Last updated: February 10, 2020
If you are representative of a property manager, property, owner, or homeowner’s association and your company has executed an agreement with Company where by Company provides services to your company, your company’s use of the Site and/or the Services is governed by the Company Services Agreement and the related Terms and Conditions.
THIS AGREEMENT LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES OR THE RULES OF AN ADR PROVIDER. PLEASE SEE SECTION 12.2 FOR MORE DETAILS.
You understand that Company does not own, manage, or enter into rental or lease contracts with properties. Although the Site and the Services may effect certain transactions agreed to between Users and Company, Company is not a party to any transactions between Users and property managers or owners, other than providing the Site. THUS, COMPANY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR INFORMATION OR INTERACTIONS, BETWEEN, OR AMONG USERS, PROPERTY MANAGERS, PROPERTIES, OWNERS, OR HOMEOWNERS ASSOCIATIONS VIA THE SITE OR SERVICES.
IN THE EVENT THAT YOU HAVE A DISPUTE WITH A PROPERTY MANAGER, PROPERTIES, OWNER, OR HOMEOWNER’s ASSOCIATION, YOU RELEASE COMPANY FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- DEFINITIONS. As used in this Agreement, the capitalized terms listed below shall have the following meanings. In addition to those below, definitions for other terms may be set forth throughout the Agreement.2.1 “Authorized User” shall mean any individual who is authorized by virtue of such individual’s relationship to, or permissions from, User, to access the Site and/or the Services pursuant to User’s rights under this Agreement.2.2 “Documentation” means the documentation in electronic form provided to User by Company that describes the Site and/or the Service.
2.3 “Enhancements” shall mean the following any modifications, revisions and corresponding Documentation (if any) with respect to the Site and/or the Service, including the addition of improved performance made available by Company to the Site and/or the Service.
2.4 “Maintenance Modifications” means bug fixes, patches, modifications or revisions to the Site and/or the Service that correct errors therein.
2.5 “Merchant” means the owner, property, property management company, homeowners association, and/or other business to which you owe a payment, and on behalf of which Company is accepting your payment.
2.6 “Personal Information” means information that directly or indirectly relates to an identifiable or identified individual or could reasonably be linked to a particular individual or household. Personal Information does not include anonymous or de-identified information which is information that cannot reasonably identify, relate to, describe, or be capable of being associated with, or be linked to, directly or indirectly, to a particular individual.
2.7 “Principal Payment” means the payment you are making to the Merchant for an obligation you owe to the Merchant (for example, rent, lease charges, homeowner association dues, a security deposit, an application fee, or other payment obligation). The Principal Payment is an amount you are paying the Merchant and is separate from any Service Fees paid to Company.
2.8 “Service(s)” means Company’s facilitation of various payment, property-management/resident (and/or tenant) communication and other resident (and/or tenant) engagement facilitation, smart home functionality, resident (and/or tenant) billing, and utility expense management tools for properties, property owners, homeowners’ associations, and property management companies, including any Enhancements, Maintenance Modifications, and corresponding Documentation.
2.9 “Service Fees” means any fees charged by Company to you for providing the value added Service(s) as described herein. As it relates to any payment processing Service(s), the Service Fees are separate from the amount of any Principal Payment and are for Services provided by Company on behalf of Merchant which are separate from the services provided to You by the Merchant directly. Service Fees are not surcharges.
- ACCESS TO AND USE OF THE SITE AND THE SERVICES.3.1 Subject to your compliance with these Terms and the specifications set forth in any Documentation, Company hereby grants you permission to access and use (and to permit each Authorized User to access and use) the Site and/or the Services, solely for their intended purpose. Company may, but is not obligated to, take any of the following actions without providing any prior notice to you: (a) change or terminate all or any part of the Site or the Services; (b) restrict or terminate your access to all or any part of the Site or the Services; or (c) refuse, move, or remove any content that is available on the Site and any material that you submit to the Site. You are solely responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless, or other connection and service fees associated with such access.
