Last updated February 15, 2024
These Conditions of Use ("Agreement") constitute a binding contract
between you and S & W Payroll Services L.L.C. (DBA Netchex)
("Netchex", "we", "us", "our") and govern all access to or use of
the Netchex website at https://netchex.com (the "Webpage"), the
Netchex service platform at http://netchexonline.net (the
"Platform"), the iOS mobile application (the "Mobile Platform", and
together with the Webpage and Platform, the "Sites"), and the domain
names and subdomains, services, content, products, features and/or
applications (including, without limitation, any mobile application
services) offered from time to time by Netchex in connection
therewith (collectively, the "Services"). All persons who access the
Services, are referenced as "you", "your", or "User". You and
Netchex may be referred to, individually, as a "Party", and
collectively as the "Parties".
NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION
PROVISION IN SECTION 21 THAT REQUIRES THE USE OF ARBITRATION ON AN
INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE
EVENT OF CERTAIN DISPUTES.
By using the Services, you accept and agree to this Agreement. If
you do not agree to be bound by the terms and conditions of this
Agreement, including the mandatory arbitration provision and class
action waiver, you should immediately cease all usage of the
Services and you are not authorized to access or otherwise use the
Services. We reserve the right, at any time, to modify, alter, or
update any provision of this agreement without prior notice.
Modifications shall become effective immediately upon being posted
on the Webpage. Your continued use of the Sites or any other
Services after amendments are posted constitutes an acknowledgement
and acceptance of the Agreement and its modifications. If you have
any questions or comments about this Agreement, please contact us.
1. SCOPE
Certain Users of the Services will have further access to the
Webpage, Platform, and Mobile Platform, and the Netchex services,
content, products, features and applications including without
limitation:
-
Users that enter into applicable agreements for Services with
Netchex ("Service Agreements") and use and access the Platform and
the Mobile Platform pursuant to such Service Agreements
("Clients");
-
Clients who create or obtain a user ID and password with Netchex
to use and access the Services directly or through one or more
authorized administrators ("Administrator Users");
-
Employees of Clients, or other Users authorized by Clients, who
create or obtain a user ID and password with Netchex to use and
access the Services ("End-Users"); and
-
End-Users who are not Administrator Users ("Regular Users").
In the event of a conflict between a Service Agreement and this
Agreement, the terms of the Service Agreement shall control the
rights and obligations of the applicable Clients and Users.
2. PRIVACY POLICY
Applicable U.S. federal and state laws govern the collection, use,
and disclosure of personal information within the Services. Our
Privacy Policy explains how personal information about you is
handled by us while providing Services to, and interacting with, our
Users. Any personal information provided to Netchex through the
Services is subject to Netchex's Privacy Policy; by accessing or
using our Services you agree that Netchex can collect, store, use,
and disclose such information in accordance with our Privacy Policy,
which is hereby incorporated into this Agreement by reference. If
you do not agree with our Privacy Policy, you should immediately
cease any use of our Services. For further information about how and
why we collect, store, use, and disclose your personal information,
please visit our
Privacy Policy.
3. USE OF SERVICES
3.1 Use Overview.
The Services are available to Users who have a registered username
and password associated with a Netchex Client (an "Account"). In
registering an Account on the Services, you represent that you are
of legal age to form a binding contract and are not a person barred
from receiving Services under the laws of the United States or other
applicable jurisdictions. Excluding the Webpage, if you do not have
a valid registered username and password or are no longer an
employee, contractor, or plan participant of the Client, you are not
authorized to use or access the Services. The Client, through its
Service Agreement(s), is providing you with access to the
information and Services under this Agreement. You are responsible
for maintaining the security of any password and username that may
grant access to non-public areas of the Services. In order to
protect you and your data, Netchex may suspend your use of the
Services, without notice if any unauthorized access or breach of
security is suspected. If you provide any information that is
untrue, inaccurate, not current or incomplete, or Netchex has
reasonable grounds to suspect that such information is untrue,
inaccurate, not current or incomplete, Netchex reserves the right to
suspend or terminate your Account and refuse any and all current or
future use by you of the Services (or any portion thereof) at any
time.
The right to use the Services is personal to you and is not
transferable by you to any other person or entity. Any attempt by a
User to transfer such User's rights shall be void and shall
constitute a breach of this Agreement. You shall not use the
Services in any unauthorized way whatsoever, including but not
limited to, by trespass or burdening or interrupting network
capacity. You acknowledge and agree you are not permitted to use any
personally identifiable information of any other person accessed
through the Services for any use not expressly permitted by a
Service Agreement. You further agree not to copy, transfer or
distribute any such personally identifiable information other than
as permitted by a Service Agreement. You further agree not to use
the Services in any manner to harass, abuse, threaten, or otherwise
infringe or violate the rights of any other party, and that Netchex
is not responsible for any such use by you.
3.2 Use by Regular Users.
Regular Users may access certain employment-related or plan-related
information and documents made available by Client to participate in
the Services. The Services may permit Regular Users to update
personal information, time records or to make benefits elections
through the Services. You acknowledge and agree that it is your
responsibility to submit information relating to the Services and to
verify the accuracy and completeness of all such information.
