Guest Checkout Condition of Use
Effective Date: February 5, 2021
This Agreement applies to Plastiq, Plastiq branded apps, Plastiq-related sites, APIs, apps, communications and other services that state that they are offered under this Agreement (“Services”). Plastiq allows Users to pay virtually any expense with a credit card, even ones to recipients who do not accept cards. Currently, Plastiq offers its Services to Users in the United States or Canada. Please note that Plastiq may charge you a fee (“Fee”) for use of these Services.
You (also referred to as “User”) are entering this Agreement with Plastiq (also referred to as “we” and “us”).
If you reside in the state of Texas, this is a legal contract between you and PLV Inc. DBA PLV TX Branch Inc., a Plastiq Inc. subsidiary. For Texas residents, “Plastiq,” “we,” and “us” refer to both PLV Inc. DBA PLV TX Branch Inc. and Plastiq Inc.
If you reside in Canada, this is a legal contract between you and Plastiq Canada Inc., a Plastiq Inc. subsidiary. For Canadian users, “Plastiq,” “we,” and “us” refer to both PLV Inc. DBA PLV TX Branch Inc. and Plastiq Inc.
Plastiq acts solely as a third party payment facilitator and processor to the recipient (“receiver of funds and data associated with a payment”) who has sent you an invoice/link. You agree that Plastiq is not a party to any agreement you may have with the recipient to whom you are making a payment and any disputes are solely between you and the recipient.
Accordingly, Plastiq assumes no responsibility and will have no liability for any consequences resulting from your interactions or contracts with recipients, including but not limited to payment terms, the proper and timely delivery of goods or services, and any associated disputes which may arise. Plastiq in no way endorses, recommends, or bear any responsibility or liability for any products, services or statements presented by your Recipients. Recipient statements and opinions are not representative of Plastiq or its business partners.
1.2 FUND OWNERSHIP
Principal funds to most US Recipients do not pass into Plastiq’s legal ownership at any time from payment initiation to successful delivery, including any subsequent refunds.
Plastiq uses an account at Silicon Valley Bank (SVB) that is held in SVB’s name. The account title also shows that this account is for the benefit of customers of Plastiq. Plastiq has the right to instruct SVB on the use of funds in the account, including to receive funds from you and to then send funds to your Recipient based on your instructions.
SVB acts only as a service provider to Plastiq, and its role in the completion of a payment is restricted to treasury disbursement. You are not a customer of SVB. Plastiq provides card processing services to you and dispatches payment instructions to SVB for the purpose of accomplishing these payments.
For transactions involving PLV Inc., principal funds do pass to PLV’s legal ownership.
2.1 ELIGIBILITY REQUIREMENTS
To be eligible to use the Services, you must: (i) be an individual at least 18 years of age or an entity registered in the United States or Canada and able to form legally binding contracts under applicable law, (ii) have a valid and active email address, and (iii) have a valid payment card (“Payment Method”) issued on the MasterCard®, Visa®, Discover®, JCB®, Diners Club® or American Express® networks.
If you use the Services on behalf of another, whether a natural person or legal non-natural person or entity, you represent and warrant that you are duly authorized and empowered by and for that person or entity to agree to this Agreement and accept this Agreement on behalf of the person or entity, and represent and warrant that you are duly authorized and empowered to use the Services on behalf of the person or entity.
2.3 IDENTITY AUTHENTICATION
Plastiq reserves the right to review or place a hold on any payment requested through our Services for any reason, including but not limited to credit and fraud risk or compliance with applicable laws, such as anti-money laundering regulations, combating terrorist financing laws and OFAC sanctions. In our sole discretion, Plastiq may place a hold on a payment for as long as reasonably necessary to conduct an appropriate inquiry regarding the payment or any related facts or circumstances. Depending on the results of this review, Plastiq reserves the right to take any appropriate action, including declining the payment, refunding the payment, or continuing to hold the payment pending instructions from a government agency.
2.4 INAPPROPRIATE USE
If we have reason to believe that you have used our Services inappropriately, we may close, suspend, or limit your access to the Services; hold, return, or reclaim funds; update information provided third parties; decline to provide Services to you or related parties in the future; contact your bank, other Users, law enforcement, or other third parties; or take legal action.
