Conditions of Use

These Conditions of Use (“Agreement”) constitute a binding contract between you and S & W Payroll Services L.L.C. (DBA Netchex) (“Netchex”, “we”, “us”, “our”) and govern all access to or use of the Netchex website at https://netchex.com (the “Webpage”), the Netchex service platform at http://netchexonline.net (the “Platform”), the iOS mobile application (the “Mobile Platform”, and together with the Webpage and Platform, the “Sites”), and the domain names and subdomains, services, content, products, features and/or applications (including, without limitation, any mobile application services) offered from time to time by Netchex in connection therewith (collectively, the “Services”). All persons who access the Services, are referenced as “you”, “your”, or “User”. You and Netchex may be referred to, individually, as a “Party”, and collectively as the “Parties”.

NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION IN SECTION 21 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES. 

By using the Services, you accept and agree to this Agreement. If you do not agree to be bound by the terms and conditions of this Agreement, including the mandatory arbitration provision and class action waiver, you should immediately cease all usage of the Services and you are not authorized to access or otherwise use the Services. We reserve the right, at any time, to modify, alter, or update any provision of this agreement without prior notice. Modifications shall become effective immediately upon being posted on the Webpage. Your continued use of the Sites or any other Services after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. If you have any questions or comments about this Agreement, please contact us. 

1. SCOPE

Certain Users of the Services will have further access to the Webpage, Platform, and Mobile Platform, and the Netchex services, content, products, features and applications including without limitation: 

●      Users that enter into applicable agreements for Services with Netchex (“Service Agreements”) and use and access the Platform and the Mobile Platform pursuant to such Service Agreements (“Clients”);

●      Clients who create or obtain a user ID and password with Netchex to use and access the Services directly or through one or more authorized administrators (“Administrator Users”);

●      Employees of Clients, or other Users authorized by Clients, who create or obtain a user ID and password with Netchex to use and access the Services (“End-Users”); and

●      End-Users who are not Administrator Users (“Regular Users”).

In the event of a conflict between a Service Agreement and this Agreement, the terms of the Service Agreement shall control the rights and obligations of the applicable Clients and Users.

2. PRIVACY POLICY

Applicable U.S. federal and state laws govern the collection, use, and disclosure of personal information within the Services. Our Privacy Policy explains how personal information about you is handled by us while providing Services to, and interacting with, our Users. Any personal information provided to Netchex through the Services is subject to Netchex’s Privacy Policy; by accessing or using our Services you agree that Netchex can collect, store, use, and disclose such information in accordance with our Privacy Policy, which is hereby incorporated into this Agreement by reference. If you do not agree with our Privacy Policy, you should immediately cease any use of our Services. For further information about how and why we collect, store, use, and disclose your personal information, please visit our Privacy Policy.

3. USE OF SERVICES

3.1 Use Overview.

The Services are available to Users who have a registered username and password associated with a Netchex Client (an “Account”). In registering an Account on the Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving Services under the laws of the United States or other applicable jurisdictions. Excluding the Webpage, if you do not have a valid registered username and password or are no longer an employee, contractor, or plan participant of the Client, you are not authorized to use or access the Services. The Client, through its Service Agreement(s), is providing you with access to the information and Services under this Agreement. You are responsible for maintaining the security of any password and username that may grant access to non-public areas of the Services. In order to protect you and your data, Netchex may suspend your use of the Services, without notice if any unauthorized access or breach of security is suspected. If you provide any information that is untrue, inaccurate, not current or incomplete, or Netchex has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Netchex reserves the right to suspend or terminate your Account and refuse any and all current or future use by you of the Services (or any portion thereof) at any time.

The right to use the Services is personal to you and is not transferable by you to any other person or entity. Any attempt by a User to transfer such User’s rights shall be void and shall constitute a breach of this Agreement. You shall not use the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening or interrupting network capacity. You acknowledge and agree you are not permitted to use any personally identifiable information of any other person accessed through the Services for any use not expressly permitted by a Service Agreement. You further agree not to copy, transfer or distribute any such personally identifiable information other than as permitted by a Service Agreement. You further agree not to use the Services in any manner to harass, abuse, threaten, or otherwise infringe or violate the rights of any other party, and that Netchex is not responsible for any such use by you.

