USING THE SETTLE SERVICE
FEES AND PAYMENT TERMS
- 2.1 Service Fees. Access to the Service, or to certain features of the Service, may require you and/or your Authorized Users to pay certain fees (individually and collectively, “Service Fees”), including but not limited to account subscription fees, transaction fees, payment processing fees, and other special services fees. Information on Service Fees can be found on the Settle website at [LINK]. You agree to pay when due all Service Fees applicable to your use of the Service. You agree that you are responsible for the full amount of applicable Service Fees for each billing cycle in which you use the Service or maintain an Account, even if you don’t use the Service during the billing cycle or use the Service for only a portion of the billing cycle. Settle reserves the right to refuse to cancel your Account if your account is not in good standing or has any overdue Service Fees.
- 2.2 Changes to Service Fees. Settle reserves the right to change the Service Fees from time to time, in its sole discretion. Settle will provide advance notice of any material increase of a change in Service Fees. If the increase in Service Fees is not acceptable, your sole and exclusive remedy will be to stop using the Service and cancel your Account. By continuing to use the Service after notice of the new Service Fees, you accept all changes in Service Fees. All Service Fees are non-refundable, except in the sole discretion of Settle.
- 2.3 Payment of Service Fees. You authorize Settle to use the credit or debit card you have provided to us (as updated from time to time), or the bank account associated with your Settle Account (individually and collectively, the “Billing Account”) to automatically charge you in U.S. dollars for the Service Fees applicable to your Settle Account or your use of the Service, plus any applicable taxes. You make the same representations and warranties to us with respect to the Billing Account as you do with respect to the Payment Account in Section 1.6.8. If Settle is unable to charge the Billing Account for any reason, you authorize Settle to charge any Payment Account for the Service Fees. If Settle is unable to collect the Service Fees from your Billing Account or Payment Account, you will pay all past due Service Fees and taxes within ten (10) business days of notice of non-payment from Settle. Settle will be entitled to reimbursement for the reasonable costs of collection of all overdue Service Fees, including reasonable attorneys’ fees and expenses.
- 2.4 Taxes. You are responsible for all, if any, applicable taxes arising from your use of the Service. You are furthermore responsible for all fees, fines, penalties and other liability incurred by Settle, yourself, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Service. You agree to reimburse Settle or a third party for any and all such liability.
- 2.5 Collection of Funds Owed. In the event you are liable for any amounts owed to Settle or the Bank, including for payments forwarded to payees for which the associated funding transaction is charged back, reversed or returned, you authorize Settle (on its own behalf and on behalf of the Bank) to collect such amounts from your Billing Account, Payment Account, or other available payment methods. If you do not have sufficient funds available to fulfill such payment, Settle (on its own behalf and on behalf of the Bank) may engage in collection efforts and/or other legal actions to recover such amounts from you.
- 2.6 Inactive Accounts. If your Settle Account becomes inactive because you do not process a payment for an extended period of time (or otherwise use the applicable Service) or because you have not linked a valid bank account, Settle reserves the right to render your Account inactive and suspend your ability to use the Service.
DEACTIVATING A USER OR CANCELING YOUR SETTLE ACCOUNT
- 3.1 Your Right to Cancel. You may request to deactivate an Authorized User or cancel your Settle Account at any time by submitting a request through your Settle Account and paying any applicable remaining Service Fees, and/or other charges accrued up to the effective date of cancellation.
- 3.2 Effective Date of Cancellation: Subscription Accounts. This section applies if you have a monthly subscription to use the Service (a “Subscription Account”). When you request to cancel your Subscription Account, the cancellation will be effective on the last day of the then-current billing cycle for your Subscription Account, if there are no pending payments on the Settle Account or if all pending payments will be posted and completed before the end of that billing cycle. If there are pending payments that will not be posted and completed by the last day of the billing cycle in which you request to cancel your Subscription Account, the account cancellation will be effective on the last day of the next billing cycle. Settle reserves the right to void any payments that have not been processed and paid on or before the effective date of account cancellation, without any liability to you. You will be responsible for all Service Fees that accrue up to the effective date of cancellation.
