Welcome to Gigafin!
Thank you for visiting and learning more about us and our products, services, and brands, including our Gigafin™ mobile application product (the “Gigafin Mobile App”) and Gigafin™ brand. It is important to us that you, and our other visitors, have an exceptional experience during your use of any of our online and mobile websites, platforms, services, and applications and that when you use our online and mobile
You should visit this page regularly to review the current terms. Your continued use of the Site or the Gigafin Mobile App will be deemed as irrevocable acceptance of any revisions.
Contents & Summary
- Age – You represent that you are at least eighteen (18) years of age.
- Web Content and Materials – You understand that any content on the Site or the Gigafin Mobile App is for information purposes only and is subject to change without any notice to you.
- Registration– If you register for an account with us, you understand that any information you submit to us must be current and accurate.
- Dwolla Account – In order to use the payment functionality of our Gigafin Mobile App you must open a Dwolla Account.
- Bank Account Verification with Plaid – We use Plaid to authenticate your bank account and verify your identity.
- User Content and Conduct; Community Guidelines – While participating in our community, you agree to abide by our stringent rules of conduct.
- Copyright Notices– The content on the Site and the Gigafin Mobile App is protected by copyright or other proprietary rights.
- Trademark Notices– The Site and the Gigafin Mobile App are protected by trademark or other proprietary rights.
- Third-Party Content– We are not responsible for any content on the Site or Gigafin Mobile App that is produced by third parties.
- Advertisements and Promotions– We are not responsible for any interactions that you may have with third-party advertisers on the Site or Gigafin Mobile App.
- Disclaimer of Warranties– We disclaim warranties and provide the Site and Gigafin Mobile App “As Is.”
- Limitation of Liability– Our liability to you is limited.
- Links to Other Sites– We do not warrant the accuracy or reliability of content on other Web sites that may be linked to the Site or the Gigafin Mobile App.
- Invited Submissions– From time to time, we may invite you to submit content to the Site or the Gigafin Mobile App. We will not pay for invited submissions.
- Claims of Infringement– If you believe that any content appearing on the Site or Gigafin Mobile App infringes on your copyrights or any other intellectual property rights, we want to hear from you. Please email us.
- Responsible Use of Site– You may only use the Site and the Gigafin Mobile App for lawful purposes.
- Release– You release us from any claims relating to third-parties.
- Indemnification– You agree to hold us harmless for any claims against us that are due to your use of the Site and/or the Gigafin Mobile App.
- Violation of Security– You may not tamper with the Site or, the system for the Site, and you may not tamper with the Gigafin Mobile App or the accounts of others.
- Reservation of Rights– We may modify or discontinue the Site or the Gigafin Mobile App at any time.
- Local Regulations– We make no representation that the Site or the Gigafin Mobile App is available for use outside of the United States.
- Dispute Resolution– You agree that all disputes between you and we will be resolved through arbitration.
- How to Contact Us– You can contact us at [email protected].
1. You Accept These Terms
2. Online Privacy Notice
3. Legal Capacity
You represent that you are at least eighteen (18) years of age.
5. Web Content and Materials
The information on the Site and the Gigafin Mobile App is for information purposes only. It is believed to be reliable, but we do not warrant its completeness or accuracy. The information on the Site and the Gigafin Mobile App is not intended as an offer or solicitation for the purchase of our stock or any other security or financial instrument of ours.
The information and materials contained in Site and the Gigafin Mobile App – and the terms and conditions of the access to and use of such information and materials – are subject to change without notice.
The Site and the Gigafin Mobile App are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to local law or regulation.
