1.1 ezyCollect USA, Inc. (the Company) provides business customers with invoicing and accounts receivable-related software as a service and third-party services (the Services). Details of the Services are found on the Company’s USA website, and the Company’s related business-to-business sub-domains or platforms (the Platform). The term “Services” includes any Platform.
2 Acceptance of these Terms
2.1 You accept these terms and conditions (the Terms), on behalf of yourself and any related business, by (a) using or registering for the Services, (b) clicking a box indicating acceptance of these Terms, (c) consenting to a Company order form that references these Terms (a Sales Order), (d) making payment to the Company, (e) browsing the Platform, (f) integrating your system with the Platform, or (g) creating an account for the Services (an Account). If the individual accepting these Terms is accepting on behalf of a company or other legal entity, such individual represents that they are at least 18 years of age and have the authority to bind such entity to these Terms, in which case the terms “you” and “your” shall refer to such entity. Engaging in any of the activities described in this section 2.1 signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease use of the Platform and the Services immediately.
2.2 You may not use the Services and may not accept the Terms if:
(a) the individual accepting this agreement does not have authority;
(b) you are not of legal age to form a binding contract with the Company;
(c) you are a person barred from receiving the Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Services;
(d) you are a direct competitor of the Company or any of its affiliates or related entities (Affiliate); or
(e) you intend or may use the Services for family, household or personal purposes.
2.3 By engaging the Company, you acknowledge and understand that the Company (a) is not a debt collector and (b) does not provide you with any tax, legal, accounting or other specialist, professional or technical advice. For further information, please read the Terms carefully.
2.4 The Company reserves the right to review and change any of the Terms by updating this page at its sole discretion. When the Company updates the Terms, it will use reasonable endeavours to provide you with notice of the same via your contact information then on file with the Company. Any changes to the Terms take immediate effect from the date of their publication or such later date as may be specified in the updated Terms. If you choose not to accept any changes to the Terms, your sole recourse will be to stop using the Services. Before you continue, we recommend you keep a copy of the Terms for your records.
3 Account Set Up
3.1 To access the Services, you are required to register for an account with the Company (the Account). You may register for an Account via the Platform or by contacting the Company directly.
3.2 As part of the registration process or as part of your continued use of the Services, you will be required to provide business or personal information about yourself (such as identification, contact details, payment details, bank details, and other personal information such as qualifications, skills, and previous employment details).
3.3 You agree (a) that any information you give to the Company will be accurate, correct and up to date and (b) to promptly update such information.
3.4 You understand that by supplying the Company with your address, email address and phone number, you agree to receive: (a) regular emails, newsletters, telephone calls or SMS updates from the Company to keep you informed about the Company’s activities; and (b) similar communications from your Customers, where the applicable Service functionality permits or requires communications or where you have indicated your consent to be contacted by such parties within the Service. If you do not wish to receive updates from the Company, you may contact the Company at firstname.lastname@example.org. If you lose or plan to give up the telephone number(s) or email accounts that are linked to your Account, you agree to unsubscribe from future communications to such telephone numbers and email accounts, and agree to update all Account data in a timely manner. You represent and warrant that you own and control all Account data, including the email account(s) and the telephone number(s). You agree to indemnify, defend, and hold harmless the Company for any privacy, tort, or other claims or regulatory actions relating to your voluntary provision of a telephone number or email account that is not owned by you, or your failure to promptly notify the Company of any changes in your contact information, including telephone numbers. You agree that your obligation to indemnify, defend, and hold the Company harmless from and against any and all such claims extends to any and all losses, liability, costs and expenses (including reasonable attorneys’ fees) that the Company may incur or otherwise be subject to as a result of such claims. Company will have the exclusive right to choose counsel, at your expense, to defend any such claims.
4 Identify Verification
4.1 You acknowledge and agree that due to the nature of the Services, the Company may be required to verify your identity to ensure that you are not using the Services in an illegal or fraudulent manner.
4.2 You warrant that where the Company advises you in writing that they require further verification of your identity then you will comply with this request within seven (7) days of receipt of same.
4.3 You warrant that any information that you provide pursuant to this clause will be true and correct to the best of your knowledge and belief and failure to comply with this clause will warrant an immediate termination of the provision of the Services to you.
