TERMS OF SERVICE FOR CONSUMERS
TERMS OF SERVICE
Last Revised on May 5, 2022
Welcome to the Terms of Service (these “Terms”) for the website, ASA.FINANCIAL (the “Website”), and our related ASA Vault mobile application (the “App”) operated on behalf of ASA Financial (“Company”, “we” or “us”). The Website, the App and any content, tools, features and functionality offered on or through our Website and the App are collectively referred to as the “Services”.
These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you acknowledge and agree that you have read, understood and accepted all of the Terms. Your use of the Services constitutes your acceptance of these Terms. The licenses, user obligations, and authorizations described herein are ongoing. If you do not understand or agree to these Terms, you may not access or use the Services and must immediately cease any use of the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services.
Section 8 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us related to the Services through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) to waive your right to participate in class actions, class arbitrations, or representative actions in connection with your use of the Services. You have the right to opt-out of arbitration as explained in Section 8.
⦁   TABLE OF CONTENTS
⦁   THE SERVICES
- Description of Services. The Services offer you the ability to connect your bank account to your other financial services applications in a way that makes information sharing more secure. Specifically, we allow you to connect your accounts at one or more participating financial institutions (such as banks and credit unions, or “Bank Partners”) with applications provided by financial technology companies (such as budgeting and investment management applications, or “Fintech Partners”) (together, “Third Party Partners”). When using the Services, you have the option to permission which Fintech Partners get access to information from your account(s) with Bank Partners. The Services may also present you with information relating to third party products or services that you may be interested in. For clarity, the Services are provided by Company and are not being provided by Company on behalf of a third party.
- Who May Use the Services. You must be 13 years of age or older and reside in the United States or any of its territories to use the Services. Children under the age of 13 are only permitted to use the Services if the minor’s parent or guardian accepts these Terms on the minor’s behalf prior to use of the Services. By using the Services, you represent and warrant that you meet these requirements.
⦁   USER ACCOUNTS; AUTHORIZATION
- Creating and Safeguarding your Account. To use the Services, you need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account via the ASA Vault app. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at email@example.com if you know or have any reason to suspect that your Account or password may have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed your Account, or we previously banned you from any of our Services, unless we consent otherwise.
- Linking with Third Party Partners. After you create your Account, you will be prompted to select your Bank Partner(s), and the Services will send an authentication request to the selected Bank Partner(s). After you have been authenticated by a Bank Partner, you will be able to select your accounts at the Bank Partner that you want our Fintech Partners to have access to, and to select Fintech Partners to link with such bank account(s). In order to use our Services, you must have a connection with at least one Bank Partner. In order to use the services offered by Fintech Partners, you may need to download a separate application and create a separate account with each Fintech Partner. By linking one or more of your bank accounts with a Fintech Partner, you are authorizing us to provide information about the selected accounts from our Bank Partners to that Fintech Partner. You can de-link from a Fintech Partner application at any time, either with respect to a single account or with respect to all of your accounts. Use of a Fintech Partner’s application may be subject to additional terms established by that Fintech Partner. With respect to any third-party sites we may enable you to access through the Services or with respect to any non-Company accounts you include in the Services, you agree to the following:
- You are responsible for all fees charged by the third party in connection with any non-Company accounts and transactions. You agree to comply with the terms and conditions of those accounts and agree that these Terms do not amend any of those terms and conditions. If you have a dispute or question about any transaction on a non-Company account, you agree to direct these to the account provider.
- Any links to third party sites that we may provide are for your convenience only, and Company and its service providers do not sponsor or endorse those sites. Any third-party services, which you may be able to access through the Services, are services of the listed institutions. We nor our service providers have responsibility for any transactions and inquiries you initiate at third party sites. The third-party sites you select are solely responsible for their services to you. We nor our service providers are liable for any damages or costs of any type arising out of or in any way connected with your use of the services of those third parties.
