FingerCheck is a software application that provides employers with an all-in-one platform through which the employers can manage their employees (the “Software”). The Software, hosted online by FingerCheck and accessible through https://fingercheck.com (the “Site”), includes several separate FingerCheck-provided modules that provide support for (i) hiring, (ii) employee self-onboarding, (iii) payroll, (iv) human resources, (v) time tracking, and (vi) any other functionality that FingerCheck may make available from time to time. Employers may elect to use one, several or all of the FingerCheck modules. Employers also may purchase workers’ compensation insurance through a third party licensed insurance provider (provided through separate and/or additional contract terms and conditions); however, FingerCheck itself does not sell insurance products. The FingerCheck modules described in items (i)-(iv) above (i.e., all modules except for time tracking) are also referred to as “FingerCheck 360”. The services supported by the Software (as described above and in Section 2 below and including, without limitation, any additional services used or received by you from FingerCheck) are referred to as the “FingerCheck Services”.

The FingerCheck Services and the Software are referred to collectively as the “Services”.

1. General Rights of Service

The Software provides a platform to meet the workforce management needs of employers. The FingerCheck Services supported by the Software include the following:

1. a)Using the human resources module, employers can streamline the hiring for employees by creating job postings, running background checks, and reviewing and screening hiring.
2. b)Once an employee is hired, the employer may perform employment onboarding processes using the Software, including loading the new employee into the Software, generating electronic new hire forms (e.g., W-4 form; I-9 form) for the employee to sign, and electronically reporting new employees to government agencies.
3. c)After a new employee has been onboarded, the employee may utilize the time tracking functionality. The employee may clock-in using the Software, and the employer may view those employee time records.
4. d)Once a pay period is finished, the employer may process employee timesheets and run payroll using the Software and FingerCheck Services. The employer may print checks, set up direct deposit, or transfer funds into paycards in order to pay employees. The FingerCheck Services also offer third party agency check services. Certain payroll, direct deposit and tax services are provided by third party contractors of FingerCheck, and such functionality is provided only through separate and/or additional contract terms and conditions.

3. Eligibility & Use of Services

YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THE SITES AND/OR THE SERVICE. By using the Sites and/or the Services, you represent and warrant that (i) you are 18 years of age or older; (ii) all registration information you submit to FingerCheck is truthful, accurate, current and complete; (iii) you will maintain and update information submitted to FingerCheck as appropriate, to keep it true, accurate, current and complete; and (iv) your use of the Services does not violate any applicable law or regulation. FingerCheck may refuse access to its Services to anyone at any time, in its sole discretion for any or no reason. If any information that you provide is inaccurate, incomplete, or not up-to-date, or if you have violated these Terms of Use, then FingerCheck may, without notice, terminate your access and use of the Services.

4. User Accounts

To use the Site and/or the Services, you may be required to register with FingerCheck and to create a user account (“Account”). If you create an Account, you agree to provide FingerCheck current, complete, true and accurate information, and to update this information should it change. FingerCheck may suspend, terminate, modify, or delete your Account with or without notice to you, at any time for any reason or for no reason, including but not limited to for violation of the Terms of Use.

Some Services may require payment of fees to FingerCheck; if you purchase any goods or services that require payment of fees to FingerCheck, you agree to provide FingerCheck (or FingerCheck’s payment agent) with current, complete, true and accurate billing information, such as your credit card or other payment system number and expiration date.

If you create an Account, you may be asked to choose a password and a user name. You understand and agree that FingerCheck reserves the right to change, remove, alter or delete any user name at any time and for any reason in FingerCheck’s sole discretion. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT OCCUR IN ASSOCIATION WITH YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU. You agree to notify FingerCheck immediately of any unauthorized use of your Account or any other breach of security and to provide properly documented evidence as requested by FingerCheck. You may not transfer, buy, auction, rent, lease, loan or sell access to your Account or the Services. You may not use anyone else’s Account at any time and you may not allow anyone else to use your Account at any time (except for third parties specifically authorized by FingerCheck in writing). You may not use a single Account for multiple business entities. You agree that FingerCheck will not be liable for any loss you may incur as a result of someone else using your password or Account, either with or without your knowledge, and you further agree that you will be liable for losses incurred by FingerCheck or another party due to someone else using your Account or password.

