Last updated: October 31, 2022
CardFlight, Inc. (“CardFlight”, “we”, “us” or “our”) owns and operates the SwipeSimple card reader and payment gateway (“SwipeSimple”). SwipeSimple is a mobile payment acceptance solution that integrates with a merchant’s existing business.
Please read these Terms of Service (collectively with the SwipeSimple Privacy Policy https://home.swipesimple.com/privacy-policy and DMCA Copyright Policy (below), the “Terms of Service”) fully and carefully before using https://home.swipesimple.com (the “Site”), the SwipeSimple application (the “Application”), and the services, features, content, products or applications offered by CardFlight (together with the Site and the Application, the “Services”) to ensure that you understand each provision. In addition to the terms of your Order Agreement (defined below), these Terms of Service set forth the legally binding terms and conditions for your use of the Services. THESE TERMS OF SERVICE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
The Services are made available only in the United States and may only be accessed or used by you from within the United States.
1. Acceptance of Terms of Service.
a. By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies, and procedures that may be published from time to time on the Site or through the Services by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
b. Your use of and access to the Services may be subject to your compliance with the terms of the agreement through which you obtained SwipeSimple hardware (“Order Agreement”), either from CardFlight or a reseller. Certain of the Services may also be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference. In addition, your use of the Services is subject to any law, rule, regulation, ordinance, code or order to which govern or affect the Services or under which a party may exercise rights, including those relating to automated clearing house (ACH) transfers, electronic funds transfer, or privacy and security, and any export laws and regulations of the United States, as any or all of the foregoing may be amended and in effect from time to time, all of which are incorporated herein by this reference. If you do not agree or are not willing to be bound by these Terms of Service, you should not seek to obtain or use the Services.
c. If you are using the Services on behalf of a business, you represent and warrant that you have the authority to agree to these Terms of Service on its behalf.
2. Eligibility.
a. You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules, and regulations applicable to you, and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. By creating an Account, you represent and warrant that you will not use the Services in connection with business or business activities associated with any illegal activities or goods. We reserve the right to verify all users of the Services, regardless of whether or not you sign up for an Account directly with us, or at all. By using the Services and/or signing up for an Account, you authorize us to review any information you submit and to share information about you and your Account with our processors, banks, or other financial institutions in accordance with our Privacy Policy at https://home.swipesimple.com/privacy-policy.
3. Registration.
To sign up for the Services, you must register for an active account on the Services (an “Account”). Subject to your compliance with the terms of your Order Agreement, either we or our business partner through whom you obtain your SimpleSwipe Hardware (defined below) will assist you with registering for an Account. You must provide accurate and complete information and keep your Account information updated. Once we create your Account on the Services, you will have the ability to add additional authorized users to your Account (“Employee Accounts”). You are solely responsible for the activity that occurs on your Account, including any activity that occurs on Employee Accounts, whether or not authorized by you, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security, or unauthorized use of your Account. You should never publish, distribute, or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
4. Handling of Funds.
In some cases, providing you with the Services may require holding, receiving, and disbursing funds on your behalf. You hereby authorize us to hold, receive, and disburse funds on your behalf to the extent that we reasonably believe necessary to provide the Services.
5. Other Requirements for Use.
a. Devices.
The Services are intended for use on compatible mobile devices. Although the Services should be compatible with most standard mobile devices and carriers, we do not warrant that the Services will be compatible with your mobile device or third party carrier. Furthermore, devices are not considered compatible mobile devices when they are modified contrary to the manufacturer’s software or hardware guidelines. These modifications can disrupt your ability to properly use the Services and may also pose security risks to you, us, and other users, and include but are not limited to the disabling of hardware or software controls (also known as “jailbreaking”). You acknowledge that using and/or accessing the Services on any modified device is expressly prohibited, constitutes a violation of these Terms of Services, and is grounds for termination of your Account. Your use of the Services may be subject to the terms of any agreements you have with your mobile device manufacturer and your mobile service carrier.
b. Cards and Networks.
