Terms of Use
Last Updated: February 14, 2024
The Terms of Use and any terms and conditions incorporated herein by reference (collectively, the “Terms”) govern your use of www.paysitters.com (the “Site”), any mobile device applications made available to you by PaySitters, Inc. (the “Company,” “we,” or “us”), and any other services made available to you by us, including any software interface that enables you pay bills in a timely manner (collectively with the Site and any other current or future features and/or applications, the “Services”). By accessing, browsing or otherwise using the Services, by creating an account with us or by clicking “Agree” when prompted to do so on the Site, you agree that you have read, understood and accepted all of the Terms and our Privacy Policy (the “Privacy Policy”), which is incorporated by reference into the Terms.
We may change, amend, or revise the Terms from time to time and at any time, in our sole discretion. When we make changes, we will make the updated Terms available on the Site and update the “Last Updated” date at the beginning of the Terms accordingly. Please check the Terms periodically for changes. Any changes to the Terms will apply on the date that they are made, and your continued access to or use of our Services after the Terms have been updated will constitute your binding acceptance of the updates. If you do not agree to any revised Terms, then you should not continue to access or use our Services. Notwithstanding the foregoing, in the event that a change to our Terms of Service will result in an increase of fees, an increase of liability to our users, fewer types of electronic funds transfers or stricter limitations not he frequency or dollar amount of transfers, you will be notified via email 30 days before the effective date.
NOTICE: Please read the Terms and the Privacy Policy carefully as they govern your use of the Services. The Terms contain important information, including a binding arbitration provision and a class action waiver, both of which impact your rights as to how disputes are resolved. The Services are only available to you—and you should only access the Services—if you agree completely with the Terms. Pier Finance, Inc. (“Pier Finance”)is our backend software provider, and partners with financial institutions to provide lending products. Pier Finance's API, and their relationship with financial institutions, enables us to offer lending services and products contained in the Services. By agreeing to our TOS and Privacy Policy, you also agree to Pier Finance’s terms and policies (https://www.pier-finance.com/terms-conditions) and the Finovera terms set for in Annex A. BY USING OUR SERVICES OR BY CLICKING “I ACCEPT” BELOW OR CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND ALL TERMS AND AGREEMENTS INCORPORATED HEREIN.
If you accept the Terms on behalf of a legal entity, by accessing or using the Services or by clicking “Agree” below or clicking a box indicating your acceptance, you represent that you have the legal authority to accept the Terms on that entity’s behalf, in which case “you” (except as used in this paragraph) will mean that entity. If you do not have such authority, or if you do not accept all of the Terms, then we are unwilling to make our Services available to you. If you do not agree to the Terms, neither you nor the entity on behalf of which you are acting should not access or use our Services.
This Privacy Policy (“Policy”) is meant to help you understand how we collect, use, and disclose your personal information, along with any available rights and choices you have with respect to that information. This Policy applies to the personal information we collect when you use any of our Services that we offer (our “Services”), including visits to our websites, web and mobile applications, and other web-connected services (collectively, the “Site”).
But this Policy does not apply to third-party websites, products, or services, even if they link to our Site. We think you should review the privacy practices of those third parties before connecting to or accessing third party websites and providing any of your personal information. You can go to the 𝗟𝗶𝗻𝗸𝘀 𝘁𝗼 𝗢𝘁𝗵𝗲𝗿 𝗦𝗶𝘁𝗲𝘀 section to learn more about third-party sites.
You should also read our 𝗧𝗲𝗿𝗺𝘀 𝗼𝗳 𝗨𝘀𝗲 to understand how your information will be treated as you make full use of our Site and Services. For more information regarding our information collection, use, and sharing practices as to nonpublic financial information regulated by the federal Gramm-Leach-Bliley Act (“GLBA”), please review our 𝗚𝗟𝗕𝗔 𝗣𝗿𝗶𝘃𝗮𝗰𝘆 𝗡𝗼𝘁𝗶𝗰𝗲.
Account
1.1 You must create an account with us to use our Services (an “Account”). To create an Account, we will require that you submit certain Account information, which may include, but not be limited to, your name, email address, mobile phone number, street address, zip code, date of birth, social security number, and other government-issued identification documents to us. The first time you access your Account using a new device we may require you to authenticate your Account with additional information. If your Account cannot be authenticated, then you may not have access to the Account. By creating an Account, you agree to provide accurate, current and complete Account information about yourself, and to maintain and promptly update as necessary your Account information.
