FLEXCHARGE END-USER TERMS OF SERVICE
These end-user terms of service (“Terms”) constitute a binding and enforceable legal contract between FlexCharge Inc. (“FlexCharge”, “we”, “us”) and you (“End-User”, “Customer”, “You”) each time you use the FlexCharge Services.
Your use of the Services constitutes your agreement with these Terms, so please be sure to read these Terms carefully each time you use the Services. If you do not agree to these Terms, you cannot use any of our Services. By accepting these Terms electronically or by using the Services, you agree to these Terms.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND FLEXCHARGE AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND FLEXCHARGE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU HAVE THE RIGHT TO OPT OUT AS DETAILED IN THE ARBITRATION SECTION BELOW.
1. THE SERVICES
Subject to these Terms, FlexCharge shall provide Customer with a checkout flow integrated within an online commercial platform (“Merchant Website”) from which the Customer has purchased the goods or services (“Transaction”) offered by a third party (“Merchant”). Subject to its sole discretion, FlexCharge shall Purchase Customer’s invoice(s) from Merchant in connection with the Transaction, thereby enabling Customer to complete the Transaction directly through FlexCharge (Collectively, the “Services”).
It is hereby clarified, FlexCharge provide financial services and is not liable for the good and services, the shipment or for providing any refund to returns. In such case, please contact directly the applicable Merchant. In accordance with the above, FlexCharge shall have no responsibility or liability for any consequences resulting from your interactions or contracts with Merchants. FlexCharge is not responsible for the goods and services purchased, the delivery or any other matter which should be raised with the applicable Merchant. FlexCharge does not endorse, recommend, or bear any responsibility or liability for any products, services or statements presented by Merchants. Notwithstanding the above, you agree to fully release the Merchant from any and all claims, obligations or remedies you may have against the Merchant with respect to the Services.
2. NOTICE OF ASSIGNMENT AND DISCLOSURE
These Terms constitute a written assignment notice and disclosure of the assignment terms which apply to any debt owed by the Customer to the Merchant.
Notwithstanding the above, FlexCharge is an independent, third-party service provider that is not affiliated with any Merchant. Customer acknowledges and agrees that Customer's use of the Services does not in any way constitute a tri-party agreement between Customer, FlexCharge and any Merchant.
To clarify, you understand and acknowledge that the payment related to the Transaction will not be processed by the Merchant and that FlexCharge will be processing the payment instead of the Merchant. You will be billed just the amount of the Transaction; no fees are added by FlexCharge.
You further are aware that the Transaction will appear in your monthly billing statement as conducted by FlexCharge and not directly by the Merchant. Further, once FlexCharge is able to complete the Transaction, and if technically possible, FlexCharge will send you an electronic message confirming the completion of the Transaction.
3. RESTRICTIONS OF USE
By using the Services, you represent and warrant that you are at least 18 years of age and that you will not use the Services for any fraudulent, unlawful or abusive purpose. Customer agrees to comply with all applicable laws, rules and regulations, including those regarding data privacy, intellectual property rights and export control. Customer may not, whether by itself or anyone on its behalf (a) sell, resell, or lease the Services or access or attempt to access the Services by any means other than the interface we provided or authorized; (b) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (c) use the Services to store, share or transmit content which is unlawful, infringing, harmful or which violates any person’s rights, including privacy rights and intellectual property rights; (d) attempt to disable, impair, or destroy the Services; or (e) reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.
4. BACKGROUND CHECKS
FlexCharge uses proprietary analysis tools to evaluate your ability to successfully complete your payments with FlexCharge. Customer hereby agrees and consents that FlexCharge may perform an initial background check (and subsequent periodic follow-up checks) on Customer to determine whether FlexCharge is willing to approve the purchase of the Customer’s invoices from Merchants (each a “Background Check”).