FingerCheck reserves the right to terminate or suspend your ACCOUNT AND/OR access to the Site and/or the Services at any time, for any reason or no reason, with or without notice to you. FingerCheck also reserves the right to change (or discontinue OFFERING) ANY service or ANY feature provided by FingerCheck, including, without limitation, the Site and the Services, at any time and without notice. you agree that FingerCheck shall not be liable for any loss or damage caused, directly or indirectly, by any such termination, suspension, change or discontinuance.

In the event that your Account is terminated, suspended or canceled, no refund will be granted and no other credits will be credited to you or converted to cash or other form of reimbursement, and you will have no further access to your Account or anything associated with it.

5. Content & Intellectual Property

“Content” shall include, without limitation, data, images, drawings, photographs, video, audio, text, and any and all other material and information you see on the Site and/or the Services, whether provided by FingerCheck or by users of the Services, except that Content shall not include data expressly entered into the FingerCheck Services by you (such data that you enter into the FingerCheck Services, the “Client Data”). YOU ACKNOWLEDGE AND AGREE THAT ALL CONTENT IS THE PROPERTY OF FINGERCHECK AND/OR ITS LICENSORS AND THAT YOU HAVE NO INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN ANY CONTENT, REGARDLESS OF WHO PROVIDED THE CONTENT.

ALL USE OF CONTENT IS PROVIDED “AS IS” AND AT YOUR OWN RISK. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted or sold in any form or by any means, in whole or in part, without FingerCheck’s prior written permission.

You may not, under any circumstances, use the Content or the Services in any manner: (i) that is unlawful; (ii) that could damage, disable, overburden, or impair any FingerCheck server or the network(s) connected to any FingerCheck server; (iii) that could interfere with any other party’s use and enjoyment of the Services; (iv) that gains or attempts to gain unauthorized access to any Services, unpublished information or material, other users’ Accounts, or computer systems and/or networks connected to any FingerCheck server, or to any of the Services, through hacking, password mining or any other means; (v) that collects or aggregates information regarding other users’ actions relating to the Services; or (vi) that. You may not (A) modify or create derivative works based upon the Site, the Content or the Services, or permit other individuals to do so; (B) reverse engineer, decompile, disassemble or attempt to reverse engineer, decompile, or disassemble any part of the Site, the Content or the Services; or (C) remove, alter, or conceal any copyright, trademark, patent or other proprietary rights notices contained in the Site, the Services and/or the Content.

You hereby grant to FingerCheck a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licensable, fully paid up and royalty-free right and license to use, copy, modify, and prepare derivative works of any Client Data that you provide, directly or indirectly, to FingerCheck (including, without limitation, all modifications and derivative works thereof, and all portions and copies thereof in any form) in order to provide the Services, without any further consent, notice and/or compensation to you or to any third parties. By providing Client Data to us, you represent and warrant that (1) you are entitled to submit the Client Data to FingerCheck, (2) the Client Data is accurate, and (3) your provision of the Client Data and/or use of such in conjunction with the Services does not violate any contractual restrictions or other third party rights, does not violate any applicable laws or regulations, and does not infringe or misappropriate a third party’s Intellectual Property Rights. You agree that any Client Data you provide to FingerCheck does not create an obligation for FingerCheck to provide you any payment or other remuneration for such Client Data.

With respect to these Terms of Use, “Intellectual Property Rights” shall mean all intellectual and industrial property rights recognized in any jurisdiction, including copyrights, mask work rights, moral rights, trade secrets, patent rights, rights in inventions, trademarks, trade names and service marks (including applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing). All Intellectual Property Rights in and to the Site, the Software and the FingerCheck Services are owned and retained by FingerCheck. You acknowledge that the Content, the Site, the Services are protected by Intellectual Property Rights owned by FingerCheck, and/or its licensors, including rights to the selection, coordination, arrangement and enhancement of such Content, and that these rights are valid and protected in all media existing now or later developed. Except as expressly provided herein, FingerCheck and its licensors do not grant you any express or implied rights, and all right, title and interest that FingerCheck has in the Sites and/or the Services, that are not expressly granted by FingerCheck to you, are retained by FingerCheck.

