TERMS OF SERVICE
Effective Date: August 4, 2021
These Terms of Service (the “Terms”) govern our use of your payment service and financial platform (the “Service”) offered by Cyber Secure Mobile Payments, Inc. (“CSMP,” “we,” “our,” or “us”). “You” or “your” means the person indicating acceptance of these Terms or using the Service. If you are using the Service on behalf of a business or entity, you acknowledge and agree that you have authority to bind such business or entity and that such business or entity accepts these terms.
NOTE: THESE TERMS INCLUDE YOUR AGREEMENT TO WAIVE PARTICIPATION IN ANY CLASS ACTIONS AND TO ARBITRATE MOST DISPUTES, WHICH AFFECTS YOUR RIGHTS. PLEASE SEE SECTION 29 FOR THE DETAILS, INCLUDING YOUR TIME-LIMITED RIGHT TO OPT-OUT.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY ACCESSING AND USING THE SERVICE, YOU AGREE TO THESE TERMS.
1. Overview of Service; Disclaimer.
1.1 Overview of Service.
The Service is a fan appreciate application that allows individuals fans (collectively, the “Audience”) to directly pay and tip certain musicians, artists, and other entertainers that have signed up to use the Service (collectively, the “Entertainers” and together with the Audience, the “Users”). The specific features and functionality of the Service are dynamic and may change from time to time in our sole discretion.
We reserve complete and sole discretion with respect to the operation of our Service. We reserve the right to change terms and warranties without notice. We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of our Service at any time.
2. CONSENT TO ELECTRONIC COMMUNICATIONS
2.2 Updating your Consent.
If you later decide that you do not want to receive certain future communications electronically, please send an email to firstname.lastname@example.org or a letter to Cyber Secure Mobile Payments, Inc., 818 18th Ave S, Suite 1000, Nashville, TN 37203. You may also opt out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from CSMP. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. CSMP will need to send you certain communications electronically regarding the Services. You will not be able to opt out of those communications – e.g., communications regarding updates to the Terms or information about billing. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to and accepted by you. If you withdraw your consent to receive communications electronically, certain Service may become unavailable to you.
You must be a resident of the United States, at least 18 years and the age of majority in your State of residence, and you must register for an account (your “Account”) to use the Service. The Service will only be available for use in the United States. If you are located outside of the United States, you are not permitted to use the Service. Some features, such as the ability to send money to an Entertainer from your Account, may be available only if you provide us with certain information about you and we are able to verify your identity.
4. Your Account
4.1 Account Information.
You represent and warrant that you own the email or mobile phone number you register with and all information entered or collected in the course of creating your Account and any information you subsequently add or update from your settings (“Account Information”) is true and accurate. To register, open, use, or upgrade an Account, CSMP may require that you submit certain Account Information, including but not limited to your name, the last four digits of your social security number, date of birth, bank account, debit card and/or credit card information, and a social media account to CSMP. You represent and warrant that you own or control all the Account Information provided to CSMP. You are fully responsible for all activity that occurs under your Account, including for any actions taken by persons to whom you have granted access to the Account. We reserve the right to suspend or terminate the Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
4.2 Your Account.
When you first open your Account, it will be a “Restricted Account.” A Restricted Account has all the features and functionality described in these Terms of Service except that you cannot make a payment to an Entertainer or receive a payment from the Audience. If you have a Restricted Account and you attempt to make a payment to an Entertainer through the Service, then you will be given the option of upgrading your Account to an Unrestricted Account (as defined below).
4.3 Unrestricted Account.
To upgrade your Account from a Restricted Account to an account that gives you all the features of a Restricted Account and allows you to make a payment to an Entertainer (“Unrestricted Account”) you may either link your account to (a) an external, U.S.-issued bank account (an “Eligible Bank Account”) (subject to these Terms) to make a payment to an Entertainer; (b) a valid debit card issued by a U.S. bank or other financial institution (collectively, the “Networks”) or (c) a valid credit card issued by the Networks. If you decline to provide us with the information that we request or if we cannot verify your identity to our satisfaction (in our sole judgment and discretion) for any reason, then your Account will remain a Restricted Account and you will not be able to use the Services to make payments to Entertainers.
