TERMS OF SERVICE
Last Updated April 30, 2023
Thank you for your interest in Umbrella Applications, LLC and our website at www.sailpay.io, as well as our related version of the Sail Pay mobile applications, connected social media accounts, and other services provided by us (collectively, the “Service”). These Terms of Service, Cardholder and Deposit Account Agreement, Deposit Agreement of the banking service provider for your account, E-Sign and Electronic Communications Agreement, other applicable terms and conditions referenced and incorporated into this Agreement, and to the collection and use of your information as set forth in the Sail Pay Privacy Policy (collectively, the “Terms”) form a legally binding agreement between Sail Pay and you regarding your use of the Service.
As used herein, the “Terms” refers to this Terms of Service; “Sail Pay,” “we,” “us,” and “our” refer to the Umbrella Applications, LLC d/b/a Sail Pay, its agents, contractors, sub-contractors, affiliates, and third parties involved in producing or delivering the Services; and “you” or “your” refers to you, the Services user.
By clicking using these Services, you represent that you have read, understand, and agree to the Terms, you are over the age of 18 and are consenting to be legally bound by the Terms.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN INFORMATION ABOUT LIMITATION OF LIABILITY, CLASS ACTION WAIVER AND RESOLUTIONS OF DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, RATHER THAN JURY TRIALS OR CLASS ACTION.
1. AGE REQUIREMENT. You must be at least 18 years of age to use the Services and content. If you are not at least 18 years of age, you are prohibited from opening an account and using the Services and content.
2. SERVICE OVERVIEW. Sail Pay is a mobile “Instant Pay” solution that allows groups to split payment at point- of-sale and establish reoccurring payment transactions through a shared Sail Pay Debit Card (a “Sail Pay Card”) based on group member identified percentages. The solution also allows Sail Pay registered account holders to send and receive money to Sail Pay registered account holders and pay a merchant at point-of-sale.
To use the Services, you must first register for and open a Sail Pay branded deposit account (your “Account”) offered by Midland States Bancorp Inc. (our “Partner Bank”). To open your Account, you must first review and agree to our Terms and Conditions, Cardholder and Deposit Account Agreement, Privacy Policy, E-Sign and Electronic Disclosure and Consent, and Midland States Bancorp Inc. Deposit Agreement and Electronic Communications Agreement. Once you have agreed to the Terms and your Account has been opened, our Partner Bank will issue you a Sail Pay Card tied to your Account and in your name.
Two or more Sail Pay Card members can create a group to spilt payment for a single point-of-sale or for reoccurring transactions (a “Group”). Once a Group has been created, our Partner Bank will create the Group member deposit account (the “Group Account”) and issue each Group member a Group Sail Pay Debit Card in each group members name (individually “Group Card”). Each Group Card is funded by each individual group member’s personal Account.
The Group members may set a default ratio in any 1% increment (e.g. 50%:50% or 25%;25%:50%) for splitting how payments are made out of a Group Account (your “Group Account Ratio”). Group Account members may change the Group Account Ratio from time to time. When you use a Group Card to complete a transaction, the total transaction amount will be charged to the Group Sail Card that is used for the transaction, and Sail Pay will facilitate a book transfer of the payment obligations from each Group member’s Account based on the Group Account Ratio. For example, if you and your group members set a Group Account Ratio of 40%:60% (with 40% being deducted from your Account and 60% being deducted from your Group member’s Accounts) and then you use Group Card to complete a $100 transaction, $40 will be reduced from your Account and $60 will be reduced from your Group member’s Account(s) in accordance with Group Sail Account Ratio.
You and/or your group member(s) may set rules around how or when transactions get split (“Transaction Preferences”). One such Transaction Preference is a (“Transaction Limit”), whereby if transactions exceed a user-defined Transaction Limit, those transactions are held for approval by the Group member’s Account before being split. If no Transaction Limit is set, or a transaction is below such limit, transactions can and may be split immediately. Similarly, you and/or your group member may opt to set a (“Daily Limit”), whereby, a limit is set on the aggregate Group Account Ratio for a user before transactions are held for approval. A single day is defined as 12:00 AM ET to 11:59:59 AM ET, the start of the following calendar day. After a transaction is split, the transaction may be modified to a different ratio than your Group Account Ratio, subject to your group member’s approval, depending on your account settings. When a modification is made, Sail Pay processes a book transfer on the difference between that transaction’s current Group Account Ratio and the new Group Account Ratio.