3.2 Use by Regular Users.

Regular Users may access certain employment-related or plan-related information and documents made available by Client to participate in the Services. The Services may permit Regular Users to update personal information, time records or to make benefits elections through the Services. You acknowledge and agree that it is your responsibility to submit information relating to the Services and to verify the accuracy and completeness of all such information. Netchex does not review the accuracy or completeness of the information you submit. By using the Services to transmit your personal information and other data, you consent to the use of your personal information and other data as required by Netchex to provide the Services in accordance with any applicable Service Agreement. You acknowledge that Netchex is making the Services available on behalf of the Client and is not acting as an advisor, agent, fiduciary, intermediary, or a financial or benefit planner or tax advisor. The Client is responsible for making available all benefits and information referenced or included on the Services. You assume all responsibility for and risk arising from your use of and reliance upon the contents of the Services.

3.3 Use by Administrator Users.

On behalf of the Client, you may access and input certain information relating to the Client, the Client’s employees, contractors, and/or the Client’s plan participants. The information that you input may be used and relied upon by Netchex and by the Client’s other Regular Users who access or use the Services. The Services may permit Regular Users to make certain elections through the Services and to update certain personal information. As an Administrator User for the Client, you acknowledge and agree, on behalf of the Client, that it is the Client’s responsibility to submit instructions and information relating to the Services and to verify the accuracy and completeness of all such instructions and information submitted by the Client and by all Regular Users.

As an Administrator User for the Client, you acknowledge and understand, on behalf of the Client, that Netchex is merely making the Services available and is not acting as an advisor, broker-dealer, agent, fiduciary, intermediary, or a financial or benefit planner or tax advisor. As an Administrator User for the Client, you acknowledge, on behalf of the Client, that the Client is responsible for making available all benefits and information related thereto referenced or included on the Services.

4. SERVICES ELIGIBILITY; MINORS

General browsing of our Webpage is not intended for persons under the age of thirteen (13). We do not collect information from children under thirteen (13) and we specifically prohibit children under thirteen (13) from entering any parts of the Sites or Services where Personal Information may be collected. 

The remainder of our Services are not directed to persons under the age of eighteen (18) and do not knowingly collect any information from persons under the age of thirteen (13), or from persons between the age of thirteen (13) and eighteen (18) without appropriate authorization. Please review our Privacy Policy for more information on how we handle children’s information.

Please note that if you are currently, or have been previously, banned from any of the Services, you shall not access or use the Sites or Services for any reason. Use of the Services is void where prohibited.

5. ACCOUNT SECURITY

Access to and use of password protected or non-public areas of the Services are restricted to authorized Users only. Unauthorized access to such areas is prohibited. If you do not have a username, you are not authorized to use or access such areas. In order to access and use the password protected or non-public areas of the Services, you must provide your current username and password. You are responsible for maintaining the confidentiality of your Account and are fully responsible for all activities that occur under your Account. You agree to take any and all actions necessary to maintain the privacy of your username and password, including, without limitation, safeguarding your username and password in a private and secure place, changing your password periodically, utilizing multi-factor authentication, adopting special precautions when accessing the Services from a computer that is available for use by other users, and exiting from the Services at the end of each session. You may not share, give, or sell your password or username to any other person or entity. You agree that you will not access the Services through a username and password that has not been issued specifically to you, personally, as a Regular User or Administrator User, without prior authorization from Netchex. 

In the event that you have reason to believe that a third party has access to your Account, you should immediately change your password and notify [email protected] and your Client’s Administrator User. Netchex will not be liable for any loss or damage arising from any unauthorized use of your Account, howsoever arising, including without limitation any such use arising out of or made possible by your failure to properly secure your Account information username and password, sharing of your account credentials with another person, or failure to utilize security features made available by Netchex designed to safeguard your account (such as multi-factor authentication). 

6. TERMINATION OR SUSPENSION OF ACCOUNT OR SERVICES

You agree that Netchex may at any time and for any reason, terminate your access to your Account or restrict or suspend your access to all or any part of your Account at any time, for any or no reason, with or without prior notice, and without liability. 

Netchex may modify or discontinue any and all Services with or without notice. Netchex shall not be liable to you or any third party should Netchex exercise its right to modify or discontinue, or interrupt access to, the Services. You acknowledge and accept that Netchex does not guarantee continuous, uninterrupted access to the Services and operation of the Services may be interfered with or adversely affected by numerous factors or circumstances outside of Netchex’s control.