Plaid helps you safely connect your financial institution and your accounts to our apps and our services via the following integration:
You will now be redirected to our partner, Plaid, to verify your bank account.
Plaid is a leading business platform that connects apps and websites with financial institutions.
This integration allows us to verify your banking information in the way that’s most secure and convenient for you.
After linking your bank account, you will be redirected back here, where you’ll be able to start making and receiving payments with ease and peace of mind.
4.3.2 STAKS offers services that allow users to originate ACH credit and debit entries to a bank account and users desire to use these services. User agrees that its use of ACH is subject to these terms of services and user accept and agrees to comply with all such terms. Users will pay STAKS the fees and charges as agreed in writing, and any other amounts owed pursuant to these terms of services. Such other amounts shall include, without limitation, any amounts charge to STAKS by NACHA (administrator o the ACH network) in connection with the user’s use of STAKS. Any amounts owed to STAKS may be deducted from any payout to user or debited from user’s bank account.
4.3.3 User agrees to comply with the rules, guidelines and bylaws of NACHA and other applicable laws and regulations related to use of the ACH Network (as may be amended), all of which shall be deemed part of and included in their rules.
4.3.4 In the event of inconsistency between a Network Rule and these Terms, and except as otherwise agreed between CSMP and the Network, the Network Rule shall apply. You also agree to be bound by any Applicable bylaws, rules, and regulations set forth by the National Automated Clearing House Association (“NACHA Rules”).
4.4 Your Identity.
You hereby authorize CSMP, directly or through third parties, to make any inquiries we consider necessary to validate your identity or authenticate your identity and Account Information. This may include asking you for further information or documentation about your Account usage or identity, requiring you to take steps to confirm ownership of your email address, mobile phone number or financial instruments, or verifying your information against third party databases or through other sources. In connection with your use of the Service, you may not refuse to (a) cooperate in an investigation concerning activity that potentially violates the law or these Terms, (b) provide confirmation of your identity, or (c) provide confirmation of any information you provide us.
4.5 Payment Limits.
Your Account will have a default limit of the daily amount you can make payments to Entertainers to fifty dollars ($50). You may adjust your daily payments limitations within your Account. You are solely responsible for any payments made from Your Account, and we have no liability for any payments made from Your Account, whether in error or not.
5.1 Entertainer Search.
The Service allows you to search for Entertainers using the Entertainer’s user name, or a QR code. We will attempt to list any band that is within five (5) miles of your location. The Entertainers should be listed in the order from closest to furthest from you.
5.2 No Stop Payment.
Once you send the funds to the Entertainer, we cannot stop payment. You are not entitled to any refund. You are solely responsible to make sure that you are sending funds to the correct Entertainer. We have no liability for any harm or damage arising out of or in connection with a payment made to an Entertainer, whether in error or not.
When you make a payment to an Entertainer from the Service, we provide the following information to the Entertainer: (a) your location when you initiate the payment and (b) your first and last name. If you do not wish for us to provide this foregoing information to the Entertainer upon payment, you may opt-out from your Account. If you opt-out, when you make a payment to an Entertainer from the Service, we provide the following information to the Entertainer: (i) your Account user name. You agree that we shall incur no liability if we are unable to complete any transaction because of: (i) insufficient funds in your Account; (ii) malfunction of the Service due to circumstances beyond our control or due to circumstances that you were already aware of at the time you initiated your payment; (iii) inaccurate or insufficient payment instructions; or (iv) either you or the Entertainer does not provide us with any information that we request, or we are unable to verify your identity or the identity of the Entertainer to our satisfaction.
5.4 Service Fees.
The fee for sending funds using your Account through Service will be displayed at the time of the transaction. We reserve the right to charge for or change the fees associated with use of the Service at any time subject to these Terms.
5.5 Change to Terms.
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting a notification within the Service or by contacting you via email at the address you provided. As your next use of the Service may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you use the Service. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide all registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account. Your use or continued use of the Service following the posting or notice of any changes to these Terms shall constitute your acceptance of the changed Terms.
