This Terms of Service document (hereinafter “Agreement") is a contract between you and Backstage Economic Alliance, Inc. (hereinafter “we” or “us”) in connection with the PayFlock enterprise commerce platform (the “Application”) offered through our online website(s) (including www.beaatl.com) or mobile applications (including the PayFlock mobile application), (collectively “PayFlock”). This Agreement applies to your use of the Application and any portion of Backstage Economic Alliance and/or PayFlock through which the Application is offered.
Description of Application.
The Application enables you: (a) to access all the features of the Application; (b) to initiate a Payment Instruction from an Eligible Transaction Account to an account at a financial institution; and/or (c) to receive a payment from another person into an Eligible Transaction Account; and/or (d) Utilize your existing bank card to make a purchase from a PayFlock merchant; and/or (e) Utilize a customer bank card to receive a payment. Although the ACH Network is often used to execute Payment Instructions for the Application, other Payment Networks may be used to facilitate the execution and transmission of Payment Instructions. All Payment Instructions must be made through PayFlock and are subject to the terms of this Agreement and applicable laws and regulations, in each case as in effect from time to time. Receipt of payments may be made through PayFlock and is subject to the terms of this Agreement and applicable laws and regulations, in each case as in effect from time to time.
We may offer you the Application through one or more of our Affiliates that we engage to render some or all of the Application to you on our behalf. You agree that we have the right under this Agreement to delegate to our Affiliates some or all of the rights and performance obligations that we have under this Agreement, and that these Affiliates will be entitled to all the rights and protections that this Agreement provides to us. Affiliate and certain other capitalized terms are defined in a “Definitions” section at the bottom of this Agreement.
We may amend this Agreement and any applicable fees and charges for the Application at any time by posting a revised version on PayFlock may be required to affirmatively accept the revised Agreement in order to continue using the Application. The revised version will be effective at the time it is posted unless a delayed effective date is expressly stated in the revision. Any use of the Application after a notice of change or after the posting of a revised version of this Agreement on PayFlock will constitute your agreement to such changes and revised versions. Further, we may, from time to time, revise, update, upgrade or enhance the Application and/or related applications or material, which may render all such prior versions obsolete. Consequently, we reserve the right to terminate this Agreement as to all such prior versions of the Application, and/or related applications and material, and limit access to only the Application’s more recent revisions, updates, upgrades or enhancements. You agree that if you are currently or become a registered user of another of our services, your Application setup or customer profile information, including but not limited to your name, email address and bank account information, may be shared by and with our Affiliates, and we may provide you with the Application as a substitute to or replacement of any service previously provided through another website or platform.
Our Relationship With You.
We are an independent contractor for all purposes. We do not have control of, or liability for, any products or services that are paid for with our Application. We also do not guarantee the identity of any user of the Application (including but not limited to Receivers to whom you send payments).
You may not transfer or assign any rights or obligations you have under this Agreement without our prior written consent, which we may withhold in our sole discretion. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time to any party. We may also assign or delegate certain of our rights and responsibilities under this Agreement to Affiliates, independent contractors or other third parties.
Notices to Us Regarding the Application.
Except as otherwise stated below, notice to us concerning PayFlock or the Application must be sent by U.S. mail to: PayFlock, LLC, 12540 Broadwell Road, Suite 2201, Milton, GA 30004.
Notices to You.
You agree that we may provide notice to you by posting it on the PayFlock web site, sending you an in-product message within the Application, emailing it to an email address that you have provided us, mailing it to any postal address that you have provided us, or by sending it as a text message to any mobile phone number that you have provided us, including but not limited to the mobile phone number that you have listed in your Application setup or customer profile. For example, users of the Application may receive certain notices (such as notices of processed Payment Instructions, alerts for validation and notices of receipt of payment) as text messages on their mobile phones. All notices by any of these methods shall be deemed received by you no later than twenty-four (24) hours after they are sent or posted, except for notice by postal mail, which shall be deemed received by you no later than three (3) business days after it is mailed. You may request a paper copy of any legally required disclosures and you may terminate your consent to receive required disclosures through electronic communications by contacting us as described in section 7 above. We reserve the right to charge you a reasonable fee not to exceed twenty (20) dollars to respond to each such request. We reserve the right to terminate your use of the Application if you withdraw your consent to receive electronic communications.