2.5 APPLICABLE TAXES AND PENALTIES
You are responsible for all, if any, applicable taxes arising from your use of the Services. You are furthermore responsible for all fees, fines, penalties and other liability incurred by Plastiq, yourself, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. You agree to reimburse Plastiq or a third party for any and all such liability.
In the event that you are liable for any amounts owed to Plastiq, Plastiq may initiate a transaction via your default Payment Method or other available payment methods to pay any such amounts. If you do not have sufficient funds available to fulfill such payment, Plastiq may engage in collection efforts and/or other legal actions to recover such amounts from you.
2.6 USE OF THE SERVICES AND COMPANY PROPERTIES
Use of any of the Software, the Widgets, the Website, the Services, and the information and content available on the Website and in the Application and Services (each, a “Company Property” and collectively, the “Company Properties”) are governed by the terms of this Agreement. At no time will we provide you with any tangible copy of our software. Any copying or redistribution of the software is prohibited , including any copying or redistribution of the software to any other server or location. Subject to your compliance with the agreement, we grant you a non-assignable, non-transferrable, non-sublicensable, revocable non-exclusive license to use the software for the sole purpose of enabling you to use the Services in the manner permitted by this Agreement.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit Company Properties or any portion of Company Properties or any portion of Company Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark logo, or other Company Properties (including images, text, page layout or form) of Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the forgoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download date from any web pages contained in the Website; (f) you shall not access Company Properties in order to build a similar or competitive website, application, or service; (g) you shall not remove or destroy any copyright notices on other proprietary markings contained on or in Company Properties. Any unauthorized use of any Company Properties terminates the licenses granted by Company pursuant to this Agreement.
3.1 ACCEPTABLE PAYMENT METHODS
Debit or credit cards issued on the following payment networks may be used as payment methods (each, a “Payment Method”) via the Services:
- MasterCard® (Restrictions Apply)
- American Express® (Restrictions Apply)
- Visa® (Restrictions Apply)
- Diners Club®
Your cards may be authorized to confirm their validity. A temporary, small authorization charge may appear on your card statement. Plastiq will only use this process to screen for fraud and will not otherwise charge your Payment Method, except for your use of the Services.
When you add a Payment Method, you agree you have the authority to disclose the Payment Method information and to bind the person or organization for which you act, and you authorize the initiation of debit or credit entries, as applicable, to the payment methods in accordance with instructions inputted through the Services, and, if necessary, the initiation of adjustments for any transactions debited or credited in error.
3.2 RESTRICTIONS ON PAYMENT METHODS
Payment Methods are used to submit payments via the Services. All Payment Method usage associated with payments submitted via the Services are subject to existing terms for your Payment Method, including any relevant credit or transactional limits, credit and interest terms, and rewards programs. Where applicable, Plastiq retains all rights and authority for the treatment of your Payment Methods via the Services, which may supersede your Payment Method program terms.
To prevent fraud and comply with legal obligations, we may ask for additional information from you and from third parties. Your payment may be put on hold for review. If you do not cooperate within our review process, your payment may be delayed or declined. We may impose limitations on the size, frequency, and timing of payments. We may decline to make payments or otherwise deny you use of the Services, and we may decline to explain why.
3.3 RESTRICTIONS FROM YOUR ISSUING BANK
Use of your Payment Method is governed by the terms set by your issuing bank, including any credit or transactional limits and the conditions for any rewards programs.
Use of certain Payment Methods is limited to industries made available to users when selecting your recipient category. Non-accepted categories are noted by Plastiq with a clear warning message indicating as such, and submission of payments to non-permitted industries is a violation of our terms. By selecting the recipient category, you acknowledge that the payment you are making is for the category type you indicate and which is allowable by the Issuing Bank. For a current list of non-accepted categories for each Payment Method, visit the Help Center.
Your transactions may be treated as a cash advance by your issuing bank even though Plastiq codes the transactions as purchases. If this is the case, we will notify you prior to payment submission, and you may switch to a different card or opt out of submitting the payment altogether. For a current list of cards which may treat your purchase as a cash advance, visit the Help Center.