5.2 By the Company offering its Service to you, you agree and acknowledge that:
(a) The Company does not, at any time, provide any guarantees whatsoever, whether express or implied, with respect to the Service or the information provided through the Platform and Services, including the success or accuracy of the Services;
(b) Unless otherwise stated, all amounts are listed in United States Dollars (USD) and are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your use of any Service, except for Taxes levied on the Company’s income and property. If the Company has the legal obligation to pay or collect Taxes for which you are responsible under this clause, the Company will invoice you and you will pay that amount unless you provide the Company with a valid tax exemption certificate authorized by the appropriate taxing authority;
(c) the Company may receive a commission from or pay a commission to third parties in relation to provision of the Services to you;
(d) it is your responsibility to satisfy yourself as to:
(i) any accounting classification and taxation consequences; and
(ii) the compliance with all applicable legal and regulatory provisions in relation to information and services provided through the Platform or Services, including the Fair Debt Collection Practices Act or any other federal or state law or regulation applicable to collection of debt;
(e) you shall remain solely responsible for assessing the implications and risks of using the Services;
(f) these Terms do not create a relationship of employment, trust, joint venture, agency, partnership or other relationship of a fiduciary nature between the parties; and
(g) there are no third-party beneficiaries under these Terms.
5.3 You acknowledge that the Company has entered into these Terms in reliance on the acknowledgements, representations and warranties given by you in these Terms.
5.4 The Company and its third party providers reserve the right to (and you acknowledge and agree that they may) perform routine maintenance on their respective systems as they deem necessary, and during such maintenance period Services may be unavailable for order or use by, or delivery to, you.
6.1 In the event you elect to pay a Fee by way of direct debit and/or credit card and there is a chargeback by your debit or credit provider, or any invoice is more than 30 days past the due date, the Company may suspend or terminate the Services immediately. You will be charged the then-current Company administration fee, available on the Platform, plus any Taxes applicable to that fee (the Administration Fee), plus interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, on amounts which remain unpaid more than thirty (30) after the due date. Upon payment of the Administration Fee and applicable interest in accordance with the Terms, the Company may reinstate the Services to you.
6.2 The Company reserves the right to terminate or suspend your access to the Services in the event that you fail to timely make any payment pursuant to the Services or any invoice sent by the Company from time to time.
7 Refund Policy
7.1 Unless otherwise specified in these Terms or an applicable Sales Order, and to the extent permitted by applicable law, all Fees are non-refundable. We do not provide refunds or credits for any partial use or non-use of the Services. (This applies to monthly, quarterly, bi-annual and annual subscription fees). If you terminate the Services, you will continue to have access to the Services through to the end of your then-current billing period.
8 Copyright and Intellectual Property
8.1 The Platform, the Services and all of the related products and services made available by the Company in connection with the Services (the Material) are subject to copyright. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Materials (including any and all text, graphics, logos, button icons, video images, audio clips, Platform, code, scripts, lists, design elements and interactive features) (the Content) are owned or controlled for these purposes and are reserved by the Company or its contributors.
8.2 The Company retains all rights, title and interest (including copyrights, patents, trade secrets and trademarks) in the Material, the Content, and all related content therein. Nothing you do will transfer any interest in the Material or the Content to you, other than the grant of a limited right to you in clause 8.3 below.
8.3 While you have an active Account and you have paid any required Fees, the Company grants you a limited, non-exclusive, revocable, non-transferable, non-assignable right to access and use those functionalities of the Services which are consistent with your subscription level in accordance with the applicable Service’s intended functionality in the United States solely for your internal business purposes, not including those of any Affiliate. Your right to access and use the Platform is limited to use of the Platform and Services in accordance with its intended functionality in the United States (such as internal generation and sending of ordinary course invoices and payment reminders) and does not extend to use of the Platform or other Services for: (a) any family, household or personal purpose; or (b) any debt collection activities whatsoever.
8.4 Except as expressly set forth in clause 8.3, the Company does not grant you any other rights whatsoever in relation to the Services, Material and/or the Content. All other rights are expressly reserved by the Company.
