PAYQWICK SITE USER AGREEMENT
Your use of the website located at https://www.PayQwick.com (the “Site”) is subject to the Terms and Conditions of the Site as may be posted from time to time and the terms of which are incorporated herein for all purposes. Those Terms and Conditions, along with the following agreement are collectively referenced hereafter as the “Agreement”. This Agreement is a contract for products and services (the “Service(s)”) available through the Site between PayQwick, Inc., PayQwick, Ltd. and you, the user of the Service. All references herein to “User”, “you” and “your” shall mean the person or entity applying for the Services. All references to “PayQwick”, “we”, “us” and “our” shall mean PayQwick, Inc., PayQwick, Ltd. and its agents. All references to “Account” shall mean the information about you and your Account that are accessible via the Site. All references to “Account” shall mean the Account or Transactional Account collectively and all references to “account” shall mean all accounts, wherever and by whoever held. This Agreement highlights certain risks of using the Services so you must consider this Agreement carefully when choosing whether to use the Services. By registering at the Site, you (1) acknowledge receipt of our Privacy Notice and agree to its terms, (2) you agree to the terms of this Agreement and (3) confirm your authorization for PayQwick to initiate transactions on your behalf. If you disagree with any of the foregoing or any future changes, amendments or revisions to the Services or this Agreement, you have the choice to refuse such terms and conditions and you will not be able to use the PayQwick and your Account will be closed in lieu of your refusal.
2. Term and Amendment
This Agreement shall remain valid until such time as you or we terminate it and the Services in accordance with the section hereof entitled “Termination.” We may amend or change this Agreement, including applicable fees and service charges (collectively, “Fees”) or any other terms and conditions or policies posted on the Site at any time and from time to time, in our sole discretion, by sending you notice in the manner set forth in the E-Sign Consent and Disclosure (the “E-Sign Consent”). Please access and review this Agreement regularly. If you find the Agreement unacceptable to you at any time, please discontinue your use of the Service and your Account. Your use of the Service and your Account after we have made such changes available shall act as your agreement to the change.
3. Our Relationship
PayQwick is only a portal to help you manage your money. PayQwick helps you to quickly and easily manage financial transactions between you and third parties. PayQwick is an independent contractor for all purposes, except that PayQwick acts as your agent only with respect to the custody of your funds. By using the Service you assign PayQwick as your agent to direct transactions you manage with the Services. PayQwick does not have control of or liability for the use of funds managed via the Service. PayQwick does not guarantee the identity of any User. Services available through the Site include:
- Sending Money. PayQwick enables you to initiate instructions via the Site to facilitate payments to other Users, to other bank accounts via direct deposit, Automated Clearing House (“ACH”) or electronic check (“E-check”). In some instances paper checks may be issued. Processing time may differ depending upon the type of transaction and will be subject to the Fees and Transaction Limits associative to your account. You authorize us to resubmit any ACH debit authorized by you that is returned for any reason whatsoever. Your ACH or E-check instructions may not specify a currency other than the US dollar.
- Receiving Money. PayQwick enables you to receive money to your external bank accounts that you own, and from other Users. You may also make arrangements for certain direct deposits to be accepted into your Account if permitted.
- Requesting Money. PayQwick allows you to request money, if permitted, from another User or other party using your email address and the email address of the person from whom you are requesting payment.
- Withdrawing Money. You may withdraw funds from your Account in the following ways if permitted, by transferring them to an account you hold at a third party financial institution (the “Funding Account”) or an ACH, ECheck, or physical check through the mail.
- Viewing information. You may view up to date information about your Account, the instructions you have submitted and the completed or pending transactions at the Site through your Account.
By submitting an instruction via the Site, you authorize PayQwick to communicate with third party institutions on your behalf so that they may initiate and/or honor the movement of money to or from your Account. You understand that any instruction for the movement of money submitted to us shall be your authorization to us to facilitate the processing of requested transactions from your accounts, including the debit of Fees from your accounts. You further understand that once you have authorized a transaction, your actions are final and you will not be able to modify, change or cancel it.
WE ARE A FACILITATOR OF TRANSACTION ORDERS, ON YOUR BEHALF, TO INITIATE THE RECEIVING AND SENDING OF PAYMENTS BETWEEN THIRD PARTIES. WE DO NOT GUARANTEE THE PERFORMANCE OF OUR SERVICES AND WE ONLY ACT AS A FACILITATING AGENT WITH NO CUSTODY OF YOUR FUNDS. ANY TRANSACTIONS MADE BETWEEN USERS OR THIRD PARTIES ARE BEYOND OUR COGNIZANCE AND WE TAKE NO RESPONSIBILITIES FOR THIRD PARTY ACTIONS.
You must be at least 21 years old to use the Services. You affirm that you are at least 21 years of age. You further affirm that everything stated in your application, which forms part of this Agreement, is correct to the best of your knowledge.
6. Establishing Your Account; Passwords and PINs
You agree that you will not register for or maintain more than one Account. When you apply for the Services, you will be asked to create a “User ID”, “Password”, and “PIN” for access to your Account and the Services. This Password and PIN is stored in encrypted form. Once you have established your Account, access to your Account and the initiation of transactions will be possible only when accompanied by your User ID and Password. In order to keep the balances in your User Account secure, you must strictly protect the confidentiality of your User ID, Password and PIN. If you believe that your User ID and Password or PIN is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your User ID and Password or your PIN), you must immediately notify PayQwick at (888) PAY-QWICK (888) 729-7942. You agree that the use of these User IDs, Passwords and PINs are a commercially reasonable method of providing security to protect you, your information and your Account.