WE MAY DISCONTINUE OR MAKE CHANGES IN THE INFORMATION, PRODUCTS, OR SERVICES DESCRIBED HEREIN AT ANY TIME. ANY DATED INFORMATION IS PUBLISHED AS OF ITS DATE ONLY, AND WE DO NOT UNDERTAKE ANY OBLIGATION OR RESPONSIBILITY TO UPDATE OR AMEND ANY SUCH INFORMATION. WE RESERVE THE RIGHT TO TERMINATE ANY OR ALL SITE OR MOBILE APPLICATION OFFERINGS WITHOUT PRIOR NOTICE TO THE USER. FURTHERMORE, BY OFFERING
INFORMATION, PRODUCTS, OR SERVICES VIA THE SITE OR GIGAFIN MOBILE APP, NO SOLICITATION IS MADE BY US TO ANY PERSON TO USE SUCH INFORMATION, PRODUCTS, OR SERVICES IN JURISDICTIONS WHERE THE PROVISION OF SUCH INFORMATION, PRODUCTS, OR SERVICES IS PROHIBITED BY LAW.
We shall be entitled to monitor your username and password and, at our discretion, require you to change it. If you use a username and password that we consider insecure, we will be entitled to require this to be changed and/or terminate Your Account.
7. Dwolla Account
8. Bank Account Verification with Plaid
9. User Content and Conduct; Community Guidelines
The following terms apply to content submitted by users, and user conduct, on the Site’s and Gigafin Mobile App’s Interactive Areas:
(A) Interactive Areas. The Site and the Gigafin Mobile App may contain comments sections, discussion forums, chats, messaging or other interactive features, including but not limited to our Gigafin Digital
Community and our Gigafin brand’s user-generated news and information community (“Interactive Areas”) in which you may post or upload user-generated content, including but not limited to, comments, videos, photos, messages and other materials or items (collectively, “User Content”). You are solely responsible for your use of any Interactive Areas and you use them at your own risk. Interactive Areas are available for individuals aged 18 years or older. By submitting User Content to an Interactive Area, you represent that you are 18 years of age or older.
(B) Community Guidelines. By submitting any User Content or participating in an Interactive Area within or in connection with the Site and/or Gigafin Mobile App, you agree to abide by the following rules of conduct:
- You agree not to upload, post, or otherwise transmit any User Content that:
- o Violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk, or threaten others.
- o You know to be false, misleading or inaccurate.
- o Contains blatant expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusiveness, vulgarity or profanity.
- o Contains or advocates pornography or sexually explicit content, pedophilia, incest, bestiality, or that is otherwise obscene or lewd.
- o Violates any law or advocates or provides instruction on dangerous, illegal, or predatory acts, or discusses illegal activities with the intent to commit them.
- o Advocates violent behavior.
- o Poses a reasonable threat to personal or public safety.
- o Contains violent images of killing or physical abuse that appear to have been captured solely, or principally, for exploitive, prurient, or gratuitous purposes.
- o Is protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express permission of the owner of such copyright, trademark, trade secret, right of publicity or other proprietary right. The burden of determining that any User Content is not protected by copyright, trademark, trade secret, right of publicity or other proprietary right rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, rights of publicity or other proprietary rights or any other harm resulting from such a submission. Any person determined by us, in our sole discretion, to have violated the intellectual property or other rights of others shall be barred from submitting or posting any further material on the Sites or on and within the Gigafin Mobile App.
- o Does not generally pertain to the designated topic or theme of any Interactive Area.
- o Contains any unsolicited or unauthorized advertising or promotional materials with respect to products or services, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- You agree not to engage in activity that would constitute a criminal offense or give rise to a civil liability.
- You agree that if necessary, you have the consent of each and every identifiable natural person in any submission to use such person’s name or likeness in the manner contemplated by the Site and/or the Gigafin Mobile App.
- You agree that any person who appears in your submission who is a current member of the Screen Actors Guild (SAG), the American Federation of Television and Radio Actors (AFTRA) or any other rights society is not entitled to compensation by us.
- You agree not to impersonate any person or entity, including, but not limited to, us or any of our officers, directors, employees or staff, or falsely state or otherwise misrepresent your affiliation with any person or entity.