3.3 User grants to Company a royalty-free, worldwide, nonexclusive, sublicensable, irrevocable (where permitted by applicable law), transferable (where permitted by applicable law), license to host, collect, use, copy, transmit, store, process, monitor, disclose, and display Personal Information you submit pursuant to your use of the Site and/or the Services and User-specific data generated or created by User in connection with your use of the Service (“User Data”) to (a) provide the Site and/or the Services to you and our Clients, including but not limited to communicating with you (including via email, telephone, and/or SMS) for the purposes of facilitating and/or performing the Services, as well as encouraging and/or promoting your use of the Site and/or the Services; (b) prevent, address, and/or remediate Site and/or Service technical problems; (c) comply with Law; (d) comply with your instructions or approved uses; and/or (e) otherwise exercise and perform Company‘s rights and obligations hereunder. Please refer the Company SMS Policy for more detail regarding SMS messaging. Additionally, User hereby grants to Company a royalty-free, perpetual, irrevocable (where permitted by applicable law), worldwide, nonexclusive, sublicensable, and transferable (where permitted by applicable law) license to host, collect, use, copy, transmit, store, process, monitor, disclose, and display the Personal Information and User Data on an anonymized and aggregated basis for Company’s internal business purposes, including but not limited to developing, creating, modifying and/or improving the Site and/or the Services and its other service offerings. Where permitted by applicable law, Company reserves the right to access, use, copy, transmit, store, process, preserve, and disclose any Personal Information Company reasonably believes is necessary to (a) comply with Law and/or any governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address security or technical issues, (d) respond to User support requests, or (e) protect Company’s rights or safety and that of our users. Company will maintain administrative, physical, and technical safeguards for protection of the security and integrity of Personal Information and User Data.
3.4 User is responsible for all activities that occur under User’s account, including any acts or omissions of Authorized Users. User shall notify Company of any unauthorized use of User’s Log-In Information or account or any other breach of security that is known or suspected by User. User shall abide by all applicable local, state, national, and foreign laws and regulations in connection with its use of the Site and the Services.
- MOBILE APPLICATION TERMS AND LICENSE TO USE.4.1 Subject to your compliance with this Agreement, Company grants you a limited, non- exclusive, non-transferable, non-sublicensable revocable license to download, install, and use a copy of the Company mobile application (the “App”) on a mobile device or computer that you own or control and to run such copy of the App solely for its intended purpose and subject to the terms and conditions set forth in this Agreement. The App is provided to you pursuant to this license and your use of the App and any information or data downloaded by you or provided or in connection with your use of the App (the “Data”) is subject to and limited by the license terms set forth below. This license will also govern any software upgrades provided by us that replace and or supplement the original App unless such upgrades are accompanied by a separate license in which case the terms of that license will govern. We have no obligation to provide you with any updates, Maintenance Modifications, or support services for the App.4.2 Use of any software and associated documentation, other than the App, that is made available via the Site or the Services (“Software”) is governed by the terms of this Agreement or the license agreement that accompanies or is included with the Software. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Company provide you with any tangible copy of any Company Software. Subject to your compliance with the Agreement, Company grants you a non- assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use any Company Software for the sole purpose of enabling you to use the Services in the manner permitted by this Agreement. The App contains certain third-party software under license to us, including open source software (collectively, the “Third-Party Software”). The Third-Party Software is licensed to you under and subject to the terms of the applicable third-party software licenses.
The App may be available via one or more mobile app stores or marketplaces (an “App Store”) for use on mobile devices, including App Stores provided by Apple, Inc., Google, Inc., Amazon.com, Inc. and Microsoft, Inc. Apple, Inc., Google, Inc. Amazon.com, Inc. and Microsoft, Inc. are each a “Provider” for the purposes of these Terms with respect to any App downloaded from one of their respective App Stores. Your use of our App must comply with the then-current Terms of Service applicable to the App Store(s) from which you downloaded our App as well as any applicable Company terms of service related to the App. With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you will only use the App Store Sourced App (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. To use the App you must first download it from an App Store and then register with us.
