Go to Baggr, LLC Terms of Service
Baggr, LLC Payment Terms of Service
Effective: April 1, 2018
ANY PARTICIPATION IN THE PAYMENT SERVICES WILL CONSTITUTE ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS, PLEASE DO NOT USE THE PAYMENT SERVICES.
Company may amend these Payment Terms related to the Payment Services from time to time. Amendments will be effective upon Company’s posting of such updated Payment Terms at this location. Your continued access or use of the Payment Services after such posting constitutes your consent to be bound by the Payment Terms, Terms of Service, and Caddie Terms, as amended.
1. Scope and Use of the Payment Services
Company provides payments services to Users, including payment collection services, payments and payouts, in connection with and through the Baggr Caddies Platform (“Payment Services”).
Company may restrict the availability of the Payment Services, or certain services or features thereof, to carry out maintenance measures that ensure the proper or improved functioning of the Payment Services. Company may improve, enhance and modify the Payment Services and introduce new Payment Services from time to time.
The Payment Services may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services are subject to different terms and conditions and privacy practices and Users should review them independently. Company is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Company of such Third-Party Services.
You may not use the Payment Services except as authorized by United States law, the laws of the jurisdiction in which you reside, and any other applicable laws. In particular, but without limitation, the Payment Services may not be used to send or receive funds: (i) into any United States embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. You represent and warrant that: (i) neither you nor your Host Services are located or take place 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. In addition to complying with the above, you must also comply with any relevant export control laws in your local jurisdiction.
Your access to or use of certain Payment Services may be subject to, or require you to accept, additional terms and conditions. If there is a conflict between these Payments Terms and terms and conditions applicable for a specific Payment Service, the latter terms and conditions will take precedence with respect to your use of or access to that Payment Service, unless specified otherwise.
“Payment Method” means a financial instrument that you have added to your Company Account, such as a credit card, debit card, or PayPal account.
“Payout Method” means a financial instrument that you have added to your Company Account, such as a PayPal account, direct deposit, a prepaid card, or a debit card (where available).
3. Modification of these Payments Terms
Company reserves the right to modify these Payments Terms at any time in accordance with this provision. If we make changes to these Payments Terms, we will post the revised Payments Terms on the Company website and update the “Last Updated” date at the top of these Payments Terms. We will also provide you with notice by email of the modification at least ten (10) days before the date they become effective. If you disagree with the revised Payments Terms, you may terminate this Agreement with immediate effect. We will inform you about your right of refusal and your right to terminate this Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued use of the Payment Services will constitute acceptance of the revised Payments Terms.
4. Eligibility, User Verification
If you are agreeing to these Payments Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Payments Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Company may make access to and use of certain areas or features of the Payment Services subject to certain conditions or requirements, such as completing a verification process or meeting specific eligibility criteria.
We may make inquiries we consider necessary to help verify or check your identity or prevent fraud. In some jurisdictions, we have a legal obligation to collect identity information to comply with anti-money laundering regulations. This may include (i) asking you to provide a form of government identification (e.g., driver’s license or passport), your date of birth, your address, and other information; (ii) requiring you to take steps to confirm ownership of your email address, Payment Methods or Payout Methods; or (iii) attempting to screen your information against third-party databases. Company reserves the right to close, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any of this information.
5. Account Registration
In order to use the Payment Services, you must have a Company Account in good standing. If you or Company closes your Company Account for any reason, you will no longer be able to use the Payment Services.
6. Payment Methods and Payout Methods
When you add a Payment Method or Payout Method to your Company Account, you may be asked to provide customary billing information such as name, billing address, and financial instrument information either to Company or its third-party payment processor(s). You must provide accurate, current, and complete information when adding a Payment Method or Payout Method, and it is your obligation to keep your Payment Method and Payout Method up-to-date at all times. The information required for Payout Methods will include:
for direct deposit, your address, name on the account, account type, routing number, and account number; and for PayPal, your address and email address.
When you add or use a new Payment Method, Company may verify the Payment Method by authorizing a nominal amount, not to exceed one dollar ($1), or a similar sum in the Payment Method’s local currency. For further verification, we may also (i) authorize your Payment Method for one or two additional nominal amounts, each not to exceed two dollars ($2) or a similar sum in the Payment Method’s local currency, and ask you to confirm these amounts, or (ii) require you to upload a billing statement. When you add a Payment Method during checkout, we will automatically save that Payment Method to your Company Account so it can be used for a future transaction.
To verify your Payout Method, Company may send one or more payments of nominal amounts to your Payout Method. We may, and retain the right to, initiate refunds of these amounts from your Payout Method.