If you make a transaction where your Account has sufficient funds to facilitate the transaction, but your Group member’s Account does not have sufficient funds to fulfill their Group Member Obligation (“Void Transaction”), then this transaction will not be processed. Void Transactions will not prevent accounts from being unlinked, therefore, it is your responsibility to resolve any pending Void Transactions before unlinking accounts with your group member. Sail Pay, our Partner Bank, or any third parties will not be held liable for any balance owed due to a Void Transactions. If your Account contains an insufficient amount of money to fulfill a transaction request using a Sail Pay Debit Card or Group Card, then Sail Pay will not be required to fulfill the request. Title to any money stored in your Account will remain with you at all times and will not transfer to us, and, as the owner of money in your Account, you bear all risk of loss of that money.
3. LICENSE TO THE SERVICE. Subject to your complete and ongoing compliance with these Terms, Sail Pay grants a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (a) install and use on a mobile application associated with the Service obtained from a legitimate marketplace on a mobile device that you own or control (“Device”); and (b) access and use the Service, solely for your personal, non-commercial use. You may not: (i) reproduce, distribute, publicly display, or publicly perform the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
4. ACCOUNTS. You must have a registered Account on the Service to access most features of the Service. An Account may be subject to additional terms and conditions. Any account offered on the Services is a discretionary privilege that we may deny, suspend, or terminate at any time, for any reason, and without notice. By registering an Account, you agree and warrant that: (a) the information you provide at any time to us is accurate and that you will keep it accurate and current; (b) you are solely responsible for maintaining the confidentiality of your Account and for restricting access to it; and (c) you accept responsibility for all activities that occur in your Account or under your access credentials. You acknowledge and agree that Sail Pay is not responsible for any third-party access to your Account that results from theft or misappropriation. You are solely responsible for any charges, costs, expenses, damages, liabilities, and losses of any kind that you, we or any third party may incur. You agree to immediately notify us at support@sailpay.io of any unauthorized use of your access credentials or otherwise of your Account or any other known or suspected breach of security. We reserve the right to require you to change or update your account information at any time, including, but not limited to, your username and password. We will not be liable for any loss or damage arising from your failure to comply with this section.
5. COMMUNICATIONS. (a) Overview. Your acceptance of our E-Sign and Electronic Disclosure and Consent is required to create your Account. By accepting these Terms, you expressly agree to our E-Sign and Electronic Disclosure and Consent Agreement and consent to be contacted by us at any telephone number, e-mail address, or mailing address you provide or at which you may be reached in accordance with these Terms. You agree that we, our agents, and our service providers may contact you in any way, including by e-mail, SMS messages (including text messages, subject to these Terms), calls using pre-recorded messages or artificial voice, and calls and messages delivered using automatic telephone dialing systems (auto-dialer) or an automatic texting system at any phone number you have provided to us. Automated messages may be played when the telephone is answered whether by you or someone else. If an agent or representative of ours calls you, he or she may also leave messages on your answering machine, voice mail, or send messages via text. You can revoke your consent at any time by contacting us at support@sailpay.io. You certify, warrant, and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number. You are responsible for all charges imposed by your communications service provider. You agree that we and our agents, representatives, affiliates, or anyone calling on our behalf may contact you on a recorded or monitored line and that any incoming calls may also be recorded and monitored.
(b) Text Messaging. SMS text messaging is a quick and easy way for you to receive information about the Service, our other products, and any promotions. You understand that you are not required to provide consent to marketing SMS messages as a condition to accessing the Service. YOU CAN CANCEL THE SMS SERVICE AT ANY TIME BY TEXTING "STOP" TO THE MESSAGE THAT IS RECEIVED. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. You can also turn off SMS text messaging by submitting a support request to support@sailpay.io. Carriers are not liable for delayed or undelivered messages. Message and data rates may apply for any messages sent to you from us and to us from you. You are responsible for all such charges, including fees associated with text messaging, imposed by your communications service provider. Contact your wireless provide with any questions about your text or data plan. See our Privacy Policy for more information on how we treat your data.