Each Background Check may, without limitation, include a review of the following information, which Customer hereby expressly authorizes and consents to: (i) Customer Data (as detailed and defined below); (ii) credit history, including a hard/soft pull of a personal or business credit score or credit report from one or more credit bureaus. FlexCharge's standard offering should not have a negative effect on your credit scores; (iii) Customer data transmitted by Merchants; (iv) information that is publicly available about Customer; (v) information from public or private sources that we obtain directly or from third party service providers including banks and payment processors.
Customer agrees to cooperate with FlexCharge with respect to Background Checks and shall promptly, upon request, provide (or sign) any information, documentation or consent that we may require to perform a Background Check. Customer acknowledges that any failure to provide the foregoing information and said cooperation may preclude Customer from being able to complete the Transaction with Merchant through the Services.
5. TRANSACTIONS
THERE ARE NO FINANCE CHARGES AND NO INTEREST PAYMENT ASSOCIATED WITH THE SERVICES OFFERED BY FLEXCHARGE.
Without derogating from the above, you acknowledge that the issuer of your preferred method of payment may charge interest or other charges in accordance with the issuers’ terms and conditions and FlexCharge will not be liable for these additional charges.
Furthermore, failure to comply with these Terms may incur additional fees and charges, and FlexCharge will not be liable for.
FlexCharge will convert any purchase made in foreign currency into U.S dollars based on the conversion rate as of the end of the prior business day. The conversion rate is provided by a third party and may differ from other exchange rates.
6. PRE-AUTHORIZATION
As part of our assessment, we reserve the right to conduct a pre-authorization transaction (“pre-auth”) which is a temporary hold placed by FlexCharge reserved for future payment of the Transaction. The pre-authorization amount will not exceed your payment amount owed to us for the applicable Transaction. This hold usually lasts up to 5 days, depending on the issuer, or until we settle the Transaction.
7. CUSTOMER DATA
Customer agrees that, solely for the purpose of providing the Services, FlexCharge may collect, use, store and transmit technical and related information that identifies Customer, including but not limited to the Internet Protocol Address, Transaction information, Background Check data, contact information and billing information, all as detailed in the FlexCharge Privacy Policy (“Customer Data”). The Customer Data, including any intellectual property rights thereto, shall remain the sole and exclusive property of the Customer, and shall be subject to the confidentiality obligations set forth herein. FlexCharge may collect Customer Data, and Customer hereby grants FlexCharge permission to collect Customer Data in accordance with the terms hereof and subject to the FlexCharge Privacy Policy.
8. INTELLECTUAL PROPERTY RIGHTS
FlexCharge owns all rights, title and interest (including intellectual property rights) in and to the Services, our website and technology. If you choose to give us feedback or suggestions about any part of our Services, website or technology we may use them without any limitations.
9. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY.
FLEXCHARGE PROVIDES THE SERVICES ON AN “AS IS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND FLEXCHARGE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. FLEXCHARGE FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLEXCHARGE’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED 10 US DOLLARS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL FLEXCHARGE BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT FLEXCHARGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LIMITATION ON LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FLEXCHARGE OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF THE SERVICES, INCLUDING THE UNAVAILABILITY OF THE SERVICES FOR ANY REASON, OR ANY SYSTEM FAILURE OR MALFUNCTION ASSOCIATED WITH THE SERVICES, AND INCLUDING ANY THIRD PARTY CLAIMS, WHETHER BASED ON THEORIES OF BREACH OF CONTRACT, TORT, PRODUCT LIABILITY, OR BREACH OF WARRANTY. THESE LIMITATIONS OF LIABILITY WILL APPLY EVEN IF FLEXCHARGE IS ADVISED ON THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
11. TERM AND TERMINATION
Each time you use our Services, you will be bound by the Terms in force at that time. We may terminate our agreement with you or suspend your access to any part of our Services at any time if you have breached any of these Terms or if we believe we are required to do so by law. You may terminate your agreement with us at any time. Termination does not exempt you from the obligation to pay any payment due in connection with the use of the Services. We may update these Terms at any time and the changes will be published on our website. Any changes are effective immediately on posting.