Please note that Payment Methods and Payout Methods may involve the use of third-party payment service providers. These service providers may charge you additional fees when processing payments and Payouts in connection with the Payment Services (including deducting charges from the Payout amount), and Company is not responsible for any such fees and disclaims all liability in this regard. Your Payment Method or Payout Method may also be subject to additional terms and conditions imposed by the applicable third-party payment service provider; please review these terms and conditions before using your Payment Method or Payout Method.
You authorize Company to store your Payment Method information and charge your Payment Method as outlined in these Payments Terms. If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, we may acquire that information from our financial services partner or your bank and update your Payment Method on file in your Company Account.
You are solely responsible for the accuracy and completeness of your Payment Method and Payout Method information. Company is not responsible for any loss suffered by you as a result of incorrect Payment Method or Payout Method information provided by you.
In order to receive a Payout you must have a valid Payout Method linked to your Company Account. Company will generally initiate Payouts as soon as a booking is completed. In certain jurisdictions or instances, Company may offer you a different time or trigger for payment. The time it takes to receive Payouts once released by Company may depend upon the Payout Method you select. Company may delay or cancel any Payout for purposes of preventing unlawful activity or fraud, risk assessment, security, or investigation.
Company will remit your Payouts in your home currency. For compliance or operational reasons, Company may limit the value of each individual Payout. If you are due an amount above that limit, Company may initiate a series of Payouts (potentially over multiple days) in order to provide your full payout amount.
If you owe any amount to Company (e.g., as a result of your bookings, cancellations or other actions as a User), you authorize Company to collect these amounts from you by withholding the amounts from your future Payouts and/or charging any Payment Method on file in your Company Account. Any funds collected by Company will setoff the amount owed by you to Company and extinguish your obligation to Company. In addition to the amount due, if there are delinquent amounts or chargebacks associated with your Payment Method, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees or other third-party charges.
8. Financial Terms
You authorize Company to charge your Payment Method the Total Fees for any booking requested in connection with your Company Account. Company will collect the Total Fees in the manner agreed between you and Company via the Company Platform. Company will generally collect the Total Fees after the booking has been confirmed. Company may offer alternative options for the timing and manner of payment; any additional fees for using offered payment options will be displayed via the Company Platform and included in the Total Fees, and you agree to pay such fees by selecting the payment option. If Company is unable to collect the Total Fees as scheduled, Company will collect the Total Fees at a later point. Once the payment transaction for your requested booking is successfully completed you will receive a confirmation email.
When you request golf caddie services, Company may also (i) obtain a pre-authorization via your Payment Method for the Total Fees or (ii) charge or authorize your Payment Method a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g., one euro or one British pound), to verify your Payment Method.
If a requested booking is cancelled either because it is not accepted by any caddies or you cancel the booking request before it is accepted by any caddie(s), any amounts collected by Company will be refunded to you, and any pre-authorization of your Payment Method will be released (if applicable). The timing to receive the refund or for the pre-authorization to be released will vary based on the Payment Method and any applicable payment system (e.g., Visa, MasterCard, etc.) rules.
You authorize Company to perform the Payment Method verifications described in this Agreement, and to charge your Payment Method for any bookings made in connection with your Company Account. You hereby authorize Company to collect any amounts due by charging the Payment Method provided at checkout, either directly by Company or indirectly, via a third-party online payment processor, and/or by one or more of the payment methods available on the Company Platform (such as gift cards).
If Company is unable collect any amounts due via your selected Payment Method, you authorize Company to charge any other Payments Methods on file in your Company Account (unless you have previously removed the authorization to charge such Payment Method(s)). You also authorize Company to charge any Payment Method on file in your Company Account in the event of a Damage Claim pursuant to Section 12 (“Damages”).
Company is not responsible for any fees that a Golfer’s third-party payment service provider may impose when Company charges the Golfer’s Payment Method, and Company disclaims all liability in this regard.
9. General Financial Terms
Company collects the Service Fees charged by Company pursuant to the Company Terms. Where applicable, Company may also collect Taxes (such as VAT in Europe) in respect of the Service Fees. Company deducts the Service Fees from the Golf Caddie Service Fees before remitting the Payout to the Caddie as described in these Payments Terms. Golfer Fees are included in the Total Fees collected by Company. Company may charge additional fees for use of certain Payment Services and any applicable fees will be disclosed to Users via the Company Platform.