You agree not to hold Plastiq liable for any consequences resulting from issuer treatment of card authorizations, which may include but are not limited to cash advance fees, impacted reward program earnings, or altered credit programs and interest rate terms.
4.1 PAYMENT SUBMISSION
You must pay with a valid Payment Method at the point of payment. Payment submission requires at least the following to be specified:
- a Payment Method;
- a payment amount;
- an invoice;
- any applicable Payment Data (see 4.1.a)
You are responsible for verifying the accuracy of payment details and Plastiq will have no liability for losses or damages due to your or your Recipient’s actions or inactions. Any or all of the above fields may be pre-filled for you, particularly if you were referred to the Plastiq Services for your payment.
4.1.A PAYMENT DATA
Plastiq may require additional information from you at the time of payment submission, which is primarily used to help recipients acknowledge and account for your incoming payments. Recipients that partner with Plastiq may customize the information they collect from you via Plastiq.
4.2 PAYMENT REVIEW
At any time post-submission, your payment may be subject to review (“Payment Review”), which serves to better understand the nature of and reason for your payment. During this review process and for any reason, Plastiq may place a temporary hold on the delivery of your payment, and may request more information from you including but not limited to verification of your identity, an associated bill or invoice, or other evidence of your payment terms with the recipient.
Communications from our Account Services team may be initiated via email using the contact details you provided in your Payment Submission. You acknowledge that Plastiq’s ability to efficiently and effectively review your payment is reliant upon your cooperation, and you absolve Plastiq from any negative impacts to the delivery of your payment arising from delayed, incomplete, or insufficient responses to our inquiries.
At its sole discretion, Plastiq reserves the right to cancel any payment. In such cases and as permitted by applicable law, your funds will be returned to you via the original Payment Method, or if necessary via other means. You relieve Plastiq of any liability you may incur, including but not limited to late fees, penalties, or interest due to payments that are held, denied, or reversed.
4.2.A SATISFACTORY GOODS OR SERVICES
By submitting your payment for processing by the Services, you agree that the goods or services provided by your recipient in exchange for the principal have already been rendered to your satisfaction. You hereby forfeit any future claims regarding insufficient or unexpected quality or untimely delivery of the goods and services provided, including those Services rendered by Plastiq in exchange for your payment of Fees.
4.2.B PAYMENT PROCESSING
Payments submitted for immediate processing will require successful Payment Method authorization at the time of submission, while payments marked for future processing will require Payment Method authorization on the Processing Date indicated for the payment. If a Payment Method fails to authorize, Plastiq will be unable to continue to process your payment, and will notify you via the Services.
The failure of any portion of the payment process, which many include but are not limited to additional fee authorizations, third-party service calls, and fraud analyses will result in a full rollback of any completed portions of the submission. Occasionally, this may require the void of previously succeeded Payment Method authorizations. Depending on your Payment Method, your billing statement may show temporary authorizations from Plastiq, which should disappear without any action within a couple days to a few weeks. You agree to absolve Plastiq of liability for any of the consequences which may arise from execution of a payment rollback, including pending authorizations which may temporarily reduce your available credit line.
4.2.C PAYMENT DELIVERY
A payment’s fund disbursement channel and expected delivery timeframe will be presented to you upon review, prior to submission. The expected delivery time frame is a projected estimate based on Plastiq’s historical performance for a given disbursement channel, and is subject to change. All remedies for failure to deliver a payment within the quoted timeframe will be subject to Plastiq’s Delivery Guarantee.
7.1 RESTRICTED ACTIVITIES
You agree not to use the Services for any of the following “Restricted Activities”:
For unsupported transfers, including sending anti-money
- to yourself or an entity in which you have control;
- on behalf of another party;
- not in direct exchange for a rendered good or service;
- to escrow accounts where a contract cannot be provided;
- for goods or services whose delivery or completion has not yet been confirmed;
- Short term rental and/or vacation payments;
- as a donation to an organization not classified as a registered charity;
- other than for legitimate payment purposes (e.g., to test or probe card behaviors).