(c) Push Notifications. You agree to receive alerts about your Account, including but not limited to, balances suspicious activities, and other matters involving your use of the Service through push notifications to your Device. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. Sail Pay is not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification, inaccurate push notification content, or your use or reliance on the content of any push notification for any purposes. A push notification may not be encrypted, and may include your name and information pertaining to your Account or use of the Service. Sail Pay may terminate your use of push notifications at any time without notice. You may choose to discontinue receiving push notifications by updating your preferences on your Device.
(d) Email. We may send you emails concerning the Service and our other products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
6. FEES AND AUTHORIZATIONS. (a) Fees. Certain features of the Service may require you to pay fees as described in the Cardholder and Deposit Account Agreement. All fees are in U.S. dollars and are non-refundable.
(b) Pricing. Sail Pay reserves the right to determine pricing for the Service. Sail Pay will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Sail Pay may change the fees for any feature of the Service, including additional fees or charges. Sail Pay, at its sole discretion, may make promotional offers with different features and different pricing to any of Sail Pay’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
(c) Authorization. You authorize Sail Pay to charge all sums for the transactions that you make, any level of Service you select, and any transfers of funds to or from your Account needed to be made by Sail Pay, our Partner Bank, or our third-party payment processor based on Fee Schedule in the Deposit Account Agreement and any fees based on the Group Account Ratio tied to your Group Account as described in these Terms or published by Sail Pay, including all applicable taxes, to your Account or otherwise to an alternative payment method specified by you in your Group Account Ratio. If you pay any fees with a credit card, Sail Pay may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
(d) Delinquent Accounts. Sail Pay may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid.
7. PROHIBITD CONDUCT. By using the Service, you agree not to use, or assist or permit any person in engaging in, the Services or content in any way that: (a) is threatening, violent, abusive, hateful, defamatory, slanderous, libelous, deceptive, fraudulent, tortious, indecent, vulgar, profane, obscene, or that we, in our sole discretion, deem inappropriate; (b) violates any local, state, federal or international law, regulation, including anti-money laundering laws, or court order; (c) accesses, collects or stores personal information about others; (d) violates or infringes upon the rights of anyone else, including, for example, another person’s right to privacy; (e) impersonates any person, business, entity, or IP address (e.g., IP spoofing); (f)involves uploading, posting, emailing, transmitting, or otherwise making available any materials that you do not have a right to make available under any law; (g) is commercial in nature, including, for example, advertising, promotional or marketing materials, or for spam, phishing, or other unsolicited messages; (h) gains or tries to gain unauthorized access to the Services, its computers and networks, or its user data, or that otherwise modifies or interferes with the use or operation of the Services; (i) attempts access or search the Service or materials or downloaded material from the Services from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools and the like) other than the software or search agents provided by Sail Pay or other generally available third-party web browsers; (j) interfere with security-related features of the Service, including by disabling or circumventing features that prevent or limit use or copying of any content or reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; (k) imposes an unreasonable or disproportionately large load on our infrastructure, including, but not limited to, transmitting spam or using other unsolicited mass emailing techniques; (l) could damage or overburden its servers, or any network connected to its servers; (m) would interfere with any other party’s use of the Services; (n) circumvents or attempts to circumvent any method we use to verify information about your age, identity, residency, or location; (o) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth; (p) sell or otherwise transfer the access granted under these Terms or any materials or any right or ability to view, access, or use any materials; (q) alters, damages, or deletes any content posted on the Services; (r) interfere with the operation of the Service, including, uploading or otherwise disseminating any viruses, adware, spyware, worm, or other malicious code, harmful files or programs, or interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; or (s) otherwise violates these terms or any other terms, guidelines, policies, rules, or directives posted on the Services that are incorporated by this reference into these terms.
8. TERM AND TERMINATION. These Terms will be effective upon the earlier of your acceptance of these Terms or use of the Service and will continue until terminated (the “Term”). Sail Pay may suspend or terminate your access to the Service at any time and for any reason with or without notice. If you violate the Terms, your authorization to access the Service and these Terms automatically terminate. You may terminate your Account at any time by contacting customer service at support@sailpay.io. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your Account or the Service; (c) you must pay Sail Pay any unpaid amount that was due prior to termination; (d) Sail Pay will, upon receiving written notice from you, return any funds in your Account to you; and (e) Sections 5, 7, 9, 12, 13, 21, 17, 19, 21 and 23 will survive.