Text Messages, Calls and/or Emails to You.
Receipts and Transaction History.
You may view your transaction history by logging into the Application and looking at your transaction history. You agree to review your transactions by this method instead of receiving receipts or periodic statements by mail.
Privacy of Others.
If you receive information about another person through the Application, you agree to keep the information confidential and only use it in connection with the Application.
The Application is offered only to individuals or organizations who can form legally binding contracts under applicable law. Without limiting the foregoing, the Application is not offered to minors. By using the Application, you represent that you meet these requirements and that you agree to be bound by this Agreement.
The following types of payments are prohibited through the Application, and we have the right, but not the obligation, to monitor for, block, cancel and/or reverse such payments:
(a) Payments to or from persons or entities located in prohibited territories (including any territory outside of the United States); and
(b) Payments that violate any law, statute, ordinance or regulation; and
(c) Payments that violate the Acceptable Use terms in section 15 below; and
(d) Payments related to:
(i) tobacco products, (ii) prescription drugs and devices; (iii) narcotics, steroids, controlled substances or other products that present a risk to consumer safety; (iv) drug paraphernalia; (v) ammunition, firearms, or firearm parts or related accessories; (vi) weapons or knives regulated under applicable law; (vii) goods or services that encourage, promote, facilitate or instruct others to engage in illegal activity; (viii) goods or services that are sexually oriented; (ix) goods or services that promote hate, violence, racial intolerance, or the financial exploitation of a crime; (x) goods or services that defame, abuse, harass or threaten others; (xi) goods or services that include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (xii) goods or services that advertise or sell to, or solicit others; or (xiii) goods or services that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; and
(e) Payments related to gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes; and
(f) Payments relating to transactions that (i) support pyramid or Ponzi schemes, matrix programs, other “get rich quick” schemes or multi-level marketing programs, (ii) 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, (iii) are for the sale of items before the seller has control or possession of the item, (iv) constitute money-laundering or terrorist financing; (v) are associated with the following “money service business” activities: the sale of traveler’s checks or money orders, currency dealers or exchanges or check cashing, or (vi) provide credit repair or debt settlement services; and
(g) Tax payments and court ordered payments.
In addition to the above-referenced prohibited payments, we may also block and/or reverse payments that involve donations or payments to any charity or non-profit organization unless we have performed appropriate due diligence on and investigation of such charity or non-profit organization and have determined its legitimacy, in our sole discretion. In no event shall we or our independent contractors or other third parties to whom we assign or delegate rights or responsibilities be liable for any claims or damages resulting from your scheduling of prohibited payments. We have no obligation to research or resolve any claim resulting from a prohibited payment. All research and resolution for any misapplied, mis-posted or misdirected prohibited payments will be your sole responsibility and not ours. We encourage you to provide notice to us by the methods described in section 7 above of any violations of this section or the Agreement generally.
You agree that you are independently responsible for complying with all applicable laws in all of your activities related to your use of the Application, regardless of the purpose of the use, and for all communications you send through the Application. We have the right, but not the obligation, to monitor and remove communications content that we find in our sole discretion to be objectionable in any way. In addition, you are prohibited from using the Application for communications or activities that: (a) violate any law, statute, ordinance or regulation; (b) promote hate, violence, racial intolerance, or the financial exploitation of a crime; (c) defame, abuse, harass or threaten others; (d) include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (e) infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; (f) impose an unreasonable or disproportionately large load on our infrastructure; (g) 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; (h) constitute use of any robot, spider, other automatic device, or manual process to monitor or copy the Application or the portion of PayFlock through which the Application is offered without our prior written permission; (i) constitute use of any device, software or routine to bypass technology protecting PayFlock or Application, or interfere or attempt to interfere, with PayFlock or the Application; or (j) may cause us or our Service Providers to lose any of the services from our internet service providers, payment processors, or other vendors. We encourage you to provide notice to us by the methods described in section 7 above of any violations of this section or the Agreement generally.