All licenses and other rights granted to you by this Agreement will immediately terminate upon termination of your right to use our Services as applicable or our termination of the Services as applicable. This Agreement will survive and continue to apply after any suspension, termination, or cancellation, except that your access rights and other rights as a User will be suspended, terminated, or canceled, respectively.

If you want to terminate the Services provided to you by Netchex, you may do so by notifying Netchex at any time. Your notice should be sent, in writing, to Netchex’s email or mailing address set forth in Section 25.

7. COMMUNICATIONS

The communications between you and Netchex may take place via electronic means, whether you visit the Services or send us emails, or whether we post notices on the Services or communicate with you via email, telephone call, text message, or mobile push notifications (collectively the “Communications”).

When engaging in the Services (e.g., creating an Account; logging-in to the Services, making a privacy request), you may be asked to provide an email address and mobile phone number. The collection of your email address and mobile phone number allows you to receive direct Communications from us. Service-related Communications from or on behalf of us may include but are not limited to the use of the Services, User support, and informational communications concerning the Services. You do not have an option to opt out of these service-related emails, which are not promotional in nature.

You have the right to opt out of receiving marketing Communications at any time. If you would like to discontinue receiving email marketing Communications, you may opt out by using the “Unsubscribe” link found in our emails, replying “STOP” to our text messages, turning off notifications from our Services, or disabling push notifications through your mobile device’s settings.

7.1 Consent to Receive Electronic Communications

For contractual purposes, you (1) consent to receive Communications from Netchex in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other Communications that Netchex provides to you electronically satisfy any legal requirement that such Communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. You may maintain copies of electronic Communications from us by printing a paper copy or saving an electronic copy. 

You may also withdraw your consent to receive Communications in electronic format by contacting Netchex at [email protected] and requesting that applicable Communications be sent to you in paper or non-electronic form. Please note that Netchex may elect to terminate our Services to you if you choose to receive Communications in paper or non-electronic form.

8. TESTIMONIALS AND FEEDBACK

You acknowledge and agree that any testimonial, feedback, comment, or suggestion you may provide regarding Netchex or the Services (“Feedback Messages”) is entirely voluntary and will be considered non-personal, non-confidential, and nonproprietary. You hereby grant Netchex a perpetual, sublicensable, assignable, unrestricted, worldwide, royalty-free, irrevocable license to use, reproduce, display, perform, practice, modify, create derivative or collective works, transmit and distribute your Feedback Messages, in whole or in part, and including all intellectual property rights therein. To request the removal of your Feedback Messages, please see our Privacy Policy.

9. THIRD PARTIES AND LINKS 

The Services may display, include or make available, content, data, information, applications or materials from third parties or provide links to certain third party websites (collectively, “Third Party Links”). Third Party Links to other websites are provided solely as a convenience to you. 

Netchex prohibits unauthorized links to the Services and the framing of any information contained on the Services or any portion of the Services (“Unauthorized Links and Frames”). Netchex reserves the right to disable any Unauthorized Links and Frames and has no responsibility or liability for any material on other websites that may contain links to the Services.

You acknowledge and agree that Netchex is not responsible for the availability of, or the content of, or any other aspect of, such Third Party Links. Netchex does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Links including third party materials or websites, or for any other materials, products, or services of third parties, or the accuracy or reliability of any third party information provided on the Services. Netchex does not endorse, nor makes any warranties or representations whatsoever with regard to any product or service provided or offered by any Third Party Link. 

10. GENERAL CONTENT

For purposes of this Agreement: “Content” means text, graphics, images, music, software, audio, video, feedback, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services.

Content on the Services is provided to you “AS IS”. We reserve the right to change the Services and the Netchex Content (defined below) at any time. However, we have no obligation to update any information on our Services. You agree that it is your responsibility to monitor changes to our Services. We are not responsible if information made available on the Services contains typographical errors, is not accurate, is not complete, or is not current. The material on the Services is provided for general information only and should not be relied upon as the sole basis for making decisions. Any reliance on the material on the Services is at your own risk. Under no circumstances will Netchex be liable in any way for any Netchex Content, including, but not limited to, any errors or omissions in any Netchex Content, or any loss or damage of any kind incurred at any time as a result of the use of any Netchex Content posted, emailed, transmitted or otherwise made available via the Services.

The Services may contain certain historical information. Historical information may not be current and is provided for your reference only.