We may, at our option, change the User ID, Password and PIN parameters without prior notice to you, and if we do so, you will be required to change your User ID, Password and PIN the next time you access your Account. You agree that you will not give or make available your User ID and Password, or PIN to any other person. You are responsible for all instructions initiated and transactions performed using your User ID, Password, or PIN to the fullest extent allowed by law.
7. Our Business Days
Our business days (“Business Day(s)”) are 9:00 AM through 5:00 PM Pacific Time Zone, Monday through Friday, excluding federal holidays.
8. Minimum Deposits
No minimum deposit is required to open an Account or to maintain an Account. The balance of the Account depends on the amount of funds that have been deposited into the Account. THE ACCOUNT IS NOT AN INTEREST BEARING BANK ACCOUNT. NO INTEREST IS, OR WILL BE, PAID ON THE BALANCE OF THE ACCOUNT. DEPENDENT UPON THE DEPOSIT METHOD(S) YOU CHOOSE FEES MAY BE IMPOSED IN CONNECTION WITH DEPOSITS. YOU AGREE TO PAY ALL FEES CHARGED IN ACCORDANCE WITH THIS AGREEMENT.
9. Funding Your Account and Initiating Transactions.
a) Funding Your Account
To be able to initiate transactions you will be required to provide certain information to us, including without limitation, name, date of birth, personal tax ID, address, and email addresses.
The Account may accept deposits from the following sources:
- Direct deposits, or other funds due to you, may be loaded to the Account via the Site using electronic transfer, if permitted. Payers who send money to your Account for employment or independent contractor services are obligated to report these payments to the appropriate governmental agencies, and any notification for the purposes of tax reporting is the responsibility of the payer. We bear no responsibility for any such reporting or tax liabilities arising therefrom. Your Account at the Site will reflect any monies received into the Account.
- Deposits are acceptable into the Account via electronic transfer from any of your linked bank checking, savings or debit card accounts that you have registered with us for such purpose (“Funding Account(s)”), if permitted. Certain delays may be required to assure funds are available for such deposits prior to crediting to your Account. Your Account balance will reflect when funds are available.
- Deposits are acceptable into your Account in the form of EFTs from non-linked bank checking, savings or debit cards initiated by a third party and will be reflected on the Site in your Account. Certain delays may be required to assure funds are available for such deposits prior to crediting to your Account.
- Account transfers from another PayQwick Account to your Account are accepted and will be reflected in your Account.
Some funding mechanisms will result in Fees being assessed against your Account as detailed in the “Fee Schedule”.
b) Initiating Transactions
It is your responsibility to ensure that any identifying information you provide is accurate and error-free as you submit the transaction. For some transactions, it cannot be cancelled or recalled. If the information you submit is valid, money will be sent from your Account and will be available to the recipient, even if the recipient was unintended because of a mistake in the transaction information you submitted. You agree that we shall have no liability whatsoever for your errors and you agree not to initiate any claims associated with such errors. If any transaction you initiate is rejected due to erroneous information such as invalid account number or email address, the funds will be credited to the Account, if possible, once the final payment for the funds is received; any such credit will be reflected in your Account.
10. Availability of Funds Received Into Your Account.
Funds transferred to your Account will be made available to you the day the final settlement for the deposit is received. We will reflect the deposit in your Account on the same day. Deposits may be delayed until the funds are physically received and any and all legal requirements with respect to the funds have been satisfied. If you attempt to move funds to or from locations outside the United States, those transactions will not be honored and we reserve the right to terminate all Services and limit your access, suspend, or terminate your Account. During any of the foregoing delays, the funds’ value will not be available to you and a “Pending” status may be reflected in your Account. We reserve the right to accept or reject any instruction. We reserve the right to accept or reject any request to deposit funds to the Account, at our sole discretion. All funds are held in United States dollars. We are not responsible for transactions from third parties until we actually record them. We will process and record all transactions received no later than the next following Business Day.
PayQwick, Inc. may decide at any time and for any reason to reverse any payment reflected in your Account. PayQwick, Inc. may at any time limit your access, suspend, or close your Account, refuse to provide you with the Services, or limit access in cases such as, but not limited to, your violation of any agreement between you and PayQwick, Inc., including without limitation, this Agreement or in the event your chargeback ratio is too high. Funds of your Account may be held for up to 200 days in such cases. When using the Services you are required to consider such risks and abide by all agreements, terms and conditions relating to the Service. Any terms not specified in any of PayQwick, Inc.’s Agreements shall be governed by the Commercial Code in force in the United States of America.
11. User/Non-User/Third Party Claims
PayQwick will take due care in delivering your instructions but is not responsible for any claims arising from any transaction facilitated through our Services such as, but not limited to, the number, quality of purchased goods, services provided, or correct order handling. You agree to resolve any problems or claims directly with the party with whom the claim or problem arose.
12. Use of Account and Services for Lawful Purposes.
You agree to use your Account and the Services only for bona fide and lawful purposes. You may not use the Services to conduct any illegal activity or Restricted Activities (as hereafter defined) including, but not limited to, pornography, money laundering, gaming or internet gambling in jurisdictions where such activities are prohibited. If you are a business User, you certify that you do not engage in any internet gambling business and that you never do so. PayQwick has the right to terminate your Account and to refuse to facilitate (or may reverse) any transfer if it believes, in its sole discretion, that you are using the Service for any Restricted Activities, any other illegal or improper purpose or if
- any transfer would violate any applicable law, rule or regulation;
- any transfer is not in accordance with any other requirement stated in this Agreement or any of our policies, procedures or practices;
- for our protection or yours when we have reasonable cause not to honor a transfer.