Netchex does not review the accuracy or completeness of the
information you submit. By using the Services to transmit your
personal information and other data, you consent to the use of your
personal information and other data as required by Netchex to
provide the Services in accordance with any applicable Service
Agreement. You acknowledge that Netchex is making the Services
available on behalf of the Client and is not acting as an advisor,
agent, fiduciary, intermediary, or a financial or benefit planner or
tax advisor. The Client is responsible for making available all
benefits and information referenced or included on the Services. You
assume all responsibility for and risk arising from your use of and
reliance upon the contents of the Services.
3.3 Use by Administrator Users.
On behalf of the Client, you may access and input certain
information relating to the Client, the Client's employees,
contractors, and/or the Client's plan participants. The information
that you input may be used and relied upon by Netchex and by the
Client's other Regular Users who access or use the Services. The
Services may permit Regular Users to make certain elections through
the Services and to update certain personal information. As an
Administrator User for the Client, you acknowledge and agree, on
behalf of the Client, that it is the Client's responsibility to
submit instructions and information relating to the Services and to
verify the accuracy and completeness of all such instructions and
information submitted by the Client and by all Regular Users.
As an Administrator User for the Client, you acknowledge and
understand, on behalf of the Client, that Netchex is merely making
the Services available and is not acting as an advisor,
broker-dealer, agent, fiduciary, intermediary, or a financial or
benefit planner or tax advisor. As an Administrator User for the
Client, you acknowledge, on behalf of the Client, that the Client is
responsible for making available all benefits and information
related thereto referenced or included on the Services.
4. SERVICES ELIGIBILITY; MINORS
General browsing of our Webpage is not intended for persons under
the age of thirteen (13). We do not collect information from
children under thirteen (13) and we specifically prohibit children
under thirteen (13) from entering any parts of the Sites or Services
where Personal Information may be collected.
The remainder of our Services are not directed to persons under the
age of eighteen (18) and do not knowingly collect any information
from persons under the age of thirteen (13), or from persons between
the age of thirteen (13) and eighteen (18) without appropriate
authorization. Please review our Privacy Policy for more information
on how we handle children's information.
Please note that if you are currently, or have been previously,
banned from any of the Services, you shall not access or use the
Sites or Services for any reason. Use of the Services is void where
prohibited.
5. ACCOUNT SECURITY
Access to and use of password protected or non-public areas of the
Services are restricted to authorized Users only. Unauthorized
access to such areas is prohibited. If you do not have a username,
you are not authorized to use or access such areas. In order to
access and use the password protected or non-public areas of the
Services, you must provide your current username and password. You
are responsible for maintaining the confidentiality of your Account
and are fully responsible for all activities that occur under your
Account. You agree to take any and all actions necessary to maintain
the privacy of your username and password, including, without
limitation, safeguarding your username and password in a private and
secure place, changing your password periodically, utilizing
multi-factor authentication, adopting special precautions when
accessing the Services from a computer that is available for use by
other users, and exiting from the Services at the end of each
session. You may not share, give, or sell your password or username
to any other person or entity. You agree that you will not access
the Services through a username and password that has not been
issued specifically to you, personally, as a Regular User or
Administrator User, without prior authorization from Netchex.
In the event that you have reason to believe that a third party has
access to your Account, you should immediately change your password
and notify [email protected] and your Client's Administrator User.
Netchex will not be liable for any loss or damage arising from any
unauthorized use of your Account, howsoever arising, including
without limitation any such use arising out of or made possible by
your failure to properly secure your Account information username
and password, sharing of your account credentials with another
person, or failure to utilize security features made available by
Netchex designed to safeguard your account (such as multi-factor
authentication).
6. TERMINATION OR SUSPENSION OF ACCOUNT OR SERVICES
You agree that Netchex may at any time and for any reason, terminate
your access to your Account or restrict or suspend your access to
all or any part of your Account at any time, for any or no reason,
with or without prior notice, and without liability.
Netchex may modify or discontinue any and all Services with or
without notice. Netchex shall not be liable to you or any third
party should Netchex exercise its right to modify or discontinue, or
interrupt access to, the Services. You acknowledge and accept that
Netchex does not guarantee continuous, uninterrupted access to the
Services and operation of the Services may be interfered with or
adversely affected by numerous factors or circumstances outside of
Netchex's control.
All licenses and other rights granted to you by this Agreement will
immediately terminate upon termination of your right to use our
Services as applicable or our termination of the Services as
applicable. This Agreement will survive and continue to apply after
any suspension, termination, or cancellation, except that your
access rights and other rights as a User will be suspended,
terminated, or canceled, respectively.
If you want to terminate the Services provided to you by Netchex,
you may do so by notifying Netchex at any time. Your notice should
be sent, in writing, to Netchex's email or mailing address set forth
in Section 25.
7. COMMUNICATIONS
The communications between you and Netchex may take place via
electronic means, whether you visit the Services or send us emails,
or whether we post notices on the Services or communicate with you
via email, telephone call, text message, or mobile push
notifications (collectively the "Communications").
