PayKeeper Terms of Service
EFFECTIVE DATE: May 31, 2022
These Terms of Service (“Terms”) apply to your access and use of PayKeeper, Inc.’s (“PayKeeper” or “we”, “us” or “our”) websites, including, but not limited to paykeeper.com, app.paykeeper.com, and admin.paykeeper.com, along with the features, functionalities, applications, browser extensions and other services available through our website (collectively, our “Websites”) and your use of our products and services (our “Services”). We refer to our Websites and Services collectively as our “Platform.”
By accessing or using our Platform in any way, including, without limitation, using our Services, accessing any portion of our Platform or submitting anything to us through or in connection with our Platform, you agree to read, comply with, and be legally bound by: (1) these Terms; (2) any additional terms and conditions, agreements, or policies published on the Platform or otherwise applicable to your use of the Platform (the “Rules”). We refer to these Terms and the Rules collectively as the “Agreements.” If you do not agree with the foregoing, you may not use the Platform.
REVIEW THESE TERMS CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS BEFORE YOU USE OUR PLATFORM.
1. ACCEPTANCE AND APPLICABILITY OF AGREEMENTS
1.1 Representations and Warranties. Without limiting the foregoing, the Platform is intended for United States residents 18 years of age or older. Use of our Platform by anyone under 18 years old is strictly prohibited. By accessing the Platform, you represent to us that: (1) you are a United States resident; (2) you are 18 years of age or older; (3) you are legally able to enter into contracts; (4) that you are not a person barred from receiving or using the Platform under federal, state, local or other laws; and (5) that you have not previously been suspended or prohibited from using the Platform for any reason other than your cancellation of your account on the Platform.
1.2 Changes to Terms. We may update or modify these Terms from time to time. We may do so without limitation by updating these Terms on our Website and publishing a general notice of the update on our Website. You can review the most current version of these Terms at any time by clicking the Terms of Service link on our Website. By accessing or using our Platform after we have provided such notice, you agree to be bound by such modifications.
1.3 Our Rights. We have the right, but not the obligation, to take any of the following actions in our sole discretion without providing any prior notice to you and without any liability to you or any third party:
- change or terminate all or any part of the Platform;
- restrict or terminate your access to all or any part of the Platform;
- refuse, move or remove any content that is available on the Platform; or
- deny access to the Platform to anyone at any time in our sole and absolute discretion.
1.4 Conflicts. In the event of any conflict between these Terms and any other Agreement, these Terms shall control.
2. USE OF THE PLATFORM
2.1 Acceptable Use. Your use of the Platform must comply with the following (“Acceptable Use Restrictions”):
- You are only allowed to use the Platform for its intended purposes, as determined by us in our sole discretion.
- Without limitation, you are not allowed to access or use our Platform to: (1) violate any laws; (2) transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; (3) engage in commercial activity except as expressly permitted under the Agreements; (4) engage in any action with another user on the Platform designed to circumvent the features provided by the Platform, including, without limitation, facilitating the scheduling and payment for home repairs through the Platform; (5) refer or promote external websites that facilitate sales of products and services outside the Platform; and (5) use contact information obtained through the Platform to offer to buy or sell products or services outside of the Platform.
- You are also prohibited from: (1) reformatting or framing any portion of our Platform; (2) using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of our Platform; (3) taking any action that imposes, or may impose, as determined by us in our sole discretion, an unreasonable or disproportionately large load on our information technology infrastructure; (4) modifying, adapting, disassembling, decompiling, translating or reverse engineering any portion of our Platform or otherwise attempting to reconstruct or discover any source code or underlying ideas, algorithms, file formats, or programming interoperability interfaces of our Platform; (5) disrupting or otherwise interfering with our Platform or the networks or servers we use; (6) impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity; (7) collecting or storing, or attempting to collect or store, personal information about other users of our Platform, except as expressly permitted under the Agreements; (8) engaging in any activity that is illegal under federal, state, local, or other laws; (9) creating a false identity on our Platform; (10) creating an account on our Platform for anyone else (except when, and only to the extent, you create one or more sub-accounts on our Platform for your employees or other representatives that are authorized to use or access our Platform on your behalf); (11) releasing to any third party information related to your access to or use of our Platform for purposes of monitoring our Platform’s availability, performance, or functionality, or for any other benchmarking or competitive purposes without our prior written approval; (12) copying our Platform, except as expressly permitted under the Agreements; (13) accessing or using our Platform in a service bureau or time-sharing environment (including, without limitation, accessing our Platform to provide third parties a service consisting solely of the collection and entry of data and other information on our Platform); (14) selling, assigning, transferring, sublicensing, pledging, renting, or otherwise sharing your rights under the Agreements; (15) creating any derivative works based on our Platform; and (16) modifying, obscuring, or removing any proprietary notices on our Platform or copies thereof.