- You agree not to represent or suggest, directly or indirectly, our endorsement of User Content.
- You agree not to interfere with any other user’s right to privacy, including by harvesting or collecting personally-identifiable information about the Site’s or the Gigafin Mobile App’s users or posting private information about a third party.
- You agree not to upload, post or otherwise transmit any User Content, software or other materials which contain a virus or other harmful or disruptive component.
- You agree not to interfere with or disrupt the Site or the Gigafin Mobile App or the servers or networks connected to the Site or the Gigafin Mobile App, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or the Gigafin Mobile App.
- You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Site or the Gigafin Mobile App, use of the Site or the Gigafin Mobile App, or access to the Site or the Gigafin Mobile App.
- You agree not to use any service, technology or automated system to artificially inflate the page views that your User Content receives. This includes pay-per-click services, web “robots” and any other current or future technologies. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf.
- You agree not to use any technology, service or automated system to post more User Content than an individual could upload in a given period of time. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf. Any conduct that in our sole discretion restricts or inhibits anyone else from using or enjoying the Site and/or the Gigafin Mobile App will not be permitted. We reserve the right in our sole discretion to remove or edit User Content by you and to terminate Your Account for any reason. We do not vouch for the accuracy or credibility of any User Content, and do not take any responsibility or assume any liability for any actions you may take as a result of reading User Content posted on the Site
and/or in, through or on the Gigafin Mobile App. Through your use of Interactive Areas, you may be exposed to content that you may find offensive, objectionable, harmful, inaccurate, or deceptive. There
may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using Interactive Areas, you assume all associated risks.
- You agree not to upload, post, or otherwise transmit any User Content that:
The decision by us to monitor and/or modify User Content does not constitute nor shall it be deemed to constitute any responsibility or liability in any manner on the part of us in connection with or arising from use by you of Interactive Areas on the Site and/or the Gigafin Mobile App.
(D) License to User Content. By submitting User Content to the Site and/or to the Gigafin Mobile App, you automatically grant us the royalty-free, perpetual, irrevocable, non-exclusive right and license, but not the obligation, to use, publish, reproduce, modify, adapt, edit, translate, create derivative works from, incorporate into other works, distribute, sub-license and otherwise exploit such User Content (in whole or in part) worldwide in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such User Content, without payment to you or to any third parties.
(E) Moral Rights. If it is determined that you retain moral rights (including rights of attribution or integrity) in the User Content, you hereby declare that (i) you do not require that any personally identifying information be used in connection with the User Content, or any derivative works of or upgrades or updates thereto; (ii) you have no objection to the publication, use, modification, deletion and exploitation of the User Content by us or our licensees, successors and assigns; (iii) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the User Content; and (iv) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other user to access, view, store or reproduce the User Content for that user’s personal use.
10. Copyright Notices
The works of authorship contained in and on the Site and/or in and on the Gigafin Mobile App, including but not limited to all design, text, software, photos, videos, editorials, features, writings, music and sound recordings, images, and the entire contents of the Site and the Gigafin Mobile App are owned, except as otherwise expressly stated, by us. Except as otherwise expressly stated herein, they may not be copied, transmitted, displayed, performed, distributed (for compensation or otherwise), licensed, altered, ramed, stored for subsequent use, or otherwise used in whole or in part in any manner without our prior written consent, except to the extent permitted by the Copyright Act of 1976 (17 U.S.C. §107), as amended, and then, only with notices of our proprietary rights.
11. Trademark Notices
“MobilityPay,” the MobilityPay logo and the three component Hexagon symbol, “Gigafin” and the stylized “G” symbol associated with the Gigafin logo are trademarks of ours and are protected as registered or
unregistered trademarks, trade names and/or service marks owned by us. We respect the intellectual property rights of others and asks users of the Site and/or the Gigafin Mobile App to do the same. You may not copy or use any of our names, marks, or logos. Other featured words or symbols used on the Site and/or in or on the Gigafin Mobile App to identify other parties’ goods and services may be trademarks or service marks of those other parties.