12. GOVERNING LAW AND JURISDICTION.
These Terms are governed by the laws of the State of California, without regard to conflict of law principles. Subject to Section 13, which provides that disputes are to be resolved through binding arbitration or small claims court, to the extent that any lawsuit or court proceeding is permitted hereunder, you and FlexCharge agree to submit to the exclusive personal jurisdiction of the state courts and federal courts located within San Francisco County, California, for the purpose of litigating all such disputes. We operate the Services from our offices in California, and we make no representation that information and materials included in the Services are appropriate or available for use in other locations.
13. ARBITRATION, CLASS ACTION WAIVER
If you have a concern, please first contact us directly- we will try to resolve it. In the interest of resolving disputes between you and FlexCharge in the most expedient and cost-effective manner, you and FlexCharge agree to resolve disputes through binding arbitration or small claims court instead of in courts of general jurisdiction (“Agreement to Arbitrate”). You and FlexCharge agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. Arbitrators can award the same damages and relief that a court can award. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and FlexCharge do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or FlexCharge may commence an arbitration proceeding. Any arbitration between you and FlexCharge will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
In the event that you commence arbitration in accordance with these Terms, FlexCharge will, at your request, reimburse you for your payment of the arbitration filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any request for payment of fees by FlexCharge should be submitted by mail to the AAA along with your Demand for Arbitration and FlexCharge will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), you agree to reimburse FlexCharge for all fees associated with the arbitration paid by FlexCharge on your behalf that you otherwise would be obligated to pay under the AAA’s rules. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. Any in-person arbitration hearings will take place at a location to be agreed upon in San Francisco County, California. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. You acknowledge and agree that the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that individual party’s claim(s). Any relief awarded cannot affect other users. YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, YOU AND FLEXCHARGE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding the above, you and FlexCharge agree that no statement herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in any competent court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
If you are a new FlexCharge user, you can choose to reject the arbitration agreement contained in this Section (“Opt-Out”) by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept these Terms for the first time. The Opt-Out Notice must contain your name, and the username(s) and email address(es) associated with the Transaction or the FlexCharge Services. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Terms will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with FlexCharge.
If an arbitrator or court decides that any part of this Section is invalid or unenforceable, the other parts of this Section shall still apply. If the entirety of this Section 13 is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 12 shall govern any action arising out of or related to these Terms, and that the remainder of the Terms will continue to apply.
14. GENERAL
These Terms set the entire agreement between the Customer and FlexCharge in relation to the Services. You may not transfer your rights under these Terms to any third party without our written consent. If there is any conflict between these Terms and terms that apply to additional services, these Terms will prevail in the conflict. If any part of these Terms is invalid, that part of the Terms shall be modified to make it valid, or deemed deleted if it is not possible to modify the term. This will not affect the rest of the Terms. A failure or delay by either of us in exercising any right or remedy under these Terms or by law shall not be a waiver of that or any other right or remedy. A waiver of any right or remedy under these Terms or by law is only effective if it is in writing. These Terms control the relationship between FlexCharge and you. They do not create any third party rights- these Terms are not intended and shall not be construed to create any rights or remedies in any parties other than you and FlexCharge, and no other person will have the ability to assert any rights as a third party beneficiary under these Terms. These Terms of Service do not limit any rights that FlexCharge may have under trade secret, copyright, patent or other laws. We may transfer, assign or sell this Agreement, and any rights under this Agreement, to a third party without your consent. You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. You hereby waive demand, notice of non-payment, protest and all other notices or demands whatsoever, and hereby consent that without notice to and without releasing the liability of any party, the obligations evidenced by this Agreement may from time to time, in whole or part, be renewed, extended, modified, accelerated, compromised, settled, canceled or released by us.