You agree that neither PayQwick, Inc., nor any representative, agent employee or service provider associated with PayQwick, Inc. or the Services will be held responsible or liable to you or any other person for such action except as required by law.
The owner of the Account is the person or entity who applies for the Service. The owner is responsible for any and all transactions and all Fees associated with the Account.
You agree that you are financially responsible for all uses of the Account and for the information you provide to us by you or others you permit to use either your User ID, Password or PIN whether by website data entry, ATM use, or otherwise.
We may assign or transfer our rights and obligations under this Agreement, including all our rights and obligations in respect of any Account or any sums due hereunder, at any time without prior notice to you. This Agreement and the Account established under this Agreement are not assignable or transferable by you. If you desire to transfer ownership you will need to close the Account and establish a new user account in the new name, subject to our acceptance in our sole determination.
We may, at any time, for any reason, without notification to you, terminate this Agreement and the Account and/or temporarily or permanently suspend your right to use the Account. In the event of termination of your Account we will return the balance of the Account, less any applicable Fees, to you. You may cancel the Account at any time, by calling Customer Service at (888) PAY-QWICK (888) 729-7942, but by doing so a cancellation Fee may be charged.
17. Inactive Accounts
If you have not initiated an instruction through your Account for a purchase from or a deposit to your Account for six (6) months, your Account may be classified as inactive by us. Subject to applicable law, we may charge an inactivity Fee on the Account for each month that the dormancy continues thereafter. The Fee will be discontinued when transactions resume or the balance of the account has reached zero, at which time the Account will be closed.
18. Account Limits
Limits are subject to change and vary depending on type of account and transaction levels. Limits can be increased under certain conditions. PayQwick, Inc. reserves the right to set and adjust account limits at any time, for any reason, without notification to you.
19. Your Responsibility for Available Funds
It is your responsibility to have sufficient available funds in your Account for transactions you schedule and you agree to do so. PayQwick, Inc. will not be obligated to make any payment of any item or any transfer you may request unless there are sufficient available funds in your Account as reflected in your Account to cover the request on the date of such request. If sufficient funds are not available at the time of the scheduled transfer, a Fee may be charged as set forth in our Fees schedule. You are not allowed to exceed the balance reflected in your Account when making any purchase. You agree to be absolutely and unconditionally responsible for payment to us for overdrafts. You agree to have the amount of the overdraft deducted from any funds later deposited to the Account. You give us the right to resubmit any instruction previously authorized by you that is returned non-paid for any reason.
You are responsible for the payment of any Fees set forth on the Fee Schedule relative to the use and operation of your Account and the Services. You authorize PayQwick, Inc. to deduct applicable fees from your Account. If the Account has insufficient funds to cover the Fees you authorize PayQwick, Inc. to initiate a payment from your Funding Account in a sufficient amount to cover the Fees and any overdrafts to your Account that may have occurred, together with all costs of collection. We may, from time to time, revise the Fee Schedule and will notify you as the law requires.
21. Expired Payments
If you sent instant payments with an expiration date, your email payees must successfully open a PayQwick account prior to the expiration date you select on the payment screen to prevent cancellation of the transaction. If your email payee has not successfully created a PayQwick account before such date, payments directed to your payees via email will expire on or after the date you selected. After the expiration of this period we shall use commercially reasonable efforts to void the transaction and return the amount to the available funds of your Account. Payment instructions for transactions requested using any other type of payment vehicle (e.g., paper checks, ACH transfers, etc.) will have no expiration date. We have no liability to you, your payee or any other party for voiding or failing to void any payment that remains outstanding after its expiration.
22. Right of Setoff
Subject to applicable law, we may exercise our right of “Setoff” or security interest against your Account with or without notice to you, for any liability or debt, whether individual or joint, whether direct or contingent, whether now or hereafter existing, and whether arising from overdrafts, endorsements, guarantees, attachments, garnishments, levies, attorneys’ fees, or other obligations. Whether the Account is consumer or commercial, you authorize us to exercise our right of setoff against the Account by initiating a payment from the account or any of your Funding Account(s) to cover the shortfall.
23. Periodic Statement
The PayQwick portal provides you access to generate a statement of transactions for each month the account is open, which can be downloaded online. This is the only type of statement you will receive from us.
24. Browser, Software and Internet Services
You are responsible for obtaining a browser capable of a sufficiently high level of encryption to meet the systems requirements established by PayQwick from time to time to access the Services and your Account. You acknowledge that you are solely responsible for the adequacy of systems and software utilized by you to process transactions and the ability of such systems and software to do so accurately. You acknowledge that PayQwick is not responsible for notifying you of any upgrades, fixes, or enhancements to, or for providing technical or other support for, any browser or other software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. Your use of any browser or software may also be subject to the license agreements of the respective manufacturer, in addition to the terms and conditions of this Agreement. We shall not be responsible to you for any loss or damages suffered by you as a result of the failure of systems and software used by you to interface with the Site or Service and to initiate or process instructions or transactions, whether such instructions or transactions are initiated or processed directly with our Site or Service or through a third party service provider.