9. VIOLATION OF TERMS. We may take any lawful or equitable action we deem appropriate in response to an actual or suspected violation of these terms. This includes but is not limited to suspending or terminating your account; blocking access to the Services or content; reporting and providing information about your actions to third parties; reporting and providing information about your actions to law enforcement; cooperating in any investigation; and initiating or participating in any civil or criminal action.
10. ADDITIONAL TERMS & POLICIES. Additional terms, conditions, and policies may apply to certain promotions, activities, and content offered on the Services. It is your responsibility to review any other applicable terms, conditions, and policies.
11. TERMS SUBJECT TO CHANGE. We may change these terms at any time and without notice. All changes are effective upon posting. Your continued use of the Services or its content after changes are posted constitutes your acceptance of those changes. For your convenience, the effective date of these terms is posted at the top of this page. It is your responsibility to review these terms periodically for changes.
12. INTELLECTUAL PROPERTY. We own the copyrights, trademarks, service marks, trade dress, and other Intellectual property rights to content, including visual interfaces, graphics, design, compilation, information data, computer code (including source code or object code), products, software, services, and all other elements of the Service (including your Account) (collectively, “Materials”). All Materials included in the Service are the property of Sail Pay, our Partner Bank, or our third-party licensors. You may not reproduce, modify, create derivative works from, display, publish, distribute, or transmit the Services or content to or through any third party, nor sell, resell, or otherwise exploit the Services or content for any business purpose, without our express written consent. We retain all rights not otherwise expressly granted in these terms.
13. THIRD-PARTY SERVICES AND LINKS. Sail Pay may provide tools through the Service that enable you to export information to third party services. By using one of these tools, you agree that Sail Pay may transfer that information to the applicable third-party service. Third-party services and links are not under Sail Pay’s control, and, to the fullest extent permitted by law, Sail Pay is not responsible for any third-party service’s use of your exported information. Use of any third-party websites is at your own risk.
14.C DISCLAIMER OF ENDORSEMENT. Reference to or the providing of any third-party link, any products, process, service, trade name, trademark, manufacturer, company, or other entity appearing on the Services does not constitute our endorsement or recommendation. Any opinions, statements, views, products, services, offers, or other information of any kind expressed or made available by third parties on or through the Services, including, but not limited to, other users, are solely those of the respective author or distributor.
14.C DISCLAIMER OF ENDORSEMENT. Reference to or the providing of any third-party link, any products, process, service, trade name, trademark, manufacturer, company, or other entity appearing on the Services does not constitute our endorsement or recommendation. Any opinions, statements, views, products, services, offers, or other information of any kind expressed or made available by third parties on or through the Services, including, but not limited to, other users, are solely those of the respective author or distributor.
15. SECURITY. Security measures have been integrated into the design, implementation, and day-to-day operations of the Services as part of our continuing commitment to the security of content as well as the electronic transmission of information. Due to the nature of the internet, however, we cannot and do not guarantee that any communication or information will be secure or free from unauthorized access by third parties. You understand and agree that your use of the Services is at your sole risk, and that we are not liable if a security breach occurs, except as expressly required by law.
16. DISCLAIMER OF AGENCY RELATIONSHIP. Nothing in these terms or your use of the Services, including submission of information, registration of an account, or creation of a link, creates any partnership, joint venture, employment, or agency relationship between you and us. You may not represent the existence of any such relationship, and you have no authority to enter into contracts on our behalf or to bind us in any way.