You acknowledge that this Agreement is between you and Company only, and not with any Provider. Company, and not Provider, is solely responsible for our App and the services and content available thereon. You acknowledge that Provider has no obligation to provide maintenance and support services with respect to our App. To the maximum extent permitted by applicable law, Provider will have no warranty obligation whatsoever with respect to our App. We, and not Provider, are responsible for addressing any questions, comments or claims relating to the App and or your use of the App including but not limited to any product liability claims, claim that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our App or your possession and use of our App. You agree to comply with all applicable third-party terms of agreement when using our App (e.g., you must not be in violation of your wireless data service terms of agreement when using the App). Provider is a third-party beneficiary to this Agreement and, upon your acceptance of this Agreement, Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement with respect to the App.
In the event of a third-party claim that the App or your possession of and/or use of the App infringes a third party’s intellectual property rights, we, not Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App. Certain features in the App may allow you to make a purchase or request access to additional or different features for which fees may apply. You can choose whether or not to make these purchases or access these features and you will not be subject to fees or charges without your consent; however if you believe you have been assessed a fee or a charge in error or if the feature or item purchased does not perform as described or is not delivered to you, you may dispute the purchase by logging into your mobile App Store from which you downloaded the App and lodging your dispute or request for refund directly with the Provider.
- PAYMENT PROCESSING SERVICES.5.1 Company provides online, phone, mobile, and “walk-in” payment solution services for its Merchant clients. The Services provided by Company on behalf of the Merchant to facilitate your payment of Principal Payment obligations to the Merchant are different than, and separate from, the services provided to you by the Merchant directly. You acknowledge and understand that Company acts as the limited agent of the Merchant for the purpose of accepting payments from you on behalf of the Merchant. Company is not a retailer, seller, lessor, owner, property management company, or homeowner association. You further acknowledge and agree that Company is not a party to any lease, contract, or other agreement between you and the Merchant. Company does not have control of, or liability for, the services that are provided by the Merchant. Company may provide services through third-party service providers of Company. If the Merchant terminates its agreement with Company, you will no longer be able to use the payment facilitation Services.
5.2 You may have the option to make a Principal Payment to a Merchant with an electronic check from your bank account (Automated Clearing House, ACH, or e-check), with a payment card (credit card, debit card or other approved payment card), through a third party such as PayPal, and/or via cash at a third-party agent location, or as otherwise determined by the Merchant. The Merchant can choose to offer you options for one-time payments and/or automatic recurring payments. Company will facilitate your transaction according to the information you provide on the date you authorize Company to process the transaction. The Principal Payment will be credited to the Merchant, and any applicable Service Fees credited to Company. If you choose to receive a separate email notification of your payment and you provide your email, Company will send you an e-mail confirmation of your payment as well as providing notification to the Merchant.
5.3 You agree that: (i) the Personal Information provided by you to Company is complete and accurate and in the event this information should change, you will update such information in a timely manner to be complete, true and accurate; (ii) you are the User of the Company account and that you will not use the Company services for any illegal purposes; (iii) you are at least eighteen (18) years old and a resident of the United States; and (iv) you are fully authorized to use any bank account, payment card, or third party such as PayPal account, as applicable, registered in your Company account. You authorize Company, directly or through third parties, to make any inquiries it considers necessary to validate your identity. Company also has the right to ask to see identifying documents such as your driver license and other documentation at any time as necessary to validate your identity.
5.4 Company may charge you a Service Fee for your use of the payment processing Service(s) in accordance with this Agreement and Company’s agreement with your Merchant. The Service Fees are charged for the payment processing Services provided to you including providing additional payment channels (such as Internet, telephone, walk-in payment locations) and the services involved in facilitating payment of your Principal Payment on behalf of the Merchant. Payment processing Services are different than, and separate from, the services provided to you directly by the Merchant and for which you are making a Principal Payment(s), (e.g. lease payment, homeowner association dues, security deposit, application fee, etc). While the Company system displays all related Service Fees in a visible location for you, you will receive a final confirmation page with the transaction amount including the payment processing Service Fee and will be given the opportunity to either “Submit” or “Cancel” the transaction. In the event that your bank returns your payment for Non-Sufficient Funds (“NSF”), you authorize Company to assess and process an automatic NSF Fee, as permitted by applicable law, to the same account from which your payment was initiated. In the event that the NSF fee charged by Company is returned and/or generates additional fees assessed by your bank, you assume all responsibility for such fees.