2.2 Compliance with Applicable Laws. You certify that you will comply with all applicable laws (e.g., federal, state, local, and other laws) and the Agreements when accessing or using our Platform. Without limiting the foregoing, by accessing or using our Platform, you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list or prohibited or restricted parties. If you access or use our Platform outside the United States, you are solely responsible for ensuring that your access to and use of the Platform in such country, territory, or jurisdiction does not violate any applicable laws. We reserve the right, but have no obligation to, in our sole discretion, monitor where our Platform is accessed from, and the right, but not the obligation, to block or otherwise restrict access to our Platform, in whole or in part, from any geographic location.
2.3 Mistakes or Errors. Without limiting anything set forth in the applicable Agreements, you acknowledge and agree that under no circumstances will we or any of our licensors or suppliers be responsible for any loss, damage or liability arising out of any mistakes or other errors made by you as a result of your access to or use of our Platform.
2.4 Abusive and Offensive Language. Abusive or offensive language will not be tolerated on our Platform, social media sites or with our personnel. You are not entitled to make untrue, malicious and/or damaging comments with regard to our operations in any media or forum.
2.6 User Content. Our Platform may provide users with the ability to add, create, upload, submit, distribute, or share content on or through our Platform (collectively, “User Content”). If you provide any User Content (“Your Content”), you acknowledge and agree that we: (1) shall have the right to reproduce, translate, encode, publish, use, and distribute any and all of Your Content to the extent necessary to provide and operate our Platform; (2) shall have the right to aggregate any and all of Your Content and to use such aggregated data for any lawful purpose, including, without limitation, improving our Platform; and (3) are not responsible or in any way liable for any corruption, misdelivery, or other loss of any of Your Content.
2.7 Feedback. By submitting ideas, suggestions, documents, proposals, products and/or technologies (“Feedback”) to us in any way, you acknowledge and agree that: (1) your Feedback does not contain confidential or proprietary information; (2) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (3) we shall be entitled to disclose (or choose not to disclose) such Feedback for any purpose and in any way; (4) we may have something similar to the Feedback already under consideration or in development; (5) your Feedback which is not subject to a patent, automatically becomes our property without any obligation to you; and (6) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances.
2.8 Companies and Other Legal Entities. If you are a company or other legal entity, the following provisions apply:
- our Platform may only be accessed and used by you and your officers, employees and contractors you authorize to access and use our Platform on your behalf (“Authorized Users”);
- without limiting anything provided in the applicable Agreements, you shall be responsible for the actions of your Authorized Users in connection with your obligations under these Terms, including, without limitation, any access or use of our Platform. You shall ensure that your Authorized Users: (1) do not breach these Terms; and (2) comply with all applicable laws in connection with their access to and use of our Platform; and
- you acknowledge and agree that any breach of the applicable Agreements by your Authorized Users constitutes your breach of the applicable Agreements.
2.9 Access to the Platform. You are solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use our Platform, which may include, without limitation, a computer or mobile device, a connection to the Internet, and a financial account with a supported financial institution (collectively, your “Equipment and Services”). For a list of supported financial institutions, please visit https://plaid.com/institutions/. You are also responsible for maintaining the security of your Equipment and Services and for all uses of your Equipment and Services with or without your knowledge or consent. Further, using the Platform may allow you to receive Content on your mobile phone or wireless device. The manner in which that Content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges from your wireless carrier, which are your sole responsibility.