- 3.3 Effective Date of Cancellation: Non-Subscription Accounts. If You do not have a Subscription Account with Settle, your request to cancel your Settle Account will be effective on (i) the date the request is processed, (ii) the date on which the last requested payment is posted and completed, or (iii) the date all amounts due and owing, including any fees, for any Service, are paid in full, whichever is latest. You will be responsible for all Service Fees, costs, expenses, and other fees, as applicable, that accrue up to the effective date of cancellation.
- 4.1 Authorized User Account Creation and Login Credentials. To use the Service, you may be required to register a Settle Account and/or to enroll as an Authorized User. Authorized Users may be asked to create a strong password and provide a device on which to receive a multi-factor authentication code, one-time password or similar authentication token or mechanism (collectively, the Authorized User’s “Login Credentials”). You are responsible for securing, safeguarding, and maintaining the confidentiality of Login Credentials. To the extent allowed by law, the Organization accepts responsibility for all access to and activities on your Account and all transactions that result from such access and activities authenticated through Authorized User Login Credentials, without regard to whether (a) such access and activities were authorized or not, or (b) an Authorized User allows, whether through action or inaction, a person to gain access to Login Credentials, with or without permission.
- 4.2 Commercially Reasonable Security Procedures. You acknowledge and agree that Settle’s security procedures as described in this Agreement are a commercially reasonable method of verifying your identity and payment instructions, providing security against unauthorized payment instructions and fraud, and protecting your Account.
- 4.3 Lost, Stolen or Compromised Account or Login Credentials. You agree to immediately notify Settle if you believe or suspect that your Settle Account has been compromised or accessed without authorization, or that any Authorized User Login Credentials have been lost, stolen or compromised, or that someone has attempted or may attempt to make or request payments through your account without authorization.
- 4.4 To the extent allowed by law, you agree to be bound by all payment instructions or transactions initiated in compliance with Settle’s security procedures and this Agreement, whether or not authorized. You agree that you will be liable for all losses or payments resulting from the theft, loss, compromise, or unauthorized use of your Settle Account or Authorized User Login Credentials, unless (i) you have notified Settle of possible theft, loss, compromise or unauthorized use immediately upon discovery, and (ii) we have had a reasonable opportunity to act on that notice. You will also be responsible for any losses or unauthorized payments resulting from any compromise of your systems. You agree that you will be responsible and liable for payments or transfers containing inaccurate instructions or other errors, unless limited by law. Upon your timely report, we may, in our sole discretion, use good faith measures to attempt to reverse and recover any unauthorized or erroneous payments or transfers on your behalf, but Settle will have no responsibility, obligation, or liability in relation to such payments or transfers or any reversal or recovery attempts.
- 4.5 Access through Third Party Platforms. If Authorized Users choose to access your Account through a third party platform, you are responsible for ensuring that the third party platform and its login protocol are sufficiently secure to protect Authorized User Login Credentials and your Settle Account, and you accept full responsibility and liability if access through the third party platform leads to the compromise of Authorized User Login Credentials or your Settle Account.
RESPONSIBILITY FOR COMPLIANCE WITH EMPLOYMENT LAW
To the extent that you use Settle to issue checks or payments to independent contractors, you expressly acknowledge and agree that you (not Settle and not the Bank) are responsible for compliance with all wage and hour laws, and all applicable laws regulating the time, place, and manner of payments for their service. Settle and the Bank provides a means for making payments. However, you (not Settle and not the Bank) are responsible for complying with all laws pertaining to the classification of independent contractors and payment for their services. You represent and warrant that any funds directed to independent contractors is for services rendered for business purposes only.
- 6.1 Acceptable Use Policy. You will not, and will ensure that Authorized Users do not, use the Service in connection with any activity, business or industry prohibited under these Terms and this Agreement. Settle reserves the right, in its sole discretion, to update or change its policies at any time. You are solely responsible for ensuring that your and any Authorized Users’ use of the Service complies with this Agreement.