5.5 You hereby authorize Company to debit your account, including the Principal Amount owed to the Merchant and payment processing Service Fees, from your bank account (via ACH) or charge your payment card or charge your third party account (including PayPal) on behalf of the Merchant for any of the transactions you submit. You agree that your submission of a transaction constitutes your authorization to Company to debit your account, or charge your card or third party account, based on the information you have provided.
5.6 You acknowledge and agree that, subject to banking and card association rules and regulations, upon payment to Company by you for payment due to the Merchant, such payment obligation to the Merchant is considered paid and extinguished. Payment is deemed made by you at the time at which Company receives the funds (as agent of the Merchant). In the event that any payment received by Company is not delivered to the Merchant as described in this Section, the Merchant will have recourse only against Company in connection with the payment.
5.7 You can request a refund through Company for a payment processed through your Company account if the payment is still processing to the Merchant and not yet settled to the Merchant account. Once the funds have settled to the Merchant’s deposit account, you must request a refund directly through the Merchant. All transaction cancellations or refunds through Company must be requested by logging into your Company account and clicking on “Help” and then clicking on the “Contact Support” button. The request must include the transaction number and amount to be refunded. If you do not have Log-In Information the refund request must be submitted to the Merchant for processing. Refund requests through Company are fulfilled only during Company business hours Monday through Friday 7:00 AM-5:00 PM Pacific Time.
5.8 For accounts that have been set up with the fixed recurring payment option (“Fixed AutoPay”), Company will debit your designated account for the authorized amount of the Principal Amount and the Service Fee on the designated day each month until the Fixed AutoPay is cancelled. Company reserves the right to increase its Service Fee for Fixed AutoPay transactions in accordance with applicable laws and regulations, however the fee will appear on the payment authorization page for you to see prior to your approval of payment. For accounts that have been set up with the variable automatic recurring payment option (“Variable AutoPay”), the Service Fee may change based on the principal amount of the transaction.
5.9 Credit Reporting: Users who opt in to Company’s credit reporting service authorize Company to report their rent payment data, such as details of payments and personal validation information including but not limited to name, social security number and address, (collectively, “Rent Payment Data”) to one or more Consumer Reporting Agencies (“Agencies” or “Agency”). At this time, Company reports to two Agencies, Experian and TransUnion. Even if a User opts in to such reporting, Company will report Rent Payment Data only for participating Merchants.
Importantly, Company is not an Agency and has no control over how reported Rent Payment Data will be used by the Agencies and makes no representation that reporting such data will improve your credit history, credit report, or credit score, which are maintained and provided solely by the Agencies. Once Rent Payment Data is transmitted to an Agency, you acknowledge that the Agency will obtain an ownership interest in that data. You should review the legal terms and conditions for the Agencies credit reporting businesses to understand how they collect, store, manage, use, modify, disseminate and/or distribute such data. You agree to hold Company harmless against any claims in connection with an Agency’s use or management of any Rent Payment Data that Company has provided to the Agencies in accordance with the federal Fair Credit Reporting Act (“FCRA”).
You acknowledge that you are responsible for providing Company with accurate, complete, and consistent Rent Payment Data. You further acknowledge that your credit report, credit history or credit score maintained by the Agencies may be negatively affected if: (i) you provide Company with incomplete or inaccurate Rent Payment Data; or (ii) the reporting of your Rent Payment Data by Company is inconsistent, inaccurate, or terminated. Company is not liable for any claims, charges, demands, damages or adverse impacts on or regarding your credit report, credit history, or credit score maintained by the Agencies if: (i) you stop using Company’s credit reporting service; (ii) you provide inaccurate or incomplete Rent Payment Data to Company; or (iii) you cause reporting to be made inconsistently. Company will provide the Agencies with the Rent Payment Data that you provide to Company and/or Rent Payment Data collected by Company. Unless otherwise limited by FCRA and applicable law, in no event shall Company be responsible for any claims, costs, expenses or damages resulting from incomplete or inaccurate reporting.