6. Rules of Conduct

By way of examples and not as limitations, you agree that you may not access the Site and/or Services to: (a) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others; (b) publish, post, upload, transmit, distribute, disseminate or otherwise make available any files that contain viruses, spyware, Trojan horses, worms, time bombs, cancelbots, corrupted data, or any other similar software or programs that may damage or interfere with the operation of the Sites and/or Services, other users’ access to the Sites and/or Services and/or other users’ computers; (c) violate any applicable laws or regulations, or promote or encourage any illegal activity; (d) restrict or inhibit any other user from using and enjoying the Services; (e) collect in any manner information regarding users of the Sites or Services, or other user or usage information or any portion thereof, or distribute such information to any third party; (f) attempt to obtain passwords, other Account information, or any other private information from any other user of the Sites or the Services, including, without limitation, the collection of personal information of others, including e-mail addresses; (g) make false reports to FingerCheck administrators; (h) publish, post, upload, transmit, distribute, disseminate or otherwise make available any automation software programs or any other unauthorized third-party software program designed to modify the Sites and/or Services; (i) use the Services for fraudulent transactions; or (j) institute an attack upon any server used in connection with the Sites or the Services or any portion thereof or otherwise attempt to disrupt such servers

7. Fees and Payment

1. a.Fees. Fees shall be charged per month as stated on our Site.
2. b.Fee Changes. FingerCheck reserves the right to change its fees at any time by posting notice on the Site or Services at least 30 days prior to the change. Any start of service during the month will be charged on a prorated basis for that month. A fee change for subscription fees or any additional fees will go into effect at the start of the month following the announced rate change.
3. c.Payment. FingerCheck reserves the right to change its payment policies from time to time in its sole discretion. You agree to pay FingerCheck all applicable charges to your account, including applicable taxes, in United States dollars, in accordance with these Terms of Use and the payment policy and billing terms in effect at the time those charges become due. FingerCheck charges do not include Internet service provider, telephone, and other connection charges. FingerCheck may add new services for additional fees and charges, or proactively amend fees and charges for existing services (including, without limitation, terms with respect to fees and charges), at any time in its sole discretion and without notice. Your account on file will be charged with corresponding fees in accordance with the then-current rates. You agree to not charge back any of the related fees associated with your account. You represent to FingerCheck that you are an authorized user or an authorized user of the chosen method of payment used to pay all fees you incur plus all applicable taxes. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT.
4. d.Method of Payment. You agree and represent that all payment information you provide for the Services will be accurate, complete, and current. You may make payment by business check prior to the payment due date upon receipt of invoice. However, should you expressly authorize FingerCheck to charge your credit card, charge card, debit card, or checking account for any and all applicable charges associated with your Account hereunder, if payment cannot be charged for whatever reason, or if there is a charge-back for any reason, FingerCheck reserves the right to suspend or terminate your Account with FingerCheck and the associated Services. If you provide FingerCheck with a credit/debit/charge card that expires during the term of these Terms of Use, FingerCheck reserves the right to charge any renewal card issued to you as a replacement without additional consent from you.
5. e.Failure to Make Payment. In the event that you fail to make payment, or upon any charge-back, you will be responsible for all reasonable expenses (including attorneys’ fees) incurred by FingerCheck in collecting such amounts plus interest at the rate of the lesser of one percent (1%) per month or the highest rate permissible under applicable law for the actual number of days elapsed.
6. f.Fees Charged by Third Party Sites. FingerCheck may provide links to other websites. Some of these websites may charge separate fees, which are not included in any subscription or other fees that you may pay to FingerCheck. FingerCheck may also provide access to third-party vendors who provide information, goods and/or services on the Site or the Internet. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility. FingerCheck makes no representation or warranty regarding any information, goods and/or services provided by any third-party.
7. g.No Purchases by Minors. You must be at least 18 years of age or older to purchase products or services from FingerCheck. By ordering a product or service online from FingerCheck, you represent that you are 18 years of age or older. If a person under the age of 18 orders a product or service from FingerCheck, then the parent or guardian of that person may return the product or service for a refund according to the posted returns and exchanges policy related to that specific order.
8. h.No Refunds. 100% of all fees due and paid are NON-REFUNDABLE. No exceptions will be made.