5.6 Restricted Uses.
You may not, nor may you permit any third party, directly or indirectly, to:
5.6.2 engage in any activity that may be in violation of regulations administered by the United States Department of the Treasury’s Office of Foreign Asset Control (31 C.F.R. Parts 500-599). Prohibited activity includes but is not limited to the provision of Service to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Syria, or the Crimean Region of the Ukraine. If found to be in Apparent violation of these restrictions, your account could be terminated and your funds could be held for an indefinite period of time;
5.6.3 access or monitor any material or information on any CSMP system using any manual process or robot, spider, scraper, or other automated means;
5.6.4 except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service;
5.6.5 perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
5.6.6 copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Service from CSMP;
5.6.7 use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement;
5.6.8 transfer any rights granted to you under these Terms;
5.6.9 use the Service in a way that distracts or prevents you from obeying traffic or safety laws;
5.6.10 use the Service for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm;
5.6.11 use the Service for any illegal activity or goods or in any way that exposes you, other CSMP users, our partners, or CSMP to harm; or
5.6.12 otherwise use the Service except as expressly allowed under these Terms.
If we reasonably suspect that your Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your CSMP Account, and any of your transactions with law enforcement.
6. Fraudulent Transactions
The Service is a money transmission service. As a result, fraudulent transactions may result in the loss of funds with no recourse. An “Unauthorized Transaction” occurs when money is sent from your Account that you did not authorize and that did not benefit you. For example, if someone steals your password, uses the password to access your Account, and sends a payment from your Account, an Unauthorized Transaction has occurred. Please let us know if you believe there is an Unauthorized Transaction on your Account. You could lose all the money in your Account. We will use commercially reasonable means aimed at protecting you from Unauthorized Transactions in your Account, but we are not liable to you for losses from an Account due to an Unauthorized Transaction unless we were able to confirm to our satisfaction that the transaction was an Unauthorized Transaction, and we are required by applicable law to reimburse such losses. The following are NOT considered Unauthorized Transactions: (a) if you give someone access to your Account (e.g., by giving them your login information) and they use your Account without your knowledge or permission, unless you have notified us that transfers by that person are no longer authorized; or (b) If you, or someone else with whom you are acting in concert, act with fraudulent intent. Additionally, you acknowledge and agree that we will not have liability if we do not complete a transaction to or from your Account on time or in the correct amount according to these Terms if: (i) through no fault of ours, you have insufficient funds in your Account to complete the transaction; (ii) the Service was not working properly and you knew about the breakdown when you started the transaction; or (iii) if circumstances beyond our control prevent the transaction, despite reasonable precautions that we have taken.
7. Recovery of Funds
You give us permission to recover amounts you owe by debiting funds available in your Account or any other account you may have with CSMP. This may involve us making attempts to recover less than the full amount you owe to us. We might contact you or take other legal actions to collect amounts due. You authorize CSMP to recover funds from you in accordance with these Terms and any other agreement you have with us, including if you owe amounts to us or for reason of fraud or illegal activity. You authorize CSMP to debit, charge, setoff against and otherwise recover funds from your Account, your Eligible Bank Account, and any payment instrument, linked bank, depository and other account registered in your Account. Your authorization will remain in full force and effect until the later of closure or termination of your Account, or the disbursement of all funds held on your behalf. Further, in the event that any attempt to recover funds from you should fail, your authorizations hereunder include your grant to CSMP of new, original authorizations to recover all or less than all of the amount you owe us or belong to us. You authorize CSMP to take the above steps without prior notice to you and irrespective of (i) whether we have made demand under these Terms or any other agreement you have with us; and (ii) whether the obligation is contingent, matured or unmatured. Your authorization hereunder includes all authorizations to take the above steps in complete compliance with the Network Rules and the NACHA Rules. You agree that your grant of the authorizations hereunder has the same legal effect as if you had signed a paper containing the same terms. If CSMP is unable to recover the funds by these means, CSMP may attempt to contact you or may take other legal actions to collect the amounts due, to the extent allowed by applicable law.