3. PLATFORM OWNERSHIP AND LICENSE
3.1 Ownership. All rights, title and interest in and to our Platform, including, but not limited to, all of the software and code that comprise and operate our Platform, and all of the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials provided through our Platform (“Content”) are owned by us or third parties who have licensed their content to us. Our Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Platform is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of our Platform.
3.2 Our Marks. The PayKeeper names and logos (including, but not limited to, those of our affiliates), all product and service names, all graphics, all button icons and all trademarks, service marks and logos appearing within the Platform, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of PayKeeper (collectively, “Our Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress (collectively, “Marks”) mentioned, displayed, cited or otherwise indicated within the Platform are the property of their respective owners. You are not authorized to display Our Marks in any manner without our prior written permission. You are not authorized to display or use the Marks of any third party that appear within the Platform without the prior written permission of the applicable third party.
3.3 Limited License. Subject to your acceptance of, and compliance with, the Agreements, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform in a manner that is consistent with the Agreements and the Platform’s intended purpose(s). You obtain no rights to the Platform except to use it in accordance with the Agreements. Without limiting the generality of the foregoing, you shall not: (1) use any data mining, robots or other automatic or manual device, software, program, code, algorithm or methodology to access, copy or monitor any portion of the Platform or in any way reproduce or circumvent the navigational structure or presentation of the Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by us through the Platform and we reserve the right to take measures to prevent any such activity; (2) reproduce, copy, duplicate, redistribute, publish, reverse engineer, decompile, disassemble, modify, translate or make any attempt to create derivative works of the Platform (in whole or in part); (3) sell, assign, sublicense, transfer, distribute, lease or grant a security interest in the Platform (in whole or in part); (4) make the Platform (in whole or in part) available to any third party through a computer network or otherwise, including, but not limited to, distributing or making use of the Platform (in whole or in part) over a network where it could be used by multiple devices at the same time; (5) export the Platform (in whole or in part) to any country outside the United States (whether by physical or electronic means); (6) use the Platform (in whole or in part) in a manner prohibited by applicable laws, regulations and/or the Agreements; or (7) use the Platform in violation of the Acceptable Use Restrictions (collectively, the “Prohibited Activities”). You will be solely liable for any damages, costs or expenses arising out of or in connection with your commission of any Prohibited Activity. You shall notify us immediately upon becoming aware of the commission by any person of any Prohibited Activity and shall provide us with reasonable assistance with any investigations we may conduct in light of the information provided by you in this respect.
4.1 Registration. You may be required to open an account or register with PayKeeper in order to use some of the features on the Platform. When registering for an account, you must provide true, accurate, current and complete information about yourself as may be prompted by any registration form. If any information you previously provided to us changes, you must promptly update the relevant information.
4.2 Account Security and Responsibility. You are responsible for maintaining the confidentiality of your password and account and are fully responsible for all activities that occur under your password and account. You agree to: (1) notify PayKeeper immediately of any unauthorized use of your password or account or any breach of security; and (2) ensure that you fully exit from your account at the end of each session. You must set up your account in your own name. You further agree not to use anyone else’s password on the Platform. PayKeeper will not be liable for any loss or damage arising from your failure to comply with this provision or any other provisions in the Agreements. If PayKeeper suspends or terminates your account, you acknowledge that all information and content associated with such account will no longer be available to you.
4.3 Additional Information Sharing. If you open an account, you understand that PayKeeper will collect and maintain information related to your use of the Platform. PayKeeper connects, though may not always display, that information to your account in order to conduct our business operations.
4.4 Our Termination or Suspension of Your Account. Without limiting any other rights we have under the Agreements, in the event we determine, in our sole discretion, that your account information may be compromised due to your personal device being infected with a virus, malware, other malicious code or due to other theft of your account information, we reserve the right to invalidate, delete or otherwise modify your account in order to protect your account, the accounts of other users and our systems from further damage or exposure. This may include proactively changing your password. If we need to do this, we will make reasonable efforts to inform you of any modifications made via the email address listed on your account or other viable means of communication.