1.2 When creating your Account, you will be required to provide your email and phone number to identify yourself when using our Services. You must provide a valid email and phone that does not mislead or deceive others as to your identity.
1.3 By creating your Account, you represent and warrant that you (a) are at least 18 years of age or of legal age to form a binding contract under applicable law; (b) are an individual, legal person or other organization with full legal capacity and authority to enter into the Terms; and (c) have not previously been suspended or removed from using our Services.
1.4 You hereby authorize us, directly or through third parties, to make any inquiries we consider necessary to validate information about you and your Account. This may include asking you for further information and/or documentation about your Account usage or identity, requiring you to take steps to confirm ownership of your email address, mobile phone number or financial instruments, or verifying your information against third party databases or through other sources.
1.5 We may reject your application to create your Account, or cancel an existing Account, for any reason, in our sole discretion.
1.6 We will use the email address you provide as the primary method for communication about your Account and to provide you with any necessary technical support. You must keep your email address and other contact information current in your Account profile.
1.7 By providing us with a mobile phone number, you consent to receiving text (SMS) messages from us. Standard text messaging rates may apply based on your plan with your mobile carrier.
1.8 You must not impersonate any other person or entity to access an Account with us or access anyone else’s Account without that person’s prior permission. You must not create any Accounts by automated means or under false or fraudulent pretense.
1.9 You agree that you will use the Services only in a manner that complies with all applicable laws, and that you are solely responsible for any improper or unlawful activity in connection with the registration of or use of your Account, including any misrepresentations made in connection with the creation of your Account.
1.10 We will share your Account information and desired transaction information with third-party service providers who fulfill transaction requests in accordance with our Privacy Policy.
1.11 You are responsible for the security of your Account. If you become aware of any unauthorized use of your password or of your Account, then you agree to notify us immediately at privacy@paysitters.com.1.12 Financial services are provided through our financial software provider, Pier Finance. To report a complaint relating to the financial services, email support@pier-finance.com.
Our Rights
We reserve the following rights, which do not constitute obligations of ours: (a) with or without notice to you, to modify, substitute, eliminate or add to any of our Services; (b) to suspend or terminate the Account of anyone who violates the Terms; (c) to review, modify, filter, disable, delete and remove any and all content and information from the Site; (d) to update and download automatically any software provided on or through the Site; (e) to cooperate with any law enforcement, court or government investigation or order or third party requesting or directing that we disclose information or content or information that you provide; (f) to display advertising and promotions, which may be targeted to certain users or portions of the Site based upon queries made or preferences indicated and may not be identified as paid advertisements or promotions.
Intellectual Property Ownership
3.1 We retain all right, title and interest in all of our intellectual property, including, without limitation, inventions, ideas, concepts, code, discoveries, processes, marks, methods, software, visual interfaces, graphics, designs, systems, services, “look and feel,” organization, compositions, formulae, techniques, information and data (collectively, the “Company IP”). The Company IP is protected by copyright, trade dress, patent, and trademark laws, international conventions, or other relevant intellectual property and proprietary rights and applicable laws. You may not use any of the Company IP for any reason without the Company’s prior written consent. We reserve all rights in and to the Company IP not expressly granted to you in the Terms.
3.2 We hereby grant you a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access the material on the Site for non-commercial use only, subject to and conditioned on your continued compliance with the Terms. This license is granted solely to allow you to visit the Site and to use our Services as permitted by the Terms, and you agree not to remove, alter or obscure any proprietary notices provided in or with the material on the Site or any other Company IP. You will not modify, alter, convert, adapt, clone, replicate, duplicate, copy, translate, reverse engineer or otherwise manipulate any portion of our Services or the Company IP. All rights not expressly granted in the Terms are reserved.