8.5 You may not, without the prior written consent of the Company and the permission of any other relevant rights owner: broadcast, republish, upload to a third party, transmit, post, distribute, show or display or publish in public, adapt or change in any way the Material or Content for any purpose, other than for the purposes expressly allowed by these Terms. This prohibition does not extend to the Material and Content (if any) which the Company identifies as freely available for re-use or in the public domain.
9 Material and Content
9.1 You may read and copy the Material and Content for your internal business needs while using the Platform during the term of the Services (as identified in the applicable Sales Order), but you may not publish, resell or sub-license it. The Company makes no guarantees, representations or warranties about the accuracy or legal correctness of any of the Material or Content.
10 Third Party Content and Services
10.1 You warrant that you will use the Platform and other Services: (a) solely in accordance with its intended functionality in the United States, such as the internal generation and sending of ordinary course invoices and payment reminders to your own customers (Customers); and (b) that the Company is neither a debt collector, generally, nor your debt collector.
10.2 You warrant that, prior to sharing Customer data or other information with the Company, you will: (a) obtain consent from your Customers and/or debtors to provide to the Company and third parties the data and information that you provide to the Company for the provision of the Services; and (b) otherwise ensure that you have all necessary and appropriate consents and notices in place to enable lawful transfer and processing of personal data (as defined under applicable data protection laws).
10.3 Third Party Content
(a) The Company works with a number of partners and Affiliates whose websites or mobile phone applications may be linked with or provided by the Company and are controlled by parties other than the Company (each a Third Party Provider).
(b) The Company does not endorse and is not responsible or liable for the availability, contents, products, services or use of any third party product or service, Third Party Provider, any website accessed from a Third Party Provider or any changes or updates to such sites. The Company makes no guarantees about the content or quality of the products or services provided by such sites.
(c) By using any information, product, service, or functionality originating from the Services, you are allowing the Company to share with any third party which the Company has a contractual relationship, any information necessary to facilitate its provisions of products, services, or functionality to you.
11 Your Duties
11.1 You warrant that you will not:
(a) resupply, resell, repackage or otherwise reuse, copy, download, upload, modify, translate, adapt, make any derivative work, improvement or enhancement to or in any other way reproduce, a Service or any part of the Service;
(b) permit any person to access or use a Service or otherwise provide a Service to any person, whether directly or indirectly, other than your authorized employee(s), officer(s), or agent(s) (each, an Authorized User) and only for internal business purposes within the scope of your license tier (Authorized Users do not include any employees, officers or agents of any Affiliate);
(c) except to the extent permitted by applicable law, reverse engineer or derive the source code of any Service;;
(d) introduce, directly or indirectly, any virus, worm, trojan or other harmful or malicious code into any Service or otherwise corrupt, degrade or disrupt any Service;
(e) tamper with any Service or circumvent any technological measure that is designed to prevent unauthorized use or access to any part of a Service;
(f) engage in any form of systematic extraction of all or part of any Service, including the use of “screen-scraping”, “bots” and “spiders”;
(g) merge any part of a Service with any other database or system, unless otherwise agreed to by the parties in writing;
(h) use the Service to generate any statistical or other information, or to prepare any comparison to other information databases, that may be provided to any third party, unless otherwise agreed to by the parties in writing;
(i) use the Service if you are a direct or indirect competitor, or a sales agent, consultant or distributor for a direct competitor of the Company;
(j) produce any Service in legal proceedings without our prior written consent, except as required by law;
(k) use a Service for any unlawful purpose or in a manner that contravenes any applicable laws, including those related to privacy, electronic communications, and anti-spam;
(l) use a Service to disseminate, store, or transmit infringing, libelous, or otherwise unlawful or tortious material, or to disseminate, store, or transmit material in violation of third-party intellectual property or privacy rights;
(m) interfere with or disrupt the integrity or performance of a Service;
(n) attempt to gain unauthorized access to a Service or its related systems or networks;
(o) permit direct or indirect access to or use of a Service in a way that circumvents any provision of these Terms;
(p) build a competitive product or service;
(q) build a product or service using similar ideas, features, functions or graphics of any Service;
(r) remove, delete, alter, or obscure any disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform; or(s) at any time during the term and for a period of 18 months after termination of your use of any Service, whether for your own account or for the account of others, solicit for employment, hire or otherwise engage any of the employees or independent contractors of the Company (but the foregoing shall not prevent you from hiring any person who responds to a general solicitation not personally directed to such person; in the event you hire or engage an employee or contractor of the Company in violation of this clause, the Company shall be entitled to collect liquidated damages from you to compensate the Company for locating, recruiting, hiring and training a replacement person, and the Company’s liquidated damages shall be a sum equal to two times the gross annual compensation of the person you wrongfully hired or engaged. Gross annual compensation means twelve times the subject employee or contractor’s last full month’s compensation from the Company including bonuses and benefits. The parties agree and acknowledge that this amount is a reasonable, liquidated amount and not a penalty).