11. PROTECTED CONTENT; INTELLECTUAL PROPERTY

Any actual or attempted breach of any obligation under this Section 11 is a violation of the rights of Netchex and/or its licensors and constitutes irreparable harm.

11.1. Netchex Content

All content included or available on the Services, including Software (defined below), text, graphics, interfaces, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans, the selection and arrangements thereof, and other content contained therein (collectively, the “Netchex Content”) are the property of Netchex and/or third parties and are protected under copyright, trademark, and other laws of the United States and, as applicable, foreign countries. Except as explicitly stated in this Agreement or under any applicable Service Agreement, any use of materials on the Services including reproduction, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Netchex is strictly prohibited. You agree that you will not use any robot, spider, or other automatic device, or manual process to monitor or copy Netchex’s Services or the content contained therein without prior written permission of an authorized officer of Netchex.

NetchexSM is a proprietary mark of Netchex, and the Services design, graphics, arrangement, and colors is Netchex’s trade dress (collectively “Service Marks”). Netchex’s Service Marks may not be used in connection with any product or service that is not provided by Netchex, in any manner that is likely to cause confusion among customers, or in any manner that disparages, tarnishes, or dilutes the distinctiveness of Netchex’s mark.

All other trademarks displayed on Netchex’s Services are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those vendors. In addition, such use of trademarks or links to the websites of third party vendors is not intended to imply, directly or indirectly, that those vendors endorse or have any affiliation with Netchex.

11.2. Intellectual Property

Netchex hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Sites, Services, and Netchex Content, as applicable; provided, however, that such license is subject to this Agreement and does not include any right to (1) sell or resell, license the Sites, Services, or the Netchex Content; (2) copy, reproduce, distribute, transmit, publicly perform or publicly display, publish Netchex Content, except as expressly permitted by Netchex and its licensors, as applicable; (3) modify the Netchex Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Sites, Services, or the Netchex Content; (4) use any data mining, robots or similar data gathering or extraction methods; or (5) use the Sites, Services, or the Netchex Content other than for their intended purposes, except those allowed under any applicable Service Agreement. Any use of the Sites, Services, or the Netchex Content other than as specifically authorized herein, without Netchex’s prior written permission, is strictly prohibited and will terminate the license granted herein. 

11.3. Rights to Use Software

The software available through the Services (“Software”) includes certain computer software that is subject to copyright protection by Netchex and/or Netchex’s licensors. You agree and acknowledge that Netchex and/or its licensors retain title to the Software and any copies thereof. You may not copy, distribute, transmit, display, publish, sell, resell, rent, license, create derivative works or otherwise use any Software available on or through the Services for any purpose, except those allowed under any applicable Service Agreement. You are granted access to use the Software on a limited, revocable, non-exclusive, and non-transferable basis, subject to this Agreement. You may not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates, or any part thereof. You agree not to modify, move, add to, delete or otherwise tamper with the Software contained in the Services. 

12. APPROPRIATE USE OF THE SERVICES

You agree to use the Services in accordance with all applicable local, state, federal laws and regulations. You agree to abide by these laws and not use the Services, including the software available through the Sites (“Software”) and Services, in any way that violates such laws or regulations. You further agree not to transmit any material through the Services that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, or federal law or regulation.

In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:

●      engage in any harassing, threatening, intimidating, predatory, or stalking conduct;

●      use or attempt to use another User’s Account without authorization from that User;

●      launch any automated system, including without limitation, “robots”, “spiders”, or “offline readers”, that accesses the Services in a manner that sends more request messages to Netchex servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;

●      forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;

●      use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;

●      probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;

●      reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Services;

●      attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;

●      develop or use any third party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from the Services;

●      avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Netchex or any of Netchex’s service providers or any other third party to protect the Services or Content;

●      misrepresent your identity or provide Netchex with any false information in any information-collection portion of our Services; 

●      infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party;

●      use any meta tags or other hidden text or metadata utilizing a Netchex trademark, logo, URL or product name without Netchex’s express written consent;

●      use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement;

●      directly or indirectly authorize anyone else to take actions prohibited in this Agreement; or

●      use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.

If you become aware of misuse of the Services by any person, please contact Netchex at [email protected]. 

13. INTERNATIONAL USE

Due to the global nature of the Internet, the Site and other Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Netchex intends to announce such services or content in your country. The Services are controlled and offered by Netchex from its facilities in the United States. Netchex makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own risk and are responsible for compliance with local law.