Payment Authorization and Payment Remittance.
(a) By accessing the Application, you authorize us to follow the Payment Instructions that we receive through the Application.
(b) When we receive a Payment Instruction from you, you authorize us to debit your Eligible Transaction Account and remit funds on your behalf. You also authorize us to credit your Eligible Transaction Account for the receipt of payments, including but not limited to those payments returned to us from Receivers to whom you sent payment(s) or cancelled and returned to you because the processing of the Payment Instruction could not be completed.
(c) We will use reasonable efforts to complete all your Payment Instructions properly. However, we shall incur no liability if we are unable to complete any transaction because of the existence of any one or more of the following circumstances:
i. If, through no fault of ours, the Eligible Transaction Account does not contain sufficient funds to complete the Payment Instruction or the Payment Instruction would exceed the credit limit of your overdraft account;
ii. The Application is not working properly, and you know or have been advised by us about the malfunction before you execute the Payment Instruction;
iii. The payment is refused as described in section 20 below;
iv. Circumstances beyond our control (such as, but not limited to, fire, flood, network or system down time, issues with the financial institution or interference from an outside force) which prevent the proper execution of the Payment Instruction.
Initiation of Payment Instructions.
You may initiate (a) a one-time Payment Instruction to a Receiver for which processing shall be initiated immediately, (b) a recurring series of Payment Instructions to a Receiver for which processing shall be initiated on the specified dates. Payment Instructions initiated to Receivers are processed through the Receiver’s merchant services account.
You understand and agree that when you initiate a Payment Instruction from an Eligible Transaction Account using the Application, the processing of the Payment Instruction will begin and the debiting of your Eligible Transaction Account will occur as early as the day of such initiation. However, the payment funds will be transferred into the Receiver's Eligible Transaction Account no earlier than the next Business Day after you initiated the Payment Instruction. If you request a one-time Payment Instruction to be initiated on a specified date or a recurring series of Payment Instruction to be initiated on specified dates, then the processing of the Payment Instruction will begin on the specified date(s) and the debiting of your Eligible Transaction Account will occur as early as the specified date(s). However, the payment funds will be transferred into the Receiver’s Eligible Transaction Account no earlier than the next Business Day following the specified date.
Payment Methods and Amounts.
There are limits on the amount of money you can send or receive through our Application. Your limits may be adjusted from time-to-time at our sole discretion. You may log in to PayFlock to view your individual transaction limits. We also reserve the right to select the method in which to remit funds on your behalf, and the method to return funds to you in the event that your Eligible Transaction Account is closed or otherwise unavailable to us. These payment methods may include, but may not be limited to, an electronic or paper check payment.
Payment Cancellation, Stop Payment Requests and Refused Payments.
Sender may cancel the initiation of a Payment Instruction or stop a Payment Instruction at any time until the processing of the Payment Instruction into the Receiver’s Eligible Transaction Account has begun. Our ability to stop a Payment Instruction or recover funds associated with an unauthorized Payment Instruction will depend on the manner in which the Payment Instruction was initiated, and whether the Payment Instruction to the Receiver’s Eligible Transaction Account has begun processing. Although we will make a reasonable effort to accommodate a stop payment request and to recover funds associated with an unauthorized Payment Instruction, we will have no liability for failing to do so. We may also require you to present your stop payment request or request to recover funds in writing within fourteen (14) days after contacting us. The charge for each stop payment or fund recovery request will be the current charge for such stop payment or funds recovery service as set out in the applicable fee schedule or as disclosed through PayFlock. Payments not claimed by a Receiver will be automatically cancelled ten (10) days after the processing of the payment begins. When a Sender initiates a Payment Instruction, the Receiver is not required to accept the payment. You agree that you as a Sender will not hold us liable for any damages resulting from a Receiver’s decision to accept or not to accept a payment initiated or attempted through the Application. We will, to the extent permitted by law, make reasonable attempts to return any unclaimed, refused, refunded, prohibited, or denied payment to your Eligible Transaction Account or use other reasonable efforts to return such payment to you as permitted by law.