3.3 You may choose to submit comments, bug reports, ideas or other feedback about our Services, including without limitation about how to improve our Services (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). If necessary under applicable law, then you hereby grant us a perpetual, irrevocable, non-exclusive, transferable, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
Conduct
4.1 By way of example, and not as a limitation, you may not, and may not allow any third party to:
(a) breach the Terms or any agreement incorporated by referenced into the Terms;
(b) breach any law, statute, ordinance, or regulation;
(c) infringe any Company IP or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights or rights of publicity or privacy;
(d) create or control more than one personal Account for yourself without our express authorization, through, among other methods, using a name that is not yours, using a temporary email address or phone number, or providing any other falsified personal information;
(e) act in any way that is unlawful, libelous, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable (including, without limitation, display any content on our Site, or using our Services to transmit content, that contains any hate-related or violent content
(f) provide false, inaccurate or misleading information;
(h) use our Services or the services of our partners in a manner that results in or may result in complaints; disputes, claims, reversals, or chargebacks; or fees, fines, penalties or losses to us or any of our partners;
(i) distribute or facilitate the distribution of viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature or otherwise interfere with, circumvent, disable or attempt to interfere with, circumvent or disable the Site or our Services, the proper working of the Site or our Services, security features of the Site or our Services, or the equipment connected to the Site or our Services;
(j) take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers or service providers;
(k) transmit or otherwise make available through our Services any unsolicited commercial messages (i.e., spam), junk mail, pyramid schemes, chain letters or similar materials or information;
(l) interfere with other users’ enjoyment of our Services;
(m) exploit our Services for any unauthorised commercial purpose;
(n) reformat or frame any portion of the Site;
(o) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of our Site or content on other of our Services, or to collect information about our users for any unauthorized purpose;
(p) use any metatags or any other “hidden text” using any of our marks;
(q) access or use our Services for the purpose of creating a product or service that is competitive with any of our products or services, including, without limitation, our Services; or
(r) schedule any prohibited payments, such as:
• Payments to or from persons or entities located in prohibited territories (including any territory outside of the United States); and
• Payments that violate any law, statute, ordinance or regulation; and
• Payments that violate the Acceptable Use terms in Section 14 of the General Terms below; and
• Payments related to: (1) tobacco products, (2) prescription drugs and devices; (3) narcotics, steroids, controlled substances or other products that present a risk to consumer safety; (4) drug paraphernalia; (5) ammunition, firearms, or firearm parts or related accessories; (6) weapons or knives regulated under applicable law; (7) goods or services that encourage, promote, facilitate or instruct others to engage in illegal activity; (8) goods or services that are sexually oriented; (9) goods or services that promote hate, violence, racial intolerance, or the financial exploitation of a crime; (10) goods or services that defame, abuse, harass or threaten others; (11) goods or services that include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (12) goods or services that advertise, sell to, or solicit others; or (13) goods or services that infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under the laws of any jurisdiction; and
• Payments related to gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to, casino games, sports betting, horse or dog racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes; and
• Payments relating to transactions that (1) support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or multi-level marketing programs, (2) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (3) are for the sale of items before the seller has control or possession of the item, (4) constitute money-laundering or terrorist financing, (5) are associated with the following "money service business" activities: the sale of traveler’s checks or money orders, currency dealers or exchanges, or check cashing, or (6) provide credit repair or debt settlement services;
• Tax payments and court ordered payments; and
• Any other payments prohibited by us in our sole discretion.
Except as required by applicable law, in no event shall we or our Service Providers be liable for any claims or damages resulting from your scheduling of prohibited payments. We the right but not the obligation to monitor for, block, cancel and/or reverse such payments.
4.2 If you engage in any of the activities prohibited by Section 4.1, then we may, at our sole and absolute discretion, without notice to you and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your Account and/or prevent you from accessing our Services. If we prevent you from accessing our Services, then you are responsible for all losses that result from that suspension or termination. You are further prohibited from using the Services in any manner that is not expressly and unambiguously authorized by the Terms.
Third Party Service Providers
5.1 Our Services operate through third-party service providers, which may require you to agree to separate agreements with them. You agree to comply with all applicable third party terms of agreement when using our Services. We are not a party to those agreements, and we have no responsibility for the products and services provided by the third parties. Nothing in the Terms creates a contractual relationship between you and our service providers. You acknowledge and agree that we are solely responsible for our Services and for providing maintenance and support services for our Services.
5.2 Our third-party service providers have no warranty obligations whatsoever with respect to our Services and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of our Services to conform to any warranty provided by us, if any, will be our sole responsibility.
5.3 Our third-party service providers are responsible for addressing any claims relating to the services they provide to you in connection with our Services, including, but not limited to (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; (c) claims arising under consumer protection, privacy, or similar legislation; and (d) intellectual property claims.
Fees
You will be billed a monthly platform fee equal to $5.00 and all short term loans will be subject the interest rate in place at the time of such loans by our third party financial institution partners.