You are additionally responsible for obtaining Internet services via the Internet service provider of your choice, for any and all fees imposed by such Internet service provider and any associated communications service provider charges. You acknowledge that there are certain security, corruption, transmission error, and access availability risks associated with using open networks such as the Internet and you hereby expressly assume such risks (to the extent the law allows you to do so). You acknowledge that you have requested the Service for your convenience, have made your own independent assessment of the adequacy of the Internet as a delivery mechanism for accessing information and initiating instructions and that you are satisfied with that assessment.
You may use the Site for your own personal or business purposes only, in connection with obtaining the Services. You agree not to transfer, sublicense, rent, assign, share, copy, translate, convert to another programming language, decompile, disassemble, modify, or change the Site or any information contained therein for any purpose. You agree to hold in trust for PayQwick, Inc. and not disclose to any other party, or allow any other party to inspect, copy, or use the Site and any information contained in, related to, transmitted to or from, or derived from PayQwick or the Site (collectively, the “Data”). You may not copy, modify, adapt, reproduce, translate, reverse engineer, decompile, disassemble, sublicense, or assign any aspect of the Data.
26. Site Content and Availability
All content included on this Site is copyrighted under the laws of the United States of America and is protected by worldwide copyright laws and treaty provisions. The Site has been prepared solely for the purpose of providing information regarding the Services and products offered by PayQwick, Inc.. We have compiled the Site in good faith; however, no representation is made as to the completeness or accuracy of the information it contains. In particular, you should be aware that this information might be incomplete, may contain errors or become out of date.
Although considerable effort is expended to make the Site and other means of communications and access available around the clock, we do not guarantee continuous, uninterrupted, error free or secure access to any part of our Service and operation of our Site may be interfered with by numerous factors outside of our control. We will make reasonable efforts to ensure that requests for electronic debits and credits involving your Account are processed in a timely manner but make no representations or warranties regarding the amount of time needed to complete processing because our Service is dependent upon many factors outside of our control, such as delays in the banking system or the United States mail service. You agree that we will not be responsible for temporary interruptions in service due to maintenance, Site changes, or failures, nor shall we be liable for extended interruptions due to failures beyond our control, including, but not limited to, the failure of interconnecting and operating systems, computer viruses, forces of natures, labor disputes and armed conflicts.
The Site may be linked to other sites not maintained by us. PayQwick does not endorse those sites and is not responsible for the content of those sites.
You acknowledge and agree that you are personally responsible for your conduct while using the Service and agree to defend, indemnify and hold us and our parent, affiliates, officers, directors, employees, processors and agents (collectively, the “Indemnified Parties”) harmless from and against any loss, damage, liability, cost or expense of any kind (including, but not limited to, reasonable attorneys’ fees and court costs) that may be incurred in connection with a third party claim or otherwise, in relation to your use of the Service or the use of the Service by anyone using your Account number, PIN, User ID or Password or your violation of this Agreement or the rights of any third party (including, but not limited to, privacy rights). Your obligations under this paragraph shall survive termination of this Agreement.
29. No Warranties; Disclaimer of Liability
EXCEPT WHERE THE LAW REQUIRES A DIFFERENT STANDARD, IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICE, OR THIS AGREEMENT HOWEVER ARISING. LIABILITY OF THE INDEMNIFIED PARTIES TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES PAID BY YOU UNDER THIS AGREEMENT.
THE INDEMNIFIED PARTIES ARE SPECIFICALLY NOT RESPONSIBLE FOR ANY CLAIMS OR DEMANDS ARISING FROM OR RELATED TO THE EQUIPMENT, BROWSER AND/OR THE INSTALLATION OR MAINTENANCE THEREOF, ACCESS TO OR USE OF THE ONLINE SERVICE, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, BUGS, ERRORS, CONFIGURATION PROBLEMS OR INCOMPATIBILITY OF COMPUTER HARDWARE OR SOFTWARE, FAILURE OR UNAVAILABILITY OF INTERNET ACCESS, PROBLEMS WITH INTERNET SERVICE PROVIDERS, PROBLEMS OR DELAYS WITH INTERMEDIATE COMPUTER OR COMMUNICATIONS NETWORKS OR FACILITIES, PROBLEMS WITH DATA TRANSMISSION FACILITIES OR ANY OTHER PROBLEMS YOU EXPERIENCE DUE TO CAUSES BEYOND THE CONTROL OF THE INDEMNIFIED PARTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY APPLICABLE AGREEMENT, YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE ONLINE SERVICE IS AT YOUR SOLE RISK AND THAT THE ONLINE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SITES, ARE PROVIDED ON AN “AS IS” “WHERE-IS” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU. YOU ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES MAKE NO WARRANTY THAT THE ONLINE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE UNLESS OTHERWISE STATED ON THE SITE OR IN ANY APPLICABLE AGREEMENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE INDEMNIFIED PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY INFORMATION, PRODUCTS AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SITE. NO LICENSE TO YOU IS IMPLIED IN THESE DISCLAIMERS.
30. Purpose of Transactions
The Indemnified Parties have no control over the products or services that are paid for using the Service or the providers of such products or services and the Indemnified Parties cannot ensure that a buyer or a seller you are dealing with will complete the transaction or is authorized to do so.
31. Electronic Communications/Change of Address.
You must agree to accept electronic communications from us and you must provide us with your public email address as a condition to using the Service. It is your responsibility to maintain a correct current postal and email address on file with us. If either your postal or your email address changes, you agree to notify us immediately by updating your information by accessing your Account within the Site. Failure to do so may result in information regarding the Account being communicated to the wrong person or your transactions being declined. In such event, we shall not be responsible for any resulting misuse of funds available through the Account.