Your Liability for Unauthorized Transfers.
Immediately following your discovery of an unauthorized Payment Instruction, you shall communicate with us in the manner set forth in section 7 above. You acknowledge and agree that time is of the essence such situations. If you tell us within two (2) Business Days after you discover your password or other means to access your account through which you access the Application has been lost or stolen, your liability is no more than $50.00 should someone access your account without your permission. If you do not tell us within two (2) Business Days after you learn of such loss or theft, and we can prove that we could have prevented the unauthorized use of your password or other means to access your account if you had told us, you could be liable for as much as $500.00. If your monthly financial institution statement contains Payment Instructions that you did not authorize, you must tell us at once. If you do not tell us within sixty (60) days after the statement was sent to you, you may lose any amount transferred without your authorization after the sixty (60) days if we can prove that we could have stopped someone from taking the money had you told us in time. If a good reason (such as a long trip or a hospital stay) prevented you from telling us, we may in our sole discretion extend the period.
Mobile Phone Users.
Your phone service provider is not the provider of the Application. Users of the Application will receive text messages related to your Payment Instructions and other notices from time to time if a mobile phone number is provided. Data and messaging charges from your telecommunications provider may apply, and you are responsible for any such charges. In the event your enrolled mobile device is lost or stolen, you agree to update your enrollment information and make the appropriate changes to disable the use of such device. You understand that there are risks associated with using a mobile device, and that in the event of theft or loss, your confidential information could be compromised.
Potential telecommunication fees.
You are responsible for any and all telephone access fees and/or Internet service fees that may be assessed by your telephone and/or Internet service provider.
Failed or Returned Payment Instructions.
In using the Application, you are requesting us to attempt to make payments for you from your Eligible Transaction Account. If we are unable to complete the Payment Instruction for any reason associated with your Eligible Transaction Account (for example, there are insufficient funds in your Eligible Transaction Account, or the Payment Instruction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the Payment Instruction), the Payment Instruction may not be completed. In some instances, you will receive a return notice from us. In each such case, you agree that:
(a) You will reimburse us immediately upon demand the amount of the Payment Instruction if we have delivered the payment to the Receiver but there are insufficient funds in, or insufficient overdraft credits associated with, your Eligible Transaction Account to allow us to complete the debit processing;
(b) For any amount not reimbursed to us within fifteen (15) days of the initial notification, a late charge equal to one and a half percent (1.5%) monthly interest or the legal maximum, whichever rate is lower, for any unpaid amounts may be imposed;
(c) You may be assessed a fee if the payment cannot be debited because you have insufficient funds in your Eligible Transaction Account, or the transaction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the requested transfer, or if we cannot otherwise collect the funds from you; the fee amount will be as set forth in your fee schedule from us (including as disclosed on PayFlock) or your account agreement with us. You hereby authorize us to deduct these amounts from your designated Eligible Transaction Account, including by ACH debit;
(d) You will reimburse us for any fees or costs we incur in attempting to collect any amounts from you; and
(e) We are authorized to report the facts concerning the return to any credit reporting agency.
Address or Banking Changes.
It is your sole responsibility and you agree to ensure that the contact information in your user profile is current and accurate. This includes, but is not limited to banking or credit card profile, name, physical address, phone numbers and email addresses. Changes can be made within the user interface of the Application. We are not responsible for any payment processing errors or fees incurred if you do not provide accurate Eligible Transaction Account, Payment Instructions or contact information.