10. Cancellations and Refunds
If a Golfer cancels a confirmed booking, Company will refund the amount of the Total Fees due to the Golfer pursuant to the Cancellation Policy and as otherwise in accordance with the Company Terms. Company will also initiate a Payout of any portion of the Total Fees due to the Caddie under the applicable cancellation policy.
If a Caddie cancels a confirmed booking, Company will provide the Golfer a full refund of the Total Fees within a commercially reasonable time of the cancellation. In some instances, Company may allow the Golfer to apply the refund to a new booking, in which case Company will credit the amount against the Golfer’s subsequent booking at the Golfer’s direction.
If, as a Caddie, you cancel a confirmed booking, you agree that Company may collect any cancellation fees imposed pursuant to the Company Terms. In these instances, Company will treat your cancellation as a payment authorization. If a Caddie modifies or cancels a confirmed booking, Company will provide Golfer a refund in accordance with the Company Terms.
If you are a golfer, you understand that use of the Applications and Services may result in charges to you for golf caddie services (“Charges”). Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Company in accordance with its refund policy, which allows for refunds only if the golf course you are playing is closed due to weather conditions or if the golf caddie you have hired does not show up for your golf round. The issuance of a refund for any other reason shall be at the sole, absolute and unreviewable discretion of the Company.
All Charges are due immediately upon booking and payment will be facilitated by Company using the Payment Method designated in your Account, after which Company will send you a receipt by email. If your primary Account Payment Method is determined to be expired, invalid or otherwise not able to be charged, you agree to supply Company with a secondary payment method in your Account, if available.
Caddies are expected to perform golf caddie services for caddie engagements that they accept using the Company’s Applications and Services. Payouts to Caddies, if at all facilitated by Company’s Applications and Services, will not be paid if the Caddie fails to show up and/or perform golf caddie services at the time and location they voluntarily agreed upon, and Caddie may not be offered additional Caddie engagements using the Applications and Services in the future.
If you are a golfer, you may elect to cancel your request for golf caddie services only with prior notice given through the Applications and Services, subject to the terms outlined herein and a $5 per player non-refundable booking fee. For cancellation 72 or more hours prior to the scheduled tee time, the golfer will be issued a full refund minus the non-refundable booking fee. If cancellation occurs within 72-24 hours of the scheduled tee time, the golfer with receive a 50% refund. Cancellations within 24 hours of the scheduled tee time will not receive a refund.
If you are a golfer, you understand and agree that any Charges do not include gratuities. If you are a Caddie, you understand gratuities are optional and at the discretion of the golfer. Company does not provide any recommendations or requirements regarding gratuities for golf caddie services.
All refunds may be subject to the Company Terms. If a Golfer decides for any reason to cancel a confirmed booking pursuant to the Company Terms, you agree that Company will not have any liability for such cancellations or refunds aside from its obligations to remit refunds or Payouts pursuant to these Payments Terms.
If, as a Caddie, your Golfer cancels a confirmed booking or Company or Club decides that it is necessary to cancel a confirmed booking, or if inclement weather dictates that your confirmed booking cannot take place, you will be refunded any and all booking fee(s) you may have paid in the acceptance of the offer. Company will initiate refund payments as quickly as possible, but the refund may take several business days. If Company issues a refund to the Golfer in accordance with any applicable cancellation policy, you agree that in the event you have already been paid, Company will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future Payouts due to you.
11. Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method or Payment Method used for the original Payout to or payment by you, so that you end up receiving or paying the correct amount.
12. Booking Modifications
If, as a Golfer, you owe additional amounts to Company due to a Booking Modification, you agree that Company may collect such amounts by charging the Payment Method used to make your booking (or, if that Payment Method is not available, through any other authorized Payment Method in your Company Account). If, as a Caddie, you owe Company any amounts due to a Booking Modification, you agree that Company may collect those amounts as permitted under these Payments Terms.
If Company is unable to collect any amounts you owe under these Payments Terms, Company may engage in collection efforts to recover such amounts from you. Company will deem any owed amounts overdue when: (a) for authorized charges, ninety (90) days have elapsed after Company first attempts to charge the User’s Payment Method or the associated services have been provided, whichever is later; and (b) for withholdings from a Caddie’s future Payouts, one hundred and eighty (180) days have elapsed after the adjustment is made to the Caddie’s account or the associated services have been provided, whichever is later. Any overdue amounts not collected within one hundred and eighty (180) days after they become overdue will be deemed to be in default. You hereby explicitly agree that all communication in relation to amounts owed will be made by electronic mail or by phone, as provided to Company and/or Company by you. Such communication may be made by Company or by anyone on their behalf, including but not limited to a third-party collection agent.