i. Currently, the Services can process transactions involving most, but not all, cards issued by Visa, MasterCard, American Express, or Discover (each an example of a “Network”) (collectively, the cards shall be referred to as “Accepted Cards”). We may change the list of Accepted Cards with or without prior notice to you.
ii. By using the Services and accepting payments from certain Networks, you agree to also comply with those Networks’ bylaws, rules, and regulations (“Network Rules”). Please carefully read Network rules to ensure that you comply. Networks may change their rules and regulations from time to time, and it is your responsibility to review Network rules and regulations frequently.
iii. If you are a merchant, in order to use the Services, you must also have a valid merchant agreement with an authorized payment service provider (“Merchant Agreement”), and you represent and warrant that you will only use the Services in a manner that is permitted by such Merchant Agreement.
c. Additional Transaction Requirements.
If you are a merchant user, you agree, in accordance with requirements set forth in any and all Network Rules and/or Merchant Agreement(s) applicable to you, to (i) require consumers making in-person payments through your SwipeSimple payment gateway (each, a “Customer”) to sign for any and all transactions where required and (ii) to make written receipts available to every Customer.
d. Taxes.
You are solely responsible for determining the amount of, collecting, withholding, reporting, and remitting any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with your use of our Services, including our Hardware (“Taxes”). We specifically disclaim any liability for Taxes and will not calculate, collect, apply, report or remit any Taxes on your behalf or in connection with any transaction.
6. Content.
a. Use License.
Subject to your compliance with these Terms of Service and any applicable Additional Terms, we grant you a limited, non-exclusive, revocable, non-sublicensable and non-transferable license to access and use the Services solely to accept and receive mobile payments or as otherwise expressly authorized by us. The Services include our software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto, and hardware products provided to you by us. The Services are licensed and not sold. We reserve all rights not expressly granted to you in these Terms of Service or your Order Agreement.
b. Your Content.
In connection with your Account and your use of the Services, you may be able to upload or provide photos, logos and other materials or information (“User Content”). You agree that you will not upload or provide any User Content unless you have created that content yourself or you have permission from the content owner to do so. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, and prepare derivative works of the User Content in connection with the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds). For clarity, the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
c. Information You Receive From Others.
You may receive information from other users or third parties in connection with your use of the Services. You are strictly required to keep such information confidential and you may use such information solely in connection with the Services. Unless you have received express consent from the party who provided such information to you, you may not under any circumstances use the information for marketing purposes or disclose or distribute any other user’s or third party’s information to another third party.
7. Rules of Conduct.
a. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your and your end users’ activity in connection with the Services.
b. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any User Content on or through the Service that:
i. infringes any patent, trademark, trade secret, copyright, right of privacy or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy below);
ii. you know is false, misleading, untruthful or inaccurate;
iii. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or is otherwise inappropriate as determined by us in our sole discretion;
iv. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
v. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
vi. impersonates any person or entity, including any of our employees or representatives; or
vii. includes anyone’s identification documents or sensitive financial information.
c. If we believe that any transaction you submit is in violation of these Terms of Service, your Order Agreement, any other agreement we have with you, or any applicable law, rule, or regulation, as decided in our sole discretion, we may choose not to authorize or settle such transaction. We may also decide not to authorize or settle a transaction if we believe that it exposes you, us, other users, or our service parties and/or business partners to any harm, including but not limited to fraud and other criminal acts.
d. You shall not:
i. take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure;
ii. interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
iii. bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
iv. run any form of auto-responder or “spam” on the Services;
v. use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site or Services;
vi. harvest or scrape any content or data from the Services;
vii. permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement;
viii. transfer any rights granted to you under these Terms of Service; or
ix. otherwise take any action in violation of our guidelines and policies.
e. You shall not (directly or indirectly):
i. decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction;
ii. modify, translate, or otherwise create derivative works of any part of the Services; or
iii. copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
f. Unless you have our express consent, you shall only use any SwipeSimple hardware products (“Hardware”) for your own use of the Services and may not resell, rent, lease, or otherwise distribute any Hardware, Software, or Services. You may not use the Services or Hardware to act as a payment intermediary, aggregator or service bureau. Except as permitted herein, you may not use the Services to handle, process, or transmit funds for any third party or process cash advances at any time.
g. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to:
i. satisfy any applicable law, regulation, legal process or governmental request;
ii. enforce these Terms of Service, including investigation of potential violations hereof;
iii. detect, prevent, or otherwise address fraud, security or technical issues;
iv. respond to user support requests; or
v. protect the rights, property or safety of us, our users and the public.