We reserve the right to refuse to pay any Receiver. We will attempt to notify the Sender promptly if we decide to refuse to pay a Receiver designated by the Sender. This notification is not required if you attempt to make a prohibited payment under this Agreement.
In using the Application, you understand that Receivers may reject payments or otherwise return payments. We will use reasonable efforts to complete Payment Instructions initiated through the Application.
Application Termination, Cancellation, or Suspension.
If you wish to cancel the Application, you may contact us as set forth in section 7 above or disable your PayFlock account in the user interface. Any payment(s) that have begun processing before the requested cancellation date will be processed by us. You agree that we may terminate or suspend your use of the Application at any time and for any reason or no reason. Neither termination nor suspension shall affect your liability or obligations under this Agreement.
Errors, Questions, and Complaints.
(a) In case of errors or questions about your transactions, you should as soon as possible contact us as set forth in section 7 above.
(b) If you think your transaction history is incorrect or you need more information about a transaction listed in the transaction history, we must hear from you no later than sixty (60) days after the transaction in which the problem or error appears is first posted in the transaction history. You must:
i. Tell us your name;
ii. Describe the error or the transaction in question, and explain as clearly as possible why you believe it is an error or why you need more information; and,
iii. Tell us the dollar amount of the suspected error.
(c) If you tell us verbally, we may require that you send your complaint in writing within ten (10) Business Days after your verbal notification. We will tell you the results of our investigation within ten (10) Business Days after we hear from you, and will correct any error promptly. However, if we require more time to confirm the nature of your complaint or question, we reserve the right to take up to forty-five (45) days to complete our investigation. If we decide to do this, we will provisionally credit your Eligible Transaction Account within ten (10) Business Days for the amount you think is in error. If we ask you to submit your complaint or question in writing and we do not receive it within ten (10) Business Days, we may not provisionally credit your Eligible Transaction Account. If it is determined there was no error we will mail you a written explanation within three (3) Business Days after completion of our investigation. You may ask for copies of documents used in our investigation. We may revoke any provisional credit provided to you if we find an error did not occur.
PayFlock is a trademark and/or service marks of Flock Technologies, LLC. or its Affiliates. Other marks and logos used with the Application may be trademarks and/or service marks of us or our licensors or Affiliates. In addition, all page headers, custom graphics, button icons, and scripts may be our service marks, trademarks, and/or trade dress of us or those of our Affiliates or licensors. You may not copy, imitate, or use any of the above without our prior written consent, which we may withhold in our sole discretion, and you may not use them in a manner that is disparaging to us or the Application or display them in any manner that implies our sponsorship or endorsement. All right, title and interest in and to the Application, the portion of PayFlock through which the Application is offered, the technology related to PayFlock and Application, and any and all technology and any content created or derived from any of the foregoing, is our exclusive property or that of our Affiliates or licensors. Moreover, any suggestions, ideas, notes, drawings, concepts, or other information you may send to us through or regarding PayFlock or Application shall be considered an uncompensated contribution of intellectual property to us and our Affiliates or licensors, shall also be deemed our and our Affiliates and licensors’ exclusive intellectual property, and shall not be subject to any obligation of confidentiality on our part. By submitting any such materials to us, you automatically grant (or warrant that the owner of such materials has expressly granted) to us and our Affiliates and licensors a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed, and you warrant that all so-called "moral rights" in those materials have been waived, and you warrant that you have the right to make these warranties and transfers of rights.
Links and Frames.
Links to other sites may be provided on the portion of PayFlock through which the Application is offered for your convenience. By providing these links, we are not endorsing, sponsoring or recommending such sites or the materials disseminated by or services provided by them, and are not responsible for the materials, services or other situations at or related to or from any other site, and make no representations concerning the content of sites listed in any of the Application web pages. Consequently, we cannot be held responsible for the accuracy, relevancy, copyright compliance, legality or decency of material contained in sites listed in any search results or otherwise linked to PayFlock. For example, if you "click" on a banner advertisement or a search result, your "click" may result in your receipt of a “push notification”, the initiation of a purchase or take you off the PayFlock site. This may include links from advertisers, sponsors, and content partners that may use our logo(s) as part of a co-branding agreement. These other sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers on PayFlock may send cookies to users that we do not control. You may link to the home page of our Site. However, you may not link to other pages of our Site without our express written permission. You also may not “frame” material on our Site without our express written permission. We reserve the right to disable links from any third-party sites to PayFlock.