- Provide Accurate Information: You represent and agree that all information you provide to us in connection with the Services is accurate, current, and complete. You agree not to misrepresent your identity or account information. You agree to keep account information secure, up to date and accurate. You represent that you are a legal owner, or an authorized user, of the accounts at third party sites which you include or access through the Services, and that you have the authority to (i) designate us and our service providers as your agent, (ii) use the Services, and (iii) give us and our service providers the passwords, usernames, and all other information you provide.
- Content You Provide. Your use of the Services is your authorization for Company or its service providers, as your agent, to access third party sites which you designate in order to retrieve information. You are licensing to Company and its service providers any information, data, passwords, usernames, PINS, personally identifiable information or other content you provide through the Services. You authorize us or our service providers to use any information, data, passwords, usernames, PINS, personally identifiable information or other content you provide through the Services or that we or our service providers retrieve on your behalf for purposes of providing the Services, to offer products and services, and for other permissible business purposes. Except as otherwise provided herein, we or our service providers may store, use, change, or display such information or create new content using such information.
- Authority to Access Information. Unless and until these Termsare terminated, you grant Company and its service providers the right to access information at third-party sites on your behalf. Third-party sites shall be entitled to rely on the authorizations granted by you or through your account. For all purposes hereof, you hereby grant Company and its service providers the right to access third-party sites to retrieve information, use such information, as described herein, with the full power and authority to do and perform each and every act and thing required and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person. Upon notice to Company, you may (i) revoke Company’s right to access information at third party sites on your behalf, or (ii) subject to Company’s rights to aggregated data set forth in these Terms, request deletion of information collected from third party sites. You understand and agree that the Services are not sponsored or endorsed by any third-party site. YOU ACKNOWLEDGE AND AGREE THAT WHEN COMPANY OR ITS SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM THIRD-PARTY SITES, THEY ARE ACTING AT YOUR REQUEST AND WITH YOUR PERMISSION AND AUTHORIZATION, AND NOT ON BEHALF OF THE THIRD-PARTY SITES.
⦁   Third Party Offerings
- Use of Third Party Materials in the Services. The Services will display, include and make available content, data, information, applications and materials from third parties, including our Third Party Partners or provide links to certain third party websites and applications, including those of our Third Party Partners (“Third Party Offerings”). By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Offerings. We do not warrant or endorse and do not assume, and will not have, any liability or responsibility to you or any other person for any Third Party Offerings, or for any other materials, products, or services of third parties.
- Product Offers. We may use your Account information and other information about you that we gather through the Services or from our Third Party Partners to generate offers for Third Party Offerings from our marketing partners that may be of interest to you. You have the ability to decide whether to apply for an offered product or service, and we will never apply for a product or service on your behalf unless you expressly authorize us to do so. However, we do not guarantee that you will receive offers for any particular types of products or services or that you will meet the approval criteria for any particular product or service offered to you. We may receive compensation from our marketing partners for promoting their products and services through our Services. We do not guarantee that the rates, product terms, rewards or other service terms for a Third Party Offering that are displayed through the Services are actually the terms that may be offered to you if you pursue the offer, or that they are the best terms or lowest rates available in the market. Use of Third Party Offerings will be subject to additional terms established by the provider of that Third Party Offering.
- Payment. The Services may permit you to purchase or subscribe to Third Party Offerings using your linked account(s) at our Bank Partners. When you purchase or subscribe to Third Party Offerings using the Services, you (a) agree to pay the purchase or subscription price for such Third Party Offering and all applicable taxes in connection with your purchase (the “Full Purchase Amount”), and (b) authorize us to debit your account at the applicable Bank Partner in order to pay the Full Purchase Amount. If at any time your accounts at the applicable Bank Partner do not hold sufficient funds for all Full Purchase Amounts required to be debited, your purchases or subscriptions may be cancelled, and you agree to reimburse us for any charges we incur in connection with any failure to pay the Full Purchase Amount for a Third Party Offering. Payments for Third Party Offerings will not be processed until we are able to debit the Full Purchase Amount from your account(s) at the applicable Bank Partner(s), and any holds on your accounts at such Bank Partners are solely your responsibility.