17. DISCLAIMERS; NO WARRANTIES. (a) GENERAL: YOU REPRESENT AND WARRANT TO US THAT YOU WILL NOT USE ANY MONEY IN YOUR ACCOUNT IN VIOLATION OF ANY APPLICABLE LAWS, INCLUDING ANY ANTI-MONEY LAUNDERING LAWS. WE RESERVE THE RIGHT, WITHOUT PRIOR NOTIFICATION, TO LIMIT YOUR USE OF YOUR ACCOUNT AND TO LIMIT THE SIZE AND FREQUENCY OF YOUR TRANSACTIONS IN YOUR ACCOUNT. YOU ABSOLVE US OF ANY RESPONSIBILITY TO MAINTAIN OR UPDATE YOUR ACCOUNT. SAIL PAY IS NOT, TO THE GREATEST EXTENT PERMITTED BY LAW, LIABLE FOR ANY LOSS OF ANY KIND SUFFERED BY YOU IN CONNECTION WITH OR ARISING FROM THE ACQUISITION, LOSS, FORFEITURE, OR ANY USE WHATSOEVER OF THE ACCOUNT.
(b). BANKING SERVICES: YOU ACKNOWLEDGE AND AGREE THAT: (I) SAIL PAY IS NOT A DEPOSITORY INSTITUTION, BANK, BRANCH OF A DEPOSITORY INSTITUTION OR A BANK ORGANIZED UNDER ANY DOMESTIC OR FOREIGN LAW; (II) SAIL PAY DOES NOT ACCEPT OR HOLD ANY DEPOSITS ON BEHALF OF YOU OR YOUR HIRED PARTIES AND, IN ITS PROVISION OF THE SERVICE, IS NOT PROVIDING ANY BANKING SERVICES TO YOU OR YOUR HIRED PARTIES; INSTEAD DEPOSITS ARE HELD IN AN OMNIBUS BANK ACCOUNT AT SAIL PAY’S PARTNER BANK ; (III) USE OF THE SERVICE WILL BE SUBJECT TO APPLICABLE LAWS AND THE RULES OF ANY PAYMENT NETWORKS THROUGH WHICH TRANSACTIONS IN CONNECTION WITH THE SERVICE MAY BE AUTHORIZED AND SETTLED (“CARD BRAND RULES”); AND (D) BY PROVIDING THE SERVICE, SAIL PAY IS NOT WARRANTING TO OR OTHERWISE GUARANTEEING YOUR COMPLIANCE WITH ANY APPLICABLE LAWS OR CARD BRAND RULES. YOU REPRESENT, WARRANT AND COVENANT TO SAIL PAY THAT AT ALL TIMES, IN USING THE SERVICE: (A) YOU WILL COMPLY WITH ALL APPLICABLE LAWS (INCLUDING THOSE AIMED AT COMBATING MONEY LAUNDERING AND TERRORIST FINANCING) AND ALL CARD BRAND RULES; AND
(B) YOU WILL, UPON SAIL PAY’S REQUEST, REASONABLY COOPERATE WITH SAIL PAY AND PROMPTLY PROVIDE SAIL PAY WITH ANY MATERIALS REASONABLY REQUIRED BY SAIL PAY TO ENABLE US TO PROVIDE THE SERVICE AND OTHERWISE FULFILL ITS OBLIGATIONS AND RESPONSIBILITIES UNDER THESE TERMS AND TO ENABLE US AND OUR THIRD-PARTY SERVICE PROVIDERS AND PARTNERS TO COMPLY WITH APPLICABLE LAWS AND CARD BRAND RULES. WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR POSSESSION, PERMITTED TRANSFER, AND USE OF MONEY THROUGH OR IN CONNECTION WITH THE SERVICE WILL SATISFY OR ENSURE COMPLIANCE WITH APPLICABLE LAWS.
(c) GENERAL DISCLAIMER; NO WARRANTIES. YOUR POSSESSION, PERMITTED TRANSFER, AND USE OF ALL OR ANY PORTION OF THE SERVICE (INCLUDING YOUR ACCOUNT) IS ENTIRELY AT YOUR OWN RISK. THE SERVICE AND YOUR ACCOUNT ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAIL PAY AND ALL SAIL PAY ENTITIES DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING: (I) WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND YOUR ACCOUNT; AND (II) WARRANTIES THAT THE SERVICE, YOUR ACCOUNT, AND ANY DATA PROCESSED THROUGH OR USING THE SERVICE IS SECURE, ACCURATE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF ANY OF THESE EXCLUSIONS DO NOT APPLY TO YOU OR ARE VOID WITH RESPECT TO YOU UNDER ANY APPLICABLE LAW, THEN ANY WARRANTY THAT CANNOT BE EXCLUDED IS LIMITED TO THE SHORTER OF: (A) 90 DAYS FROM THE DATE OF FIRST DELIVERY OF THE SERVICE; AND (B) THE SHORTEST PERIOD PERMITTED UNDER APPLICABLE LAW.