When engaging in the Services (e.g., creating an Account; logging-in
to the Services, making a privacy request), you may be asked to
provide an email address and mobile phone number. The collection of
your email address and mobile phone number allows you to receive
direct Communications from us. Service-related Communications from
or on behalf of us may include but are not limited to the use of the
Services, User support, and informational communications concerning
the Services. You do not have an option to opt out of these
service-related emails, which are not promotional in nature.
You have the right to opt out of receiving marketing Communications
at any time. If you would like to discontinue receiving email
marketing Communications, you may opt out by using the "Unsubscribe"
link found in our emails, replying "STOP" to our text messages,
turning off notifications from our Services, or disabling push
notifications through your mobile device's settings.
7.1 Consent to Receive Electronic Communications
For contractual purposes, you (1) consent to receive Communications
from Netchex in an electronic form; and (2) agree that all terms and
conditions, agreements, notices, disclosures, and other
Communications that Netchex provides to you electronically satisfy
any legal requirement that such Communications would satisfy if it
were to be in writing. The foregoing does not affect your statutory
rights, including but not limited to the Electronic Signatures in
Global and National Commerce Act at 15 U.S.C. ยง7001 et seq. You
may maintain copies of electronic Communications from us by printing
a paper copy or saving an electronic copy.
You may also withdraw your consent to receive Communications in
electronic format by contacting Netchex at
[email protected] and requesting that applicable
Communications be sent to you in paper or non-electronic form.
Please note that Netchex may elect to terminate our Services to you
if you choose to receive Communications in paper or non-electronic
form.
8. TESTIMONIALS AND FEEDBACK
You acknowledge and agree that any testimonial, feedback, comment,
or suggestion you may provide regarding Netchex or the Services
("Feedback Messages") is entirely voluntary and will be considered
non-personal, non-confidential, and nonproprietary. You hereby grant
Netchex a perpetual, sublicensable, assignable, unrestricted,
worldwide, royalty-free, irrevocable license to use, reproduce,
display, perform, practice, modify, create derivative or collective
works, transmit and distribute your Feedback Messages, in whole or
in part, and including all intellectual property rights therein. To
request the removal of your Feedback Messages, please see our
Privacy Policy.
9. THIRD PARTIES AND LINKS
The Services may display, include or make available, content, data,
information, applications or materials from third parties or provide
links to certain third party websites (collectively, "Third Party
Links"). Third Party Links to other websites are provided solely as
a convenience to you.
Netchex prohibits unauthorized links to the Services and the framing
of any information contained on the Services or any portion of the
Services ("Unauthorized Links and Frames"). Netchex reserves the
right to disable any Unauthorized Links and Frames and has no
responsibility or liability for any material on other websites that
may contain links to the Services.
You acknowledge and agree that Netchex is not responsible for the
availability of, or the content of, or any other aspect of, such
Third Party Links. Netchex does not warrant or endorse and does not
assume and will not have any liability or responsibility to you or
any other person for any Third Party Links including third party
materials or websites, or for any other materials, products, or
services of third parties, or the accuracy or reliability of any
third party information provided on the Services. Netchex does not
endorse, nor makes any warranties or representations whatsoever with
regard to any product or service provided or offered by any Third
Party Link.
10. GENERAL CONTENT
For purposes of this Agreement: "Content" means text, graphics,
images, music, software, audio, video, feedback, works of authorship
of any kind, and information or other materials that are posted,
generated, provided or otherwise made available through the
Services.
Content on the Services is provided to you "AS IS". We reserve the
right to change the Services and the Netchex Content (defined below)
at any time. However, we have no obligation to update any
information on our Services. You agree that it is your
responsibility to monitor changes to our Services. We are not
responsible if information made available on the Services contains
typographical errors, is not accurate, is not complete, or is not
current. The material on the Services is provided for general
information only and should not be relied upon as the sole basis for
making decisions. Any reliance on the material on the Services is at
your own risk. Under no circumstances will Netchex be liable in any
way for any Netchex Content, including, but not limited to, any
errors or omissions in any Netchex Content, or any loss or damage of
any kind incurred at any time as a result of the use of any Netchex
Content posted, emailed, transmitted or otherwise made available via
the Services.
The Services may contain certain historical information. Historical
information may not be current and is provided for your reference
only.
11. PROTECTED CONTENT; INTELLECTUAL PROPERTY
Any actual or attempted breach of any obligation under this Section
11 is a violation of the rights of Netchex and/or its licensors and
constitutes irreparable harm.
11.1. Netchex Content
All content included or available on the Services, including
Software (defined below), text, graphics, interfaces, images,
photographs, videos, illustrations, trademarks, trade names, service
marks, logos, slogans, the selection and arrangements thereof, and
other content contained therein (collectively, the "Netchex
Content") are the property of Netchex and/or third parties and are
protected under copyright, trademark, and other laws of the United
States and, as applicable, foreign countries. Except as explicitly
stated in this Agreement or under any applicable Service Agreement,
any use of materials on the Services including reproduction,
modification, distribution, or replication, any form of data
extraction or data mining, or other commercial exploitation of any
kind, without prior written permission of an authorized officer of
Netchex is strictly prohibited. You agree that you will not use any
robot, spider, or other automatic device, or manual process to
monitor or copy Netchex's Services or the content contained therein
without prior written permission of an authorized officer of
Netchex.