8. Representations and Warranties

You represent and warrant (i) you have sufficient authority to enter into these Terms of Use; (ii) that you will at all times be in compliance with all applicable laws; (iii) that you shall not be in violation of any obligation, contract or agreement by entering into these Terms of Use, by performing your obligations under these Terms of Use or by authorizing and permitting FingerCheck to perform and offer the Services hereunder; (iv) that you shall comply with all of the terms and conditions of these Terms of Use, as amended from time to time; and (v) that all information provided by you is truthful, accurate, and complete, and is not misleading in any way.

9. Indemnification

You agree to defend, indemnify, and hold harmless FingerCheck and its subsidiaries, affiliates, parent companies, related parties, officers, directors, employees, agents, independent contractors, advertisers, shareholders, licensors, partners, co-branders, and representatives (the “FingerCheck Entities”) from and against any liabilities, obligations, damages, penalties, claims, demands, costs and expenses (including without limitation reasonable attorney’s fees), that is due to or arising out of (i) your use of, access to, activities in connection with, or conduct or connection with the Site or the Services, including without limitation any data or content transmitted or received by you or through your Account, (ii) any violation of these Terms of Use by you or through your Account or using your user name, including without limitation any breach of any of the representations and warranties herein, (iii) a FingerCheck Entity’s use of or reliance on data, materials or information provided by or on behalf of you, or actions that a FingerCheck Entity takes upon your direction, (iv) any allegation that any information, messages, or materials that you make available or create through the Services infringe or otherwise violate the Intellectual Property Rights of any third party, (v) your violation of the rights of another person or party, including without limitation any right of privacy or intellectual property right, (vi) your violation of any applicable law, rule or regulation, (vii) your gross negligence or willful misconduct, or (viii) any other party’s access and use of the Services with your username, password or other appropriate security code

10. Privacy/Security

You understand that any information provided by you or collected by FingerCheck in connection with your use of the Site and/or Services will be used in the manner described in these Terms of Use and in FingerCheck’s Privacy Policy (https://fingercheck.com/privacy-policy/), such privacy policy (“Privacy Policy”) being incorporated into and made a part of these Terms of Use by this reference. If you do not agree to the Privacy Policy, you may not use the Services. Without limiting the terms of the Privacy Policy, you understand that FingerCheck does not guarantee that your use of the Services and/or the information provided by you will be private or secure, and FingerCheck is not responsible or liable to you for any lack of privacy or security you may experience. You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services.

11. Term

The initial term of these Terms of Use shall be for one calendar month, and thereafter these Terms of Use shall automatically renew on a month-to-month basis, unless and until these Terms of Use are otherwise terminated in accordance with the terms and conditions herein (collectively, the “Term”). Each such renewal of the Term shall be in accordance with the rates and charges in effect at the commencement of such renewal Term period.