12. Third-Party Content
We are a distributor (and not a publisher or creator) of content supplied by third parties and users. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers or users of the Site and/or the Gigafin Mobile
App, are those of the respective author(s) or distributor(s) and not ours.
Neither we nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 14 and 15 below for the complete provisions governing limitation of liabilities and disclaimers of warranty). In many instances, the content available through the Site and/or in, on or through the Gigafin Mobile App represents the opinions and judgments of the respective user or information provider not under contract with us.
We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice or statement made on the Site and/or in, on or through the Gigafin Mobile App by any third party. Under no circumstances will we be responsible or liable, directly or indirectly, for any loss or damage caused by your use or reliance on information obtained through the Site and/or through the Gigafin Mobile App.
We are not responsible for any actions or inaction on your part based on the information that is presented on the Site and/or the Gigafin Mobile App. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice, or other content available through the Site and/or in, on or through the Gigafin Mobile App. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice, or other content.
13. Advertisements and Promotions
We may run advertisements and promotions from third parties on the Site and/or on and through the Gigafin Mobile App. Your dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Site and/or on or through the Gigafin Mobile App.
14. Disclaimer of Warranties
YOUR USE OF THE SITE AND/OR THE GIGAFIN MOBILE APP IS AT YOUR OWN RISK. THE SITE AND THE GIGAFIN MOBILE APP, AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES AND OTHER CONTENT IN THE SITE AND IN OR ON THE GIGAFIN MOBILE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SITE AND THE GIGAFIN MOBILE APP INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE AND IN THE GIGAFIN MOBILE APP WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE GIGAFIN MOBILE APP OR THE SERVERS THAT MAKE THE SITE AND GIGAFIN MOBILE APP AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
MOBILITYPAY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE SITE OR IN OR ON THE GIGAFIN MOBILE APP, OR ANY WEB SITES LINKED TO THE SITE OR THE GIGAFIN MOBILE APP, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WE MAKE NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT IN THE SITE OR IN OR ON THE GIGAFIN MOBILE APP, OR ANY WEB SITES LINKED TO THE SITE OR THE GIGAFIN MOBILE APP, WILL NOT INFRINGE THE RIGHTS OF OTHERS AND WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT OF THE SITE OR IN OR ON THE GIGAFIN MOBILE APP, OR ANY OTHER WEB SITES LINKED TO THE SITE OR THE GIGAFIN MOBILE APP.
IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
15. Limitation of Liability
16. Links to Other Sites
Links to sites not affiliated with us are provided solely as pointers to information on topics that may be useful to users of the Site and/or the Gigafin Mobile App, and we have no control over the content on such non- affiliated Web sites. If you choose to link to a Web site not controlled by us, we make no warranties, either express or implied, concerning the content of such site, including the accuracy, completeness, reliability, or suitability thereof for any particular purpose, nor do we warrant that such site or content is free from any claims of copyright, trademark, or other infringement of the rights of third parties or that such site or content is devoid of viruses or other contamination. We do not guarantee the authenticity of documents on the Internet. Links to non-affiliated Web sites do not imply any endorsement of or responsibility for the opinions, ideas, products, information, or services offered at such sites, or any representation regarding the content at such sites.
17. Invited Submissions
provided in Section 9(D) above.
18. Claims of Infringement
If you believe that any content appearing on the Site or appearing in or on the Gigafin Mobile App infringes your copyright rights, we want to hear from you. Please forward the following information in writing to our Copyright Agent at the address listed below:
a. Your name, address, telephone number, and e-mail address;
b. A description of the copyrighted work that you claim has been infringed;
c. The exact URL or a description of each place where alleged infringing material is located;
d. A statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
e. Your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
f. A statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
We seek to preserve any and all exemptions from liability that may be available under applicable copyright law although we do not necessarily stipulate that we are a service provider as defined in the Copyright Act of 1976 (17 U.S.C. §512(c)). We may request additional information before removing any allegedly infringing material. In the event we remove the infringing materials, we will immediately notify the person responsible for putting such materials that we removed or disabled access to the materials. We may also provide the responsible person with your email address so that the person may respond to your allegations.