8. No Financial Advice.
The Services are not intended to provide financial advice. Much of the information provided is dependent upon end user data, which may be inaccurate or not up-to-date. Any information provided is for general informational purposes only. CardFlight cannot and does not guarantee the accuracy, completeness, timeliness or reliability of, or otherwise endorse, any information provided on or through the Services.
9. No Banking Services.
We are not a bank, and we do not offer banking services as defined by the United States Department of Treasury. We also do not offer money service business services as defined by the United States Department of Treasury.
a. Disputes, Adjustments, Chargebacks, and Erroneous Transactions.
i. The Services act as a platform to assist merchants in receiving payments from consumers. Any dispute between you and a reseller, merchant, or consumer is between you and that party. You understand and agree that CardFlight is not responsible for the performance or conduct of any user or other third parties using the Services. All transactions are solely between the users involved in such transaction, and CardFlight expressly disclaims, and you expressly release CardFlight from, any and all liability related to disputes, dealings, or interactions with other users. CardFlight shall have the right, but no obligation to investigate, intervene in, and/or attempt to resolve any dispute between users.
ii. By using the Services to accept payments, you agree to process returns of, and provide refunds and adjustments for, your goods or services through the account you link to your Account on the Services (“Linked Account”) in accordance with these Terms of Service, your Order Agreement, Network Rules, and your Merchant Agreement. Any refund or adjustment amount must include any associated Taxes required to be refunded and shall not exceed the original sales amount.
iii. You hereby acknowledge and agree that some transactions may be contested, which may lead to us or a third party reversing or charging back the amount of a transaction to your Linked Account (a “Chargeback”). We assume no liability for transactions that are disputed or that are erroneously processed and/or authorized. If any transaction is subject to a Chargeback, you agree to comply with the Chargeback procedure as set forth in your Merchant Agreement and assume all liability associated with such Chargebacks. You may receive a Chargeback even if your returns and refund policy prohibits returns. We or a third party may apply a Chargeback to your Linked Account if a transaction is disputed, reversed (either by a Customer, Network, financial institution, or processor), or not authorized, or we determine in our reasonable discretion that the transaction is unauthorized, unlawful, suspicious, or in violation of any applicable terms between you and us. We may limit, terminate, or suspend your Account if we determine that you are incurring an excessive amount of Chargebacks or we may change the terms under which we make the Services available to you.
iv. If you incorrectly process a transaction, you must notify us in writing within thirty (30) days of the date of the transaction. We will take commercially reasonable efforts to attempt to resolve the processing error, however, failure to notify us within the thirty (30) day period will be deemed a waiver of any right to amounts owed to you.
10. Illegal or Unauthorized Use.
The Services are only intended for legal use in compliance with these Terms of Service and your Order Agreement. If we reasonably suspect that your Account has been used for any illegal or unauthorized purpose, we may share information about you, your Account, and any of your transactions with law enforcement, and you hereby give us express authorization to do so.
11. Third Party Services.
The Services may permit you to link to other websites, services, or resources on the Internet, and other websites, services, or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
12. Payments and Billing
a. Fees.
Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please review your Order Agreement for more information about the terms of your payment obligations. Your access to the Services may be suspended or terminated if you or the party through whom you obtained the Services do not meet your respective payment obligations.
b. Purchases Made Through the Services.