18. DISCLAIMER OF ACCURACY AND TIMELINESS. We endeavor to provide accurate and timely content on the Services; however, we do not guarantee the availability, accuracy, adequacy, completeness, or timeliness of any content or service offered on or through the Services. We are not liable for any damages or losses resulting from unavailable, inaccurate, inadequate, incomplete, or untimely content or service. Additionally, content on the Services is presented only as of the date and time published or indicated and may be outdated, superseded, or overridden by subsequent events or actions. You are responsible for setting the cache settings on your browser to ensure you are receiving the most recent content.
19. LIMITATION OF LIABILITY AND DISCLOSURE OF DAMAGES. IN NO EVENT WILL WE OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES BE LIABLE FOR ANY DAMAGES (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LATE FEES, SERVICE INTERRUPTION, LOST DATA, OTHER PENALITIES ASSESSED BY A THIRD PARTY, OR FOR ANY PERSONAL INJURY, EMOTIONAL DISTRESS OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES REGARDLESS OF THE NATURE OF THE ACTION), LIABILITY OR LOSSES ARISING DIRECTLY OR INDIRECLY OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY SERVICE PROVIDER.
NO CIRCUMSTANCE WILL WE BE LIABLE FOR ANY AMOUNTS, IN WHATEVER FORM, EXCEED, IN THE AGGREGATE, THE LESSER OF (a) THE SERVICE FEES PAID TO SAIL PAY IN CONNECTION WITH SUCH TRANSACTION ON THE SERVICES, OR (b) ONE-HUNDRED DOLLARS (US $100.00) OR EQUIVALENT IN LOCAL CURRENCY.
20. POTENTIAL DISRUPTION OF SERVICE. Access to the Services or its content may be unavailable, delayed, limited, or slowed by various disruptions in service. We are not liable for any damages or losses resulting from any disruption in service.
21. INDEMNIFICATION. To the fullest extent permitted by law, you are responsible for your use of the Service and you agree to indemnify, hold harmless, and defend us, our officers, directors, employees, agents, partners, shareholders, its affiliates, and licensees and their respective shareholders, directors, managers, members, officers,
employees, consultants, and agents (collectively the “Sail Pay Entities”) from and against all claims, actions, liabilities, losses, expenses, damages, and costs of any kind, including, but not limited to, attorney fees, resulting from or relating to your (a) use of the Services or its content;, (b) breach of these terms; (c) inability to access the Services; (d) unauthorized use or, misuse of, the Service; (e) violation of any portion of these Terms, any representation, warranty, or agreement referenced in thee Terms, or any applicable law or regulation; (f) violation of any third-party right, including any intellectual property right or publicity, confidential, or other property, or privacy right; (g) any dispute or issue between you and any third-party, or (h) use of any linked websites, reliance on any errors or omissions on the Services, or propagation or contraction of any computer virus in connection with your use of the Services or its content. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
22. NON-WAIVER. We are not obligated to take any action or pursue any remedy authorized by these terms. Refraining from taking any authorized action or pursuing any remedy does not constitute a waiver of any rights or remedies and does not preclude us from taking any such action or pursuing such remedy in the future.
23. DISPUTE RESOLUTION, ARBITRATION AND WAIVERS. READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
Please contact us at support@sailpay.io with any claim or dispute and we will try to resolve your concerns within 90 business days from receipt. For clarity, a claim or dispute under this Deposit Account Agreement include, but is not limited to, any claim or dispute, whether based on past, present, or future events, arising out of or relating to this Deposit Account Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof); the products or Services through us and any companies or individuals offering products or services through us (which are beneficiaries of this arbitration agreement); any other goods or services made available through the Services; any representations made by us, your relationship with Sail Pay, the threatened or actual suspension, deactivation or termination of your account with Sail Pay; payments made by you or any payments made or allegedly owed to you; any promotions or offers made by Sail Pay; any claims for fraud, defamation, emotional distress, breach of any express or implied contract or covenant; claims or disputes involving the validity or infringement of Intellectual Property Rights; claims relating to the Sail Pay software, claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims (a “Claim”).