- Aggregated Data: Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is collected through your use of the Services, may be used by us and our service providers to conduct certain analytical research, performance tracking and benchmarking. Our service providers may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third parties.
⦁   Rights We Grant You
- Right to Use Services. We hereby permit you to use the Services for your personal non-commercial use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to download, execute and display such software, content and materials provided to you as part of the Services (and right to download a single copy of the App onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that the Company, in its sole discretion, may elect to take.
- Restrictions On Your Use of the Services. You may not do any of the following in connection with your use of the Services (or content or information delivered through the Services), unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
- download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
- duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
- use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
- use automation software (bots), hacks, modifications (mods) or any other unauthorized third party software designed to modify the Services;
- exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
- access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use of any device, software or routine that causes the same;
- attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
- circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
- use the Services in such a manner as to gain unauthorized entry or access to computer systems;
- use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
- access the information and content programmatically by macro or other automated means;
- introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems, or tamper, hack, modify or otherwise corrupt the security or functionality of the Services;
- use the Services for illegal, harassing, unethical or disruptive purposes;
- violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)applicable law or regulation in connection with your access to or use of the Services;
- be fraudulent or involve the sale of counterfeit or stolen items, including but not limited to use of the Services to impersonate another person or entity;
- create liability for Company or its service provider or cause Company to lose the services of our service providers; or
- access or use the Services in any way not expressly permitted by these Terms.
- Use of the App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App. We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App will be available in, or that orders for Third Party Offerings can be placed from, any particular geographic location. As part of the Services, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from the Company. You are solely responsible for any fees, costs or expenses that you incur to download, install and/or use the App on your mobile device, including for your receipt of Push Messages from the Company.
- Beta Features. From time to time, we may, in our sole discretion, include certain test or beta features in the Services (“Beta Features”). Your use of any Beta Feature is voluntary. You agree that once you use a Beta Feature, your data may be affected such that you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Feature back to the prior non-beta version. The Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Feature is at your sole risk.
⦁   Ownership and Content
- Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), associated content, technology information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors and service providers own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content, including, without limitation, the exclusive right to create derivative works. For clarity, Third Party Partners own all right, title and interest in and to the content provided on their websites and applications.
- Ownership of Trademarks. The Company’s name, the Company’s logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
- Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
⦁   Disclaimers, Limitations of Liability and Indemnification
- Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its third party service providers and partners, and their respective parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “the Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, your data and other communications maintained by the Services. To the extent we are holding your data on our platform and such data gets deleted inadvertently, we shall not be liable, even in the case where we are unable to recover the data. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
- No Financial Advice. The Services are not intended to provide legal, tax or financial advice. The Services, or certain portions and/or functionalities thereof, are provided as strictly educational in nature and are provided with the understanding that neither Company nor its third-party providers are engaged in rendering accounting, investment, tax, legal, or other professional services. If legal or other professional advice including financial, is required, the services of a competent professional person should be sought. Company and its third-party providers specifically disclaim any liability, loss, or risk which is incurred as consequence, directly or indirectly, of the use and application of any of the content on this site. Further, Company and its third-party providers are not responsible for anycredit, insurance, employment or investment decisions or any damages or other losses resulting from decisions that arise in any way from the use of the Services or any materials or information accessible through it. Past performance does not guarantee future results. Company and its third-party providers do not warrant that the Services comply with the requirements of the FINRA or those of any other organization anywhere in the world. Any legal, financial or tax advice that you receive from any Third Party Partner is solely the responsibility of that Third Party Partner and not the Company Entities.