Any use of a Service in breach of this clause may result in immediate suspension or termination of your account, in the Company’s sole discretion.
11.2 You warrant that you will:
(a) only use the Services for your internal business purposes (which, for the avoidance of doubt, does not include use of the internal business purposes of any of your Affiliates);
(b) implement and maintain industry best practice security measures and safeguards in relation to the Services;
(c) restrict access to the Services to Authorized Users, and notify the Company immediately of any unauthorized access or use to the Services;
(d) keep all security and access credentials and identifiers confidential and secure and ensure they are not transferred between Authorized Users or disclosed to any other person;
(e) be solely responsible for all activities and charges incurred by your Authorized Users on the Platform, and activity taking place under the access credentials of your Authorized Users;
(f) protect the Services from unauthorized use, alteration, adoption, modification, reproduction, access, publication and distribution;
(g) only use the Services on hardware, network and software that meets the minimum specifications notified by us to you, if any;
(h) comply with our reasonable directions from time to time in relation to the Services;
(i) when we deliver or transfer an electronic report or data extract to you, including by email, direct link, data stream, download or other media (Transferred Data), you may save the Transferred Data onto your system and use it only in accordance with this these Terms;
(j) you will ensure that your Authorized Users comply with both (i) the terms of these Terms and (ii) applicable laws and regulations, including those related to privacy, electronic communications, and anti-spam;
(k) If, as a result of the use or provision of the Services, a regulator makes lawful enquiries, carries out an investigation, or takes any action which obliges you to provide assistance or information, then you will provide assistance and information to the regulator to the extent they are legally obliged to do so;
(l) you will promptly notify us of any breach of these Terms.
12 The Company’s use of Your Material
12.1 You grant, and agree to grant, to the Company, its employees, contractors, third party service providers, officers, and agents, a worldwide, non-exclusive, royalty-free, irrevocable license and right to use, modify and copy any (a) information or data and (b) text, graphics, logos, icons, video images, audio clips or other content or material that is not Content or Material (collectively, Your Material), that you or your Authorized Users may enter, upload or otherwise use in connection with any Service or provide to the Company for the purposes of the provision of the Services or any related products or services. The Company does not guarantee that Your Material will be secure, recoverable, or never lost or damaged.
12.2 You: (a) are solely responsible for the accuracy, quality, integrity, and legality of Your Material, the means by which you and/or your Authorized Users acquired Your Material, and you and your Authorized Users’ right to use Your Material; and (b) represent and warrant to the Company that Your Material does not and will not (i) infringe or otherwise violate any rights of any third party (including any intellectual property rights or privacy or publicity rights), (ii) contain any material which violates the Company’s content guidelines or which is otherwise unlawful, defamatory, or obscene, (iii) encourage a criminal offense or otherwise give rise to civil liability.
12.3 By engaging the Company to perform any Services, you grant to the Company an irrevocable, perpetual, worldwide, royalty-free right to use your trade mark, logo, photographs, testimonials, feedback or name for the purpose of promoting the Company or the Services, now and in the future. This includes any promotion, testimonials, marketing or advertising by way of online, in print, in social media, in competitions, advertisements, books and magazines, design publications and any other self-promotional or demonstrative purpose.
12.4 When you use any Service to initiate or otherwise exchange communications with any Customer: (a) the communication is solely between you and the applicable Customer; (b) your use of any Material or Content when doing so is at your sole risk; and (c) the Company has no obligation to monitor or review the content of the communication, but reserves the right, at its sole discretion, to reject or remove Your Material or any other information or materials provided by you on or through a Service or to alter such information or materials to conform to technical specifications for the Service and/or to comply with applicable law.