For unsupported goods and services, including
- gambling and related activity (such as lotteries, poker chips, bidding fee auctions, sports forecasting or odds making, fantasy sports leagues, internet gaming, contests, sweepstakes, and games of chance);
- unsupported debt types – such as credit card balances or uncollateralized personal loans (when using credit cards as the payment method);
- certain investment accounts or to fund unsupported investments, including but not limited to 401(k) accounts, 403(b) plans, 457 plans, 529 plans, and IRAs;
- drug paraphernalia, synthetic drugs and/or controlled substances and related goods or services;
- tobacco including vapor, inhalants, e-cigaretttes, and e-liquid;
- online pharmacies, pharmaceutical or nutraceutical products or services, or internet pharmacy referral sites;
- gold, diamonds, precious metals;
- pornography, obscene materials, bride catalogs, escort services, and sexually-related services;
- hate-related material, rape/violence, bestiality;
- weapons, jammers, munitions, gunpowder, fireworks, and other explosives;
- pawn shops, paper mills, payday loans;
- counterfeit goods, ponzi schemes, multi-level/affiliate marketing businesses, or any money making schemes;
- resale of social media activity;
- travel tickets;
- foreign exchanges;
- malware, spyware, phone unlocking services;
- toxic, flammable, and radioactive materials; or
- other goods and services subject to government regulation.
For uses not supported by specific Payment Methods, as stated in this article
In violation or potential violation of applicable law, regulation, rule, or legal interest, including,
- sending or receiving potentially fraudulent funds;
- in the course of any activity regulated by the Financial Crimes Enforcement Network (FinCEN) or any other relevant regulatory body;
- infringement or potential infringement of any party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
- acting in a manner that could be defamatory, trade libelous, threatening or harassing;
- using the Services in violation of applicable payment network rules;
In a manner detrimental to our provision of the Services, including
- the provision of outdated, false, inaccurate, or incomplete information;
- using any promotional or referral programs in a manner deemed abusive or against the intention of said programs;
- maintain or using multiple Accounts;
- allowing other individuals to access or use your Account;
- using an anonymizing proxy;
- using the Services in a manner that results in or may result in complaints, disputes between a User and Plastiq, Claims, chargebacks, fees, fines, penalties and other liability to Plastiq, a third party, or you;
- imposing unreasonable demands on our technical or personnel resources;
- facilitating viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information;
- using any robot, spider, other automatic device, or manual process to access, monitor or copy our Website without our prior written permission;
- using any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our Website or the Services;
- taking any action that may cause us to lose any of the services provided by our Recipients, payment processors, or other suppliers;
- Reselling, re-skinning, or otherwise distributing our Services;
- breaching this Agreement or any other agreement or policy that you have agreed to with Plastiq.
If you have a payment use case which is not explicitly mentioned above, and for which you would like to confirm support, please check with our Member Services team by emailing email@example.com.
7.2 ENGAGING IN RESTRICTED ACTIVITIES
Plastiq may request more information relating to your use of the Services to seek to identify Restricted Activities (see Section 7.1 above). You agree to cooperate in any investigation and to provide confirmation of your identity and any Information you provide to us, as we may require.
If we have reason to believe that you have engaged in any Restricted Activities, Plastiq reserves the right to, in its sole discretion and at any time, take any or all of the following actions:
- Close, suspend, or limit your access to your Account or the Services;
- Hold, return, or reclaim funds;
- Update inaccurate information you provided to Plastiq;
- Refuse to provide Services to you in the future;
- Contact your bank or notify other Users, law enforcement, or impacted third parties of your actions;
- Take legal action against you.
When not otherwise obligated by regulatory or compliance considerations, Plastiq will provide you with notice of any such actions. If applicable, Plastiq may request more information regarding your use of the Services to better determine whether or not Restricted Activities may have occurred.
Refunds and Voided Payments
8.1 PAYMENT REFUNDS
Your Recipient is required to post an exchange or return policy in accordance with applicable rules, such as those issued by credit card networks, the Payment Card Industry, among others. If any of the following are applicable for returns, your Recipient should have incorporated it as part of its policy: (a) no refund, or less than a full refund, will be given, (b) returned merchandise will only be exchanged for similar merchandise of comparable value; (c) only a credit toward purchases will be given; or (d) special conditions or circumstances apply to the sale (i.e: late delivery, charges, or other noncredit terms). You understand that an exchange or return policy is issued by the Recipient and not Plastiq, and your recourse for any policy violations is between you and the Recipient.