Any notice given by us shall be deemed given to you if provided in accordance with the terms of the electronic signature agreement and consent that you executed when applying for the Service (the “E-Sign Consent”). You agree that we may accept changes of address from the United States Postal Service. You also agree that if you attempt to change your address to a non- United States address, your Account may be cancelled and funds returned to you in accordance with this Agreement.
You may withdraw your consent to the receipt of electronic communications from us as set forth in the E-Sign Consent but if you do so, your Service will be terminated. We shall have a reasonable opportunity to process your withdrawal and terminate your Service.
33. Governing Law, Binding Arbitration
This Agreement will be governed by, construed and enforced in accordance with federal law and the laws of the State of California. You agree to pay upon demand all of our costs and expenses incurred in connection with the enforcement of this Agreement. If we are served garnishments, summonses, subpoenas, orders or legal processes of any type, we are entitled to rely on the representations therein and may comply with them in our own discretion without regard to jurisdiction. You agree that any legal action involving the Account must be brought within one (1) year of the date the cause of action arose. You and we both waive our right to punitive and exemplary damages, as well as damages in tort, including but not limited to emotional distress, unless caused by a willful and malicious act, which in the case of unauthorized disclosure of private or confidential information must also be defamatory.
UNLESS OTHERWISE EXPRESSLY NOTED TO THE CONTRARY IN AN AGREEMENT BETWEEN YOU AND US, YOU HEREBY AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING NOW OR IN THE FUTURE UNDER OR RELATING IN ANY WAY TO THIS AGREEMENT, OR TO THE SERVICE (“CLAIM”), REGARDLESS OF THE NATURE OF THE CAUSE(S) OF ACTION ASSERTED (INCLUDING CLAIMS FOR INJUNCTIVE, DECLARATORY, OR EQUITABLE RELIEF), SHALL BE RESOLVED BY BINDING ARBITRATION (“BINDING ARBITRATION”). CLAIMS SUBJECT TO ARBITRATION INCLUDE CLAIMS THAT ARE MADE AS COUNTERCLAIMS, CROSS CLAIMS, THIRD PARTY CLAIMS, INTERPLEADERS, OR OTHERWISE. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, AND YOU THEREFORE AGREE TO WAIVE ANY RIGHT THAT YOU OR WE MIGHT OTHERWISE HAVE HAD TO A JURY TRIAL OR THE OPPORTUNITY TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY. YOU FURTHER AGREE THAT YOU WILL NOT BE ABLE TO BRING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION (SUCH AS AN ACTION IN THE FORM OF A PRIVATE ATTORNEY GENERAL) TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY; NOR WILL YOU BE ABLE TO PARTICIPATE AS A CLASS MEMBER IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY.
This Binding Arbitration provision applies to any and all Claims that you have against us, our parent, subsidiaries, affiliates, licensees, agents, processors, predecessors, successors, assigns, and against all of their respective employees, agents, or assigns, or that we have against you; it also includes any and all Claims regarding the applicability of this arbitration clause or the validity of the Agreement, in whole or in part. It is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. sections 1-16, as it may be amended.
The party filing a Claim(s) in arbitration must file its Claim(s) before the American Arbitration Association under the rules of such arbitration administrator in effect at the time the Claim(s) was filed. Rules and forms may be obtained and Claims may be filed at American Arbitration Association, 725 S Figueroa St #400, Los Angeles, CA 90017, (213) 362-1900 , www.adr.org. Any arbitration hearing that you attend shall be held at a place chosen by the arbitrator or arbitrator administrator within Los Angeles County in the State of California. Judgment upon any arbitration award may be entered in any court having jurisdiction.
This Binding Arbitration agreement shall survive: (i) termination or changes in the Agreement, and the relationship between you and us concerning the Agreement; and (ii) the bankruptcy of any party or any similar proceeding initiated by you or on your behalf. If any portion of this Arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.
You acknowledge and agree that we are not obligated to determine whether any federal, state or local tax applies to any transaction involving the use of your Account, nor are we responsible for collecting, remitting, or reporting any sales, use, income or other taxes arising from any such transactions. You are solely responsible for paying all taxes applicable to transactions involving the use of your Account.
35. No Waiver
No failure by us to enforce the performance of any provision of this Agreement or to impose any Fee or other amount allowed hereunder will constitute a waiver by us of our right to subsequently enforce such provision or any other provisions of this Agreement or to impose such fees or other amounts pursuant hereto.
36. Third Party Processors
We may appoint, at our sole discretion, third party processors to perform tasks on your behalf that may be necessary to deliver the Service. We require all third parties to sign and be legally bounded to our privacy and security policies relative to all information connected to Accounts.
37. Log Files
We use IP addresses to analyze trends, compare geographic location to provided information, administer the Site, track user movement, ensure compliance with applicable laws and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information except to monitor compliance with applicable laws or in cases where an IP address is positively linked to a crime, hacking or fraud. IP addresses associated with such activities will be used to identify the perpetrator to the proper authorities, including law enforcement.
38. Rejection or Delay
You understand, agree, and accept
- the recipient of a transaction is not required to accept it;
- you will not hold us liable for any damages resulting from a recipient’s decision not to accept any payment;
- it may take us up to 10 days to return any unclaimed, refunded, or denied payment to your Account from the date you initiated the transaction;
- in processing any transaction, our process may delay the timeframe of such transaction and you will not file any claim related to any delays;
- you shall not hold us liable for any delay that may occur in processing any transaction;we may limit access to the Account as set forth in this Agreement, or in other circumstances as we deem necessary in our sole discretion and shall have no liability to you for so doing.