12. Termination & Survival

1. a.Your Right To Terminate. You may terminate these Terms of Use and your Account at any time and for any reason by (i) contacting us and canceling the Services or (ii) sending an email stating your intention to terminate these Terms of Use to FingerCheck at: info@fingercheck.com, Attn: Accounts Department with the subject line “Account Termination”. Such termination will not be effective until acknowledged by FingerCheck, but not more than fifteen (15) business days after your contacting FingerCheck. FingerCheck does not refund the fees or prorate any fees should you cancel the Services prior to the end of the Term.
2. b.FingerCheck’s Right To Terminate.
   1. i.FingerCheck may terminate these Terms of Use, in its sole discretion, in advance of any renewal Term by providing written notice to you of its intention not to renew. FingerCheck may terminate your month-to-month Term upon ten (10) calendar days’ written notice to you prior to the end of the current month.
   2. ii.FingerCheck may terminate these Terms of Use with or without notice to you by terminating your Account as set forth in Section 4 (User Accounts) above. FingerCheck may, in its sole discretion, immediately terminate your Account at any time during any Term, and discontinue your participation in the Service, if FingerCheck believes that your conduct may be harmful to its business. Reasons for such termination may include, but are not limited to the following: (i) failure to make payment in accordance with FingerCheck’s terms, (ii) if FingerCheck believes that you may be competitive with FingerCheck or intend to develop a competitive service to the Services, (iii) if FingerCheck believes that you have violated these Terms of Use or other policies or guidelines of FingerCheck, and/or (iv) if FingerCheck believes your conduct may be harmful to others who participate in the Service. If FingerCheck terminates under this paragraph, FingerCheck’s termination shall be effective immediately, and the notice provisions described in paragraph (i) directly above shall not apply.
   3. iii.All decisions made by FingerCheck in this matter will be final, and neither FingerCheck nor its licensees (or distributors) shall have any liability with respect to such decisions.
3. c.Effect of Termination. Upon termination, you will no longer be able to access your Account or the information previously stored on your Account, and you will lose access to the Services. Regardless of which party terminates these Terms of Use, you will be responsible for all charges incurred up to and through the date of termination and such charges will be due and payable immediately. Upon any termination, FingerCheck reserves the right to delete any and all information in your Account, at FingerCheck’s discretion, and it will no longer be accessible by you.
4. d.Survival. The provisions of Sections 5 (Content & Intellectual Property), 7 (Fees and Payment), 9 (Indemnification), 12 (Termination & Survival), 15 (Non-Compete), 17(Disclaimer of Warranty), 18 (Applicable Law), 20 (Limitation of Liability), 24 (Notices), and 26 (Miscellaneous) shall survive any termination of these Terms of Use.

13. Updates to Terms of Use

You are responsible for regularly reviewing the Terms of Use, as FingerCheck may modify these Terms of Use and any applicable rates at any time, in its sole discretion, including without limitation to reflect feedback from our users or changes to company policy. Any changes or updates will be emailed to you and/or posted on the Site. All such changes and updates will be effective immediately upon (i) FingerCheck’s posting them on the Site with a prominently displayed notice of such changes, or (ii) FingerCheck’s emailing notice of such changes or updates to you, or (iii) FingerCheck’s obtaining your express written approval on the Site to such changes or updates (provided however, that FingerCheck shall not be required to do so, but may update the Terms of Use as provided in items (i)-(ii) above). Any use of the Services and/or Site after such actions as provided in items (i), (ii) or (iii) above, constitutes your acceptance of such change or update to the Terms of Use. If you are dissatisfied with any modification to the Terms of Use, your only remedy is to terminate your use of the Site and/or the Services, as described in Section 12 (Termination & Survival) of these Terms of Use. No conditions other than those set forth in these Terms of Use shall be binding on FingerCheck unless FingerCheck expressly agrees in a writing signed by an authorized representative of FingerCheck.

14. Technical Support

FingerCheck will supply technical support during business hours via phone and/or e-mail or live-chat service on our website.

15. Non-Compete

You agree that you will not develop a competing service to FingerCheck during the Term of these Terms of Use and for one year thereafter. Violation of this clause is grounds for immediate termination by FingerCheck with no liability on the part of FingerCheck; FingerCheck may seek equitable relief to stop the violation and competing activity as well as any other relief available under the law.

16. Time Clock and Related Data

1. a.Storage. The time clock data for FingerCheck will be hosted on FingerCheck servers, unless otherwise agreed. While FingerCheck shall make every reasonable effort to protect and backup that data on a regular basis, ultimately you are responsible for backing up and exporting your time clock data. FingerCheck does not warrant that your use of the Services will be uninterrupted or that the Service operations will be error-free or secure. The security mechanisms implemented by FingerCheck have inherent limitations, and you must determine whether the Service sufficiently meets your requirements.
2. b.Your Data. “Your Data” consists of the time information input into the FingerCheck interface by you. FingerCheck shall not use Your Data except directly in furtherance of the purposes of these Terms of Use. FingerCheck shall not disclose Your Data to any third party unless directed by you, unless (a) such disclosure is made by FingerCheck in response to a court order, and provided that FingerCheck has given you reasonable notice of such court order, or (b) in aggregate non-personally identifiable form. All data that is not your time clock data belongs to FingerCheck (collectively “FingerCheck Data”). You agree that FingerCheck owns all FingerCheck’s Data.

17. Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND/OR SERVICE IS AT YOUR SOLE RISK. THE SITE AND/OR SERVICES ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, COURSE OF CONDUCT, OR USAGE OF TRADE) OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, EXCEPT TO THE EXTENT SUCH WARRANTIES OR CONDITIONS ARE LEGALLY INCAPABLE OF EXCLUSION.

FINGERCHECK DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT FINGERCHECK WILL HAVE ADEQUATE CAPACITY FOR THE SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. FINGERCHECK DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES (OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION THE CONTENT) OR THE SERVER(S) ON WHICH THE SITE OR SERVICES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FINGERCHECK DISCLAIMS ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE SITE, SERVICES, AND/ OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE SITE AND/OR SERVICES, OR ANY ECONOMIC BENEFIT YOU MAY GAIN FROM USE OF THE SITE AND/OR SERVICES.

YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE AND THE SERVICES AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE SERVICES AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF FINGERCHECK OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS, EMPLOYEES OR VISITORS, WHETHER MADE ON THE SITE, IN THE CONTENT OR OTHERWISE, SHALL CREATE ANY WARRANTY.

FINGERCHECK MAKES NO WARRANTY THAT THE CONTENT WILL BE ACCURATE, CURRENT OR RELIABLE OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.

FINGERCHECK DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL.

FINGERCHECK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND FINGERCHECK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU AGREE TO LOOK SOLELY TO THIRD PARTIES FOR ANY AND ALL CLAIMS REGARDING SUCH TRANSACTIONS WITH THIRD PARTIES. YOU FURTHER AGREE THAT THIRD PARTY ITEMS PURCHASED ARE DONE SO VIA AN AGREEMENT BETWEEN YOU AND THE THIRD PARTY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND AS A CONSEQUENCE SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.

18. Applicable Law & Disputes

These Terms of Use, and any disputes arising from or relating to the conduct covered by the Terms of Use, shall be governed by and construed in accordance with the internal substantive laws of New York State, without giving effect to its principles of conflicts of law. You agree to pay all legal expenses of FingerCheck, including reasonable attorney’s fees, should you be found in breach of these Terms of Use.

Except for a claim seeking solely injunctive relief (which claim shall be heard exclusively in the state or federal courts of New York, New York, and you hereby submit to the personal and exclusive jurisdiction and venue of such state and federal courts located in New York, New York for such purposes), any dispute, controversy or claim that arises out of or relates to these Terms of Use (including, without limitation, the formation, breach, performance, interpretation or application thereof) shall be finally settled by mandatory and binding arbitration. Arbitration shall be administered by the American Arbitration Association (the “DR”), pursuant to the then-current Commercial Arbitration Rules of the American Arbitration Association (“Rules”), and shall be finally settled by one (1) arbitrator who shall be appointed in accordance with the Rules and as follows.

Either party may initiate arbitration by submitting a written request for arbitration to the DR and the other party, setting forth in reasonable detail the subject of the dispute and the relief requested. The submitting party shall request that the DR furnish a list of five (5) possible arbitrators. Each party shall have fifteen (15) calendar days to reject two (2) of the proposed arbitrators; if only one individual has not been so rejected, he or she shall serve as arbitrator; if two or more individuals have not been so rejected, the DR shall select a single arbitrator from those remaining individuals. The arbitration shall be conducted in accordance with the Rules, provided that to the extent this Section modifies, supplements or is inconsistent with the Rules, this Section will govern. The arbitrator shall have no power or authority to amend or disregard any provision of this Section or any other provision of these Terms of Use. The arbitration hearing shall be commenced promptly and conducted expeditiously. All arbitration pleadings, documents, deliberations, proceedings, decisions and awards (and the actions of the arbitrator, administrators and parties with respect to the arbitration) shall be confidential. Unless otherwise agreed by the parties, arbitration hearings will be conducted in English in New York, New York, and an arbitration hearing shall be conducted on consecutive days. The parties will participate in the arbitration in good faith, and will share equally in the administrative costs of the arbitration; provided however, that each party will pay its own attorneys’ fees (subject to the next sentence and to the first paragraph of this Section). The arbitrator may, in his or her discretion, award the prevailing party its attorneys’ fees and out-of-pocket expenses, including its share of the arbitration fees.Recognizing the express desire of the parties for an expeditious means of dispute resolution, the arbitrator shall limit or allow the parties to expand the scope of discovery (including permitting production of documents and depositions) as may be reasonable under the circumstances. The arbitrator will have the authority to apportion liability between the parties, but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms of these Terms of Use. Promptly following the conclusion of the hearing, the arbitrator shall prepare and distribute to the parties an opinion describing the bases for such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The decision of the arbitrator (i) shall be final and binding on the parties; and (ii) may be entered and enforced in any court of competent jurisdiction. The arbitrator is instructed that time is of the essence in the arbitration proceeding, and that the arbitrator shall have the right and authority to issue monetary sanctions against either of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding.