8. Compliance with Governmental Authorities
CSMP may freeze, withhold, or remit funds in your Account in response to a facially valid subpoena, court order, search warrant, or other binding order from a governmental authority, including but not limited to tax levies or wage garnishment orders.
9. Limitations on Use
CSMP may limit the funding sources available for a specific transaction at any time in its sole discretion. You agree that you are independently responsible for complying with all applicable laws in all of your activities related to your use of the Service and for all communications you send through the Service.
You further agree that in connection with your use of the Service, or in the course of your interactions with CSMP, a user or a third party, you will not (a) use your Account or the Service in a manner that CSMP, or the Networks reasonably believe to be an abuse of the payment card system or a violation of Network Rules, or (b) use the Service to make transactions for the sole purpose of earning rewards, perks, miles, points, etc. with your Account.
We reserve the right to block, refuse, or reverse any transaction, in our sole discretion. We will notify the affected parties promptly if we decide to do so, but notification is not required if the transaction is prohibited by these Terms or Applicable law. Neither we nor third parties to whom we assign or delegate rights or responsibilities will be liable for any claims or damages resulting from prohibited transactions. All costs for research and resolution for any misapplied, mis-posted or misdirected prohibited transactions will be your sole responsibility and not ours.
10. Limitations on Our Liability for Failure to Complete Transactions
We will not be liable, for failure to complete transactions in the following circumstances: (a) Through no fault of ours, there are insufficient funds in your Account to complete the transaction; (b) The information supplied by you is incorrect, incomplete, ambiguous or untimely; (c) There is a hold or your funds are subject to legal or administrative process or other encumbrance restricting their use; (d) We have reason to believe the requested transaction is an Unauthorized Transaction; (e) Circumstances beyond our control (such as fire, flood, power failure, strike, labor dispute, critical service provider failure, computer breakdown, telephone line disruption, government or regulatory action, or a natural disaster) prevent or delay the completion of the transaction, despite reasonable precautions that we have taken; or (f) Any other exception stated in our Agreement with you.
11. Changes to External Account Numbers
If your debit card account number changes or the expiration date changes, we may acquire that information from our financial service partner and update your Account accordingly.
12. Compatible Mobile Devices and Third Party Carriers
We do not warrant that the Service will be compatible with your mobile device or carrier. Your use of the Service may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Service if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as “jail broken.”
13. Your Content
The Service may include functionality for uploading or providing suggestions, recommendations, feedback, stories, photos, documents, logos, products, loyalty programs, promotions, advertisements, and other materials or information (including Account Information) (“Content”).
You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media for any reason, including to provide, promote, and/or incorporate into the Service. You retain all rights in your Content, subject to the rights you granted to us in these Terms. You may modify or remove your Content via your Account or by terminating your Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Service.
You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Service any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or intellectual property; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or Service competitive with CSMP’s or its partners’ products and Service, as determined by us in our sole discretion; or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Service, or which may expose CSMP, its affiliates or its customers to harm or liability of any nature.
Although we have no obligation to monitor any Content, we have absolute discretion to remove Content at any time and for any reason without notice. CSMP may also monitor such Content to detect and prevent fraudulent activity or violations of these Terms. You understand that by using the Service, you may be exposed to Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content.
14. Intellectual Property Infringement
CSMP respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Service that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. CSMP has the right, but not the obligation, to remove from the Service any files, material, information, software or other material CSMP believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.
If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: Cyber Secure Mobile Payments, Inc., 818 18th Ave S, Suite 1000, Nashville, TN 37203.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
You are responsible for safeguarding your password and for restricting access to the Service from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or Account or any other breach of security. Notwithstanding Sections 27 and 28, in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of your Account subject to dispute) will be final and binding on all parties.
You consent to us sending messages to your email or mobile devices about your account or our Service, which may include marketing. You can opt out of communications in ways that are specific to that communication method, such as by unsubscribing from emails, or replying to text messages with ‘STOP’.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for a CSMP account or update the contact information associated with your account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Service. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
You may opt-out of receiving promotional email communications we send to you by following the unsubscribe options on such emails. You may opt out of any promotional phone calls by informing the caller that you would not like to receive future promotional calls. You may only opt-out of text messages from CSMP by replying STOP. You acknowledge that opting out of receiving communications may impact your use of the Service.