You can: (i) notify Company of a dispute concerning incomplete or inaccurate Rent Payment Data; or (ii) submit an identity theft report, if you have experienced an identity theft event, by writing to:
PayLease, LLC (DBA Zego)
9330 Scranton Road, Suite 450
San Diego, CA 92121
ATTN: Credit Reporting
5.10 COMPANY WILL SEEK TO MAKE REASONABLE EFFORTS TO PROCESS ELECTRONIC DEBITS AND CREDITS INVOLVING YOUR ACCOUNT IN A TIMELY MANNER, HOWEVER COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR TIMELINESS OF SUCH PROCESSING, INCLUDING BECAUSE COMPANY’S SERVICES ARE LARGELY DEPENDENT UPON MANY FACTORS OUTSIDE OF ITS CONTROL, SUCH AS DELAYS IN THE U.S. BANKING SYSTEM, INTERRUPTIONS IN INTERNET AND/OR TELEPHONE SERVICES, DELAYS CAUSED BY THIRD-PARTY PAYMENT PROCESSORS, SUPPLIERS, ETC. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
- OTHER SERVICE FEES.
6.1 In the event you purchase any products or services through the Site, User shall pay, and, if applicable, Company shall have the right to charge to User’s credit card, any applicable Service Fees. User must provide Company with a valid credit card or other authorized payment method. Company reserves the right to modify any such recurring Service Fees and charges and to introduce new charges at any time, upon at least thirty (30) days’ prior notice to User, which notice may be provided by email. Company will automatically bill the credit card submitted for the Service requested by User. User agrees to provide Company with complete and accurate billing and contact information.6.2 The prices stated in Company’s quotations are exclusive of any federal, state, or other governmental taxes, duties, fees, or tariffs now or hereafter imposed on the Service. User shall be responsible for, and if necessary reimburse, Company for all such taxes, duties, fees, excises, or tariffs, except for taxes imposed on Company’s net income.
- SUSPENSION AND CANCELLATION/TERMINATION.
7.3 Upon any termination of this Agreement, all licenses granted to User hereunder shall immediately terminate and User will immediately discontinue all use of the Site and the Services and pay to Company all amounts due and payable under this Agreement (if any). Any rights that accrued prior to termination shall survive any termination of this Agreement.
- PROPRIETARY RIGHTS. The parties agree that all proprietary rights in the Site and the Services are and will remain the property of Company. This includes non-personally identifiable aggregate data or publicly available data collected by Company in connection with the Site and/or providing the Services, as well as usage statistics and traffic patterns (“Company Data”), all rights, title and interest to which are hereby assigned to Company by User. User hereby also grants Company the perpetual, royalty-free right to use any suggestions, ideas, feedback or other recommendations provided by User relating to the Site and/or the Services.
- WARRANTIES.9.1 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, COMPANY AND/OR ITS AFFILIATES AND JOINT VENTURES, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRATORS, AND SUPPLIERS (COLLECTIVELY, “COMPANY PARTIES”) PROVIDE THE SITE AND THE SERVICES “AS IS” AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY. THE COMPANY PARTIES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY PARTIES DO NOT GUARANTEE THAT THE SITE OR SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. COMPANY DOES NOT REPRESENT, WARRANT, OR GUARANTEE CONTINUOUS, ERROR FREE, UNINTERRUPTED, OR SECURE ACCESS TO ANY PART OF THE SITE AND/OR THE SERVICES. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. COMPANY PARTIES DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, THE COMPANY PARTIES DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONING OR INABILITY TO ACCESS THE SITE AND/OR SERVICES FOR ANY REASON. USER ACKNOWLEDGES THAT NEITHER THE SERVICES NOR ANY PART THEREOF IS A HOME SECURITY SYSTEM AND THAT THE COMPANY PARTIES WILL NOT MONITOR SIGNALS FROM THE SERVICES AT ANY TIME. COMPANY PARTIES WILL NOT DISPATCH EMERGENCY AUTHORITIES OR PROVIDE NOTIFICATION IN CASES OF EMERGENCY. USER ACKNOWLEDGES THAT THE COMPANY PARTIES ARE NOT AN INSURER OF OR AGAINST, OR LIABLE FOR ANY POTENTIAL OR ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR IN OR AT THE USER’S PROPERTY.9.2 Release. TO THE MAXIMUM AMOUNT PERMITTED BY APPLICABLE LAW, YOU, THE COMPANY USER, AGREE TO RELEASE THE COMPANY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SITE, AND/OR THE SERVICES. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