NetchexSM is a proprietary mark of Netchex, and the Services design,
graphics, arrangement, and colors is Netchex's trade dress
(collectively "Service Marks"). Netchex's Service Marks may not be
used in connection with any product or service that is not provided
by Netchex, in any manner that is likely to cause confusion among
customers, or in any manner that disparages, tarnishes, or dilutes
the distinctiveness of Netchex's mark.
All other trademarks displayed on Netchex's Services are the
trademarks of their respective owners, and constitute neither an
endorsement nor a recommendation of those vendors. In addition, such
use of trademarks or links to the websites of third party vendors is
not intended to imply, directly or indirectly, that those vendors
endorse or have any affiliation with Netchex.
11.2. Intellectual Property
Netchex hereby grants you a limited, non-exclusive,
non-transferable, non-sublicensable, revocable license to access and
use the Sites, Services, and Netchex Content, as applicable;
provided, however, that such license is subject to this Agreement
and does not include any right to (1) sell or resell, license the
Sites, Services, or the Netchex Content; (2) copy, reproduce,
distribute, transmit, publicly perform or publicly display, publish
Netchex Content, except as expressly permitted by Netchex and its
licensors, as applicable; (3) modify the Netchex Content, remove any
proprietary rights notices or markings, or otherwise make any
derivative uses of the Sites, Services, or the Netchex Content; (4)
use any data mining, robots or similar data gathering or extraction
methods; or (5) use the Sites, Services, or the Netchex Content
other than for their intended purposes, except those allowed under
any applicable Service Agreement. Any use of the Sites, Services, or
the Netchex Content other than as specifically authorized herein,
without Netchex's prior written permission, is strictly prohibited
and will terminate the license granted herein.
11.3. Rights to Use Software
The software available through the Services ("Software") includes
certain computer software that is subject to copyright protection by
Netchex and/or Netchex's licensors. You agree and acknowledge that
Netchex and/or its licensors retain title to the Software and any
copies thereof. You may not copy, distribute, transmit, display,
publish, sell, resell, rent, license, create derivative works or
otherwise use any Software available on or through the Services for
any purpose, except those allowed under any applicable Service
Agreement. You are granted access to use the Software on a limited,
revocable, non-exclusive, and non-transferable basis, subject to
this Agreement. You may not decompile, reverse engineer,
disassemble, attempt to derive the source code of, modify, or create
derivative works of the Software, any updates, or any part thereof.
You agree not to modify, move, add to, delete or otherwise tamper
with the Software contained in the Services.
12. APPROPRIATE USE OF THE SERVICES
You agree to use the Services in accordance with all applicable
local, state, federal laws and regulations. You agree to abide by
these laws and not use the Services, including the software
available through the Sites ("Software") and Services, in any way
that violates such laws or regulations. You further agree not to
transmit any material through the Services that encourages conduct
that could constitute a criminal offense, give rise to civil
liability or otherwise violate any applicable local, state, or
federal law or regulation.
In addition, without limitation, you will not, directly or
indirectly, do any of the following while using or accessing the
Services:
-
engage in any harassing, threatening, intimidating, predatory, or
stalking conduct;
-
use or attempt to use another User's Account without authorization
from that User;
-
launch any automated system, including without limitation,
"robots", "spiders", or "offline readers", that accesses the
Services in a manner that sends more request messages to Netchex
servers in a given period of time than a human can reasonably
produce in the same period by using a conventional online web
browser;
-
forge any TCP/IP packet header or any part of the header
information in any email or posting, or in any way use the
Services to send altered, deceptive or false source-identifying
information;
-
use the Services in any manner that could interfere with, disrupt,
negatively affect or inhibit other Users from fully enjoying the
Services or that could damage, disable, overburden or impair the
functioning of our Services in any manner;
-
probe, scan, or test the vulnerability of any system or network or
breach or circumvent any security or authentication measures;
-
reverse engineer any aspect of the Services or do anything that
might discover source code or bypass or circumvent measures
employed to prevent or limit access to any part of the Services;
-
attempt to circumvent any content-filtering techniques we employ
or attempt to access any feature or area of our Services that you
are not authorized to access;
-
develop or use any third party applications that interact with our
Services without our prior written consent, including any scripts
designed to scrape or extract data from the Services;
-
avoid, bypass, remove, deactivate, impair, descramble or otherwise
circumvent any technological measure implemented by Netchex or any
of Netchex's service providers or any other third party to protect
the Services or Content;
-
misrepresent your identity or provide Netchex with any false
information in any information-collection portion of our Services;
-
infringe any patent, trademark, trade secret, copyright, or other
proprietary rights of any party;
-
use any meta tags or other hidden text or metadata utilizing a
Netchex trademark, logo, URL or product name without Netchex's
express written consent;
-
use the Services or Content, or any portion thereof, for any
commercial purpose or for the benefit of any third party or in any
manner not permitted by this Agreement;
-
directly or indirectly authorize anyone else to take actions
prohibited in this Agreement; or
-
use our Services for any illegal or unauthorized purpose, or
engage in, encourage or promote any activity that violates this
Agreement.
