we delete your personal information (and we honor such request), you shall seek any refund related to goods or services purchased from Merchant in connection with the Service directly from the Merchant, unless we otherwise agree to assist you with the refund.
9. Disclaimer of Warranties
COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU FURTHER WAIVE AND HOLD HARMLESS COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.
YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFICACY OF SUCH RELEASES CONTAINED HEREIN. FOR EXAMPLE, YOU SPECIFICALLY AGREE TO WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.
10. Limit of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE SERVICES. COMPANY’S AGGREGATE LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO FEES ACTUALLY PAID BY YOU IN CONNECTION WITH THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED U.S. DOLLARS ($100). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
You shall indemnify and hold harmless Company, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from (a) your violation of these Terms or any applicable Third Party Terms, (b) your use of the, (c) any of Your Content, including any data or content transmitted to or received by you or in connection with your account, (d) your violation of any third party right, (e) your breach of applicable law, rule, or regulation, (f) any other party’s access and use of the Services with your mobile phone, authentication pin code, or other appropriate security code, or (g) your negligence or willful misconduct.
12. Governing Law
This Agreement shall be governed by the laws of the State of California, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the federal and state courts located in San Diego County, California.
13. Dispute Resolution
Please read the following arbitration agreement in this Section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us:
Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Company, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Company are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Pre-Arbitration Dispute Resolution. Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at hello@Company.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Company should be sent to the address listed on our Contact page ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Company is entitled.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND Company AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Company AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Waiver of Jury Trial. YOU AND Company HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Consumer Arbitration Rules (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Company and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Company may pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Company may pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company may pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement. Notwithstanding any provision in this Terms of Service to the contrary, Company agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Company written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
14. General Terms; Notices
These Terms constitute the sole and entire agreement between you and Company with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services. No waiver of these Terms by Company shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect. The Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Company’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void. The section titles in the Terms are for convenience only and have no legal or contractual effect.
Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to our users, provided that you may opt out of certain means of notification as described in these Terms. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
16. Text Messaging and Calls
16.1 Transactional Communications
By providing your phone number, you expressly consent and agree that we may contact you using written, electronic, and/or verbal means, including by manual dialing, leaving prerecorded/artificial voice messages, and/or using an automatic telephone dialing system to call or send SMS/text messages to your phone number as necessary to (i) help keep your account secure through the use of one-time passcodes, two-factor authentication or other authentication methods; (ii) help you access your account; and (iii) as otherwise necessary to service your account, complete transactions requested by you, or enforce this Agreement, our policies, or applicable law, or any other agreement we may have with you, even if the provided phone number is registered on any federal or state Do-Not-Call registry (such text messages, collectively, “Transactional Text Messages”). For purposes of clarity, the communications described in this paragraph are transactional in nature, and not promotional.
16.2 Certification; Acknowledgments; Company Disclaimer
You certify that any phone number(s) you provide to us are true and accurate and that you are authorized to enroll such phone number(s) to receive calls and/or SMS/text messages as described herein. Message and data rates apply. The wireless carriers supported by the Services are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Services.
16.3 Text Message Opt-Out and Customer Support
You may opt out of Transactional Text Messages by accessing your account settings and turning off text message communications.
You consent that following such a request to unsubscribe, you may receive one final text message from us confirming your request.
For help or customer support, contact us at firstname.lastname@example.org.
If you have opted-out of Promotional Text Messages, you may resubscribe at any time by accessing your account settings or by contacting us at email@example.com.