Our Copyright Agent may be contacted in writing by U.S. regular mail or electronic mail at:
MobilityPay Holdings, Inc.
Attention: Copyright Agent
28126 Peacock Ridge Drive, #210
Rancho Palos Verdes, CA 90275,
19. Responsible Use of Site
Please act responsibly when using the Site and the Gigafin Mobile App. You may only use the Site and/or the Gigafin Mobile App and their contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing, or transmitting any unlawful material through the Site and/or the Gigafin Mobile App. You may not collect or store personal information regarding other users. You recognize that storing, distributing, or transmitting unlawful material could expose you to criminal and/or civil liability.
You agree that if a third party claims that material you have contributed to the Site and/or the Gigafin Mobile App is unlawful, you will bear the burden of establishing that it is lawful. You understand and agree that all materials transmitted on or through the Site and/or on and through the Gigafin Mobile App are the sole responsibility of the sender, not us, and that you are responsible for all material you upload or otherwise transmit to or through the Site and/or to and through the Gigafin Mobile App. You may not link or otherwise connect the Site and/or the Gigafin Mobile App or any content on the Site and/or the Gigafin Mobile App without our prior written permission to do so. In addition to any terms you are subject to when participating in our Interactive Areas, you agree that you will not use the Site or the Gigafin Mobile App for any of these prohibited uses or purposes:
- Selling, reselling, or offering for sale or resale any content or aspect of the Site and/or Gigafin Mobile App.
- Bypassing any measures we use to prevent, restrict, or otherwise limit access.
- Using the Site or the Gigafin Mobile App to send altered, deceptive, or false information.
- Using the Site or the Gigafin Mobile App to intercept, collect or store personal information of others.
- Using the Site or the Gigafin Mobile App to spam or phish or otherwise impact the operations of the Site or the Gigafin Mobile App or the integrity of the use of the Site or the Gigafin Mobile App by us or others.
- Using the Site or the Gigafin Mobile App to harm or intimidate another person in any way.
- Impersonating any person (including our officers, directors, employees or other staff members), or falsely stating or otherwise misrepresenting your affiliation with any person or company, through the use of similar email addresses, nicknames, or any other method or device.
- Disguising the origin of any information that is transmitted to us by you.
- Accessing, monitoring, or copying any content or information on the Site or the Gigafin Mobile App, including but not limited to by means of robots, screen scrapers, data mining software or similar tools.
- Framing or otherwise incorporating all or any portion of the Site or the Gigafin Mobile App into any other site.
- Decompiling, disassembling or reverse engineering any of the software or content used in any part of the Site or the Gigafin Mobile App.
- Placing, sending, or otherwise transmitting any malware, virus or using any malicious programs or techniques in connection with the Site or the Gigafin Mobile App.
- Overloading or otherwise crashing or attempting to crash the Site or the Gigafin Mobile App.
- Engaging in any high-volume data transfers or bandwidth use through your use of the Site or the Gigafin Mobile App.
If you have a dispute with one or more users, you release us and our officers directors, employees and other staff members from claims, demands, liabilities, costs, or expenses and damages (actual and consequential of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) to the extent permitted by applicable law, 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.
You agree to defend, indemnify and hold harmless us, our affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of the Site or the Gigafin Mobile App by you. We reserve the right to take over the
exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
22. Violation of Security
You are prohibited from using any services or facilities provided in connection with the Site and/or the Gigafin Mobile App to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g. password guessing programs, cracking
tools, or network probing tools) is strictly prohibited. If you become involved in any violation of system security, we reserve the right to release your details to system administrators at other sites in order to assist them in resolving security incidents.