Payment Amounts And Methods
There are limits on the amount of money you can send through our Service. Your limits may be adjusted from time-to-time in our sole discretion. For certain Services, you may have the ability to log in to the Site to view your individual transaction limits. We or our Service Provider also reserve the right to select the method in which to remit funds on your behalf though the Service, and in the event that your Account is closed or otherwise unavailable to us the method to return funds to you. These payment methods may include, but may not be limited to, an electronic debit, a paper check drawn on the account of our Service Provider, or draft drawn against your account.
By using the Services, you hereby authorize us or our third party vendors to make payments on your behalf and withdraw such payments and any applicable fees via ACH payment from the bank account you provided to us. We will withdraw funds twice a month on a set schedule provided to you during your account activation.
Your Liability For Unauthorized Transfers
Immediately following your discovery of an unauthorized payment instruction, you will communicate that to us at support@paysitters.com. You acknowledge and agree that time is of the essence in such situations. If you tell us within two (2) Business Days after you discover your password or other means to access your account through which you access the Service has been lost or stolen, your liability is no more than $50.00 should someone access your account without your permission. If you do not tell us within two (2) Business Days after you learn of such loss or theft, and we can prove that we could have prevented the unauthorized use of your password or other means to access your account if you had told us, you could be liable for as much as $500.00. If your monthly financial institution statement contains payments that you did not authorize, you must tell us at once. If you do not tell us within sixty (60) days after the statement was sent to you, you may lose any amount transferred without your authorization after the sixty (60) days if we can prove that we could have stopped someone from taking the money had you told us in time. If a good reason (such as a long trip or a hospital stay) prevented you from telling us, we may in our sole discretion extend the period.
Taxes
It is your responsibility to determine what, if any, taxes apply to the transactions you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. We are not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.
Loan And Inability To Pay Loan
The financial services are provided by Pier Finance’s financial institution partners. By accepting the terms of this loan on PaySitters, you agree to the applicable Consumer Loan Agreement, which you reviewed and electronically signed.In using the Service, you are requesting that we or our Service Provider attempt to make payments for you at a set time each month and you will repay us through a scheduled ACH payment. In the event that we are unable to withdraw adequate funds from your provided bank account, we will attempt to withdraw the funds again at the next payment cycle. If we are unable to withdraw funds for two consecutive payment periods, we reserve the right to cease your access to the Services.
Address Or Banking Changes
It is your sole responsibility and you agree to ensure that the contact information in your user profile is current and accurate. This includes, but is not limited to, name, physical address, phone numbers and email addresses. Depending on the Service, changes may be able to be made within the user interface of the Service.
Your Representations And Warranties
By using our Services, you represent and warrant us that:
12.1 No Conflict. The execution, delivery and performance of the Terms will not result in any violation of, be in conflict with, or constitute a material default under, with or without the passage of time or the giving of notice: (a) any provision of your governing documents, if applicable; (b) any provision of any judgment, decree or order to which you are a party, by which it is bound, or to which any of its material assets are subject; (c) any material agreement, obligation, duty or commitment to which you are a party or by which it is bound; or (d) any laws, regulations or rules applicable to you.
12.2 No Consents or Approvals. The execution and delivery of, and performance under, the Terms require no approval or other action from any governmental authority or person other than you.
Sanctions
We must comply with economic sanctions and trade restrictions, including those implemented by the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury. This means that we or anyone using our Services cannot take part in transactions that involve designated people or places, as determined by agencies like OFAC. Nobody using our Services, regardless of their location, may engage in transactions involving (a) certain geographic areas, such as Crimea, Cuba, Iran, North Korea, and Syria, or any individual or entity operating or residing in those places; (b) individuals or entities identified on sanctions lists such as OFAC’s Specially Designated Nationals (SDN) List or Foreign Sanctions Evaders (FSE) List, including, without limitation, any digital currency addresses attributable to any individuals or entities; and (c) nationals of Cuba, regardless of location, unless citizenship or permanent residency outside of Cuba has been established. To ensure compliance with sanctions programs, you are prohibited from using your Account while in certain geographic locations. If we have reason to believe you are operating your Account from a sanctioned location, such as any of the places listed above, or are otherwise in violation of any economic sanction or trade restriction, then we may suspend or terminate your use of our Services, including to cancel any activity that is in progress at the time. You generally are not permitted to make available for sale products or services that originate from sanctioned areas. This includes items that pre-date sanctions, since we have no way to verify when they were actually removed from the restricted location. In addition to complying with OFAC and applicable local laws, other countries may have their own trade restrictions and certain items may not be allowed for export or import under international laws. You should consult the laws of any jurisdiction when a transaction involves international parties. Third-party payment processors and bank partners may independently monitor transactions for sanctions compliance and may block transactions as part of their own compliance programs. We have no authority or control over the independent decision-making of these providers. The economic sanctions and trade restrictions that apply to your use of our Services are subject to change, so you should check sanctions resources regularly. For legal advice, please consult a qualified professional.