If you become aware of misuse of the Services by any person, please
contact Netchex at [email protected].
13. INTERNATIONAL USE
Due to the global nature of the Internet, the Site and other
Services can be accessed from countries around the world and may
contain references to services and content that are not available in
your country. These references do not imply that Netchex intends to
announce such services or content in your country. The Services are
controlled and offered by Netchex from its facilities in the United
States. Netchex makes no representations that the Services are
appropriate or available for use in other locations. Those who
access or use the Services from other countries do so at their own
risk and are responsible for compliance with local law.
14. SERVICES UPDATES
We may from time to time, in our sole discretion (without
obligation), develop and provide updates for our Services, which may
include error corrections and/or new features (collectively,
"Updates"). Updates may also modify or delete in their entirety
certain features and functionality. You agree that Netchex has no
obligation to provide any Updates or to continue to provide or
enable any particular features or functionality. For clarity, all
Updates are part of the Services and subject to this Agreement.
15. REMEDIES
15.1. Violations
If Netchex becomes aware of any possible violations by you of this
Agreement, Netchex reserves the right to investigate such
violations. If, as a result of the investigation, Netchex believes
that criminal activity has occurred, Netchex reserves the right to
refer the matter to, and to cooperate with, any and all applicable
legal authorities. Netchex is entitled, except to the extent
prohibited by applicable law, to disclose any information or
materials on or in the Services, in Netchex's possession in
connection with your use of the Services, to (1) comply with
applicable laws, legal process or governmental request; (2) enforce
this Agreement, (3) respond to any claim stating a User has violated
the rights of third parties, (4) respond to your requests for User
support, or (5) protect the rights, property or personal safety of
Netchex, its Users or the public, and all enforcement or other
government officials, as Netchex in its sole discretion believes to
be necessary or appropriate.
15.2. Breach
In the event that Netchex determines, in its sole discretion, that
you have breached any portion of this Agreement, or have otherwise
demonstrated conduct inappropriate for the Services, Netchex,
without limitation, reserves the right to:
-
Warn you via email (to any email address you have provided to
Netchex) that you have violated this Agreement;
-
Delete any of your Content provided by you or your agent(s) to the
Services;
- Suspend your Account with any of the Services;
- Terminate your Account with any of the Services;
-
Notify or send content to or fully cooperate with the proper law
enforcement authorities for further action; and/or
- Pursue any other action which Netchex deems appropriate.
16. DISCONTINUATION OF SERVICES
YOUR USE OF THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT,
AND ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS,
OR THIRD PARTY CONTENT IS AT YOUR SOLE DISCRETION AND RISK. THE
SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, AND ANY NETCHEX
CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY
CONTENT, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT
WARRANTIES OF ANY KIND.
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, NETCHEX AND ITS
LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY
KIND, EXPRESS, IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY,
OR OTHERWISE RELATING TO THE SERVICES, THIRD PARTY LINKS, THIRD
PARTY CONTENT, AND ANY NETCHEX CONTENT INCLUDED IN THE SERVICES,
THIRD PARTY LINKS OR THIRD PARTY CONTENT INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE
OF DEALING, COURSE OF PERFORMANCE, REDHIBITION, OR SATISFACTORY
QUALITY.
WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER
CONTENT OR THIRD PARTY CONTENT AVAILABLE ON OR LINKED TO BY OUR
SERVICES. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE, AND YOU
AGREE NOT TO SEEK TO HOLD US LIABLE, FOR THE CONDUCT OF THIRD
PARTIES, INCLUDING OPERATORS OF EXTERNAL WEBSITES, AND THAT THE RISK
OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, (1) THE
SECURITY, ACCURACY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE
SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX
CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY
CONTENT INCLUDING, BUT NOT LIMITED TO, ANY NETCHEX CONTENT OR ITS
APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES, OR (2) THAT THE
SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX
CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY
CONTENT WILL BE FREE OF ERRORS, VIRUSES, MALWARE, TROJAN HORSES OR
ANY OTHER MALICIOUS SOFTWARE OR CODE, OR THAT IT WILL FUNCTION OR
OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR THIRD PARTY SERVICE
OR THAT ANY ERRORS WILL BE CORRECTED. NETCHEX FURTHER DISCLAIMS ANY
WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICES
WILL MEET YOUR NEEDS OR IS SUITABLE FOR ITS INTENDED PURPOSE.
OUR SERVICES, AND ANY NETCHEX CONTENT INCLUDED IN THESE SERVICES,
THIRD PARTY LINKS, OR THIRD PARTY CONTENT ARE DEVELOPED FOR USE IN
THE UNITED STATES OF AMERICA AND NETCHEX AND ITS APPLICABLE
LICENSORS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY
CONCERNING THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR
ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR
THIRD PARTY CONTENT WHEN THEY ARE USED IN ANY OTHER COUNTRY.
NO ADVICE OR INFORMATION PROVIDED TO YOU BY NETCHEX WILL CREATE ANY
WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME
JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS,
SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR
AGREEMENT WITH YOU UNDER THIS AGREEMENT. IN SUCH EVENT THE
EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW.