12.5 You grant to the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, and assignable license to use and incorporate into any Service, any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by you relating to any Material, Content or Service.
12.6 Procedure for Making Claims of Copyright Infringement. It is Company’s policy to terminate account and user privileges of any user who repeatedly infringes copyrights of others, upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Platform of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows: email@example.com
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
13 General Disclaimer
13.1 Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law and which may not be limited or excluded.
(a) You agree that the Company has no direct or indirect liability (including in negligence) to you in any way related to your use of the Platform or the Services.
(b) To the maximum extent permitted by law, the Company’s liability to you is limited to resupply of the Services or payment of the cost of re-supplying the Services.
13.2 Subject to this clause and to the maximum extent permitted by applicable law:
(a) the Platform and other Services are provided “AS IS” and “AS AVAILABLE”;
(b) the Company disclaims all warranties and guarantees, whether express or implied, by statute, trade or otherwise, including (i) the implied warranties of merchantability, fitness for a particular purpose, non-infringement, uninterrupted or error-free use or service, error correction, availability, accuracy of informational content and system integration and (ii) all warranties regarding performance, quality and results.
(b) the Company will not be liable for any claims, causes of action, damage or expenses arising out of or in connection with the Platform or the Services (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, in equity, pursuant to statute, or otherwise; and
(c) All Services are supplied to you on an “as is” and “as available” basis and does not guarantee any uptime or availability of the Services.
13A.1 “Confidential Information” means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether electronically, orally, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. The Company’s Confidential Information includes the Company’s object code, source code, Content, Materials, the Platform and other Services, and the identity information of its subscribers and visitors to any Company website, and the terms and conditions of these Terms (including all Order Forms and pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any contractual, legal, or fiduciary obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without reference to, or reliance upon, the Confidential Information of the Disclosing Party. Each party retains all ownership, right, and title in and to its Confidential Information.
13A.2 Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) to protect the Confidential Information of the Disclosing Party; (b) not use any Confidential Information of the Disclosing Party for any purpose not authorized by these Terms; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to, and disclosure of, the Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
13A.3 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
14.1 In the event that you have any problems with accessing or using the Service, you may contact the Company via firstname.lastname@example.org. However, the Company has no obligation or responsibility to provide any assistance or remedial action in relation to any such enquiry.
15 Limitation of liability
15.1 The Company’s total liability arising out of or in connection with the Services or the Terms, however arising, including at law, in equity, under statute, or otherwise, will not exceed the resupply of the Service to you.
15.2 You expressly understand and agree that the Company will not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This includes, but is not limited to, any loss of profit, any loss of goodwill or business reputation and any other intangible loss.
15.3 You expressly understand and agree that the Company will not be liable to you for your use of the information in the Services.
16.1 You agree to indemnify and hold harmless the Company and its Affiliates and their respective directors, officers, employees and agents from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with
(i) inaccurate or misleading information provided by you or your agent; or
(ii) any violation of the representations and warranties provided under these Terms by you, and any other breach of the Terms;
(b) any direct or indirect consequences of you accessing, using or transacting on the Platform or the Services or attempts to do so;
(c) non-Authorized Users gaining access to your account; and
(d) use of products not permitted by these Terms or any additional terms found herein; provided that the Company: (i) promptly gives you written notice of the claim; (ii) gives you sole control of the defense and settlement of the claim (except that you may not settle any claim unless it unconditionally releases the Company and its Affiliates of all liability); and (iii) gives you reasonable assistance, at your expense.
16.2 This indemnity will survive termination of the Terms.
17 Termination of Services
17.1 The Terms will continue to apply until the deletion of your Account, or until terminated by the Company as set out below.
17.2 If you elect to terminate, you must provide at least thirty (30) days’ written notice to the Company.
17.3 The Company may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) the Company is required to do so by law;
(c) the partner, if any, with whom the Company offered the Services to you has terminated its relationship with the Company or ceased to offer the Services to you;
(d) the Company is transitioning to no longer providing the Services in the country in which you are resident or from which you use the service;
(e) the provision of the Services to you by the Company is, in the opinion of the Company, no longer commercially viable;
(f) if you have used the Services:
(i) in breach of any law;
(ii) in a way that is misleading or deceptive;
(iii) in a way which is unreasonable as determined by the Company at its absolute discretion;
(iv) in a manner which can or does bring the Company into disrepute or could damage the Company’s reputation as determined by the Company in its absolute discretion; or
(g) for no reason.