You may be able to purchase additional SwipeSimple hardware or services (“SwipeSimple Products”) through the Services. Any additional SwipeSimple Products purchased through the Services will be subject to the terms of your Order Agreement, as well as any additional terms and conditions presented to you during the purchasing process. By purchasing any SwipeSimple Products through the Services, you are agreeing to pay the purchase amount of the SwipeSimple Products at the time of purchase as well as any associated services fees in accordance with your normal billing cycle. Please note that any payment terms presented to you in the purchase process are deemed part of these Terms of Service.
c. Billing.
We may use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for any purchases made through the Services (e.g. purchases of Hardware made through the Services). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms of Service. We are not responsible for error by the Payment Processor. By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
d. Payment Method.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
13. Security.
We use technical and procedural measures to secure your personal information and User Content from accidental loss and unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that these measures will always be effective. Additionally, we also cannot guarantee the security of other users’ applications. You acknowledge that you provide your personal information at your own risk. Furthermore, you represent and warrant that you will use best available security measures in accordance with the highest industry standards in your use and access of the Services. We reserve the right to terminate a user without notice if we suspect that they are at risk of a security breach.
14. Termination.
We may terminate and/or suspend your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions available through the Services. Any fees paid hereunder or in accordance with any Order Agreement are non-refundable. Upon termination of your Account, these Terms of Service, or if you violate any term or condition of these Terms of Service, you must immediately stop using the Services. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
15. Service Updates.
The Services may need updating from time to time. These updates may temporarily disrupt use of the Services and are designed to improve, enhance, and further develop the Services. Such updates may take the form of bug fixes, enhanced functions, new Service offerings, and updated Services. You agree to receive such updates as part of your use of the Services. Such updates shall be subject to the terms and conditions of these Terms of Service.
16. Warranties and Disclaimers.
a. By using the Services in any manner, you represent and warrant that:
i. you own all right, title and interest, or possess sufficient license rights, in and to any respective User Content as may be necessary to permit the use contemplated under these Terms of Service;
ii. you agree not to misrepresent your identity or account information; and
iii. you meet the eligibility criteria set forth herein.
iv. you have provided accurate registration information, including your individual or business name under which you sell goods and services
v. any transaction submitted by you represents a bonafide transaction made by you and accurately describes the goods and/or services sold and delivered to a Customer.
vi. you will fulfill all of your obligations to each Customer.
vii. you will resolve any disputes or complaints directly with the party with whom you transact.
viii. no transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor or owner of your entity, except as made in the ordinary course of business, or will be made with any of your own credit, debit or other payment cards (except as reasonably needed to test the Services).
ix. all use of the Services by you will comply with these Terms of Service, your Order Agreement, any other Applicable Terms, and all other applicable laws, rules, and regulations, especially those pertaining to financial and personally identifiable data.
b. We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
i. which users gain access to the Services;
ii. what Content you access via the Services;
iii. any disputes between you and any other user; or
iv. how you may interpret or use the Content.
c. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
d. THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. WE FURTHER DISCLAIM ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OR TRADE. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WE ARE NOT A PARTY TO AND WE DO NOT IN ANY WAY MONITOR ANY TRANSACTIONS BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
e. You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
17. Third Party Products and Services
WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. YOUR USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT YOUR OWN RISK. WE ASSUME NO RESPONSIBILITY AND EXPRESSLY DISCLAIM ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE.
18. Indemnification.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives (“Indemnified Parties”) from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (a) your or your end users’ use or misuse of, or access to, the Services or otherwise from your User Content, (b) violation of these Terms of Service or any applicable law, rule or regulation, (c) infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity, or (c) any other party’s access and use of your Account or the Services with your unique login and password. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