- DISCLAIMER OF WARRANTIES. YOU AGREE YOUR USE OF THE SERVICES AND ALL INFORMATION AND CONTENT (INCLUDING THAT OF THIRD PARTIES) IS AT YOUR RISK AND IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE, AND OUR SERVICE PROVIDERS, DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE USE OF THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE, AND OUR SERVICE PROVIDERS, MAKE NO WARRANTY THAT THE SERVICES (i) WILL MEET YOUR REQUIREMENTS, (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SERVICES OR TECHNOLOGY WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. WE, ON BEHALF OF OURSELVES AND ALL THIRD PARTY DATA PROVIDERS, EXPRESSLY DISCLAIMS ANY TYPE OF REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY OR RESPONSE TIME OF THE SERVICE OR CONTENT OR INFORMATION OBTAINED THROUGH THE SERVICE OR THAT SUCH ACCESS WILL BE UNINTERRUPTED OR ERROR-FREE AND, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, EXPRESSLY DISCLAIMS THE ACCURACY, COMPLETENESS AND CURRENCY OF ALL INFORMATION COLLECTED ON YOUR BEHALF.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR ITS SERVICE PROVIDERS THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
- Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM (i) THE USE OR THE INABILITY TO USE THE SERVICES AT OUR WEBSITE/MOBILE APPLICATION OR OF ANY THIRD PARTY ACCOUNT PROVIDER'S WEBSITE/MOBILE APPLICATION; (ii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES, (iii) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICES, (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION OR DATA, (v) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICES, (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES, OR (vii) ANY OTHER MATTER RELATING TO THE SERVICES, EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation (or violation by any other user of your account)of any rights of any third party; (c) your misuse of the Services;or (d) your negligence or wilful misconduct.
⦁   ARBITRATION AND CLASS ACTION WAIVER
- Informal Process First. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
- Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy or claim (collectively, “Claim”) relating in any way to your use of the Company’s Services will be resolved by arbitration, including threshold questions of arbitrability of the Claim, except as permitted herein. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. You have a right to have the arbitration conducted via telephone, or as an in-person hearing in your hometown area (if you live in the United States) or another location that is reasonably convenient to you.
- Waiver of Jury Trial, Class Actions and Class Arbitrations. You and the Company agree that each party may bring Claims against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Company agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. You agree that, with respect to any dispute with us or our service providers, arising out of or relating to your use of the Services or these terms: (i) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and (ii) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING SUCH DISPUTE.
- Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the JAMS Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses.
- Opt-Out. You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these Terms by sending written notice of your decision to opt-out to ⦁ firstname.lastname@example.org or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your registering to use the Services or agreeing to these Terms (or if this Section 9 is amended hereafter, within 30 days of such amendment being effective), otherwise you shall be bound to arbitrate disputes in accordance with these Terms, and the notice must specify your name and mailing address. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
- Exceptions. Notwithstanding anything in these Terms to the contrary, you may instead assert your Claim in “small claims” court, but only if your Claim qualifies, your Claim remains only in such court, and your Claim remains on an individual, non-representative and non-class basis. Further, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, or if the Claim relates to intellectual property infringement or misappropriation.
⦁   Additional Provisions
- SMS Messaging and Phone Calls. Certain portions of the Services may allow us to contact you via telephone [or text messages]. You agree that the Company may contact you via telephone [or text messages] (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with your use of the Services, including for marketing purposes based on the notification settings authorized by you in ASA Vault. You understand that you are not required to provide this consent as a condition of using the Services. [You also understand that you may opt out of receiving text messages from us at any time, by updating your notification settings in ASA Vault.
- Updating These Terms. We may modify or discontinue all or any portion of the Services, and update these Terms accordingly, from time to time, with or without advance notice to you, in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website and in a prominent location on the App. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acknowledgment and acceptance of the modified Terms.
- Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing), with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. The Company shall not be responsible for the failure to delete or for deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
- Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
- California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Export Restrictions. You acknowledge that the Services and any software underlying such Services are subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the software or Services, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions; (2) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that the Services may include technical data subject to export and re-export restrictions imposed by U.S. law.
- Miscellaneous. If any provision of these Terms shall be unlawful, void or, for any reason, unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms [and the licenses granted hereunder] may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of Delaware, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 9, or if arbitration does not apply, then the state and federal courts located in Delaware.
- How to Contact Us. You may contact us regarding the Services or these Terms at: 1375 Cinnamon Ridge Way, Provo, Utah 84606, or by e-mail at email@example.com.