18. LIMITATION OF LIABILITY
IN NO EVENT WILL NETCHEX AND ITS LICENSORS, AFFILIATES, AND
RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS,
AGENTS AND REPRESENTATIVES, (COLLECTIVELY, "NETCHEX PARTIES") BE
LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT
LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED
(I) LOST PROFITS LOSSES ARISING FROM THE FAILURE TO RECEIVE ANY
BENEFITS, (II) ANY TRADING LOSSES, (III) LOSSES ARISING FROM THE USE
OR THE INABILITY TO USE THE SOFTWARE AND/OR THE SERVICES, (IV)
LOSSES ARISING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR
TRANSMISSIONS OR DATA, OR (V) LOSS OF INFORMATION, PROGRAMS OR OTHER
DATA THAT RESULT FROM ACCESS TO, USE OF, OR INABILITY TO USE THESE
SERVICES OR DUE TO ANY BREACH OF SECURITY ASSOCIATED WITH THE
TRANSMISSION OF INFORMATION THROUGH THE INTERNET, OR INABILITY TO
USE THE SOFTWARE AND/OR SERVICES OR DUE TO ANY UNAUTHORIZED ACCESS
OR BREACH OF SECURITY, WHETHER IN AN ACTION IN CONTRACT, TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY, OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR
RESULTING FROM RELIANCE ON INFORMATION OBTAINED THROUGH THE
SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR FROM THE
CONDUCT OF YOU OR ANYONE ELSE (INCLUDING BUT NOT LIMITED TO BODILY
INJURY, DEATH OR PROPERTY DAMAGE), WHETHER ONLINE OR OFFLINE,
ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, THIRD
PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX CONTENT INCLUDED IN
THESE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT, WHETHER
THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT NETCHEX HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IF YOU ARE
DISSATISFIED WITH THE SERVICES, THIRD PARTY LINKS, THIRD PARTY
CONTENT, OR ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD
PARTY LINKS, THIRD PARTY CONTENT, OR THIS AGREEMENT, YOUR SOLE AND
EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IF THE
FOREGOING IS NOT ENFORCEABLE AGAINST YOU, IN NO EVENT WILL THE
CUMULATIVE LIABILITY OF THE NETCHEX PARTIES TO YOU, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (a) THE
AGGREGATE AMOUNT YOU PAID NETCHEX TO ACCESS OR USE THE SERVICES IN
THE MOST RECENT TWELVE-MONTH PERIOD, OR (b) $50.
EXCEPT FOR NETCHEX'S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS
SET FORTH IN THE
NETCHEX WEBSITE PRIVACY NOTICE, NETCHEX ASSUMES NO RESPONSIBILITY
FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY
CONTENT, INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS
OF THE BASIS OF THE BARGAIN BETWEEN NETCHEX AND YOU.
SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE
WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR
AGREEMENT WITH YOU UNDER THIS AGREEMENT. IN SUCH AN EVENT THE
LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW.
19. INDEMNIFICATION
You will indemnify, defend, and hold harmless the Netchex Parties
from and against any and all claims, causes of action, demands,
liabilities, losses, costs, or expenses (including, but not limited
to, reasonable attorneys' fees and expenses) arising out of or
relating to any of the following matters:
-
your access to or use of the Services, third party links, or third
party content, or any Netchex Content included in the Services,
third party links, or third party content;
- your Content;
-
your violation of any of the provisions of this Agreement or any
applicable Service Agreement;
-
your violation of any applicable laws, rules, or regulations;
- your conduct in connection with the Services;
-
any use of the Services using your Account username and password,
including unauthorized use due to your failure to properly
safeguard your Account credentials in accordance with this
Agreement; or
-
your violation of any third party right, including, without
limitation, any intellectual property right, publicity,
confidentiality, property, or privacy right.
Netchex reserves the right, at our own expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by you, in which event you will cooperate with us in
asserting any available defenses.
This Section does not require you to indemnify any of the Netchex
Parties for any unconscionable commercial practice by such party or
for such party's fraud, deception, false promise, misrepresentation
or concealment, suppression, or omission of any material fact in
connection with the Services provided hereunder. You agree that the
provisions in this Section will survive any termination of your
Account, this Agreement, or your access to the Services.
20. RELEASE
To the fullest extent permitted by applicable law, you release
Netchex and the other applicable Netchex Parties from
responsibility, liability, claims, demands, and/or damages (actual
and consequential) of every kind and nature, known and unknown
(including, but not limited to, claims of negligence), arising out
of or related to disputes between Users and the acts or omissions of
third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE
ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE ยง 1542 AS
WELL AS ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD
OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE
CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE
TIME OF AGREEING TO THIS RELEASE.