19. Jurisdictional Issues

The Site and/or Services are controlled and operated by FingerCheck from its facilities within the United States. Unless otherwise explicitly stated, all materials found on the Site and the Services are solely directed to individuals, companies, or other entities located in the United States. FingerCheck makes no representation that Content and other materials available through the Site and/or Services are appropriate or available for use in any other locations. Those who choose to access the Site and/or Services from outside the United States do so on their own initiative contrary to the terms of these Terms of Use, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

20. Limitation on Liability

YOUR USE OF THE SITE, THE SERVICES AND ANY CONTENT ARE ENTIRELY AT YOUR OWN RISK. YOU ASSUME THE ENTIRE RISK OF LOSS AND DAMAGE DUE TO YOUR USE OF THE SITE, THE SERVICES AND THE CONTENT.

FINGERCHECK AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, DISTRIBUTORS, SUBCONTRACTORS, SUBLICENSEES AND AGENTS (THE “FINGERCHECK PARTIES”) SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES OF ANY KIND (INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, BUSINESS, DATA, GOODWILL PROFITS, OR REVENUE OR OTHER INTANGIBLE LOSSES), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHICH YOU MAY INCUR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SITE, THE SERVICES OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITE, THE SERVICES OR THE CONTENT, OR INTERACTIONS WITH FINGERCHECK, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FINGERCHECK’S TOTAL CUMULATIVE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY REALIZED BY FINGERCHECK FROM YOU DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE MOST RECENT EVENT GIVING RISE TO LIABILITY OCCURRED. YOU ACKNOWLEDGE THAT THESE LIMITATIONS ARE REASONABLE, THAT THEY ARE AN ESSENTIAL ELEMENT HEREOF, AND THAT ABSENT SUCH LIMITATIONS, FINGERCHECK WOULD NOT ENTER INTO THESE TERMS OF USE.

YOU ARE RESPONSIBLE FOR THE ACCURACY AND COMPLETENESS OF ALL DATA AND INFORMATION THAT YOU PROVIDE OR SUBMIT TO THE FINGERCHECK PARTIES, AND THE FINGERCHECK PARTIES SHALL NOT (A) VALIDATE THE ACCURACY OR COMPLETENESS OF SUCH DATA AND INFORMATION OR (B) REVIEW SUCH DATA AND INFORMATION FOR ERRORS. THE FINGERCHECK PARTIES SHALL NOT BE RESPONSIBLE FOR (1) ANY INCORRECT, INACCURATE OR INCOMPLETE DATA OR INFORMATION THAT YOU PROVIDE OR SUBMIT HEREUNDER OR (2) ANY INCORRECT, INACCURATE OR INCOMPLETE USE OF (OR SETTING UP OF RULES WITHIN) THE SERVICES BY YOU. THE FINGERCHECK PARTIES SHALL NOT BE RESPONSIBLE FOR (AND YOU SHALL SOLELY BE RESPONSIBLE FOR, AND SHALL INDEMNIFY AND HOLD THE FINGERCHECK PARTIES HARMLESS FROM) ANY DAMAGES (INCLUDING WITHOUT LIMITATION, FINES, PENALTIES OR INTEREST) THAT RESULT FROM ITEMS (1)-(2) ABOVE. WHILE THE SERVICES ARE INTENDED TO ALLOW YOU TO COMPLY WITH LAW, YOU REMAIN RESPONSIBLE FOR ALL LEGAL COMPLIANCE (INCLUDING WITHOUT LIMITATION, TAX, PAYROLL, AND BENEFITS LAWS AND COMPLIANCE) WITH RESPECT TO YOUR USAGE OF THE SERVICES.