6.2 Service for Authorized and Lawful Purposes Only. You agree that you will, and will ensure that Authorized Users will, use the Service only as permitted by applicable law and solely for authorized purposes, consistent with this Agreement. You will not, and you will not allow any Authorized User or third party, to:
- Access, monitor, or attempt to access or monitor any of Settle’s materials, systems, programs, or data that are not available for your or public use, or in any way not expressly permitted under this Agreement;
- Copy, reproduce, republish, upload, post, transmit, or distribute in any way material or content from the Service;
- Work around any technical limitations in the Service, or decompile, disassemble, or otherwise reverse engineer the Service;
- Perform or attempt to perform any actions that could interfere with the proper operation of the Service, prevent access to or use of the Service by Settle’s other licensees or users, or impose an unreasonable or disproportionately large load on Settle’s infrastructure;
- Intentionally distribute malware, viruses, worms, Trojan horses, corrupted files, spyware, adware, or other items of a destructive or deceptive nature through the Service;
- Perform any fraudulent activity, including but not limited to impersonating any person or entity, claiming a false affiliation accessing any other Service account without permission, or falsifying or misrepresenting your information;
- Export or use the Service in a manner, which may be subject to export restrictions imposed by US law;
- Upload any harmful, obscene, abusive or offensive language through the Service;
- Use or alter any intellectual property of Settle, except as permitted under this Agreement;
- Transfer or assign the rights granted to you under this Agreement;
- Otherwise use the Service except as expressly allowed under this Agreement; or
- Take any action detrimental to our provision of the Service, including (i) the provision of outdated, false, inaccurate, or incomplete information; (ii) allowing other individuals to access or use your Account; (iii) using an anonymizing proxy; (iv) using the Service in a manner that results in or may result in complaints, disputes, claims, chargebacks, fees, fines, penalties and other liability to Settle, a third party, or you; (v) facilitating viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; (vi) using any robot, spider, other automatic device, or manual process to access, monitor or copy our website without our prior written permission; (vii) using any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our website or the Service; (viii) taking any action that may cause us to lose any of the services provided by our third-party service providers, payment processors, or other suppliers; or (ix) reselling, re-skinning, or otherwise distributing our Service.
6.3 Restricted Activities and Prohibited Payments. You acknowledge and agree that you will not use, or allow a third party to use, the Service for (i) the payment or financing not in direct exchange for a rendered good or service, or other business purpose as permitted under these Terms, this Agreement, or other agreements you have with Settle, or (ii) any of the businesses or activities listed in the Prohibited Business and Payments Schedule.
- 6.3.1 You may not use, or allow a third party or Authorized User to use, the Service for the payment of, financing of, or the offering of services, in or related to, any of the activities or businesses listed on the Prohibited Business Schedule, which may be updated from time to time by Settle in its sole discretion.
- 6.3.2 Not a “Business Associate” under HIPAA. You acknowledge and agree that Settle is not, and will not at any time be, a “business associate” of any user of the Service, including you, for the purposes of The Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”). You agree that you will not send or transmit any electronic “Protected Health Information” (“ePHI”, as defined in HIPAA) to Settle or otherwise in any manner through the Service. You are solely responsible for ensuring that your use of the Service complies with all applicable laws and regulations, including HIPAA. If we become aware that you have sent or transmitted ePHI in any manner through the Service in violation of this Agreement, we may delete the ePHI without any liability or notice to you, and you agree to pay any costs or fees associated with that ePHI deletion.
- 6.4 No Marketing. If Settle provides you with information about another user of the Service, you acknowledge and agree that you will not use the information for any purpose other than the purpose for which the information is provided to you. You may not disclose, sell, rent, or distribute another user’s information for any purpose unrelated to your use of the Service. You may not use the information for marketing purposes unless you separately obtain the appropriate consent of the specific user to do so.
ANTI-MONEY LAUNDERING, OFAC, AND KNOW YOUR CUSTOMER
The Service may be governed by rules of payment networks used to process such payments, OFAC regulations, and/or anti-money laundering regulations. You may be asked to provide information requested for purposes of provision of the Service in compliance with applicable laws and regulation and may be used in conjunction with other information we have in connection with your use of the Service, including, but not limited to, your name, address, date of birth, identification documents, and other information that will allow us to identify you, as well as business-related documents.