18. Termination of Account
CSMP may terminate, close, or suspend your Account or use the Service at any time for any reason. Any such termination does not relieve you of any of your obligations to CSMP under these Terms and any amounts owed to us as provided in these Terms, or any other agreement you have with us. We will not be responsible for any loss, damage, harm or consequences, including any delay or inconvenience you may suffer as a result of our exercise of our rights under this section. We will take reasonable steps to notify you of termination or these other types of Service changes by email or at the next time you attempt to access your Account. You may also terminate these Terms by deactivating your Account at any time.
19. Service Upon Closure of Account
Any pending transactions at the time of termination, closure, or suspension of your Account will be settled. Any funds that we are holding in custody for you at the time of termination, suspension, or closure of your Account, less any applicable fees, (1) may be made available for you to cash out in CSMP’s discretion and subject to the other conditions in these Terms, and (2) we may require you to link a new bank account that has not been associated with your Account to cash out such funds. If an investigation is pending at the time of closure, we may hold your funds until resolution of the investigation.
20. Effect of Termination
If these Terms or your Account is terminated or suspended for any reason: (a) the license and any other rights granted under these Terms will end, (b) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Service, or for deletion of your information or account data. In addition to any payment obligations under the Terms, the following sections of these Terms survive and remain in effect in accordance with their terms upon termination: 13 (Your Content), 14 (Intellectual Property Infringement), 20 (Effect of Termination), 22 (Ownership), 23 (Indemnity), 24 (Representations and Warranties), 25(No Warranties), 26 (Limitation of Liability and Damages), 27 (Third Party Services), 28 (Disputes), 29 (Binding Individual Arbitration), 30 (Governing Law), 31 (Limitation on Time to Initiate a Dispute), 32 (Assignment), 33 (Third Party Service and Links to Other Web Sites), and 34 (Other Provisions).
21. Your License
We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the software that is part of the Service, as authorized in these Terms. We may make software updates to the Service available to you, which you must install to continue using the Service. Any such software updates may be subject to additional terms made known to you at that time.
We reserve all rights not expressly granted to you in these Terms. We own all rights, title, interest, copyright and other Intellectual Property Rights (as defined below) in the Service and all copies of the Service. These Terms do not grant you any rights to our trademarks or service marks. For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You may submit comments or ideas about the Service (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your negligent, wrongful or improper use of the Service; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your Content or any other content or material you submit or otherwise transmit through our Service; (e) your violation of any law, rule or regulation of the United States or any other country; and (f) any other party’s access and/or use of the Service with your unique name, password or other appropriate security code.
24. Representations and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under these Terms; (c) any information you provide in connection with the Service, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and Service; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act (“HIPAA”); (e) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Service; and (f) your use of the Service will be in compliance with these Terms.
25. No Warranties
THE USE OF “CSMP” IN SECTIONS 25 AND 26 MEANS CSMP, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICE IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, CSMP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
CSMP DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CSMP does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. CSMP does not have control of, or liability for, goods or Service that are paid for using the Service.
26. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CSMP BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, CSMP WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL CSMP BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR CSMP ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF CSMP IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CSMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
27. Third Party Services
The Service may contain features designed to interoperate with products, applications, or services not provided by us including, without limitation, the products, applications and services provider by an authorized user (collectively, each a “Third Party Service”). To use such features, you may be required to obtain access to such Third Party Service from its provider, and may be required to grant us access to your account(s) on such Third Party Service. You shall provide, and shall cause the provider of the Third Party Service to provide, us with any reasonably requested information and materials needed to integrate the Third Party Service with the Service.
If you choose to use a Third Party Service with the Service, you grant us permission to allow the Third Party Service and its provider to access any data provided to us in connection with the Service as required for the interoperation of that Third Party Service with the Service. We are not responsible for any disclosure, modification or deletion of such data resulting from access by any Third Party Service or its provider. Any acquisition by you of a Third Party Service, and any exchange of data between you and any Third Party Service or its provider, is solely between you and the applicable third-party provider. We do not warrant or support Third Party Service or other third-party products or services. Further, we cannot guarantee the continued availability of any Service features that interoperate with Third Party Service, and may cease providing them without being in breach of these Terms or entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service features in a manner acceptable to us.