14. SERVICES UPDATES 

We may from time to time, in our sole discretion (without obligation), develop and provide updates for our Services, which may include error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Netchex has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. For clarity, all Updates are part of the Services and subject to this Agreement.

15. REMEDIES

15.1. Violations

If Netchex becomes aware of any possible violations by you of this Agreement, Netchex reserves the right to investigate such violations. If, as a result of the investigation, Netchex believes that criminal activity has occurred, Netchex reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Netchex is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, in Netchex’s possession in connection with your use of the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce this Agreement, (3) respond to any claim stating a User has violated the rights of third parties, (4) respond to your requests for User support, or (5) protect the rights, property or personal safety of Netchex, its Users or the public, and all enforcement or other government officials, as Netchex in its sole discretion believes to be necessary or appropriate.

15.2. Breach

In the event that Netchex determines, in its sole discretion, that you have breached any portion of this Agreement, or have otherwise demonstrated conduct inappropriate for the Services, Netchex, without limitation, reserves the right to:

●      Warn you via email (to any email address you have provided to Netchex) that you have violated this Agreement;

●      Delete any of your Content provided by you or your agent(s) to the Services;

●      Suspend your Account with any of the Services;

●      Terminate your Account with any of the Services;

●      Notify or send content to or fully cooperate with the proper law enforcement authorities for further action; and/or

●      Pursue any other action which Netchex deems appropriate.

16. DISCONTINUATION OF SERVICES 

YOUR USE OF THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, AND ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, AND ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND.

TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, NETCHEX AND ITS LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY, OR OTHERWISE RELATING TO THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, AND ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS OR THIRD PARTY CONTENT  INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, COURSE OF PERFORMANCE, REDHIBITION, OR SATISFACTORY QUALITY. 

WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD PARTY CONTENT AVAILABLE ON OR LINKED TO BY OUR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD US LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL WEBSITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, (1) THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT INCLUDING, BUT NOT LIMITED TO, ANY NETCHEX CONTENT OR ITS APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES, OR (2) THAT THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT WILL BE FREE OF ERRORS, VIRUSES, MALWARE, TROJAN HORSES OR ANY OTHER MALICIOUS SOFTWARE OR CODE, OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR THIRD PARTY SERVICE OR THAT ANY ERRORS WILL BE CORRECTED. NETCHEX FURTHER DISCLAIMS ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICES WILL MEET YOUR NEEDS OR IS SUITABLE FOR ITS INTENDED PURPOSE.

OUR SERVICES, AND ANY NETCHEX CONTENT INCLUDED IN THESE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT ARE DEVELOPED FOR USE IN THE UNITED STATES OF AMERICA AND NETCHEX AND ITS APPLICABLE LICENSORS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT WHEN THEY ARE USED IN ANY OTHER COUNTRY. 

NO ADVICE OR INFORMATION PROVIDED TO YOU BY NETCHEX WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU UNDER THIS AGREEMENT. IN SUCH EVENT THE EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

18. LIMITATION OF LIABILITY

IN NO EVENT WILL NETCHEX AND ITS LICENSORS, AFFILIATES, AND RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES, (COLLECTIVELY, “NETCHEX PARTIES”) BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED (I) LOST PROFITS LOSSES ARISING FROM THE FAILURE TO RECEIVE ANY BENEFITS, (II) ANY TRADING LOSSES, (III) LOSSES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE AND/OR THE SERVICES, (IV) LOSSES ARISING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR (V) LOSS OF INFORMATION, PROGRAMS OR OTHER DATA THAT RESULT FROM ACCESS TO, USE OF, OR INABILITY TO USE THESE SERVICES OR DUE TO ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE INTERNET, OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES OR DUE TO ANY UNAUTHORIZED ACCESS OR BREACH OF SECURITY, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR FROM THE CONDUCT OF YOU OR ANYONE ELSE (INCLUDING BUT NOT LIMITED TO BODILY INJURY, DEATH OR PROPERTY DAMAGE), WHETHER ONLINE OR OFFLINE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX CONTENT INCLUDED IN THESE SERVICES, THIRD PARTY LINKS, OR THIRD PARTY CONTENT,  WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT NETCHEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IF YOU ARE DISSATISFIED WITH THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR ANY NETCHEX CONTENT INCLUDED IN THE SERVICES, THIRD PARTY LINKS, THIRD PARTY CONTENT, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IF THE FOREGOING IS NOT ENFORCEABLE AGAINST YOU, IN NO EVENT WILL THE CUMULATIVE LIABILITY OF THE NETCHEX PARTIES TO YOU, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (a) THE AGGREGATE AMOUNT YOU PAID NETCHEX TO ACCESS OR USE THE SERVICES IN THE MOST RECENT TWELVE-MONTH PERIOD, OR (b) $50. 