- 7.1.No Office of Foreign Assets Control (“OFAC”) Sanctions. You represent and warrant that (i) you are not located in a country that is subject to U.S. Government sanctions, embargos, or that has been designated by the U.S. Government as a Specially Designated National (SDN) or “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties, such as the Specially Designated National and Blocked Persons List, and (iii) no person from or to whom you receive or make payments using the Service is subject to OFAC sanctions. No Office of Foreign Assets Control (“OFAC”) Sanctions. You represent and warrant that (i) you are not located in a country that is subject to U.S. Government sanctions, embargos, or that has been designated by the U.S. Government as a Specially Designated National (SDN) or “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties, such as the Specially Designated National and Blocked Persons List, and (iii) no person from or to whom you receive or make payments using the Service is subject to OFAC sanctions. No Office of Foreign Assets Control (“OFAC”) Sanctions. You represent and warrant that (i) you are not located in a country that is subject to U.S. Government sanctions, embargos, or that has been designated by the U.S. Government as a Specially Designated National (SDN) or “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties, such as the Specially Designated National and Blocked Persons List, and (iii) no person from or to whom you receive or make payments using the Service is subject to OFAC sanctions.
- 7.2 Verification Required. We reserve the right to refuse to allow you or any of your Authorized Users, payees, or customers to use or participate in the Service if we are unable to obtain or verify information relating to identity or financial condition, including of your representatives or beneficial owners. Notwithstanding any steps that we take to verify the information provided to us, you represent and warrant that all information you provide is complete, truthful, accurate, and up-to-date.
- 7.3 Review of Accounts and Payments. You grant to us, and Settle reserves the right, to review or place on hold any Settle Account or any payment requested through the Service for any reason, including but not limited to credit and fraud risk or failure to comply with applicable laws, such as anti-money laundering regulations, combating terrorist financing laws, and OFAC sanctions. In our sole discretion, Settle may place a hold on a payment for as long as reasonably necessary to conduct an appropriate inquiry regarding the payment, a Settle Account, the Organization, any Authorized User, individual, or representative associated with the Organization, its customer or payee, as applicable, or any related facts or circumstances. Depending on the results of this review, Settle reserves the right to take any appropriate action, including canceling the payment, reversing the payment, or continuing to hold the payment pending instructions from a government agency.
- 7.4 Reports. You acknowledge that we may make, or provide documentation to the Bank or other third party servicer to make, appropriate reports regarding payments made through the Service, including but not limited to financial institutions, regulators, tax agencies and law enforcement authorities, as required or permitted by law, and we will cooperate with the appropriate authorities in any resulting investigation or prosecution.
NO ASSIGNMENT OR TRANSFER.
You may not assign or transfer the Agreement, in whole or in part, without Settle’s written consent. Any attempted assignment or transfer in violation of this Section or this Agreement will be null and void. Settle may assign its rights or delegate its obligations hereunder without your consent. Subject to these restrictions, the Agreement will inure to the benefit of the successors and permitted assigns of the parties.
RIGHTS WE GRANT TO YOU
- 9.1 License We Grant to You. Subject to this Agreement, including payment of all Service Fees, Settle grants you a limited, non-exclusive, non-transferable license to access and use the Service, and allow Authorized Users to access and use the Service solely for your own internal business purposes and for so long as you are authorized by Settle to access and use the Service. You acknowledge and agree that if you are in violation of this Agreement, Settle may, in its sole discretion and without notice to you, immediately suspend or terminate your right to access and use the Service.
- 9.2 Reservation of Rights by Settle. Settle reserves and retains all rights in the Service not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret, and other intellectual property laws. Settle and its licensors, if any, own the title, copyright, and other worldwide intellectual property rights in the Service. Except as expressly set for herein, this Agreement does not give you any rights in Settle’s or its licensors’ intellectual property, including its trademarks or service marks.
RIGHTS YOU GRANT TO US
- 10.1 Right to Refuse to Make Payment. You grant to us, and Settle reserves the right, to limit or to refuse to make, process or issue any payment initiated or requested through the Service, in our reasonable discretion, without any liability to you. Settle will use commercially reasonable efforts to provide notice promptly if we decide to limit or to refuse to make, process or issue a payment. This notification is not required if the payment is prohibited by law or this Agreement.