“Disputes” are defined as any claim, controversy, or dispute between you and CSMP, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Service, or any other aspect of our relationship.
29. Binding Individual Arbitration
29.1 Mandatory Arbitration; Exceptions and Opt-Out.
You agree that any Disputes will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) by email at email@example.com or by regular mail to Cyber Secure Mobile Payments, Inc., 818 18th Ave S, Suite 1000, Nashville, TN 37203 within thirty (30) days following the date you first accept these Terms, or if you have not registered for an account, then within thirty (30) days following the date you first use our Service. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice, will be the state and federal courts located in the Davidson County, Tennessee and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-out Notice, you acknowledge and agree that you are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
29.2 No Class Actions.
Further, unless we otherwise agree in a writing signed by an authorized representative, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this agreement to arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in Davidson County, Tennessee. All other claims will be arbitrated.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Arbitration Agreement” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
29.4 Arbitration Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and may provide a separate form for Demand for Arbitration for residents of a particular state, such as California. The arbitrator will be either a retired judge or an attorney licensed to practice law with at least 15 years of experience and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will Appoint the arbitrator in accordance with the AAA Rules.
29.5 Arbitration Location and Procedure.
Unless you agree with us otherwise, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
29.6 Arbitrator’s Decision.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding anything to the contrary in these Terms, if we change this “Arbitration Agreement” section after the date you accepted these Terms or access our Service, you may reject any such change by sending us written notice (including by email to Cyber Secure Mobile Payments, 818 18th Ave S, Suite 1000, Nashville TN 37203 within 30 days of the date such change became effective, as indicated in the “Effective Date” listed at the beginning of these Terms or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Arbitration Agreement” section as of the date you accepted these Terms or accessed our Service.
This “Arbitration Agreement” section will survive any expiration or termination of these Terms.
30. Governing Law
These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Tennessee, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
31. Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
33. Third Party Service and Links to Other Websites
34. Other Provisions
34.1 Our Relationship With You.
We are an independent contractor for all purposes, except that we act as your limited agent with respect to the custody and transfer of your funds for the purposes set forth herein only.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Service (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. CSMP specifically disclaims any liability for Taxes. If in a given calendar year you process (i) more than the applicable reporting threshold according to the Internal Revenue Service (“IRS”) and/or state and local governments in gross number of payments and/or (ii) more than the applicable number of payments threshold according to the IRS and/or state and local governments, CSMP will be required by law to report information about you and your use of the Service to the IRS. For purposes of determining whether you have met the IRS and/or state and local government reporting threshold, the gross amount does not include any adjustments for credits, cash equivalents, discount amounts, fees, refunded amounts or any other amounts. Whether you reach the applicable gross amount in payments or more than the applicable number of payments, this will be determined by looking at the taxpayer identification number (“TIN”) associated with your Account.
34.3 Access by Competitors.
You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
34.4 United States Only.
The Service are intended for use only within the United States and its territories. We make no representation that the Service are appropriate, or are available for use outside the U.S. Those who choose to access and use our Service from outside the U.S. do so on their own initiative, at their own risk, and are responsible for compliance with applicable laws.
34.5 U.S. Government Use.
If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in these Terms.
Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address at the address provided by the other party and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
34.7 Force Majeure.
We will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond our reasonable control.
34.8 No Third-Party Beneficiaries.
There are no third-party beneficiaries to these Terms.
34.9 Waiver and Modifications.
Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under these Terms will not preclude the enforcement by the party of any other right or remedy under these Terms or that the party is entitled by law to enforce.
If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Service under these Terms is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
Headings are used in these Terms for reference only and will not be considered when interpreting these Terms.
34.12 Entire Agreement.
These Terms contain the entire agreement of the parties with respect to the subject matter of these Terms and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of these Terms.