Plastiq is unable to initiate refunds in cases where a Recipient has already received your Payment. If this is the case, you should contact your Recipient directly to request a refund, pursuant to their payment terms.
In the event of a refund of the total funds to be sent to a Recipient (the “Principal”), Plastiq will also refund a proportional amount of the Plastiq Fee, less any unrecoverable costs Plastiq may incur. Principal refunds effected via clawback or chargeback mechanisms, however, will not result in a refund of the Plastiq Fee, in whole or in part.
8.2 PAYMENT ISSUES AND INQUIRIES
If you encounter any payment-related issues or have a question about your payments, please contact firstname.lastname@example.org. Including any relevant Payment IDs in your messages will help our team provide you better, quicker service. Payment IDs are presented on your Payment confirmation page and email notifications.
If you message us from an email that does not match the one associated to your Payment ID with Plastiq, or via an alternate channel like social media or SMS, we may require further verification of your identity prior to providing any information or making any changes.
For Texas users who have contacted Plastiq and still have an unresolved complaint regarding the company’s money transmission or currency exchange activity, please direct your complaint to: Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705, 1-877-276-5554 (toll free), www.dob.texas.gov
If a payment issue can be traced to some deficiency or defect in the Services, Plastiq will use commercially reasonable efforts to fulfill its responsibilities as represented in this Agreement. You agree that Plastiq is not liable for any costs or difficulty arising from actions we may take in the process of investigating or rectifying a Payment issue. You are responsible for confirming the correctness and completeness of your payment at the time of submission. If a payment issue can be traced to any incorrect or incomplete information you confirmed at the time of Payment Review, even for information which may have been pre-filled by Plastiq or a third party, you agree to hold responsibility for any resulting consequences, which may include but not be limited to an unintended Recipient accepting and retaining your payment, an issue in a Recipient accounting for your payment, or an inability to complete your payment.
At this time, Plastiq treats payments as atomic operations, which means that once a payment is processed, it must be either completed or cancelled. One consequence of this policy is that Plastiq cannot support re-issuing checks (cheques) or resending electronic disbursements for payments. If your recipient has misplaced, disposed of, or not received your payment, we can cancel it and refund your Payment Method, and you can either re-submit via Plastiq or via another channel.
If you seek to contest a payment made through the Services, Plastiq encourages you to contact email@example.com to resolve this dispute. If you decide to initiate a chargeback or reverse the transaction through your Payment Method, we reserve the right to lock or deactivate your account and cancel all payments in transit at the time of notification of a chargeback. If we have been informed by the card network, your issuing bank, any third party, or by you that the chargeback was initiated after receiving the purchased services from Plastiq, (“Chargeback Fraud” or “Friendly Fraud”), you agree to pay us the full amount of the chargeback immediately upon demand, and any association fees, fines, or penalties allowable by card network rules. You agree to pay all costs and expenses, including attorneys’ fees and other legal expenses, incurred by us for the collection of all amounts unpaid by you. Further, if Plastiq reasonably believes that a chargeback is likely with respect to any transaction, we may withhold, reject, or refund the amount of the potential chargeback from payments.
For Visa Business Cards, Plastiq is a Business Payment Solution Provider (“BPSP”). By continuing to use the Services, you agree to accept all risks associated with any non-performance by your Recipient. You hereby forfeit any disputes regarding insufficient or unexpected quality or untimely delivery of the goods and services provided.
Other Legal Terms
9.1 Communications: Consent to Electronic Disclosures
Because the Services are provided electronically, you must consent to Plastiq providing important information electronically. Plastiq will issue the following information and disclosures electronically on this Website or via electronic mail (“email”):
- this Agreement
- Any future changes to the Agreement
- Transaction history information, and
- Any other notices, legal communications, or disclosures.
To receive this information electronically, and access and retain any disclosures received, you will need a computer with Internet access, and the ability to receive and read email.