- 10.2 Transaction Limits. When you use the Service, we reserve the right, in our sole discretion, to impose limits on the amount of money sent or received through the Service, on a per transaction or a cumulative basis, and to change those limits at any time, without any liability to you. If we impose or change such limits, we will use commercially reasonable efforts to provide notice to you, but will not be required to do so.
- 10.3 Right of Set Off. To the extent permitted by law, you grant to us the right to apply or set off any money or credit balance in which you have an interest and which is in our possession, custody or control, in satisfaction of any amounts or liabilities that you owe to us under this Agreement or otherwise.
- 10.4 Account Termination. Settle reserves the right to suspend or terminate your Settle Account or your access to the Service at any time, for any reason (including for a violation of this Agreement, reversal of any payment, the failure to pay applicable Service Fees, or inactivity), in our reasonable discretion, without any liability to you. If we suspend or terminate your account or access to the Service, we will use commercially reasonable efforts to provide notice to you, but will not be required to do so.
- 10.5 Marketing. To the extent permitted by law, you agree that Settle may list or identify you as a customer of Settle, including through the use of your brand or logo, for our marketing or promotional purposes. You may revoke this consent at any time by changing your account profile settings, if applicable, or by contacting Settle.
- 10.7 Recording of Telephone Calls. You understand and agree that Settle may, in its sole discretion, itself or using a third party service, monitor any telephone calls between you and its employees, contractors or agents for purposes of quality control and for Settle’s own protection. If you do not consent to the recording of telephone calls by Settle, your only remedy is to not engage with Settle by means of a telephone call.
- 10.8 Feedback. If you give to Settle any idea, proposal, suggestion, or feedback, including, without limitation, ideas for new products, technologies, promotions, product names, product feedback, and product improvements (“Feedback”), you give to Settle, without charge, royalties, or other obligation to you, the right to make, have made, create derivative works, use, share, and commercialize your Feedback in any way and for any purpose. Settle will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to Settle any information or ideas that you consider to be confidential or proprietary.
- 11.2 No Monitoring. You acknowledge and agree that Settle has no responsibility to monitor or police your use of the Service, including but not limited to communications, information or data transmitted through the Service, such as User Data, and Settle will not be responsible for the content of any such communications, data, or transmissions. However, Settle reserves the right, at all times, to review, retain, and disclose any such information as necessary to ensure compliance with this Agreement or as required or permitted by law.
WARRANTY AND DISCLAIMER
THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. SETTLE DOES NOT WARRANT THAT THE SERVICE ARE COMPLETELY SECURE OR IS FREE FROM BUGS, INTERRUPTIONS, ERRORS, OR OTHER PROGRAM LIMITATIONS, OR THAT ALL ERRORS WILL BE CORRECTED. SETTLE FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SETTLE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THIRD-PARTY SERVICES, WEBSITES, AND PRODUCTS
- 13.1 No Control Over Third-Party Services. Settle does not have or maintain any control over Third-Party Services, and is not responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, Settle does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third-Party Services.
- 13.3 Disclaimer of Liability for Third-Party Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third-Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services. Settle disclaims any and all responsibility or liability for any harm resulting from your use of Third-Party Services, and you irrevocably waive any claim against Settle with respect to the content or operation of any Third-Party Services.
- 13.5 Third Party Disputes. SETTLE IS NOT AFFILIATED WITH ANY OTHER SETTLE USER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY OTHER SETTLE USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, A USER’S EMPLOYER, IS DIRECTLY BETWEEN THE USER AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE SETTLE (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. SETTLE WILL NOT, AND WILL NOT ATTEMPT, TO REVERSE OR OTHERWISE RECOVER ANY PAYMENT OR TRANSACTION THAT IS SUBJECT TO A BONA FIDE DISPUTE.
LIMITATION OF LIABILITY
IN NO EVENT SHALL SETTLE BE LIABLE TO YOU, ANY AUTHORIZED USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SETTLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. SETTLE WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL SETTLE’S AGGREGATE LIABILITY TO YOU, ANY AUTHORIZED USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL SERVICE FEES PAID BY YOU TO SETTLE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT(S) THAT GAVE RISE TO SUCH LIABILITY, OR ONE HUNDRED USD ($100.00), WHICHEVER IS LESS, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under this Agreement. Each of these provisions is severable and independent of all other provisions of this Agreement. All limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies will remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.