4.5 Cancellation. You may close your account by contacting us at [email protected] and following the instructions we provide. If you cancel your account, these Terms shall be terminated and your license to access and use our Platform shall immediately terminate and you must discontinue all use of the Platform. Please note, in some circumstances, we may not permit you to close your account, including, in situations where: (1) you have any pending transactions, an open dispute or claim; (2) if your account is subject to a hold; and/or (3) you are cancelling your account in an attempt to evade any investigation.
5. TERMS APPLICABLE TO CERTAIN PLATFORM FEATURES
5.2 Transferring Funds. Depending on how you use our Platform, our Platform includes features that will withdraw funds from, and may deposit funds into, your linked third party financial accounts. Before we do so, we will provide you with specific information about any applicable withdrawal or deposit. These withdrawal and deposit features are operated by our third party service provider.
5.3 Interactions with Other Users.
- You acknowledge and agree that other users of the Platform are independent contractors, and not PayKeeper’s employees, agents, or representatives, and PayKeeper does not warrant any user will be able to fulfill any obligations or provide any services that you may agree to on or through the Platform.
- You further acknowledge and agree that PayKeeper does not have any control over the conduct of, or any other information provided by, any other user. Without limiting the generality of the foregoing, PayKeeper expressly disclaims any liability or responsibility for the success of any engagement you enter into with another user and/or any liability related to compliance, notice, or other obligations under any applicable law arising out of or in connection with any such engagement.
- If a dispute arises in connection with an engagement or other transaction you have entered into with another user on or through the Platform, you and such other user are required to use the dispute process features available through our Platform. To submit a dispute to PayKeeper, please submit a dispute through the Platform or contact us at [email protected]. Once a dispute is submitted, PayKeeper will place a hold on all future contractor payouts for the respective project until the dispute is resolved. PayKeeper will not take part in resolving any disputes; rather, you and the other user(s) will be responsible for working together to resolve the dispute. If you are the contractor, you are responsible for reporting resolution of the dispute to Paykeeper. Upon receipt of the contractor’s report, PayKeeper will confirm the resolution of the dispute with the homeowner and, if verified, will disburse any remaining payouts for the project to the contractor. Please note, the dispute resolution features on the Platform should not be used to resolve any allegations of criminal activity by either party. Any such allegations shall be reported to the relevant law enforcement authorities.
6.1 Right to Terminate. In addition to, and not in lieu of, any of our other rights set forth in these Terms, we reserve the right, with or without notice and in our sole discretion, to terminate these Terms, your account and/or your ability to access the Platform for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms, or in the case of any activity by you that may harm PayKeeper or other users, including, but not limited to, fraud, abuse of promotions or privileges or misuse of the Platform. You agree that we will not be liable to you or any third party for any such termination.
6.2 Effects of Termination. If we exercise our termination rights available under these Terms, your license to access and use our Platform shall immediately terminate and you must discontinue all use of the Platform affected by such termination.
6.3 Fraudulent Activity. If we suspect that you are engaging in any fraudulent, abusive or illegal activity, we may refer such matter to appropriate law enforcement authorities.
6.4 Survival. The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of these Terms regarding indemnity and limitations of liability shall survive the termination or cancellation of these Terms.
7. YOUR LIABILITY
7.1 Agreement to Indemnify. YOU AGREE THAT YOU WILL ONLY USE THE PLATFORM IN ACCORDANCE WITH THE APPLICABLE AGREEMENTS. YOU WILL COMPENSATE US IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) WHICH WE (OR ANY OF OUR SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF THE AGREEMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD US, OUR SUBSIDIARIES AND AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER PARTNERS (THE “RELEASED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY FEES AND COSTS, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE PLATFORM, YOUR CONNECTION TO THE PLATFORM, YOUR VIOLATION OF ANY OF THE AGREEMENTS OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
7.2 Additional Remedies. The Released Parties reserve the right to seek all remedies available at law and in equity for violations of the applicable Agreements, including the right to block access from a particular Internet address to the Platform or report misuses to law enforcement.
8.1 Disclaimer of all Warranties
- THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE PLATFORM (INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE COMPRISING ANY PORTION OF THE PLATFORM), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE PLATFORM WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE OR HARDWARE.