17.4 Subject to local applicable laws, the Company reserves the right to discontinue or cancel your access to the Services at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Platform or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct damages the Company’s name or reputation or violates the rights of another party.
17.5 Upon the termination of your Account: (a) you will immediately cease and desist from accessing and using all Services (including the Platform); and (b) all of the legal rights, obligations and liabilities that you and the Company have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
18 Dispute Resolution
18.1 Compulsory Mediation and Arbitration
If a dispute arises out of or relates to the Terms, the Services, any products, or the Platform (a Dispute), unless the parties to the Dispute (the Dispute Parties) have complied with the following clauses, the parties may not commence any arbitration, tribunal, or court proceedings in relation to the Dispute (except where urgent relief is sought).
18.2 Notice and Response
A party claiming a Dispute must, within thirty (30) days of becoming aware of the Dispute, provide written notice to the Company (the Dispute Notice) detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute and serve it on the other party by sending an email to the other party’s email, and in the case of the Company to email@example.com. Within fourteen (14) days of receipt of the Dispute Notice, the other party must respond by providing to the other party their detailed response to the Dispute by sending an email to the other party’s email, and in the case of the Company to firstname.lastname@example.org.
Within seven (7) days after the date of the receiving party’s response to the Dispute Notice, the Dispute Parties shall endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree. If for any reason whatsoever the Dispute has not been resolved within twenty-one (21) days after the date of the Dispute Notice, the Dispute Parties must engage in mediation and either (a) agree upon selection of a mediator or (b) request that an appropriate mediator be appointed by the American Arbitration Association the AAA) The mediation will be held in accordance with the AAA’s guidelines for Commercial Mediation.
The Dispute Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and, without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Dispute Parties must each pay their own costs associated with the mediation.
The mediation will be held in Wilmington, Delaware.
In the event that the Dispute is not resolved at the conclusion of the mediation, the Dispute Parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, including any question regarding the existence, validity or termination of the Services, will be resolved by arbitration in accordance with the AAA’s Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Wilmington, Delaware. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause may be used as a bar to legal proceedings, however, the Company may apply for immediate injunctive relief in any court of competent jurisdiction.
All communications concerning negotiations made by the Dispute Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
19 Governing Law and Jurisdiction
The Services offered by the Company are intended solely for businesses organized in the United States with respect to their Customers who, in turn, are domiciled and located in, or residents of, the United States. These Terms are governed by and are to be constructed in accordance with the laws of the State of Delaware, United States. Except as agreed in the compulsory mediation and arbitration provisions of clause 18, you submit to the exclusive jurisdiction of the state and federal courts situated in Wilmington, Delaware in respect of all matters arising out of or relating to these Terms, the Platform, the Services and their performance. The parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods, the Convention on the Use of Electronic Communications in International Contracts, and the Uniform Computer Information Transactions Act.
20.1 The Company may provide any notice to you under the Terms by sending a message to your email address. The notice provided by the Company to you by email shall be deemed to have been properly given on the date the Company sends the email, regardless of whether you have received the email.
20.2 Unless specified otherwise, any notices provided by you to the Company must be in writing and be delivered either in person, or via registered post to 1601 5th Ave Suite 900, Seattle, WA 98101. Any notices provided by registered post shall be deemed to have been properly given three days after they are posted.
21 Severance and Interpretation
If any part of the Terms is found to be invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited; otherwise, that part shall be severed and the rest of the Terms shall remain in force. Any use of the term “include” or “includes” or “including” means “include without limitation,” “includes without limitation” and “including,” respectively. Any ambiguous provisions are not to be construed against either party. Titles and headings of sections of these Terms are for convenience only and shall not affect the construction of any provision of these Terms.
22.1 A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it.
22.2 A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
22.3 The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
23.1 The Company may assign or transfer its rights or obligations under the Terms without your consent.
23.2 You may not assign or transfer your rights or obligations under the Terms without prior written consent of the Company. A purported assignment without written consent will be deemed to be void and convey no rights.