AGREEMENT TO ARBITRATE
- 15.1 Effect of Provision. Unless prohibited by applicable law, you and we agree that you or we may elect to require arbitration of any Claim under this Section 15 (the “Provision” and/or the “Agreement to Arbitrate”).
15.2 Certain Definitions. As used in this Provision, the following terms have the following meanings:
- 15.2.1 “Settle-Related Party” means: (A) all of the parent companies, subsidiaries and affiliates of Settle; and (B) the employees, directors, officers, shareholders, governors, managers and members of Settle or any Settle-Related Party. “Settle-Related Party” also includes third parties that you bring a Claim against at the same time you bring a Claim against us or any Settle-Related Party. Solely as used in this Provision, the terms “we,” “us” and “our” include all Settle-Related Parties.
- 15.2.2 “Claim” means any claim, dispute or controversy between you and us that arises from or relates in any way to this Agreement (including any amendment, modification or extension of this Agreement). “Claim” is to be given the broadest reasonable meaning and includes claims of every kind and nature, including but not limited to, initial claims, counterclaims, cross-claims and third-party claims, and claims based on constitution, statute, regulation, ordinance, common law rule (including rules relating to contracts, torts, negligence, fraud or other intentional wrongs) and equity. It includes disputes that seek relief of any type, including damages and/or injunctive, declaratory or other equitable relief. Despite the foregoing, “Claim” does not include any individual action brought by you in small claims court or your equivalent state court, unless such action is transferred, removed, or appealed to a different court. In addition, except as set forth in the immediately following sentence, “Claim” does not include disputes about the validity, enforceability, coverage or scope of this Provision or any part thereof (including, without limitation, subsections 15.6(iii), 15.6(iv) and/or 15.6(v) (together, the “Class Action and Multi-Party Claim Waiver”), 15.10(ii) and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of this Agreement as a whole is for the arbitrator, not a court, to decide.
- 15.2.3 “Proceeding” means any judicial or arbitration proceeding regarding any Claim. “Complaining Party” means the party who threatens or asserts a Claim in any Proceeding and “Defending Party” means the party that is a subject of any threatened or actual Claim. “Claim Notice” means written notice of a Claim from a Complaining Party to a Defending Party.
15.3 Arbitration Election; Administrator; Arbitration Rules.
- 15.3.1 A Proceeding may be commenced after the Complaining Party complies with subsection 15.11. The Complaining Party may commence the Proceeding either as a lawsuit or an arbitration by following the appropriate filing procedures for the court or the arbitration administrator (the “Administrator”). If a lawsuit is filed, the Defending Party may elect to demand arbitration under this Provision of the Claim(s) asserted in the lawsuit. If the Complaining Party initially asserts a Claim in a lawsuit on an individual basis but then seeks to assert the Claim on a class, representative or multi-party basis, the Defending Party may then elect to demand arbitration. A demand to arbitrate a Claim may be given in papers or motions in a lawsuit.
- 15.3.2 Any arbitration Proceeding shall be conducted pursuant to this Provision and the applicable rules of the Administrator in effect at the time the arbitration is commenced. The Administrator will be the American Arbitration Association (“AAA”), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org.; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.org; or any other company (if selected by mutual agreement of the parties). The party initiating an arbitration will select the Administrator. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. Notwithstanding any language in this Provision to the contrary, no arbitration initiated on a class basis may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action and Multi-Party Claim Waiver. The arbitrator will be selected under the Administrator’s rules, except that the arbitrator must be a lawyer with at least ten years of experience or a retired judge unless the parties agree otherwise.
- 15.4 Non-Waiver. Even if all parties have elected to litigate a Claim in court, you or we may elect arbitration with respect to any Claim made by a new party or any new Claim asserted in that lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis), and nothing in that litigation shall constitute a waiver of any rights under this Provision. This Provision will apply to all Claims, even if the facts and circumstances giving rise to the Claims existed before the effective date of this Provision.