Termination
Subject to your compliance with the Terms and all applicable laws, you may terminate the Terms at any time by canceling your Account with us and discontinuing your access to and use of our Services by sending us an email at support@paysitters.com. We, in our sole discretion and for any or no reason, may terminate the Terms and suspend and/or terminate your Account with us and all our Services. Any suspension or termination of your access or use of your Account and/or our Services may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination. If we terminate the Terms or suspend or terminate your access to or use of our Services due to your breach of the Terms or any suspected fraudulent, abusive, or illegal activity, then termination of the Terms will be in addition to any other remedies we may have at law or in equity. Upon any termination or expiration of the Terms, whether by you or us you may no longer have access to information that you have posted in connection with our Services or that is related to your Account, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. Sections 3 through 15 will survive the termination or expiration of the Terms for any reason.
Disclaimers
15.1 “AS IS” AND “AS AVAILABLE”. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF OUR SERVICES IS AT YOUR SOLE RISK, AND THAT OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, ADVISORS, REPRESENTATIVES, AFFILIATES AND AGENTS (THE “COMPANY PARTIES”) MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING OUR SERVICES AND ANY PART OF ANY OF THEM (INCLUDING, WITHOUT LIMITATION, OUR SERVICES OR ANY EXTERNAL WEBSITES), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY PARTIES DO NOT REPRESENT OR WARRANT TO YOU THAT (A) YOUR ACCESS TO OR USE OF OUR SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR ACCESS TO OR USE OF OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) USAGE DATA PROVIDED THROUGH OUR SERVICES WILL BE ACCURATE, (D) OUR SERVICES OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH OUR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (E) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE OUR SERVICES WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
15.2 PERSONAL RISKS. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO THE COMPANY’S GROSS NEGLIGENCE. YOU WILL IMPLEMENT REASONABLE AND APPROPRIATE MEASURES DESIGNED TO SECURE ACCESS TO (A) ANY DEVICE ASSOCIATED WITH YOU AND UTILIZED IN CONNECTION WITH YOUR USE OF OUR SERVICES; AND (B) ANY OTHER PASSWORDS OR OTHER LOGIN OR IDENTIFYING CREDENTIALS.
Limitation Of Liability
16.1 YOU UNDERSTAND AND AGREE THAT NONE OF THE COMPANY PARTIES WILL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 YOU UNDERSTAND AND AGREE THAT THE COMPANY SHALL NOT BE LIABLE AND DISCLAIMS ALL LIABILITY TO YOU IN CONNECTION WITH ANY FORCE MAJEURE EVENT, INCLUDING ACTS OF GOD; LABOR DISPUTES OR OTHER INDUSTRIAL DISTURBANCES; ELECTRICAL, TELECOMMUNICATIONS, HARDWARE, SOFTWARE OR OTHER UTILITY FAILURES; SOFTWARE OR SMART CONTRACT BUGS OR WEAKNESSES; EARTHQUAKES, STORMS, OR OTHER NATURE-RELATED EVENTS; PANDEMICS; BLOCKAGES; EMBARGOES; RIOTS; ACTS OR ORDERS OF GOVERNMENT; ACTS OF TERRORISM OR WAR; TECHNOLOGICAL CHANGE; AND CHANGES IN INTEREST RATES OR OTHER MONETARY CONDITIONS.
16.3 YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF OUR SERVICES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU ACTUALLY PAID TO US UNDER THE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, OR (B) ONE HUNDRED DOLLARS ($100).
16.4 YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE OUR SERVICES AVAILABLE TO YOU AND ENTERED INTO THE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU.
16.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND SOME JURISDICTIONS ALSO LIMIT DISCLAIMERS OR LIMITATIONS OF LIABILITY FOR PERSONAL INJURY FROM CONSUMER PRODUCTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO PERSONAL INJURY CLAIMS.
No Responsibility For Transactions With The Banking Partner
We are not responsible for any transaction that occurs between you and the bank partner. If the bank partner fails to complete a transaction on your behalf on time or in the correct amount or any loss occurs with respect to any activity with the bank partner, then we will not be liable for your losses or damages.
Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless and reimburse us and our third party vendors (collectively, the “Company Parties”) from and against any and all actions, proceedings, claims, damages, demands and actions (including without limitation fees and expenses of counsel), incurred by a Company Party arising from or relating to (a) your use of the Site or our Services; (b) your responsibilities or obligations under the Terms; (c) your breach of or violation of the Terms; (d) any inaccuracy in any of your representations or warranties; (e) your violation of any rights of any other person or entity, including any proprietary or privacy rights; (f) your violation of any law or regulation; and/or (g) any of your acts or omissions that are negligent, unlawful or constitutes willful misconduct.
The Company reserves the right to exercise sole control over the defense, at your expense, of any claim subject to indemnification under this Section 17. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and the Company.
Dispute Resolution
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate ALL disputes with US and limits the manner in which you can seek relief.
19.1 You and the Company agree to resolve any controversy, claim or dispute arising out of or relating to the subject matter of the Terms or to the Services through confidential, final and binding arbitration.
19.2 The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any arbitration shall be conducted (a) confidentially, (b) in English, (c) by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), (d) before a single arbitrator with substantial experience in resolving commercial contract disputes, (e) in accordance with the JAMS Comprehensive Arbitration Rules & Procedures; and (f) in San Francisco County, California. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
19.3 TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, INSTEAD ELECTING THAT ALL CLAIMS AND DISPUTES SHALL BE RESOLVED BY ARBITRATION. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and the Company, to the fullest extent permitted by law, waive all rights to a jury trial instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THE TERMS TO ARBITRATE.
19.4 The Terms are governed by and shall be construed in accordance with the laws of the state of California, without regard to its conflict of laws provisions.
19.5 You may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS AND DISPUTES MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING. A CLAIMANT OR THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION OR JOINT LITIGATION. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY, ON A CLASS BASIS OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE WAIVING ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS REPRESENTATIVE IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
External Sites
The Site or our other Services may include hyperlinks or redirect you to other websites or resources (collectively, “External Sites”) that are provided solely as a convenience to you. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites and that we do not endorse any advertising, products, services or other materials on or made available from any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products, services or other materials on, or made available from, any External Sites.
Entire Agreement
The Terms, including the Privacy Policy, constitute the entire agreement between you and us with respect to the subject matter hereof, including the Services. The Terms, including the Privacy Policy, supersede any and all prior or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of the Terms. The Terms do not alter any agreement you have with the bank partner. In the event of any conflict between the Terms and any agreement with the bank partner, the terms of that other agreement will control only if the Terms are specifically identified and declared to be overridden.
Privacy Policy
The Privacy Policy describes the ways we collect, use, store and disclose your personal information. You agree to the collection, use, storage, and disclosure of your data in accordance with the Privacy Policy.
ANNEX A- FINOVERA TERMS AND CONDITIONS
License Access Information And Account Data
You, the end user, agree to provide true, accurate, current and complete information about yourself and your accounts maintained at other web sites and you agree to not misrepresent your identity or your account information. You agree to keep your account information up to date and accurate. You are solely responsible for (i) maintaining the confidentiality and security of your access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by you, or anyone you authorize on your behalf, to access the Services and your provider accounts (collectively, "Licensee Access Information"), and (ii) preventing unauthorized access to or use of the information, files or data that you store or use in, with, or in conjunction with the Services (collectively, "Account Data"). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data ("Communications") entered using the Licensee Access Information. It is assumed that any Communications received through use of the Licensee Access Information were sent or authorized by you. You agree to immediately notify us if you become aware of any loss, theft or unauthorized use of any Licensee Access Information. We reserve the right to deny you access to the Services (or any part thereof) if we reasonably believe that any loss, theft or unauthorized use of Licensee Access Information has occurred. You must inform us of, and hereby grant to us and our third party vendors permission to use Licensee Access Information to enable us to provide the Services to you, including updating and maintaining Account Data, addressing errors or service interruptions, and to enhance the types of data and services we may provide to you in the future. Your personally identifiable information will not be shared with or sold to third parties. Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is collected through your use of the Services, may be used by our third party vendors to conduct certain analytical research, performance tracking and benchmarking. Our third party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support.