24. Reservation of Rights
We reserve the right to modify or discontinue, temporarily or permanently, all or any part of the Site and the Gigafin Mobile App, and/or any software, facilities and services on the Site and on or in the Gigafin Mobile App, with or without notice, and/or to establish general guidelines and limitations on their use. You agree that we shall not be liable to you or any third party for any modification, suspension or termination of the Site or the Gigafin Mobile App.
25. Local Regulations
The materials and all other content in the Site and in or on the Gigafin Mobile App are presented for the purpose of providing information regarding products available in the United States. We make no representation that any materials or content on the Site and on or in the Gigafin Mobile App are appropriate or available for use outside the United States, its territories, possessions, and protectorates. If you choose to access the Site and/or the Gigafin Mobile App from other locations you do so on your own initiative and at your own risk. You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country you reside in.
26. Governing Law and Venue
27. Dispute Resolution
(A) Dispute Resolution Procedure.
We believe that we can resolve most customer concerns quickly and to the customer’s satisfaction. Please contact us at gigafin.com/feedback. In the unlikely event that you’re not satisfied with our solution (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts.
Unless expressly limited by this Dispute Resolution provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. In arbitration you are entitled to recover attorneys’ fees from us to at least the same extent as you would be in court.
(B) Arbitration Agreement.
(1) We and you agree that any Dispute (as defined herein) between you and us regarding any aspect of your relationship with us will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. You and we agree to give up the right to sue in court.
The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and us, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory.
The only exceptions to this Arbitration Agreement are that (i) you and we retain the right to sue in small claims court and (ii) you and we may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. You and we also agree to give up the ability to seek to represent, in a class action or otherwise, anyone but you and us (see paragraph 9 of this Arbitration Agreement below).
There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Arbitration Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages).
(2) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this Agreement.
(3) Any arbitration between you and we will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures (the “JAMS Rules”), as modified by this agreement to arbitrate.
The arbitration shall be conducted by a single, neutral arbitrator, and if you and we cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of we and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website here. The Consumer Arbitration Minimum Standards are available here. The arbitrator is bound by the terms of this Arbitration Agreement.
(4) If either you or we want to arbitrate a Dispute, you or we must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute and the relief requested. Your Notice to us must be sent by mail to Arbitration Notice of Dispute, c/o Legal Affairs, MobilityPay Holdings, Inc., 28126 Peacock Ridge Drive, #210, Rancho Palos Verdes, CA 90275.
We will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found here.
In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to us at the address listed above to which you sent your Notice of Dispute.
(5) You and we acknowledge and agree to abide by the following rules for arbitration:
(a) YOU AND WE MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF;
(b) we will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6 below;
(c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and
(d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 8 below.
(6) JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against us, you and we acknowledge and agree to abide by the following:
- If you are seeking to recover less than $5,000 (inclusive of attorneys’ fees), we will pay the filing fee on your behalf or reimburse your payment of it.
- If you are seeking to recover $5,000 or more, you will have to pay the filing fee charged by JAMS, but we will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.
- We and you agree that, if the claims to be arbitrated total less than $5,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. We will not request a hearing for any claims totaling less than $5,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules.
- We and you agree that, if the claims to be arbitrated total $5,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
(7) Regardless of how the arbitration proceeds, you and we shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(8) You and we may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if we failed to make a settlement offer to you before the arbitration or the amount you win is at least 30% greater than our highest settlement offer, then we will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded.
If we win the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.
(9) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator may not order us to pay any monies to or take any actions with respect to persons other than you, unless we explicitly consent in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless we expressly agree, the arbitrator may not consolidate other persons’ claims with yours and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
(10) You and we agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
(11) With the exception of subpart (a) in paragraph (5) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (5) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against us must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
28. No Waiver
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