- 15.5 Location And Costs. The arbitrator may decide that an in-person hearing is unnecessary and that he or she can resolve a Claim based on the papers submitted by the parties and/or through a telephone hearing. However, any arbitration hearing that you attend will take place in a location reasonably convenient to you. We will pay any arbitration and/or attorney’s fees and costs we are required by law to pay or that we must pay in order for this Provision to be enforced. Notwithstanding any language in this Provision to the contrary, if the arbitrator finds that any Claim or defense is frivolous or asserted for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the arbitrator may award attorneys’ and other fees related to such Claim or defense to the injured party so long as such power does not impair the enforceability of this Provision.
- 15.6 No Class Actions Or Similar Proceedings; Special Features Of Arbitration. IF ANY PARTY ELECTS TO ARBITRATE A CLAIM, NO PARTY WILL HAVE THE RIGHT TO: (i) HAVE A COURT OR A JURY DECIDE THE CLAIM; (ii) OBTAIN INFORMATION PRIOR TO THE HEARING TO THE SAME EXTENT THAT SUCH PARTY COULD IN COURT; (iii) PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE, CLASS MEMBER OR CLASS OPPONENT; (iv) ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; OR (v) JOIN OR CONSOLIDATE CLAIM(S) INVOLVING YOU WITH CLAIMS INVOLVING ANOTHER PARTY THAT HAS OBTAINED SERVICE(S) FROM US. THE RIGHT TO APPEAL IS MORE LIMITED IN ARBITRATION THAN IN COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
- 15.7 Getting Information. In addition to the parties’ rights under the Administrator’s rules to obtain information prior to the hearing, any party may ask the arbitrator for more information from the other party. The arbitrator will decide the issue in his or her sole discretion, after allowing the other party the opportunity to object.
- 15.8 Effect Of Arbitration Award. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator’s award will be final and binding, except for: (i) any appeal right under the Federal Arbitration Act (the “FAA”); and (ii) Claims involving more than $50,000 (including Claims that may reasonably require injunctive relief costing more than $50,000). For Claims involving more than $50,000, any party may appeal the award to a three-arbitrator panel appointed by the Administrator, which will reconsider from inception any aspect of the initial award that is appealed. The panel’s decision will be final and binding, except for any appeal right under the FAA. Costs in connection with any such appeal will be borne in accordance with subsection 15.5 of this Provision.
- 15.9 Governing Law. This Agreement involves interstate commerce. Accordingly, this Provision shall be governed by the FAA and not federal or state rules of civil procedure or evidence or any state laws that pertain specifically to arbitration. The arbitrator is bound by the terms of this Provision. The arbitrator shall follow applicable substantive law to the extent consistent with the FAA, applicable statutes of limitation and applicable privilege rules, and shall be authorized to award all remedies available in an individual lawsuit under applicable substantive law, including, without limitation, compensatory, statutory and punitive damages (which shall be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive and other equitable relief, and attorneys’ fees and costs. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
15.10 Survival, Severability, Primacy.
- 15.10.1 In the event of any conflict or inconsistency between this Provision and the Administrator’s rules or the rest of this Agreement, this Provision will govern. This Provision shall survive the full payment of any amounts due under this Agreement; any rescission or cancellation of this Agreement; any exercise of a self-help remedy; our sale or transfer of this Agreement or our rights under this Agreement; any legal proceeding by us to collect a debt owed by you; and your or our bankruptcy.
- 15.10.2 If any portion of this Provision cannot be enforced, the rest of this Provision will continue to apply, except that: (A) if a court rules that the arbitrator may decide a Claim on a class or other representative basis and the court’s ruling is not reversed on appeal, only this sentence will apply and the remainder of this Provision will be void; and (B) if a party brings a Claim seeking public injunctive relief and a court determines that the restrictions in this Provision prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims will be arbitrated. In such a case the parties agree to request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for class relief or public injunctive relief be arbitrated.