21. DISPUTE RESOLUTION; BINDING ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU
TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH NETCHEX AND LIMITS THE
MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
21.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action,
demands, or other similar legal proceedings (collectively,
"Disputes") arising out of or related to a violation of Section 12
or Disputes in which either Party seeks to bring an individual
action in small claims court or seeks injunctive or other equitable
relief for the alleged unlawful use of intellectual property,
including, without limitation, copyrights, trademarks, trade names,
logos, trade secrets or patents, you and Netchex agree (1) to waive
your and Netchex's respective rights to have any and all Disputes
arising from or related to this Agreement, or the Services, resolved
in a court, and (2) to waive your and Netchex's respective rights to
a jury trial. Instead, you and Netchex agree to arbitrate Disputes
through binding arbitration (which is the referral of a Dispute to
one or more persons charged with reviewing the Dispute and making a
final and binding determination to resolve it instead of having the
Dispute decided by a judge or jury in court).
21.2. No Class Arbitrations, Class Actions, or Representative
Actions
You and Netchex agree that any Dispute arising out of or related to
this Agreement or the Services is personal to you and Netchex and
that such Dispute will be resolved solely through individual
arbitration and will not be brought as a class arbitration, class
action, or any other type of representative proceeding. You and
Netchex agree that there will be no class arbitration or arbitration
in which an individual attempts to resolve a Dispute as a
representative of another individual or group of individuals.
Further, you and Netchex agree that a Dispute cannot be brought as a
class or other type of representative action, whether within or
outside of arbitration, or on behalf of any other individual or
group of individuals. The arbitrator does not have the power to vary
these class action waiver provisions.
21.3. United States Federal Arbitration Act
You and Netchex agree that this Agreement affects interstate
commerce and that the enforceability of this Section 21 shall be
both substantively and procedurally governed by and construed and
enforced in accordance with the United States Federal Arbitration
Act, 9 U.S.C. ยง 1 et seq. (the "FAA"), to the maximum extent
permitted by applicable law.
You and Netchex agree that each Party will notify the other Party in
writing of any arbitrable or small claims Dispute within thirty (30)
days of the date it arises so that the Parties can attempt in good
faith to resolve the Dispute informally. Notice to Netchex shall be
sent by certified mail or courier to the mailing address stated in
Section 25. Your notice must include (1) your name, postal address,
telephone number, and an email address at which you can be
contacted, (2) a description in reasonable detail of the nature or
basis of the Dispute, and (3) the specific relief that you are
seeking. Our notice to you will be sent electronically in accordance
with Section 7.1 and will include (1) our name, postal address,
telephone number, and an email address at which we can be contacted
with respect to the Dispute, (2) a description in reasonable detail
of the nature or basis of the Dispute, and (3) the specific relief
that we are seeking. If you and Netchex cannot agree on how to
resolve the Dispute within thirty (30) days after the date notice is
received by the applicable Party, then either you or Netchex may, as
appropriate and in accordance with this Section 21, commence an
arbitration proceeding or, to the extent specifically provided for
in Section 21.1, file a claim in court.
21.5. Process
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF
SECTION 12 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN
INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER
EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL
PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS,
TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND NETCHEX AGREE
THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR NETCHEX WITHIN
ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING
CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND NETCHEX WILL
NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE
DISPUTE). You and Netchex agree that (1) any arbitration will occur
in the U.S. State of Louisiana, (2) arbitration will be conducted
confidentially by a single arbitrator in accordance with the rules
of the Judicial Arbitration and Mediation Services ("JAMS"), which
are hereby incorporated by reference, and (3) that the state or
federal courts of the State of Louisiana and the United States,
respectively, sitting in the State of Louisiana, have exclusive
jurisdiction over any appeals and the enforcement of an arbitration
award.
21.6. Authority of Arbitrator
As limited by the FAA, this Agreement, and the applicable JAMS
rules, the arbitrator will have (1) the exclusive authority and
jurisdiction to make all procedural and substantive decisions
regarding a Dispute, including the determination of whether a
Dispute is arbitrable, and (2) the authority to grant any remedy
that would otherwise be available in court; provided, however, that
the arbitrator does not have the authority to conduct a class
arbitration or a representative action, which is prohibited by this
Agreement. The arbitrator may only conduct an individual arbitration
and may not consolidate more than one individual's claims, preside
over any type of class or representative proceeding or preside over
any proceeding involving more than one individual. Notwithstanding
any other provision of this Section 21, any and all issues relating
to the scope, interpretation, and enforceability of the class action
waiver provisions contained in this Section 21, are to be decided
only by a court of competent jurisdiction, and not by the
arbitrator.
21.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are
available on the JAMS website. By agreeing to be bound by this
Agreement, you either (1) acknowledge and agree that you have read
and understand the rules of JAMS, or (2) waive your opportunity to
read the rules of JAMS and any claim that the rules of JAMS are
unfair or should not apply for any reason.
21.8. Severability
If any term, clause, or provision of this Section 21 is held invalid
or unenforceable, it will be so held to the minimum extent required
by law, and all other terms, clauses, and provisions of this Section
21 will remain valid and enforceable. Further, the waivers set forth
in Section 21.2 are severable from the other provisions of this
Agreement and will remain valid and enforceable, except as
prohibited by applicable law.
21.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty
(30) days of the date you first accepted this Agreement by writing
to: [email protected]. In order to be effective, the
opt-out notice must include your full name and clearly indicate your
intent to opt out of binding arbitration. By opting out of binding
arbitration, you are agreeing to resolve Disputes in accordance with
Section 22. If you do not provide Netchex 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 this Section 21.