Cookies, Browser Information and Related Issues.
Password and Security.
If you are issued or create any password or other credentials to access the Application or the portion of PayFlock through which the Application is offered, you agree not to give or make available your password or credentials to any unauthorized individuals, and you agree to be responsible for all actions taken by anyone to whom you have provided such credentials. If you believe that your credentials have been lost or stolen or that someone may attempt to use them to access PayFlock or Application without your consent, you must inform us at once at the telephone number provided on the PayFlock web site. See also section 20 above regarding how the timeliness of your notice impacts your liability for unauthorized transfers.
If we have reason to believe that you have engaged in any of the prohibited or unauthorized activities described in this Agreement or have otherwise breached your obligations under this Agreement, we may: terminate, suspend or limit your access to or use of PayFlock or the Application; notify law enforcement, regulatory authorities, impacted third parties, and others as we deem appropriate; refuse to provide our services to you in the future; and/or take legal action against you. In addition, we, in our sole discretion, reserve the right to terminate this Agreement, access to PayFlock and/or use of the Application for any reason or no reason and at any time. The remedies contained in this Section 34 are cumulative and are in addition to the other rights and remedies available to us under this Agreement, by law or otherwise.
In the event of a dispute regarding the Application, you and we agree to resolve the dispute by looking to this Agreement.
Any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof (a “Dispute”) will be settled by arbitration administered by the American Arbitration Association in accordance with its rules then in effect by three independent and impartial arbitrators. Two arbitrators will be selected by the respective Parties, one by the claimant(s) and one by the respondent(s). The third arbitrator will be the chair and will be appointed by the two Party-appointed arbitrators or by the American Arbitration Association if they cannot agree. The contract and its interpretation and validity will be governed by the substantive law of Georgia, U.S.A. applicable to contracts made and to be performed therein and without regard to its conflicts of laws rules that would result in the application of the laws of another jurisdiction. The arbitration will be governed by the arbitral law of Georgia, U.S.A. Judgment on the award rendered may be entered in any court having jurisdiction thereof. The place of the arbitration will be Atlanta, Georgia, U.S.A.
Law and Forum for Disputes.
This Agreement is to be construed in accordance with and governed by the internal laws of the State of Georgia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Georgia to the rights and duties of the Parties.
You agree to indemnify and hold harmless us and our Affiliates and licensors and contractors and their Affiliates and the employees and contractors of each of these, from any loss, damage, claim or demand (including attorney’s fees) made or incurred by any third party due to or arising out of your breach of this Agreement and/or your use of PayFlock or the Application.
You release us and our Affiliates and licensors and contractors and the employees and contractors of each of these, from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with any dispute that may arise between you and one or more other users of PayFlock or the Application. In addition, you waive California Civil Code §1542, which states that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor.
We shall not be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by one of our authorized representatives. No delay or omission on our part in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
Exclusions of Warranties.
PAYFLOCK AND APPLICATION AND RELATED DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. IN PARTICULAR, WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF OUR APPLICATION, AND OPERATION OF OUR SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. SOME STATES DO NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. THIS PARAGRAPH GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
Limitation of Liability.