19. Limitation of Liability.
IN NO EVENT SHALL CARDFLIGHT, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, CONTENT PROVIDERS, LICENSORS OR SUBCONTRACTORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OF SERVICE (INCLUDING IN RELATION TO ANY SUPPORT, TRAINING, OR MAINTENANCE OR ANY ENHANCEMENTS, UPGRADES, FIXES, OR REPLACEMENTS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, INCLUDING BUT NOT LIMITED TO (A) AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID TO US FOR THE PARTICULAR SERVICES HEREUNDER DURING THE TWELVE MONTHS PRECEDING THE CLAIM, (B) INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, (D) LOSS, ERRORS, INACCURACY, INCOMPLETENESS, DISCLOSURE OR CORRUPTION OF THE SERVICES, INCLUDING WITHOUT LIMITATION DATA OR FUNDS CONTAINED IN, DISPENSED BY OR ASSOCIATED WITH ANY CARDFLIGHT PRODUCTS OR SERVICES (E) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL INFORMATION, INCLUDING PERSONAL INFORMATION, STORED THEREIN (F) INTERRUPTION OF USE OF THE SYSTEMS OR SERVICES, INCLUDING DURING TRANSACTION PROCESSING, (F) LOSS OF PROCESSOR COVERAGE, LOSS OF PROCESSOR SUPPORT OR PROCESSOR UPTIME, (G) COSTS OR EXPENSES RELATED TO OR ARISING FROM DUPLICATE TRANSACTIONS, (H) CONTRIBUTION OR SET-OFF IN RESPECT OF ANY CLAIMS AGAINST RESELLER, (I) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (J) ANY MATTER BEYOND CARDFLIGHT’S REASONABLE CONTROL. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
The Services are controlled and operated from facilities in the United States. We make no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals located in the United States.
20. Governing Law and Jurisdiction.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflicts of law rules, and the United States of America. Subject to and without waiver of the Agreement to Arbitrate set forth below, you agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York.
Agreement to Arbitrate
IMPORTANT – PLEASE REVIEW THIS SECTION CAREFULLY AS THIS AFFECTS YOUR LEGAL RIGHTS.
a. Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN NEW YORK, NEW YORK ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH THE AAA’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES (“AAA RULES”) THEN IN EFFECT, EXCEPT AS MODIFIED BY THESE TERMS OF SERVICE TO ARBITRATE, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
b. Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and we each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address on record in your Account; you can contact us by email at support@swipesimple.com. If after a good faith effort to negotiate for a minimum of thirty (30) days, either you or we feel the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
c. Exceptions to Informal Negotiations and Arbitration. You and we agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; or (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
d. Prohibitions of Class Actions. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding.
e. Arbitration Procedures. This Agreement to Arbitrate will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Either you or we can initiate arbitration. The arbitration will be conducted by a single arbitrator. If you and we cannot agree on who that single arbitrator should be, then the AAA shall appoint an arbitrator. In the event the AAA is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by JAMS. The award of the arbitrator shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law, provided that any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service.
f. Severability. With the exception of any of the provisions in the Prohibition of Class Actions section above, if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions in the Prohibition of Class Actions section above is invalid or unenforceable because it would prevent the exercise of a non-waivable right to pursue public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in court. All other disputes subject to arbitration under the terms of the Agreement to Arbitrate shall be arbitrated under its terms. These arbitration provisions will survive the termination of your relationship with us.
21. Service Modifications/Suspensions.
We reserve the right, in our sole discretion, to change, suspend, or discontinue, temporarily or permanently, the Services (including without limitation, the availability of any feature, database, or content) at any time, with or without notice to you. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. You acknowledge and agree that we are not liable to you or to any third party for any modification, suspension, or discontinuance of any part or all of the Services or any limits or restrictions imposed on the Services.
22. Copyright Dispute Policy.
We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
Procedure for Reporting Copyright Infringement:
If you believe that material or content residing on or accessible through our websites, application, or services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
b. Identification of works or materials being infringed;
c. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
d. Contact information about the notifier including address, telephone number and, if available, e-mail address;
e. A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
f. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
g. Please contact the Designated Agent to Receive Notification of Claimed Infringement for CardFlight at:
President
CardFlight, Inc.