21.10. Survival of Agreement
The terms herein Section 21 will survive the termination of your
relationship with Netchex.
22. GOVERNING LAW; VENUE
This Agreement and all matters arising out of or relating to this
Agreement, and any Disputes between you and Netchex arising out of
or relating to this Agreement-whether sounding in contract, tort,
statute, regulation or otherwise, and including but not limited to
those arising out of or relating to this Agreement-shall be governed
by, construed, interpreted and enforced in accordance with the
substantive and procedural laws of the state of Louisiana, without
giving effect to any choice of law or conflict of laws rules or
provisions, regardless of where any action may be brought.
Furthermore, if such Disputes are not subject to arbitration or
cannot be heard in small claims court, then You and Netchex each
irrevocably agree that such Disputes shall be resolved on an
individual basis exclusively in the jurisdiction of the state and
federal courts of St. Tammany Parish in the state of Louisiana. You
and Netchex each irrevocably consent to the exclusive personal
jurisdiction of such courts and waive any and all objections to the
exercise of jurisdiction by such courts, including any claim that
any Dispute (including any tort claim) has been brought in an
inconvenient forum or that the venue of that proceeding is improper.
Notwithstanding anything to the contrary in this Agreement, you and
Netchex agree that Netchex may commence and maintain an action or
proceeding seeking injunctive or other equitable relief in any court
of competent jurisdiction. If any provision of this Agreement is
found by a court of competent jurisdiction to be invalid, the
Parties nevertheless agree that the court should endeavor to give
effect to the Parties' intentions as reflected in the provision, and
the other provisions of this Agreement remain in full force and
effect.
23. ACCESSIBILITY
If you would like to receive this Agreement in different format
(e.g., audio), please contact us (see Section 25 below).
24. MISCELLANEOUS
24.1. Additional Terms
This Agreement shall apply in addition to, and shall not be
superseded by, any other written agreement between us in relation to
any participation as Regular User or Administrative User, as
applicable.
The Services may contain typographic errors or other inaccuracies
and may not be complete or current. Netchex reserves the right, but
does not have the obligation, to correct any errors, inaccuracies,
or omissions and to change or update information at any time without
prior notice to you. Netchex may refuse to provide services that are
based on inaccurate or erroneous information on the Services,
including, without limitation, incorrect or out-of-date information
regarding pricing, payment terms, or for any other lawful reason.
24.3. Force Majeure
We shall not be liable for any delay or failure to perform resulting
from causes outside our reasonable control, including, but not
limited to, acts of God, acts or decrees of governmental agencies,
pandemics, epidemics, war, terrorism, riots, embargos, acts of civil
or military authorities, fire, floods, accidents, strikes or
shortages of transportation facilities, fuel, energy, labor or
materials.
24.4. Modification
We reserve the right to change this Agreement at any time. Any
changes that we make will become a part of our agreement with you
under this Agreement when they are posted on our Services. Your
continued use of our Services will constitute your agreement to the
changes we have made.
24.5. Section Titles
The titles of the Sections of this Agreement are for convenience
only and will have no legal or contractual effect.
24.6. Assignment
This Agreement and any rights and licenses granted hereunder, may
not be transferred or assigned by you. This Agreement may be
assigned by Netchex without restriction including, in our sole
discretion, to a third party in the event of a merger, acquisition,
or sale of assets.
24.7. Integration Clause
This Agreement and any applicable Service Agreement, along with any
additional terms and conditions incorporated herein, constitute the
entire agreement between you and us relating to our Services and the
Netchex Content, replacing any prior or contemporaneous agreements,
whether written or oral, unless you have signed a separate written
agreement with us relating to our Services or the Netchex Content.
If there is any conflict between this Agreement and a separate
signed written agreement between you and us relating to our Services
or the Netchex Content, the signed written agreement will control.
24.8. Waiver and Severability of Terms
The failure by you or us to enforce any provision of this Agreement
will not constitute a waiver. If any court of law, having the
jurisdiction to decide the matter, rules that any provision of this
Agreement is invalid or unenforceable, then the invalid or
unenforceable provision will be removed from this Agreement or
reformed by the court and given effect so as to best accomplish the
essential purpose of the invalid or unenforceable provision, and all
of the other provisions of this Agreement will continue to be valid
and enforceable. Nothing contained in this Agreement will limit the
ability of a Party to seek an injunction or other equitable relief
without posting any bond.
24.9. Survival
In the event that any provision of this Agreement is determined to
be unlawful, void, or unenforceable, such provision shall
nonetheless be enforceable to the fullest extent permitted by
applicable law, and the unenforceable portion shall be deemed to be
severed from this Agreement, such determination shall not affect the
validity and enforceability of any other remaining provisions.
24.10. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any
claim or cause of action arising out of or related to use of the
Services, or the agreement under this Agreement must be filed within
one (1) year after such claim or cause of action arose or be forever
barred.
If you have any questions, concerns, or requests about our
Conditions of Use, please contact us using our contact details
below. You may contact us by telephone number, physical mail, and
electronic mail. We hope to resolve any issues you might have.