Provider Services
2.1 General. In connection with your use of and as part of the functionality of the Services, you may have access to certain online services or information that may be made available by your provider(s) ("Provider Services"), including online banking, online payment, online investment account download, online bill pay, online trading, and other account information available from your provider(s). The Services are designed to allow you to access Provider Services (if and to the extent provided by your provider(s)) to set up banking and other information, allow the Services to access your account(s), download transactions into the Services and otherwise aggregate information from your account(s) with your provider(s). You acknowledge and agree that we have no control over the provision of Provider Services or provision of access to the Provider Services by your provider(s), do not guarantee that the Services will work with the Provider Services, and will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in your inability to use the Services to access your accounts, obtain data, download transactions, or otherwise use or access the Provider Services.
2.2 Collection of Provider Account Information. You acknowledge that in accessing your data and information through the Services, your provider account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, and the actual data in your account(s) with such provider(s) such as bank and other account balances, credit card charges, debits and deposits (collectively, "Provider Account Data"), may be collected and stored in the Services. You authorize us and our third party vendors, in conjunction with the operation and hosting of the Services, to use certain Provider Account Data to (i) collect your Provider Account Data, (ii) reformat and manipulate such Provider Account Data, (iii) create and provide hypertext links to your provider(s), (iv) access the providers' websites using your Provider Account Data, (v) update and maintain your account information, (vi) address errors or service interruptions, (vii) enhance the type of data and services we can provide to you in the future, and (viii) take such other actions as are reasonably necessary to perform the actions described in (i) through (vii) above. You hereby represent that you are the legal owner of your Provider Account Data and that you have the authority to appoint, and hereby expressly do appoint, us or our third party vendors as your agent with limited power of attorney to access and retrieve your Provider Account Data on your behalf. You further acknowledge that we do not, nor does our third party vendor review your Provider Account Data and agree that we are not responsible for its completeness or accuracy. Any transactions or informational activities performed at any provider's website are not made through the Services and we assume no responsibility for such transactions or activities. You are solely responsible for any charges associated with your provider(s).
2.3 Information from Providers' Websites. You acknowledge and agree that (i) some providers may not allow the Services to access the Provider Services, (ii) providers may make changes to their websites, with or without notice to us, that may prevent or delay aggregation of information from such websites, and (iii) the Services may "refresh" the Provider Account Data by collecting the Provider Account Data nightly, so your most recent transactions may not be reflected in any account balances or other account information presented to you in or by the Services. If you see a discrepancy in the Provider Account Data, and in any case before making any transactions or decisions based on such account information presented in or through the Services, you should check the last refresh date for the account and confirm Provider Account Data is correct by following the link back to the applicable provider or otherwise confirm that Provider Account Data is up to date and accurate.
Software Use, Storage And Access
We shall have the right, in our sole discretion and with reasonable notice, to establish or change limits concerning use of the Services, temporarily or permanently, including but not limited to (i) the amount of storage space you have on the Services at any time, and (ii) the number of times (and the maximum duration for which) you may access the Services in a given period of time. We reserve the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of or access to the Services to which such changes relate. Your continued use of or access to the Services will constitute your acceptance of and agreement with such changes. Maintenance upon the Services may be performed from time-to-time resulting in interrupted service, delays or errors in the Services. Attempts to provide prior notice of scheduled maintenance will be made, but provider cannot guarantee that such notice will be provided.
Export Restrictions
You acknowledge that the Services and the software underlying such Services are subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the software or the Services, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions; (2) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that the Services may include technical data subject to export and re-export restrictions imposed by U.S. law.
Disclaimer
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ANY UNDERLYING THIRD PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE THIRD PARTY VENDOR AND ITS LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AND DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES OR ANY THIRD PARTY SERVICES; IN WHOLE OR IN PART, INCLUDING WITHOUT LIMITATION (i) ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, FUNCTIONALITY, TITLE AND NON-INFRINGEMENT, (ii) REPRESENTATIONS AND WARRANTIES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE SECURE, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIALS ACCESSED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, AND THAT ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED, (iii) REPRESENTATIONS AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING AND COURSE OF PERFORMANCE, (iv) ANY WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATED TO THE COMPREHENSIVENESS, COMPLETENESS, CORRECTNESS, LEGALITY, RELIABILITY OR ACCURACY OF THE SERVICES OR THIRD-PARTY SERVICES, IN WHOLE OR IN PART, (v) ANY WARRANTY THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, TIMELY, VIRUS-FREE OR ERROR-FREE, AND (vi) WARRANTIES RELATED TO THE ACCURACY OF ANY INFORMATION OBTAINED THROUGH OR BY THE SERVICES, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, THE CORRECTION OF DEFECTS IN THE SERVICES, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE; (e) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF OR ACCESS TO THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK; (f) YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES OR THIRD-PARTY SERVICES; AND (g) THE CURRENT STATE OF THE SERVICES DOES NOT ALLOW FOR ERROR-FREE USE OF THE SERVICES AND THAT INTERRUPTIONS, CRASHES, DOWNTIME AND DELAY IN SERVICES MAY OCCUR.