THE FOREGOING SHALL CONSTITUTE YOUR EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF US AND OUR AFFILIATES AND LICENSORS AND CONTRACTORS AND THE EMPLOYEES AND CONTRACTORS OF EACH OF THESE, FOR THE APPLICATION AND THE PORTION OF PAYFLOCK THROUGH WHICH THE APPLICATION IS OFFERED. YOU ACKNOWLEDGE AND AGREE THAT FROM TIME TO TIME, THE APPLICATION MAY BE DELAYED, INTERRUPTED OR DISRUPTED PERIODICALLY FOR AN INDETERMINATE AMOUNT OF TIME DUE TO CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ANY INTERRUPTION, DISRUPTION OR FAILURE IN THE PROVISION OF THE APPLICATION, WHETHER CAUSED BY STRIKES, POWER FAILURES, EQUIPMENT MALFUNCTIONS, INTERNET DISRUPTION OR OTHER REASONS. IN NO EVENT SHALL WE OR OUR AFFILIATES OR LICENSORS OR CONTRACTORS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE APPLICATION CAUSED BY OR ARISING OUT OF ANY SUCH DELAY, INTERRUPTION, DISRUPTION OR SIMILAR FAILURE. IN NO EVENT SHALL WE OR OUR AFFILIATES OR LICENSORS OR CONTRACTORS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF GOODWILL OR LOST PROFITS (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF THE INSTALLATION, USE, OR MAINTENANCE OF THE APPLICATION OR THE PORTION OF PAYFLOCK THROUGH WHICH THE APPLICATION IS OFFERED, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE AND NOTICE WAS GIVEN REGARDING THEM. IN NO EVENT SHALL WE OR OUR AFFILIATES OR LICENSORS OR CONTRACTORS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE APPLICATION OR THE PORTION OF PAYFLOCK THROUGH WHICH THE APPLICATION IS OFFERED THAT YOU DO NOT STATE IN WRITING IN A COMPLAINT FILED IN A COURT OR ARBITRATION PROCEEDING AS DESCRIBED IN SECTIONS 36 AND 37 ABOVE WITHIN TWO (2) YEARS OF THE DATE THAT THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THESE LIMITATIONS WILL APPLY TO ALL CAUSES OF ACTION, WHETHER ARISING FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY. OUR AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF OUR AFFILIATES AND LICENSORS AND CONTRACTORS AND THE EMPLOYEES AND CONTRACTORS OF EACH OF THESE, TO YOU AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT OUT OF POCKET DAMAGES UP TO A MAXIMUM OF $500 (FIVE HUNDRED DOLLARS). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Complete Agreement, Severability, Captions, and Survival.
You agree that this Agreement is the complete and exclusive statement of the agreement between us, sets forth the entire understanding between us and you with respect to the Services and the portion of PayFlock through which the Services are offered, and supersedes any proposal or prior agreement, oral or written, and any other communications between us. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The captions of sections hereof are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. Sections 3, 6-9, 12, 22, 26, 31 and 34-43, as well as any other terms which by their nature should survive, will survive the termination of this Agreement. If there is a conflict between the terms of this Agreement and something stated by an employee or contractor of ours (including but not limited to its customer care personnel), the terms of this Agreement will prevail.
(a) "ACH Network" means the funds transfer system, governed by the NACHA Rules that provides funds transfer services to participating financial institutions.
(b) “Affiliates” are companies related by common ownership or control as well as companies that have a business development affiliation with us.
(c) "Business Day" is every Monday through Friday, excluding Federal Reserve holidays or other days that banks are legally closed
(d) "Eligible Transaction Account" is a transaction account from which your payments will be debited. An Eligible Transaction Account may include a checking, money market or other direct deposit account, credit card account, or debit card account, including any required routing information.
(e) "Payment Instruction" is the information provided by the Sender for a payment to be made to a Receiver (such as, but not limited to, name, mobile telephone number, email address, and credit card or bank account and routing number information).
(f) “Payment Network” means a debit or credit network (such as the ACH Network or First Data or other payment processing network) through which funds may be transferred.
(h)"Receiver" is a person, entity or merchant that is sent a Payment remittance through the Application.
(i)"Requestor" is a person that requests an individual to initiate a Payment Instruction through the Application.
(j)"Sender" is a person or entity that sends a Payment Instruction through the Application.