EXCEPT FOR NETCHEX’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE

NETCHEX WEBSITE PRIVACY NOTICE, NETCHEX ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT.

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NETCHEX AND YOU.

SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU UNDER THIS AGREEMENT. IN SUCH AN EVENT THE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

19. INDEMNIFICATION

You will indemnify, defend, and hold harmless the Netchex Parties from and against any and all claims, causes of action, demands, liabilities, losses, costs, or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to any of the following matters:

●      your access to or use of the Services, third party links, or third party content, or any Netchex Content included in the Services, third party links, or third party content;

●      your Content;

●      your violation of any of the provisions of this Agreement or any applicable Service Agreement;

●      your violation of any applicable laws, rules, or regulations;

●      your conduct in connection with the Services

●      any use of the Services using your Account username and password, including unauthorized use due to your failure to properly safeguard your Account credentials in accordance with this Agreement; or

●      your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right.

Netchex reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

This Section does not require you to indemnify any of the Netchex Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this Section will survive any termination of your Account, this Agreement, or your access to the Services.

20. RELEASE

To the fullest extent permitted by applicable law, you release Netchex and the other applicable Netchex Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between Users and the acts or omissions of third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 AS WELL AS ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.

21. DISPUTE RESOLUTION; BINDING ARBITRATION

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH NETCHEX AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
 

 21.1. Binding Arbitration

Except for any disputes, claims, suits, actions, causes of action, demands, or other similar legal proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 12 or Disputes in which either Party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Netchex agree (1) to waive your and Netchex’s respective rights to have any and all Disputes arising from or related to this Agreement, or the Services, resolved in a court, and (2) to waive your and Netchex’s respective rights to a jury trial. Instead, you and Netchex agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).

21.2. No Class Arbitrations, Class Actions, or Representative Actions

You and Netchex agree that any Dispute arising out of or related to this Agreement or the Services is personal to you and Netchex and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative proceeding. You and Netchex agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Netchex agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals. The arbitrator does not have the power to vary these class action waiver provisions.

21.3. United States Federal Arbitration Act

You and Netchex agree that this Agreement affects interstate commerce and that the enforceability of this Section 21 shall be both substantively and procedurally governed by and construed and enforced in accordance with the United States Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

21.4. Notice; Informal Dispute Resolution

You and Netchex agree that each Party will notify the other Party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises so that the Parties can attempt in good faith to resolve the Dispute informally. Notice to Netchex shall be sent by certified mail or courier to the mailing address stated in Section 25. Your notice must include (1) your name, postal address, telephone number, and an email address at which you can be contacted, (2) a description in reasonable detail of the nature or basis of the Dispute, and (3) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 7.1 and will include (1) our name, postal address, telephone number, and an email address at which we can be contacted with respect to the Dispute, (2) a description in reasonable detail of the nature or basis of the Dispute, and (3) the specific relief that we are seeking. If you and Netchex cannot agree on how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable Party, then either you or Netchex may, as appropriate and in accordance with this Section 21, commence an arbitration proceeding or, to the extent specifically provided for in Section 21.1, file a claim in court.

21.5. Process

EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 12 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND NETCHEX AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR NETCHEX WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND NETCHEX WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Netchex agree that (1) any arbitration will occur in the U.S. State of Louisiana, (2) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (3) that the state or federal courts of the State of Louisiana and the United States, respectively, sitting in the State of Louisiana, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. 

21.6. Authority of Arbitrator

As limited by the FAA, this Agreement, and the applicable JAMS rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding any other provision of this Section 21, any and all issues relating to the scope, interpretation, and enforceability of the class action waiver provisions contained in this Section 21, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.