Limitations On Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE THIRD PARTY VENDOR, ITS AFFILIATES, AND IT AND THEIR RESPECTIVE THIRD-PARTY PROVIDERS, PARTNERS, LICENSORS, EMPLOYEES, DISTRIBUTORS AND AGENTS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS OR LOSSES INCURRED, INCLUDING COMPENSATORY, INCIDENTAL, INDIRECT, DIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, INCLUDING DAMAGES FOR TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF PRIVACY, OR PECUNIARY LOSS ARISING OUT OF YOUR USE OR YOUR INABILITY TO USE OR ACCESS THE SERVICES; INCLUDING ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN YOUR USE OF THE SERVICES; ANY ACT OR OMISSION BY US IN ADMINISTERING THE SERVICES; OR THE PURCHASE OR USE OF ANY PRODUCTS, DATA, INFORMATION, GOODS OR SERVICES OBTAINED THROUGH OR BY THE SERVICES OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WE ASSUME NO RESPONSIBILITY FOR ANY DAMAGE CAUSED BY YOUR ACCESS OR INABILITY TO ACCESS THE SERVICES OR FOR ANY MATTER RELATING TO THE SERVICES.
Proprietary Rights
You are permitted to use content delivered to you through the Services only in connection with the Services. You may not copy, reproduce, distribute, or create derivative works from the Services. Further, you agree to not reverse engineer or reverse compile any of the Services technology, including but not limited to, any Java applets associated with the Services.
Indemnification
You agree, at your expense, to defend, indemnify, hold harmless, protect and fully compensate the third party vendor, its affiliates, and it and their respective officers, directors, employees, consultants, agents, distributors, partners, licensors and third-party providers from any and all third party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorney’s fees) caused by or arising from your use of or access to the Services, your violation of these terms or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone.
Third Part Beneficiaries
You acknowledge and agree that the third party vendor (including its affiliates and third party providers) is a third-party beneficiary of the above provisions, with all rights to enforce such provisions as if it were a party to this Agreement.
Esign Act Consent
1. PurposeThe purpose of this policy is to establish guidelines for the use of electronic signatures to ensure that they are legally binding and enforceable. This policy applies to all electronic signatures used by employees, contractors, and agents of the organization.
2. Definitions
2.1 Electronic signature: An electronic sound, symbol, or process that is attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
2.2 Electronic record: Any information that is created, generated, sent, communicated, received, or stored by electronic means.
3. Acceptable Forms of Electronic Signature. The following are acceptable forms of electronic signature:
3.1 Typed signature: A signature that is created by typing a name or initials into a document.
3.2 Digital signature: A signature that is created using encryption technology to ensure that the signature is unique and cannot be replicated.
3.3 Biometric signature: A signature that is created using biometric technology, such as a fingerprint or facial recognition.
3.4 Double acknowledgment: A digital acceptance signature by acknowledging the acceptance of terms, such as with a checkbox and clicking of a button titled ‘Accept Loan Agreement’, ‘Accept Line of Credit Agreement’, or something similar to that effect.
4. Requirements for Electronic Signatures
4.1 Intent: The signer must have the intent to sign the electronic record.
4.2 Identification: The signer must be identified in a manner that is reasonably reliable.
4.3 Attribution: The electronic signature must be attributed to the signer.
4.4 Record retention: Electronic signatures must be retained with the electronic record they are associated with.
5. Signature Process
5.1 Authorization: Only authorized employees, contractors, and agents may use electronic signatures.
5.2 Signature process: The signer must follow the established signature process to ensure that the electronic signature is valid.
5.3 Security: Electronic signatures must be protected from unauthorized access.
5.4 Review: The signer must review the electronic record before signing to ensure accuracy.
6. Legal Effect
6.1 Legally binding: An electronic signature has the same legal effect as a handwritten signature.
6.2 Enforceability: Electronic signatures are enforceable in court.
7. Policy Review
This policy will be reviewed and updated as necessary to ensure that it remains current and effective. By implementing this electronic signature policy, the organization can ensure that electronic signatures are legally binding and enforceable.