CardX solutions (the "Services") are proprietary payment solutions created by CardX, LLC ("CardX"). Use of the Services is subject to these legally binding Terms and Conditions ("Terms") and constitutes your agreement to be bound by and to act in accordance with these Terms. "Use of the Services" means using the Services to submit a payment. For the purposes of these Terms, "Technology Provider" shall include both CardX and all of its affiliates.
YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTIONS 2 AND 3 BELOW. THESE TERMS ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 5 THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE SERVICES.
1. Service Fee. Any "Service Fee" charged to you when you use the Services is non-refundable. A "Service Fee" is processed as a separate transaction from the primary transaction amount.
2. Disclaimers. 'THIS SERVICE IS PROVIDED "AS IS," AND TECHNOLOGY PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES RELATING TO SECURITY, UNINTERRUPTED OR ERROR-FREE OPERATION, OR FREEDOM FROM VIRUSES. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM TECHNOLOGY PROVIDER SHALL CREATE ANY WARRANTY. Without limiting any of the foregoing, Technology Provider disclaims any responsibility for errors or omissions in the content, accuracy, completeness, performance, or timeliness of the Services, nor does Technology Provider guarantee the content, accuracy, completeness, performance, or timeliness of the Services.
YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS TECHNOLOGY PROVIDER AND ITS SUCCESSORS AND ASSIGNS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, "RELEASED PARTIES") FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, "LIABILITIES") THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY'S CONDUCT RELATED TO USE OF THE SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.
3. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, TECHNOLOGY PROVIDER (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT NOT PROHIBITED BY LAW, THE TOTAL LIABILITY OF TECHNOLOGY PROVIDER (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, FOR ANY AND ALL CLAIMS UNDER THESE TERMS OR RELATING TO YOUR USE OF THE SERVICES IS LIMITED TO THE AMOUNT OF THE CREDIT CARD FEE YOU PAID.
IN ALL CASES RELATING TO PROVIDING YOU THE SERVICES, TECHNOLOGY PROVIDER (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF ITS OR THEIR REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, HACKING AND OTHER MALICIOUS ACTIVITIES OF THIRD PARTIES, OR TELECOMMUNICATION OR INTERNET FAILURES.
4. Changes. Information provided by the Services is subject to change at any time by CardX without prior notice. Additionally, we may modify these Terms for any reason, and the continued use of the Services constitutes your agreement to any changes to these Terms.
5. Governing Law and Binding Arbitration.
The laws of the United States and the State of Illinois, excluding Illinois' conflict of laws rules, will apply to any disputes arising out of or relating to these Terms or the Services.
Without limiting your waiver and release in Section 3, you agree to the following:
a. Purpose. Any and all Disputes (as defined below) involving you and Technology Provider will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 5 (the "Arbitration Provision") shall be broadly interpreted. Notwithstanding anything to the contrary in these Terms, this Section 5 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
b. Definitions. The term "Dispute" means any claim or controversy related to the Services, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before these Terms or any prior agreement; (3) claims that arise after the expiration or termination of these Terms; and (4) claims that are the subject of purported class action litigation in which you are not a member of a certified class. As used in this Arbitration Provision, "Technology Provider" means Technology Provider and any of its predecessors, successors, and assigns, and each of their respective officers, directors, employees and agents, and "you" means you and any users or beneficiaries of your access to the Services.
c. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., ("JAMS") by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Technology Provider by mail to 401 N. Michigan Avenue Suite 1610, Chicago, IL 60611 , U.S.A.
d. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or Technology Provider may bring an individual action in a small claims court in the area where you access the Services if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
e. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Expedited Arbitration Procedures (the "JAMS Rules") as modified by the version of this Arbitration Provision that is in effect when you notify Technology Provider about your Dispute. You can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of these Terms, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS Rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written and applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless you and Technology Provider agree otherwise, any arbitration hearing will take place in Chicago, Illinois. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator's essential findings and conclusions. The arbitrator's award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator's award. An arbitrator's award that has been fully satisfied shall not be entered in any court.
f. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS OR USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY'S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
g. Arbitration Fees and Costs. The payment of the JAMS fees and costs will be governed by the JAMS Rules. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the JAMS's fees and costs shall be governed by the JAMS Rules and you shall reimburse Technology Provider for all fees and costs that were your obligation to pay under the JAMS Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys' fees and additional costs and may only recover your attorneys' fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, Technology Provider will pay all fees and costs that it is required by law to pay.
h. Severability and Waiver of Jury Trial. If any part of subsection (f) of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration provision will be unenforceable and the Dispute will be decided by a court. In this event, exclusive jurisdiction and venue for the adjudication of the Dispute shall be in the federal and state courts in and for Chicago, Illinois, and you hereby consent to the exercise of jurisdiction by such courts. WHETHER IN COURT OR IN ARBITRATION, YOU AND TECHNOLOGY PROVIDER AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
i. Continuation. This Arbitration Provision will survive the termination or expiration of these Terms.
6. General. In addition, the failure on the part of Technology Provider to enforce any part of these Terms shall not constitute a waiver of any of Technology Provider's rights hereunder for past or future actions.
If any term or other provision of the Terms is determined to be invalid, illegal, or unenforceable, all other conditions and provisions of the Terms shall nevertheless remain in full force and effect.
You acknowledge and agree that these Terms constitute the entire agreement between you and Technology Provider with respect to the use of the Service.
BY SUBMITTING YOUR PAYMENT, YOU SIGNIFY YOUR UNDERSTANDING AND AGREEMENT TO COMPLY WITH THESE TERMS AND CONDITIONS.
Last Updated: April 11, 2023