39. Order of Payment
You understand, agree, and accept that you are obliged to have adequate funds available in your Account for the performance of your transaction instructions. You understand, agree, and accept that if you send a payment, such a payment will be funded in the following order:
- any negative balance
- Fees due and payable to us
- Transfer from Funding Account
- Instant Payment transfers
- Electronic Transfer fulfillment
- Paper Check fulfillment
40. User Violations or Breach
It is your responsibility to ensure that all transactions comply with all our terms and conditions. If you become aware of any violations of our terms and conditions, you must report them immediately to email@example.com. You understand, agree, and accept that if you violate or breach this Agreement or any of our other terms and conditions for using the Site and the Services, we may suspend or close the Account(s) with or without notice to you and may take legal action against you to recover any losses caused by such breach.
41. Closing Your Account
- You may close your Account at any time using the Site; however you are required to (a) ensure that any pending transactions have either been processed or cancelled and (b) withdraw any balance prior to closing your Account. A Fee may be charged for closing the Account as outlined in the Fee Schedule. If you fail to withdraw the balance in your Account (less the closing Fee) prior to closing, any remaining balance in your Account will be sent to you, less the closing Fee and the applicable Fee for transmitting the funds, at any address we have on file for you. Any pending transactions will be cancelled if you fail to cancel pending transactions at the time you close your Account. However, if you receive any funds into your Account after the time your Account is closed, your Account will be reopened, and to close the account, you may be subject to an additional Fee for account closing.
- You may not close your Account to evade any investigation. Any attempt to do so will result in your funds being frozen for a minimum of 200 days or indefinitely in case we suspect illegal or unlawful conduct or fraud to protect us and our other Users or third parties against any risk incurred, including without limitation, risk of reversals, chargebacks, claims, fees, fines, penalties, damages, and any other liability.
- We may, at any time and for any reason, with or without notice to you, close your Account at our sole discretion. If we do so, your Account will also be closed. Funds in your account will be held for 200 days minimum or indefinitely in case illegal or unlawful conduct or fraud is suspected in order to protect us, other Users or third parties against any risk incurred, including without limitation, risk of reversals, chargebacks, claims, fees, fines, penalties, damages, and any other liability.
- After your Account is closed, you understand, agree, and accept that you remain liable for all obligations related to your Account, even after the Account is closed.
- The provisions of this Section shall survive any termination of the Account or this Agreement.
42. Requirements of Your Funding Account
You must always inform us if you are a victim of any fraud or if your Funding Account was cancelled, suspended, blocked, or for any reason you cannot use the Funding Account anymore. If you close or suspend your Funding Account, you will need to add a new Funding Account to the Service if permitted.
43. Restricted Activities
The following are restricted activities (“Restricted Activities”) in connection with your use of our Service, the Site and your Account:
- Breach by you of any terms of this Agreement or any terms of any Agreements posted by us on the Site.
- Violation by you of any law, statute, ordinance, or regulation (for example, those governing financial services, money laundering, consumer protections, unfair competition, anti-discrimination, or false advertising).
- Infringement by you of PayQwick, Inc.’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy.
- Any act by you in a manner that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
- If you provide false, inaccurate or misleading information.
- If you send or receive what we reasonably believe to be potentially fraudulent funds or engage in any conduct that we reasonably suspect may involve money laundering,
- If you refuse to fully cooperate in any investigation (whether conducted by us or any governmental agency or third party) or provide confirmation of your identity or any information you provide to us.
- Any activity related to (a) narcotics, steroids, certain controlled substances, illegal drugs or associated paraphernalia, or other products that present a risk to consumer safety, (b) items that encourage, promote, facilitate or instruct other to engage in illegal activity, (c) items that are considered obscene, pornographic or sexually explicit or (d) any regulated weapon, ammunition or firearm. However, we will permit you to use your Account to pay for the purchase of marijuana and marijuana infused products only if the transaction fully complies with all of the applicable state’s laws, rules and regulations.
- Any attempt by you to perform transactions that (a) are associated with the sale of traveler’s checks, money orders, currency exchanges or check cashing, (b) provide certain credit repair or debt settlement services, (c) show the personal information of third parties in violation of Applicable Law, (d) support pyramid or ponzi schemes, (e) 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.
- Any attempt by you to “double dip” during the course of a dispute by receiving or attempting to receive funds from both us and the seller, bank, or credit card company for the same transaction.
- If you use a proxy.
- If you control an Account that is linked to another Account that has engaged in any of these Restricted Activities.
- If you conduct your business or use the Services in a manner that results in or may result in complaints, disputes, claims, reversals, charge backs, fees, fines, penalties, frauds, and other liability to us, a User, a third party or you.
- If you use your Account or the Services in a manner that we or any of our third party providers reasonably believe to be an abuse of the system or a violation of law.
- If you allow your Account to have a negative balance.
- If you disclose or distribute another User’s information to a third party, or use the information for marketing purposes unless you receive the User’s express consent to do so.
- If you send unsolicited email to a User or use the Services to collect payments for sending, or assisting in sending, unsolicited email to third parties.
- If you take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- If you facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information.
- If you use any robot, spider, other automatic device, or management process to monitor or copy the Site.
- If you use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with the Site or the Services.
- If you take any action that may cause us to lose any of the services provided by our internet service providers, payment processors, banks, financial institutions, or other suppliers.