By proceeding with use of the Services:
- You agree to receive information and disclosures electronically on this Website and via email, and confirm that you will download or print any disclosures for your records;
- You acknowledge that you can access information that is provided electronically on this Website and via email;
- You are authorizing the delivery of disclosures regarding the Services electronically on this Website and via email and providing your consent to receive electronic communications pursuant to the Electronic Signatures in Global and National Commerce Act and intend that this statute apply to the fullest extent possible;
- You agree to receive email, SMS, or push notifications regarding the Services.
You can withdraw your consent to receive most electronic communications from Plastiq by emailing us at firstname.lastname@example.org or following the unsubscribe procedure contained in any electronic communication you receive from us. However, if you withdraw your consent, you may no longer be eligible to use certain portions of the Services. Withdrawing your consent will not affect the completion of pending Payments or the validity of completed Payments.
Plastiq reserves the right to send all members that have provided an email address updates that are transactional in nature including, but not limited to payment receipts, password reset notifications and other account-related information in accordance with applicable government regulations.
9.2 OPT-IN FOR COMMUNICATIONS
By providing contact information such as email address and phone number of parties you pay and/or request payments from via the Services, you are granting Plastiq implied consent to send business-related communications, including marketing and product updates. The receiver of the communications may opt out of receiving marketing messages at any time via the opt-out link provided in each message.
Per the Canadian Anti-Spam Law, the affirmative use of a check box by members located in Canada is not interpreted by the Company as explicit consent to receive messages beyond the two-year period permitted with implied consent.
9.3 CONTACTING PLASTIQ
Unless otherwise stated in this Agreement, notices, inquiries, and requests to Plastiq should be emailed to email@example.com. For your convenience, the Services may also make available communication channels for live chat and support tickets.
Please note that email communications sent to Plastiq for Account-related matters (e.g., late fee reimbursements, refund requests, etc.) must come from the email address listed with the associated Payment ID. Account-related communications initiated via other channels may require identity verification in order to obtain information or change settings.
In connection with your use of the Website and/or Services, you may elect to submit feedback, suggestions and/or other comments regarding the Website and/or the Services (collectively, the “Feedback”). Plastiq may, in its sole discretion, decide to incorporate some or all of this Feedback into the Website and/or the Services. You hereby grant Plastiq a worldwide, perpetual, nonexclusive, sublicensable, royalty-free license to use, reproduce, distribute, transmit, disclose, display, modify and create derivative works of all such Feedback. You further represent and warrant that you have all rights necessary to provide Plastiq the Feedback and that the use of the feedback by Plastiq will not violate, infringe otherwise misappropriate any third party rights.
10. Limitation of Liability
IN NO EVENT SHALL PLASTIQ, AND ITS AFFILIATES (AND THOSE THAT PLASTIQ WORKS WITH TO PROVIDE THE SERVICES) (COLLECTIVELY, “PLASTIQ PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, OUR WEBSITE, OUR SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). THE TOTAL LIABILITY OF THE PLASTIQ PARTIES (IN AGGREGATE) TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED IN THE SIX (6) MONTHS PRIOR TO THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION AROSE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you. In such case, the liability of the Plastiq Parties shall be limited to the greatest extent permitted under applicable law.
11. Disclaimer of Warranties
THE PLASTIQ PARTIES PROVIDE OUR SERVICES ON AN “AS IS” AND “AS AVAILABLE” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PLASTIQ PARTIES ARE NOT RESPONSIBLE FOR YOUR OR PLASTIQ’S FAILURE TO PERFORM OBLIGATIONS UNDER THE AGREEMENT AND DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, PLASTIQ, OR ANY THIRD PARTY.
Plastiq does not have any control over the products or services that are paid for using the Services and Plastiq cannot ensure that a Recipient you are dealing with will actually complete the transaction or is authorized to do so. Plastiq does not guarantee continuous, uninterrupted or secure access to any part of our Service, and operation of our site may be interfered with by numerous factors outside of our control. Plastiq will make reasonable efforts to ensure that requests for electronic debits and credits involving credit cards are processed in a timely manner but Plastiq makes no representations or warranties regarding the amount of time needed to complete processing because the Services are dependent upon many factors outside of our control, such as delays in the banking system. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary depending on the jurisdiction in which you are resident.