21.7. Rules of JAMS

The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by this Agreement, you either (1) acknowledge and agree that you have read and understand the rules of JAMS, or (2) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

21.8. Severability

If any term, clause, or provision of this Section 21 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses, and provisions of this Section 21 will remain valid and enforceable. Further, the waivers set forth in Section 21.2 are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.

21.9. Opt-Out Right

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted this Agreement by writing to: [email protected]. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 22. If you do not provide Netchex with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in this Section 21.

21.10. Survival of Agreement

The terms herein Section 21 will survive the termination of your relationship with Netchex.

22. GOVERNING LAW; VENUE

This Agreement and all matters arising out of or relating to this Agreement, and any Disputes between you and Netchex arising out of or relating to this Agreement—whether sounding in contract, tort, statute, regulation or otherwise, and including but not limited to those arising out of or relating to this Agreement—shall be governed by, construed, interpreted and enforced in accordance with the substantive and procedural laws of the state of Louisiana, without giving effect to any choice of law or conflict of laws rules or provisions, regardless of where any action may be brought. Furthermore, if such Disputes are not subject to arbitration or cannot be heard in small claims court, then You and Netchex each irrevocably agree that such Disputes shall be resolved on an individual basis exclusively in the jurisdiction of the state and federal courts of St. Tammany Parish in the state of Louisiana. You and Netchex each irrevocably consent to the exclusive personal jurisdiction of such courts and waive any and all objections to the exercise of jurisdiction by such courts, including any claim that any Dispute (including any tort claim) has been brought in an inconvenient forum or that the venue of that proceeding is improper. Notwithstanding anything to the contrary in this Agreement, you and Netchex agree that Netchex may commence and maintain an action or proceeding seeking injunctive or other equitable relief in any court of competent jurisdiction. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

23. ACCESSIBILITY 

If you would like to receive this Agreement in different format (e.g., audio), please contact us (see Section 25 below).

24. MISCELLANEOUS

24.1. Additional Terms

This Agreement shall apply in addition to, and shall not be superseded by, any other written agreement between us in relation to any participation as Regular User or Administrative User, as applicable.

24.2. Inaccurate Information

The Services may contain typographic errors or other inaccuracies and may not be complete or current. Netchex reserves the right, but does not have the obligation, to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. Netchex may refuse to provide services that are based on inaccurate or erroneous information on the Services, including, without limitation, incorrect or out-of-date information regarding pricing, payment terms, or for any other lawful reason.

24.3. Force Majeure 

We shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, but not limited to, acts of God, acts or decrees of governmental agencies, pandemics, epidemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

24.4. Modification

We reserve the right to change this Agreement at any time. Any changes that we make will become a part of our agreement with you under this Agreement when they are posted on our Services. Your continued use of our Services will constitute your agreement to the changes we have made. 

24.5. Section Titles

The titles of the Sections of this Agreement are for convenience only and will have no legal or contractual effect.

24.6. Assignment

This Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by you. This Agreement may be assigned by Netchex without restriction including, in our sole discretion, to a third party in the event of a merger, acquisition, or sale of assets.

24.7. Integration Clause

This Agreement and any applicable Service Agreement, along with any additional terms and conditions incorporated herein, constitute the entire agreement between you and us relating to our Services and the Netchex Content, replacing any prior or contemporaneous agreements, whether written or oral, unless you have signed a separate written agreement with us relating to our Services or the Netchex Content. If there is any conflict between this Agreement and a separate signed written agreement between you and us relating to our Services or the Netchex Content, the signed written agreement will control.

24.8. Waiver and Severability of Terms

The failure by you or us to enforce any provision of this Agreement will not constitute a waiver. If any court of law, having the jurisdiction to decide the matter, rules that any provision of this Agreement is invalid or unenforceable, then the invalid or unenforceable provision will be removed from this Agreement or reformed by the court and given effect so as to best accomplish the essential purpose of the invalid or unenforceable provision, and all of the other provisions of this Agreement will continue to be valid and enforceable. Nothing contained in this Agreement will limit the ability of a Party to seek an injunction or other equitable relief without posting any bond. 

24.9. Survival 

In the event that any provision of this Agreement is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this Agreement, such determination shall not affect the validity and enforceability of any other remaining provisions.

24.10. Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services, or the agreement under this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

25. HOW TO CONTACT US

If you have any questions, concerns, or requests about our Conditions of Use, please contact us using our contact details below. You may contact us by telephone number, physical mail, and electronic mail. We hope to resolve any issues you might have.