9.3 Limitation of Liability. BY USING THE SITE AND/OR THE SERVICES, YOU AGREE THAT COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, AND/OR THE SERVICES (HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO NEGLIGENCE TORT, CONTRACT, STRICT LIABILITY OR UNDER STATUTE), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF (A) ANY PERMANENT OR TEMPORARY CESSATION IN PROVIDING THE SITE AND/OR THE SERVICES (OR ANY ANCILLARY SERVICES OFFERED THROUGH OR FEATURES OF THE SERVICE), (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SITE AND/OR THE SERVICE, (C) YOUR FAILURE TO KEEP YOUR LOG-IN INFORMATION OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (D) YOUR USE OR MISUSE OF THE SITE AND/OR THE SERVICES, OR (E) PRODUCTS OR SERVICES PROVIDED BY COMPANIES OR PERSONS OTHER THAN COMPANY. THESE FOREGOING LIMITATIONS ON OUR LIABILITY SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
NOTWITHSTANDING THE FOREGOING, THE CUMULATIVE LIABILITY OF COMPANY, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE AND/OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT YOU PAID TO COMPANY DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES, AND, IN SUCH EVENT, SUCH LIMITATIONS OR EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT POSSIBLE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS, SUFFICIENCY, OR EFFECTIVENESS OF OTHER REMEDIES.
9.4 Essential Basis of Agreement. The parties acknowledge and understand that the disclaimers, exclusions, and limitations of liability set forth herein form an essential basis of the agreement between the parties, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose), and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Intellectual Property: “Company”, “paylease.com”, “gozego.com”, and all logos related to the Site and/or the Services are either trademarks or registered trademarks of Company or its licensors. You may not copy, imitate or use them without Company’s prior written consent. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Company. You may not copy, imitate or use them without Company’s prior written consent. All right, title and interest in and to the Site and the Services, any related content, the technology related to the Site and/or the Services, and any and all technology and any content created or derived from any of the forgoing is the exclusive property of Company and its licensors.
- GOVERNING LAW, ARBITRATION.12.1 Governing Law. This Agreement is governed by the laws of the United States (including federal arbitration law) and the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. The United Nations Convention for the International Sale of Goods shall not apply.12.2 Arbitration. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
- GENERAL.13.1 Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.13.2 Assignment. You agree that this Agreement, the Site, and/or provision of the Services, may be assigned, delegated or transferred by Company, in its sole discretion. You may not assign, delegate or transfer this Agreement without the express prior written consent of Company.
13.3 Severability/Notice. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. User is responsible for updating its data to provide Company with its most current email address. Unless otherwise provided, any notice provided to User pursuant to this Agreement shall be sent by email to the address provided by User. In the event that the last email address provided to Company is not valid, or for any reason Company is not capable of delivering to User any notices required by this Agreement, Company’s dispatch of the email containing such notice will nonetheless constitute effective notice. Any notice provided to Company pursuant to this Agreement should be sent by personal delivery, overnight delivery service or by registered or certified mail, return receipt requested to Company, Attn: legal department or via email to firstname.lastname@example.org. Notices shall be deemed given when delivered.
13.4 Force Majeure. Company will not in any way be liable for any failure or delay in its performance as a result of a cause beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts of terror, war, riots, fire, storms, quarantine restrictions, floods, explosions, labor strikes or interruptions, loss or interruption of suppliers services or utilities (including, but not limited to, Internet or telecommunications services), external computer “hacker” attacks, delays of common carriers or similar causes that are beyond Company’s reasonable control.
13.5 Headings/Survival. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. Sections 1, 3, 4, 5, 7, 9 – 13, as well as any other terms which by their nature should survive, shall survive any termination or expiration of this Agreement.
13.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and replaces any prior understandings, written or oral. To the extent inconsistent, this Agreement supersedes any end user license agreement accepted by you, even if such terms are subsequently accepted by you.