ANY CLAIM NOT RESOLVED BETWEEN THE PARTIES WILL EXCLUSIVELY, AND ON AN INDIVIDUAL BASIS, BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SAIL PAY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICPATE IN A CLASS ACTION OR CLASS ARBITRATION. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to limited review by courts. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these terms, whether based in contract, tort, statue, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these terms.
Arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to limited review by courts. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these terms, whether based in contract, tort, statue, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these terms.
The Federal Arbitration Act and federal arbitration law apply to this agreement. This Dispute Resolution and Arbitration Agreement shall apply if you (a) reside in the United States; or (b) do not reside in the United States but bring any claim in the United States. Nothing in this section will be construed to preclude the right of either party to pursue injunctive or provisional relief at any time in any court of competent jurisdiction.
American Arbitration Association. Arbitrations will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA Consumer Rules, then in effect, except as modified here. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. The arbitrator has exclusive authority to resolve all disputes related to the interpretation, applicability, or enforceability of this binding arbitration agreement. The AAA Rules and filing instructions are available at www.adr.org or by calling 1-800-778-7879.
Jury Trial Waiver. You acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable disputes. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce these Terms as a court would.
Severability. If any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Notification. To begin an arbitration proceeding, you must send a letter requesting arbitration and describe your Claim support@sailpay.io and file with a claim with AAA. Enter Arbitration Claim Manager in the subject line. If we request arbitration against you, we will give you notice at the email address or street address you have provided.
Attorney Fees and Costs. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules.
Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions ON which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Survival. This Arbitration Provision shall survive the termination of this Agreement.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVING THAT RIGHT BY AGREEING TO THIS AGREEMENT AND ARBITRATION PROVISION.
24. WEBSITE CHANGES AND TERMINATION. We reserve the right to add, remove, modify, suspend, or terminate any aspect of the Services, content, or your access to the Services or content at any time and without notice. We are not liable for any damages or losses resulting from any such change, suspension, or termination of the Services or content.
25. SEVERANCE. If any provision of these terms is deemed unlawful or unenforceable for any reason, that provision will be severed from these terms and the remaining provisions remain in full force.
26. GOVERNING LAW. These Terms, and all transactions and claims are subject to and governed by the laws of the State of Michigan without regard to conflict of law principals. You and Sail Pay submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Oakland County, Michigan for resolution of any lawsuit or court proceeding permitted under these Terms.
27. INFORMATION YOU SUBMIT. By submitting a comment, suggestion, opinion, picture, response, survey, or other information to the Services, you represent and warrant to us that you have all necessary rights in and to that submission. You further represent and warrant that your submission does not contain any libelous, tortious, or otherwise unlawful information and does not infringe upon the rights of any third party. We do not claim ownership of information you submit. By submitting information, however, you authorize and grant us free of charge the non-exclusive right and license to use, copy, display, reproduce, reformat, modify, and distribute that content in whole or in part, alone or together with other information, in any manner we choose, through any media outlets we choose, anywhere, in perpetuity. You understand and agree that you waive any claim to compensation for any such right or license.
28. FEEDBACK. We are always seeking to improve and welcome your feedback, comments, and suggestions (“Feedback”). Please visit us at support@sailpay.io to submit Feedback. You grant Sail Pay a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up, full sublicensable and transferable right to use and incorporate Feedback into any products and services, to make use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and exploit the Feedback without restriction.
29. QUESTIONS. If you have any questions about the Services or the above terms, please contact us at support@sailpay.io.
30. GENERAL TERMS. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Sail Pay regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
31. PRIVACY POLICY. Please read the Sail Pay Privacy Policy for information relating to our collection, use, storage, and disclosure of your personal information, which is incorporated by this reference into, and made a part of, these Terms.
32. NO SUPPORT. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
33. INTERNATIONAL USE. The Service is intended for use within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
34. NOTICE REGARDING APPLE. This Section 33 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Sail Pay only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (A) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.