38 W. 21st St, 6th floor.
New York, NY 10010
23. Apple Device and Application Terms.
In the event you are accessing the Services via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (each, an “Application”), the following shall apply:
a. Both you and we acknowledge that these Terms of Service are concluded between you and us only, and not with Apple, and that Apple is not responsible for the Application or the Content;
b. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the Services;
c. You will only use the Application in connection with an Apple device that you own or control;
d. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
e. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure;
f. upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;You acknowledge and agree that we, and not Apple, are responsible for addressing any claims you or any third party may have in relation to the Application;
g. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, we, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
h. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
i. Both you and we acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
j. Both you and we acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.
24.Messaging Policy.
SwipeSimple offers the ability to send receipts and transactional information via SMS messages. We will communicate with cardholders via SMS for the purposes of transaction notifications and other details. Participating carriers include: AT&T, Boost Mobile, T-Mobile, Metro PCS, Verizon Wireless, Sprint, U.S. Cellular, Nextel & Virgin Mobile. Carriers are not liable for delayed or undelivered messages. T-Mobile is not liable for delayed or undelivered messages. As always, message and data rates may apply. If you have any questions about your text plan or data plan, please contact your wireless provider. Cardholders can cancel the SMS service at any time. To cancel, text “ STOP ” to the sending phone number. We will respond with a single SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. You may, at any time, text “ HELP ” to the sending phone number for a brief help message. We will respond with instructions on how to use our service as well as how to unsubscribe. You may also contact SwipeSimple support at: +1 (800) 783-5596 or email us at support@swipesimple.com.
25. Miscellaneous.
a. Entire Agreement and Severability. Together with your Order Agreement, these Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site and the Application, and together, the Order Agreement and these Terms of Service supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
b. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
c. Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
d. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
e. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing. We may give notice by means of a general notice on the Site, by electronic mail to the email address on record in your Account, by posting in your Account, or by written communication sent by first class mail to the address of record in your Account. Such notice shall be deemed given immediately upon posting to the Site or to your Account, six (6) hours after sending by electronic mail, or forty-eight (48) hours after sending by first class mail. Except as provided herein, you may give notice to us by delivery by nationally recognized overnight delivery service or first class mail to CardFlight at the address listed below under “For More Information.” Such notice shall be deemed given when received by us.
f. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized.
g. Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
h. Third Party Beneficiaries. You and we acknowledge and agree that each of the Indemnified Parties and their successors and assigns are intended third-party beneficiaries of these Terms of Service and that, upon your acceptance of these Terms of Service, each such Indemnified Party will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you, including but not limited to those terms pertaining to disclaimers, waivers, limitations of liability and indemnification, as a third-party beneficiary thereof. Except as expressly stated herein, including the rights of the Indemnified Parties and that of Apple, there are no other third-party beneficiaries to these Terms of Service.
26. Changes to these Terms of Service.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service by posting a notice on the Site or in your Account, or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We will post the revised Terms of Service on the Site and update the revision date at the top of these Terms of Service (the “Amendment Date”). While we will use commercially reasonable efforts to timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following the Amendment Date constitutes acceptance of those changes.
27. Consent to Electronic Communications.
When you use the Services or send us emails, you are communicating with us electronically. We may communicate with you by email or by posting notices on the Site or on your Account or the Services. You consent to receive communications from us electronically, unless and until you withdraw your consent as described below. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You should print a paper copy of these Terms of Service and any communication that is important to you and retain the copy for your records. If you withdraw your consent to receive communications electronically, you may not use the Services.
We reserve the right, in our sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which we provide electronic communications. We will provide you with notice of any such termination or change as required by applicable laws.
28. Withdrawal of Consent to Electronic Communications.
If you have registered an Account with us and you later decide that you do not want to receive future communications electronically, you must close your Account by contacting support@swipesimple.com and stop using the Services. There are no fees to close your Account with us. Any withdrawal of your consent to receive electronic communications will be effective only after we have a reasonable period of time to process your withdrawal and only after all outstanding transactions have been settled.
29. For More Information.
If you have any questions regarding these Terms of Service, please contact CardFlight by sending an email to support@swipesimple.com, or writing to CardFlight at: CardFlight, Inc., Attention: Customer Support Department, 38 W. 21st St, 6th floor, New York, NY 10010.