In any jurisdiction where Company facilitates Collection and Remittance pursuant to the Company Terms, you hereby instruct and authorize Company to collect any Required Taxes from Golfers or Caddie’s on their behalf and to remit such Taxes to the Tax Authority. The amount of Taxes, if any, collected and remitted by Company will be visible to and separately stated to both Golfers and Caddies on their respective transaction documents. You expressly agree to release, defend, indemnify, and hold Company and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, debts, obligations, and expenses, including, without limitation, reasonable legal and/or accounting fees, arising out of or in any way related to Required Taxes, including, without limitation, the applicability of, calculation, collection or remittance of Required Taxes in any amount or at all as to your transactions or Services.
You agree that any claim or cause of action relating to Company’s facilitation of Collection and Remittance shall not extend to any supplier or vendor that may be used by Company in connection with facilitation of Collection and Remittance of Required Taxes, if any. Golfers and Caddies agree that we may seek additional amounts from you in the event that the Taxes collected and/or remitted are insufficient to fully discharge your obligations to the Tax Authority, and agree that your sole remedy for Required Taxes collected is a refund of Required Taxes collected by Company from the applicable Tax Authority in accordance with applicable procedures set by that Tax Authority.
If you as a Golfer (i) agree to pay the Caddie in connection with a Damage Claim, or (ii) Company determines that you are responsible for damaging any personal or other property pursuant to the Company Terms, you authorize Company to charge the Payment Method used to make the booking in order to collect any amount of the Damage Claim. If we are unable to collect from your Payment Method used to make the booking, you agree that Company may charge any other Payment Method on file (and not otherwise unauthorized) in your Company Account at the time of the Damage Claim.
Company reserves the right to otherwise collect payment from you and pursue any remedies available to Company in situations in which you are responsible for any Damage Claim.
15. Prohibited Activities
You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Payment Services. In connection with your use of the Payment Services, you may not and you agree that you will not and will not assist or enable others to:
breach or circumvent any applicable laws or regulations, agreements with third parties, third-party rights, or the Company Terms, Policies, or Standards; use the Payment Services for any commercial or other purposes that are not expressly permitted by these Payments Terms; register or use any Payment Method or Payout Method with your Company Account that is not yours or you do not have authorization to use; avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party to protect the Payment Services; take any action that damages or adversely affects, or could damage or adversely affect, the performance or proper functioning of the Payment Services; attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Payment Services; or violate or infringe anyone else’s rights or otherwise cause harm to anyone.
16. Intellectual Property Ownership, Rights Notices
The Payment Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Payment Services, including all associated intellectual property rights, are the exclusive property of Company, Company and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Payment Services. All trademarks, service marks, logos, trade names, and any other proprietary designations of Company used on or in connection with the Payment Services are trademarks or registered trademarks of Company in the United States and abroad. Trademarks, service marks, logos, trade names, and any other proprietary designations of third parties used on or in connection with Payment Services are used for identification purposes only and may be the property of their respective owners.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Payment Services, except as expressly permitted in these Payments Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company, or its licensors, except for the licenses and rights expressly granted in these Payments Terms.
If you choose to use the Payment Services, you do so voluntarily and at your sole risk. The Payment Services are provided “as is”, without warranty of any kind, either express or implied.
Notwithstanding Company’s appointment as the limited payment collection agent of Providing Users for the purposes of accepting payments from Purchasing Users through the Company Platform, Company explicitly disclaims all liability for any act or omission of any User or other third party. Company does not have any duties or obligations as agent for each User except to the extent expressly set forth in these Payments Terms, and any additional duties or obligations as may be implied by law are expressly excluded.
If we choose to conduct identity verification on any User, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a User or guarantee that a User will not engage in misconduct in the future.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Payment Services remains with you. If you permit or authorize another person to use your Company Account in any way, you are responsible for the actions taken by that person. Neither Company nor any other party involved in creating, producing, or delivering the Payment Services will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Payments Terms, (ii) from the use of or inability to use the Payment Services, or (iii) from any communications, interactions, or meetings with other Users or other persons with whom you communicate, interact, transact, or meet with as a result of your use of the Payment Services, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not Company has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. In no event will Company’s aggregate liability arising out of or in connection with these Payments Terms and your use of the Payment Services including, but not limited to, from your use of or inability to use the Payment Services, exceed the amounts you have paid or owe for bookings via the Company Platform as a Golfer in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Caddie, the amounts paid by Company to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Company and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect Company’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter, or any other liability which cannot be excluded or limited under applicable law.