- If you use the Service to test credit card behaviors.
- If you use the Service to participate in internet gambling.
- If you are a business imposing a surcharge or any fees to your customers for using our Service.
- If you use the Service to purchase, sell or transfer Prohibited Items as set forth in the section of this Agreement entitled “Prohibited List”.
- If you take any action that creates any risk whatsoever that may cause us to lose any of our licenses or permits to operate.
If you engage in any Restricted Activities or breach any terms of our Agreements, we may take additional actions to protect Users, third parties, us, or yourself including, but not limited to those set forth below. You hereby understand, agree, and accept that we may implement any of the actions presented hereunder and in any part of our Agreements and release us from any claims, demands, liabilities, causes of action and damages (actual and consequential) of every kind and nature (“Claims”) arising out of or in any way connected with the implementation of such actions.
Such actions include, but are not limited to,:
- Suspending, or closing your Account and/or any of our Services or limiting your access thereto, which may result in your temporary or permanent inability to send and/or receive payments, remove financial data on your account, close your account, or any other functionality decided by us in our sole discretion.
- Freezing all your funds for 200 days minimum or longer and until such time as we are satisfied at our sole discretion that any possible risks, Claims, fees, fines, penalties, reversals, charge backs, frauds concerns, and any other liability no longer exist.
- Updating inaccurate information you provided.
- Recording your name to our database and share your name with other customers’ database.
- Report you to any government agencies, including law enforcement.
- Ban you for life or for such period as we deem appropriate from the use of our Services.
- Seeking a temporary restraining order or taking other legal action against you.
It is crucial to understand that online payment processing security is part of your day-to-day business. The Services include several tools and automatic checks that are designed to decrease chargebacks and fraudulent transactions. However, as a User, your duty is to observe the implementation of all our rules, tools, and methodologies relative to any activity on the Site. Please remember that we do not allow the use any of our Services for any illegal activities. We reserve the right to take preventative or corrective actions to protect the Site, us, the Service and its Users.
We abide by the rules and regulations set by US laws and do not allow certain types of users to use our services. If you have a question about whether your proposed or existing business violates our terms and conditions, you can email us for clarification at firstname.lastname@example.org. We reserve the right to reject an application for the Services or close an existing Account at any time, at our sole discretion, with or without reason, with or without notice to you.
47. Prohibited List
Users are prohibited from using the Service to purchase, sell, or participate in the purchase, sale, or transport of or subscription to any of the following:
- anabolic steroids
- hatred websites
- human or animal parts (dead or alive)
- pyramid schemes, CLUB, “get rich quick” and Matrix schemes
- pharmacy and drugs except with license
- spammers, unsolicited email commercial services
- wares (pirated software), illegal MP3s sales, copyright infringers
- any illegal products or services
- criminal activities
- internet gambling
- pornography or pornographic materials
48. No Waiver
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
If you have a dispute with one or more Users and/or customers, you release the Indemnified Parties from any and all claims, demands, liabilities, causes of action and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. In addition, you specifically waive any provision of law that limits the general release and indemnity given by you in this Agreement.
50. Miscellaneous Provisions
If an Account becomes involved in any legal proceedings, use of the Account may be restricted. We shall be entitled to act upon any legal process served upon us which we reasonably believe to be binding, with no liability to you for doing so.
51. Telephone Activities
You understand that supervisory personnel may randomly monitor customer service telephone conversations either for training purposes or to ensure that you receive accurate, courteous, and fair treatment. When you provide a phone number to us, or if you call us from a phone number, you consent to accept calls from us to that phone number, including collection calls.
52. Third Party Claims and Disputes
If you ask us to follow instructions that we believe might expose us to any claim, liability, or damages, we may refuse to follow your instructions or may require a bond or other protection, including your agreement to further indemnify and defend us. You agree to be liable to the Indemnified Parties, to the extent permitted by law, for any loss, costs, or expenses that the Indemnified Parties may incur as a result of any dispute or legal proceeding involving your Account. You authorize us to deduct any such loss, costs, or expenses from your Account without prior notice to you. This obligation includes disputes between you and us involving your Account(s) and situation where a third party claims an interest in your Account. It also includes situations where any action taken on your Account by you or anyone authorized by you or a third party claiming to be you, causes us to seek the advice of an attorney, whether or not we actually become involved in a dispute. Any action by us or the other Indemnified Parties for reimbursements from you for any costs or expenses may also be made against your estate, heirs, legal representatives and assigns, which shall be liable for any claims made against and expenses incurred by us or the other Indemnified Parties in connection with this section.
If a court finds any provision of this Agreement invalid or unenforceable, such finding shall not make the rest of this Agreement invalid or unenforceable. To the fullest extent possible, any such provision shall be deemed to be modified so as to be rendered enforceable or valid; however, if such provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable.
The Section and Subsection headings in this Agreement are inserted solely as a matter of convenience and for reference, and shall not be considered in the construction or interpretation of any provision hereof. Unless the context otherwise specifically requires, all references to Sections of this Agreement shall refer to all Subsections thereof.
55. Conditions of Acceptance
56. Your Liability
Tell us IMMEDIATELY if you believe your User ID, Password, or PIN has been lost or stolen or that someone has transferred or may transfer money from your Account without your permission at (888) PAY-QWICK (888) 729-7942 or via our live chat support link found at https://www.PayQwick.com. You may also write us at PayQwick, Inc., 23801 Calabasas Road, Suite 1017, Calabasas, CA 91302. Calling is the best way of keeping your possible losses to a minimum. If you do NOT tell us immediately, you could lose all the money in your Account.