- YOU HEREBY ACKNOWLEDGE THAT THE PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE PLATFORM AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE PLATFORM CAUSED BY SUCH FACTORS.
- WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING WITHOUT LIMITATION ANY YOUR CONTENT, OR ANY OTHER USER CONTENT OR PRIVATE MESSAGES.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
8.2 Use of Platform at Your Sole Risk. YOUR ACCESS TO THE PLATFORM, DOWNLOAD OF ANY SOFTWARE RELATING TO THE PLATFORM AND USE OF ANY INFORMATION WE MAY PROVIDE IN CONNECTION WITH YOUR USE OF THE PLATFORM IS AT YOUR SOLE OPTION, DISCRETION AND RISK. WE SHALL NOT BE LIABLE FOR ANY MALFUNCTIONS OF THE COMPUTER PROGRAMS RELATING TO THE PLATFORM, BUGS OR VIRUSES RESULTING IN LOST DATA OR ANY OTHER DAMAGE TO YOUR COMPUTER EQUIPMENT, MOBILE PHONE OR MOBILE DEVICE OR SOFTWARE. FURTHERMORE, WE SHALL NOT BE LIABLE FOR ANY ATTEMPTS BY YOU TO USE THE PLATFORM BY METHODS, MEANS OR WAYS NOT INTENDED BY US. WE ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS AND/OR SYSTEMS.
8.3 No Creation of Warranty. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM ANY OF THE RELEASED PARTIES THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
8.4 Third Party Statements. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR STATEMENTS, ADVICE AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED PAYKEEPER SPOKESPERSONS. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY STATEMENTS, ADVICE OR OPINIONS CONTAINED PROVIDED BY ANY THIRD PARTIES, AND SUCH STATEMENTS, ADVICE AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE OR OPINIONS OF PAYKEEPER.
8.5 No Legal or Financial Advice. THE PLATFORM IS NOT INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE. THE PLATFORM AND THE INFORMATION PROVIDED THROUGH THE PLATFORM IS PROVIDED SOLELY FOR INFORMATIONAL, EDUCATIONAL OR ENTERTAINMENT PURPOSES. PAYKEEPER IS NOT A FINANCIAL INSTITUTION. BEFORE MAKING ANY FINANCIAL DECISIONS OR IMPLEMENTING ANY FINANCIAL STRATEGY, YOU SHOULD CONSIDER CONSULTING WITH YOUR ACCOUNTANT OR OTHER CERTIFIED FINANCIAL ADVISOR WHO IS FULLY AWARE OF YOUR SITUATION.
9. LIMITATION OF LIABILITY
9.1 Liabilities for our Platform. TO THE EXTENT PERMITTED BY LAW, WE WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, FINANCIAL LOSSES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND.
9.2 Maximum Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO YOUR USE OF THE PLATFORM SHALL BE THE GREATER OF THE AMOUNT YOU PAID US FOR USE OF THE PLATFORM OVER THE PREVIOUS SIX MONTHS AND THE AMOUNT OF $100.
9.3 No Liability for Incidental Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE PLATFORM.
9.4 Applicability of Limitations. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. DISPUTE RESOLUTION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. FOR CLARITY, THIS SECTION ONLY APPLIES TO DISPUTES BETWEEN YOU AND THE RELEASED PARTIES AND EXPRESSLY EXCLUDES ANY DISPUTES THAT MAY EXIST BETWEEN YOU AND ANOTHER USER OR ANY OTHER THIRD PARTY ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE PLATFORM.
10.1 Waiver of Rights. YOU AGREE THAT BY ACCESSING OR USING THE PLATFORM, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
10.2 Agreement to Arbitrate.
- EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENTS, YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THESE TERMS, YOUR ACCESS TO OR USE OF THE PLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES IN CONNECTION WITH THE FOREGOING SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.
- NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT THE FOLLOWING DISPUTES ARE NOT SUBJECT TO THIS AGREEMENT TO ARBITRATE: (1) ANY DISPUTES SEEKING TO ENFORCE OR PROTECT, OR CONCERNING THE VALIDITY OF, ANY OF YOUR OR OUR INTELLECTUAL PROPERTY RIGHTS; (2) ANY DISPUTE RELATED TO, OR ARISING FROM, ALLEGATIONS OF THEFT, PIRACY, INVASION OF PRIVACY, OR UNAUTHORIZED USE; AND (3) ANY CLAIM FOR INJUNCTIVE RELIEF. IF THIS SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE THEN NEITHER YOU NOR THE RELEASED PARTIES WILL ELECT TO ARBITRATE ANY DISPUTE FALLING WITHIN THAT PORTION OF THIS SECTION FOUND TO BE ILLEGAL OR UNENFORCEABLE AND SUCH DISPUTE SHALL BE DECIDED BY A COURT OF COMPETENT JURISDICTION.
- THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA”), AND NOT BY STATE LAW.
- THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA.
- THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION.
- FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, YOU MUST ABIDE BY THE FOLLOWING RULES: (1) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (2) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) WILL TAKE PLACE IN SALT LAKE CITY, UTAH.
- THE ARBITRATOR IS BOUND BY THE TERMS OF THIS AGREEMENT TO ARBITRATE. YOU ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN, AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (1) THERE SHALL BE NO PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (2) ALL DAMAGES, CLAIMS, AND AWARDS WILL BE GOVERNED BY UTAH LAW; (3) THE PARTIES WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEY’S FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVEN SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP, TO PAY SUCH FEE. THE PROCEEDINGS AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES.
- THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
- THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
- UNLESS YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 10.5, THIS AGREEMENT TO ARBITRATE WILL SURVIVE THE TERMINATION OF YOUR ACCESS TO OR USE OF THE PLATFORM AND YOUR RELATIONSHIP WITH THE RELEASED PARTIES.
- EXCEPT WITH RESPECT TO CLAIMS EXCLUDED FROM THIS AGREEMENT TO ARBITRATE AS SET FORTH IN SECTION 10.2(B), ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (I.E., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR.
10.3 Information About Arbitration. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT HTTPS://WWW.ADR.ORG. THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SUBJECT TO THE FOREGOING AGREEMENT TO ARBITRATE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
10.4 Challenges to Validity of Class Action Waiver. NOTWITHSTANDING ANY PROVISION IN THE AGREEMENTS TO THE CONTRARY, IF THE CLASS ACTION WAIVER SET FORTH IN THIS SECTION 10 IS DEEMED INVALID OR UNENFORCEABLE, YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS.
10.5 Opt-Out of Agreement to Arbitrate. IF YOU WISH TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF MAY 31, 2022 OR WHEN YOU FIRST ACCESS OR USE THE PLATFORM, WHICHEVER IS LATER, YOU MUST SEND US A LETTER STATING: “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO:
893 Baxter Dr
South Jordan, UT 84095
10.6 Venue for Litigation. IF THE AGREEMENT TO ARBITRATE IN SECTION 10.2 ABOVE IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, OF IF YOU OPT-OUT OF THE AGREEMENT TO ARBITRATE IN ACCORDANCE WITH SECTION 10.5, THEN, UNLESS PROHIBITED BY APPLICABLE LAW, THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS COVERING SALT LAKE COUNTY, UTAH, AS APPROPRIATE. YOU ALSO THEREFORE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSES OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU HEREBY WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION, AND AGREE TO REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THIS AGREEMENT.
10.7 Time to Bring a Claim. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST THE RELEASED PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO THE AGREEMENTS, YOUR ACCESS TO OR USE OF THE PLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES IN CONNECTION WITH THE FOREGOING, MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIMS IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
10.8 Prevailing Party. IN ANY ARBITRATION PROCEEDING OR ANY LEGAL SUIT, ACTION, OR PROCEEDING (AS APPLICABLE) BETWEEN YOU AND THE RELEASED PARTIES RELATED TO YOUR ACCESS TO OR USE OF THE PLATFORM, OR YOUR DEALINGS WITH THE RELEASED PARTIES IN CONNECTION WITH THE FOREGOING, THE PREVAILING PARTY WILL BE ENTITLED TO RECEIVE FROM THE OTHER PARTY, IN ADDITION TO ALL OTHER DAMAGES TO WHICH IT MAY BE ENTITLED, THE COSTS INCURRED BY SUCH PARTY IN CONDUCTING SUCH ARBITRATION OR LITIGATION (AS APPLICABLE), INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES, EXPENSES, AND, AS APPLICABLE, ARBITRATION FEES OR COURT COSTS.
11. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
11.1 PayKeeper Policy. PayKeeper respects the intellectual property rights of others. You must ensure that Your Content does not infringe any third party’s copyright. We will remove Your Content and other materials from the Platform in accordance with the Digital Millennium Copyright Act (“DMCA”) upon receipt of proper notices that Your Content or other materials on our Platform infringe a third party’s copyright. Additionally, subject to Section 11.4 below, we will terminate your account if you are a repeat infringer.
11.2 Notice of Infringement. If you are a copyright owner or an agent thereof and believe that any user submission or other content on the Platform infringes upon your copyrights, you may submit a notification pursuant to the DMCA to the address provided below. Such notification must contain the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic email address;
- a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
PayKeeper may disclose DMCA notices to affected users and third party databases that collect information about copyright takedown notices.
11.3 Counter Notifications. If Your Content is removed pursuant to notice of copyright infringement and You want to challenge the removal, you must provide us with a counter notification at the address provided below. Such counter notification must contain the following:
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- a description of the material that was removed and where the material previously appeared on the Platform reasonably sufficient to permit us to identify the material;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
- a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside the United States, any judicial district in which PayKeeper may be found (the United States District Court for the District of Utah) and that you will accept service of process from the person who provided the original DMCA notice or an agent of such person; and
- your physical or electronic signature.
We will forward any complete counter notification to the person who provided the initial DMCA notice. The copyright owner(s) may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that such a lawsuit has been filed within ten (10) business days after we provide notice of your counter notification, we may, but are not obligated to, restore Your Content and other materials. Until that time, Your Content and other materials will remain removed.
11.4 Repeat Infringer Policy. Without limiting anything else in these Terms, we will terminate your access to and ability to use the Platform if you are subject to three (3) DMCA Takedown Actions. A “DMCA Takedown Action” occurs each time Your Content or other materials are removed due to a DMCA notice. We may group multiple DMCA notices received in a short period of time as a single DMCA Takedown Action. We may remove a DMCA Takedown Action in appropriate circumstances, such as where: (1) the material is restored due to a counter notification; or (2) the party who submitted the DMCA notice withdraws their complaint.
11.5 Address for Notices. DMCA notices and counter notifications may be sent to our designated agent, Jordan Koss, at the following addresses:
By mail to: VentureBest
Attn: Jordan Koss, Agent for PayKeeper, Inc.
444 West Lake Street
Chicago, IL 60606
12. ADDITIONAL TERMS
12.1 Governing Law. These Terms will be governed by the laws of the State of Utah, without giving effect to any principles of conflicts of laws. Notwithstanding the foregoing, (i) to the extent you are a consumer domiciled in the State of Montana, these Terms will be governed by the laws of the State of Montana, and (ii) any arbitration conducted pursuant to these Terms shall be governed by the FAA.
12.2 Electronic Communications. The communications between you and PayKeeper use electronic means. For contractual purposes, you: (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically, including, but not limited to, the Agreements, satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
12.3 Severability. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable Agreements shall continue in effect.
12.4 Waivers. Our failure to enforce any provision of the Agreements shall not be deemed a waiver of such provision nor of the right to enforce such provisions.
12.5 Admissibility of Terms. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
12.6 Assignment. We reserve the right to transfer, assign, sublicense or pledge any or all of the Agreements, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense or otherwise transfer in any manner whatsoever any of your rights or obligations under the Agreement.
12.7 Headings. The section headings and sub-headings contained in these Terms are for convenience only and have no legal or contractual effect.
12.8 Support. If you have any questions or concerns about the Platform or these Terms, please email us at [email protected].