You agree to release, defend (at Company’s option), indemnify, and hold Company and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Payments Terms; (ii) your improper use of the Payment Services; (iii) Company’s Collection and Remittance of Required Taxes; or (iv) your breach of any laws, regulations, or third-party rights.
20. Termination, Suspension, and other Measures
You may terminate this Agreement at any time via the “Cancel Account” feature on the Company Platform or by sending us an email, or by following the termination procedures specified in the Company Terms. Terminating this Agreement will also serve as notice to cancel your Company Account pursuant to the Company Terms. If you cancel your Company Account as a Caddie, Company will provide a full refund or replacement services to any Golfers with confirmed booking(s). If you cancel your Company Account as a Golfer, Company will initiate a refund for any confirmed booking(s) based on the cancellation policy.
Without limiting our rights specified below, Company may terminate this Agreement for convenience at any time by giving you thirty (30) days’ notice via email to your registered email address.
Company may immediately, without notice terminate this Agreement if (i) you have materially breached your obligations under this Agreement; (ii) you have provided inaccurate, fraudulent, outdated, or incomplete information; (iii) you have violated applicable laws, regulations, or third-party rights; or (iv) Company believes in good faith that such action is reasonably necessary to protect other Users, Company, or third parties (for example in the case of fraudulent behavior of a User).
In addition, Company may limit or temporarily or permanently suspend your use of or access to the Payment Services (i) to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body, or if (ii) you have breached these Payments Terms, the Company Terms, applicable laws, regulations or third-party rights, (iii) you have provided inaccurate, fraudulent, outdated, or incomplete information regarding a Payment Method or Payout Method, or (iv) Company believes in good faith that such action is reasonably necessary to protect the personal safety or property of Company, its Users, or third parties, or to prevent fraud or other illegal activity.
In case of non-material breaches and where appropriate, you will be given notice of any measure by Company and an opportunity to resolve the issue to Company’s reasonable satisfaction.
If you are a Caddie and we take any of the measures described in this Section we may refund your Golfers in full for any and all confirmed bookings, irrespective of preexisting cancellation policies, and you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
If your access to or use of the Payment Services has been limited or this Agreement has been terminated by us, you may not register a new Company Account or attempt to access and use the Payment Services through other an Company Account of another User.
21. Applicable Law and Jurisdiction
If you are contracting with Company, these Payments Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement must be brought in state or federal court in Delaware, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Delaware.
22. Dispute Resolution and Arbitration Agreement
Company is committed to participating in a consumer-friendly dispute resolution process. To that end, these Payments Terms provide for a two-part process for individuals to whom this Section applies: (1) an informal negotiation directly with Company’s customer service team, and (2) a binding arbitration. You and Company mutually agree that any dispute, claim or controversy arising out of or relating to these Payments Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Payment Services (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Company agree that the arbitrator will decide that issue.
You and Company each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Jury Trial Waiver. You and Company acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
No Class Actions or Representative Proceedings. You and Company acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Company both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute. Except as provided in this Section, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Changes. Notwithstanding the provisions of this Section (“Modification of these Payments Terms”), if Company changes this Section (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Company’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the provisions of the “Dispute Resolution” section as of the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments Terms).
Survival. This Section will survive any termination of these Payments Terms and will continue to apply even if you stop using the Payment Services or terminate your Company Account.
23. General Provisions
Except as they may be supplemented by additional terms and conditions, policies, guidelines, or standards, these Payments Terms constitute the entire Agreement between Company and you regarding the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Company and you regarding the Payment Services.
No joint venture, partnership, employment, or agency relationship exists between you or Company as a result of this Agreement or your use of the Payment Services.
If any provision of these Payments Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
Company’s failure to enforce any right or provision in these Payments Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Payments Terms, the exercise by either party of any of its remedies under these Payments Terms will be without prejudice to its other remedies under these Payments Terms or otherwise permitted under law.
You may not assign, transfer, or delegate this Agreement and your rights and obligations hereunder without Company’s prior written consent. Company may without restriction assign, transfer, or delegate this Agreement and any rights and obligations, at its sole discretion, with thirty (30) days’ prior notice. Your right to terminate this Agreement at any time remains unaffected.
This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third-party beneficiaries of this Agreement for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to this Agreement.
Unless specified otherwise, any notices or other communications permitted or required under this Agreement, will be in writing and given by Company via email, Company Platform notification, or messaging service (including SMS).
24. Contacting Company
You may contact Company regarding the Payment Services using the information below:
24500 Center Ridge Road, Suite 170
Westlake, Ohio 44145
United States of America