We will disclose information to third parties about your Account or the transfers you make:
- To complete transfers as necessary.
- To verify the existence and condition of your Account upon the request of a third party, such as a credit bureau or merchant.
- To assist third parties in preventing the perpetration of a fraud relative to payments made to you by such third party via the Service.
- To comply with the request of any government agency (including law enforcement);
- To compl with court orders.
- If you give us your written permission.
58. Our Liability
In addition to all other limitations of our liability set forth in this Agreement, we will not be liable to you if, among other things:
- Through no fault of ours, you do not have enough money in your Account to make the transfer.
- A merchant refuses to honor your transaction instructions.
- You failed to provide the correct transfer or payment information necessary to complete the transaction.
- The terminal, system or the Service was not working properly and you knew about the breakdown when you started the transfer.
- Circumstances beyond our control (such as natural disasters, fires, floods or actions taken by any governmental agency, including law enforcement) prevent or delay the transfer.
- The funds in your Account are subject to legal process or other claim restricting such transfer.
The examples set forth above are meant to illustrate circumstances under which we would not be liable for failing to make a transfer or payment and is not intended to list all of the circumstances where we would not be liable.
59. Liability for Unauthorized Transfers or Payments for Commercial Customers
You are responsible for all transfers and payments that are authorized using your PIN. If you permit other persons to use your User ID, Password, or PIN, you are responsible for any transactions they authorize. YOU ASSUME THE ENTIRE RISK FOR THE FRAUDULENT, UNAUTHORIZED OR OTHERWISE IMPROPER USE OF YOUR PIN AND PASSWORD. WE SHALL BE ENTITLED TO RELY ON THE GENUINENESS AND AUTHORITY OF ALL INSTRUCTIONS RECEIVED BY US WHEN ACCOMPANIED BY SUCH PIN OR PASSWORD, AND TO ACT ON SUCH INSTRUCTIONS.
We shall have no liability to you for any errors or losses you sustain using the Service except where we fail to exercise ordinary care in processing any instruction. Our liability in any case shall be limited to the amount of any funds improperly transferred from your Account, less any amount, which, even with the exercise of ordinary care, would have been lost.
Without regard to care or lack of care of either you or us, a failure to report to us any unauthorized transfer, payment or error with respect to your Account within thirty (30) days of our providing or making available to you a statement or other documentation showing such unauthorized transfer, payment or error shall relieve us of any liability for any losses sustained after the expiration of such thirty (30) day period and you shall thereafter be precluded from asserting any right, claim, or cause of action with regard to such unauthorized transfer, payment or error.
60. Errors and Questions about Commercial Account Services
In case of errors or questions about your electronic transfers or payments or if you think that your statement is wrong or you need more information about a transfer or payment listed on the statement you should contact us as soon as you can by calling (888) PAY-QWICK (888) 729-7942 (Fees may apply) or by contacting us via our live chat support link found at https://www.PayQwick.com. We must hear from you no later than thirty (30) days after we sent or otherwise made available to you the FIRST statement or other communication on which the problem or error appeared. Failure to so notify us will preclude you from being able to assert any right, claim or cause of action based on such problem or error. Any errors reported to us will be investigated by us and we will advise you of the results of our investigation.
61. Authorized Users
The term “Authorized User” means you or any sub-user to whom you allow access to your Account and the Service. You expressly acknowledge, confirm and ratify any and all activities performed or entered into by any Authorized User relative to the Service, including without limitation, the ability to access, view and transact on your Accounts and to communicate with us and receive communications from us, regarding your Account and the Service, are fully authorized by you. You shall obtain all written authorizations necessary to enable us to provide the Services to the Authorized Users and shall furnish us with copies of such authorizations if requested. In addition to the indemnities set forth in other sections of this Agreement, you shall defend, indemnify and hold harmless the Indemnified Parties from and against any and all losses, costs, expenses, fees, claims, damages, liabilities and causes of actions (including, but not limited to, reasonable attorney fees and disbursements) resulting or arising from: (a) any breach by you of any representation, warranty or covenant made by you under this Agreement, (b) any failure by you or any Authorized Representative to abide by or perform any obligation imposed upon you or such Authorized Representative under the Agreement, (c) the willful misconduct, fraud, criminal activity, intentional tort or negligence of you or any Authorized Representative involving use of the Services, (d) all acts, omissions or commissions of you and your Authorized Representatives, (e) any transmission or instruction, whether or not authorized, acted upon by us in good faith and in reliance upon the User ID, Password and/or PIN, and/or (f) any delay in the execution of any of your instructions to add, delete or modify the access rights of any Authorized User until we have had a commercially reasonable opportunity to act upon any notice given in accordance with the terms of this Agreement. We shall provide you with prompt notice of any claims and shall cooperate with you in your defense of any such claims; provided, however, you shall have no authority to settle any claim against any Indemnified Party without the prior written consent of such Indemnified Party (which consent shall not be unreasonably withheld). YOU ASSUME THE ENTIRE RISK OF LOSS ARISING FROM THE FRAUDULENT, UNAUTHORIZED OR OTHERWISE IMPROPER USE OF THE SERVICE BY ANY AUTHORIZED USER AND BY ANYONE USING YOUR USER ID, PASSWORD AND/OR PIN OR THE USER ID, PASSWORD OR PIN OF ANY AUTHORIZED USER.