12.1 Complete Agreement
This Agreement together with any other Plastiq documents, policies and/or agreements referenced herein sets forth the entire understanding between you and Plastiq with respect to the Services. The following sections of this Agreement and all other terms which by their nature should survive, will survive the termination of this Agreement: 11 (Limitation of Liability), 12 (Disclaimer of Warranties), and 13 (General). If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
12.2 INTELLECTUAL PROPERTY“plastiq.com”, “Plastiq”, and all logos related to Plastiq, are either trademarks or registered trademarks of Plastiq or its licensors. You may not copy, imitate or use them without Plastiq’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Plastiq. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Plastiq website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Plastiq and its licensors.
12.3. CLASS ACTION WAIVER AND BINDING ARBITRATION
In the event of a dispute, claim, or controversy (“Claim”) between you and Plastiq, arising from or relating in any way to this Agreement, the Website, the Services, or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, the Claim shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules (or if the value of the Claim is $75,000 USD or less whether or not you are an individual under the AAA’s Consumer Arbitration Rules). All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you and Plastiq. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis.
IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND PLASTIQ MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.
If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future.
Must file within one year. All Claims must be filed within one year of when the Claim arises. Otherwise, it is permanently barred.
Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will not be arbitrated but will proceed in court, with the rest proceeding in arbitration. If any other provision of this Arbitration Agreement is found to be illegal or unenforceable, that provision will be severed but the rest of this Arbitration Agreement still applies.
Conflict with AAA rules. This agreement governs if it conflicts with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
Plastiq affiliates are third-party beneficiaries. Affiliates of Plastiq are not parties to this Arbitration Agreement but are third-party beneficiaries of your agreement with Plastiq to resolve disputes through informal negotiation and arbitration.
Opt out. You agree that Binding Arbitration applies to this Agreement unless you opt out by notifying Plastiq with an email containing your full name and the express intent to opt out sent to firstname.lastname@example.org within 60 days of your initial visit and/or use of the Website.
12.4 GOVERNING LAW AND JURISDICTION
In the United States, this Agreement, the Website, the Services, marketing materials associated with the Website or the Services, and the relationship formed between the parties as a result of this Agreement are governed and construed in accordance with the laws of the State of California, without giving effect to its choice of law provisions. Further, You agree to submit to the personal and exclusive jurisdiction and venue in the state and federal courts sitting in the City and County of San Francisco, California, for any and all disputes, claims, and actions arising from or in connection this Agreement, the Website, the Services, marketing materials associated with the Website or the Services, and the relationship formed between the parties as a result of this Agreement. In Canada, this Agreement, the Website, the Services, marketing materials associated with the Website or the Services, and the relationship formed between the parties as a result of this Agreement are governed by the laws of British Columbia.
12.5 PROHIBITION OF CLASS REPRESENTATIVE ACTION
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and not in a class or representative action. Neither party to this Agreement will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
12.6 RELEASE OF PLASTIQ
If you have a dispute with one or more Recipients or other third parties, you release Plastiq (and our officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
12.7 FORCE MAJEURE
Plastiq shall not be liable for any issues or delayed performance caused by circumstances beyond Plastiq’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, service provider failures or delays.
12.8 SYSTEM AVAILABILITY
Plastiq will use commercially reasonable efforts to make the Services available at all times except for: (a) planned downtime for routine maintenance or system updates, or (b) any unavailability due to Force Majeure. Plastiq will attempt to notify you in advance of any planned downtime.
You may not transfer or assign any rights or obligations you have under this Agreement without Plastiq’s prior written consent. Plastiq reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
If any provision of this Agreement is held to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
12.11 NO WAIVER
If Plastiq fails or delays in exercising any right, power or remedy or to take action against any breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
You agree to indemnify, defend, and hold harmless Plastiq, its affiliates, and their respective directors, officers, employees, and agents from any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, by any third party due to or arising out of: (a) your access to or use of the Services; (b) your breach of this Agreement; (c) your violation of any law or the rights of a third party; (d) any dispute or issue between you and any third party; (e) your gross negligence or willful misconduct; and (f) any other party’s access to and/or use of the Services using your account and password.
If you decide to use our Services, you expressly agree that the agreement between you and us and any associated documents will be in the English language.