- 15.11 Pre-Dispute Resolution Procedure. Before commencing any Proceeding (including as an individual litigant or as a member or representative of any class or proposed class), the Complaining Party shall give the Defending Party: (i) a Claim Notice providing at least 30 days’ written notice of the Claim and explaining in reasonable detail the nature of the Claim and any supporting facts; and (ii) a reasonable, good faith opportunity to resolve the Claim on an individual basis without the necessity of a Proceeding. If you are the Complaining Party, you must send the Claim Notice to us at the Notice Address, Attn: Claim Notice. If we are the Complaining Party, we will send the Claim Notice to you at your address as listed in your Settle Account or, if you are known to be represented by an attorney, to your attorney at his or her office address. A Claim Notice to you may be in the form of a collection letter or notice of default. If the Complaining Party and the Defending Party do not reach an agreement to resolve the Claim within 30 days after the Claim Notice is received, the Complaining Party may commence a Proceeding, subject to the terms of this Provision. Neither the Complaining Party nor the Defending Party shall disclose in any Proceeding the amount of any settlement demand made by the Complaining Party or any settlement offer made by the Defending Party. No settlement demand or settlement offer may be used in any Proceeding as evidence or as an admission of any liability or damages.
GOVERNING LAW; CHOICE OF FORUM
Subject to the Agreement to Arbitrate in Section 15, the law of the State of New York shall govern all matters arising out of, in connection with or relating to this Agreement, without reference to conflict of law provisions, and the Parties agree that the state or federal courts located in New York County, New York shall be the exclusive venue for all claims filed in court. No claim may be brought in any other jurisdiction except as provided in accordance with other agreements you may have with Settle. NO CLAIM FILED IN COURT WILL BE HEARD BY A JURY AND ANY CLAIM WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ACTIONS ARE NOT PERMITTED. NO COURT MAY ORDER, PERMIT OR CERTIFY A CLASS ACTION, REPRESENTATIVE ACTION, PRIVATE ATTORNEY-GENERAL LITIGATION OR CONSOLIDATED ACTION. NO COURT MAY ORDER OR PERMIT A JOINDER OF PARTIES, UNLESS ALL PARTIES CONSENT TO SUCH JOINDER IN WRITING.
You agree to defend, indemnify, and hold harmless Settle and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your violation of any portion of this Agreement, or any applicable law or regulation; (b) your violation of any third-party right, including any intellectual property right, or publicity, confidentiality, other property or privacy right; (c) any dispute or issue between you and any third party; or (d) any other person’s access and use the Service with Authorized User Login Credentials; or (e) your or an Authorized User’s access to or use of the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- 18.1 Compliance with Laws. You agree to comply with all applicable laws and regulations with respect to the Service and your use of the Service, including without limitation any export laws and regulations of the United States.
- 18.2 Complete Agreement and Survival. This Agreement together with any other Settle documents, policies, schedules, and/or agreements referenced herein sets forth the entire understanding between you and Settle with respect to the Service. The following sections of this Agreement and all other terms which by their nature should survive, will survive the termination of this Agreement: 14 (Limitation of Liability), 15 (Agreement to Arbitrate), 16 (Governing Law; Choice of Forum), 17 (Indemnity), and 18 (General). 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.
- 18.3 Intellectual Property. “Settle”, and all logos related to Settle, are either trademarks or registered trademarks of Settle or its licensors. You may not copy, imitate or use them without Settle’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Settle. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Settle website, any content thereon, the Service, the technology related to the Service, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Settle and its licensors.
- 18.4 Force Majeure. Neither Settle nor the Bank shall be liable for any issues or delayed performance caused by circumstances beyond Settle’s or the Bank’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, war, epidemics or pandemics, strikes or other labor problems, service provider failures or delays.
- 18.5 Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without Settle’s prior written consent. Settle reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
- 18.6 Severability. If any provision of this Agreement is held to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
- 18.7 No Waiver. The waiver of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except as otherwise stated in this Agreement, the exercise of any remedy under this Agreement will be without prejudice to other remedies available under this Agreement or otherwise.
Unless otherwise stated in this Agreement, notices, inquiries, and requests to Settle should be emailed to firstname.lastname@example.org. Please note that email communications sent to Settle for Account-related matters (e.g., late fee reimbursements, refund requests, etc.) must come from the email address listed in your Account. Account-related communications initiated via other channels may require identity verification in order to obtain information or change settings.