THE SERVICES ARE NOT INTENDED TO BE THE “SOURCE OF RECORD” FOR DATA, INFORMATION AND MATERIALS (INCLUDING WITHOUT LIMITATION, CLIENT DATA) THAT YOU PROVIDE TO FINGERCHECK. YOU ARE RESPONSIBLE TO SEPARATELY STORE AND/OR MAINTAIN ORIGINALS AND/OR COPIES OF SUCH DATA, INFORMATION AND MATERIALS. THE FINGERCHECK PARTIES ASSUME NO RESPONSIBILITY FOR (AND YOU SHALL NOT HOLD THE FINGERCHECK PARTIES RESPONSIBLE FOR) ANY LOSS OF DATA SUFFERED BY YOU, INCLUDING WITHOUT LIMITATION, TO THE EXTENT CAUSED BY DELAYS, NONDELIVERIES, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OR SERVICE INTERRUPTIONS CAUSED BY THE FINGERCHECK PARTIES, OR BY YOUR OR OTHER USERS’ ERRORS AND/OR OMISSIONS.

UNDER NO CIRCUMSTANCES WILL THE FINGERCHECK PARTIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

FIGERCHECK DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO THE SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES. AS SUCH, FINGERCHECK DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR OTHER MISUSE OF YOUR IDENTITY OR INFORMATION BY OTHERS.

YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE OR SERVICES OR ANY OTHER GRIEVANCE SHALL BE TO STOP USING THE SITE AND SERVICES, AND TO CANCEL YOUR ACCOUNT(S).

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND AS A CONSEQUENCE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF THE FINGERCHECK PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

21. Links to Third Party Sites

The Services may contain links to third party websites and services not operated by FingerCheck (“Linked Sites”). These Linked Sites are not controlled by FingerCheck. The Linked Sites are provided as a service and do not imply any endorsement of the activities or content of these sites, nor any association with their operators. FingerCheck is not responsible for the terms of use or practices of any third party including, without limitation, websites directly linked to our Services. We encourage you to be aware of when you leave our Services and to review the terms of any third party site that you link from FingerCheck. These Terms of Use apply solely to FingerCheck and our Services. You assume any and all risks, known or unknown, now existing or hereafter arising, related to transactions with the Linked Sites, including, but not limited to, completing transactions, default, negligence, unauthorized use of your Account and password and other users acting under false identity. You acknowledge and agree that FingerCheck shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such information, goods or services available on or through any Linked Sites.

22. Notice for California Users

Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

23. Communications

By providing your email address to FingerCheck, you understand you may receive periodic information regarding current and future services offered on the Sites and/or the Services and/or related third party products (“Service Offerings”). You may unsubscribe from such Service Offerings at any time by (i) notifying us in writing, as provided in Section 27 (Contact FingerCheck) below, of your intent to unsubscribe or (ii) terminating your Account as described in Section 12 (Termination & Survival).

24. Notices

Notices to you may be made via posting to the Services, by email, or by regular mail, in FingerCheck’s sole discretion. FingerCheck may also provide notices of changes to these Terms of Use or other matters by displaying such notices or by providing links to such notices on the Services. Without limitation, you agree that a printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

25. Entire Agreement

These Terms of Use, including without limitation the documents expressly incorporated by reference, constitute the entire agreement between the parties and supersedes all prior agreements or understandings, whether written or oral, between the parties concerning the subject matter hereof, and you represent that you have not relied on any such communications in accepting these Terms of Use.

26. Miscellaneous

1. (i)Severability: If any provision of these Terms of Use is determined by any court or other competent authority to be unlawful and/or unenforceable, then the unlawful and/or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the other provisions will continue in effect.
2. (ii)Assignment: FingerCheck may assign, sub-contract or otherwise deal with FingerCheck’s rights and/or obligations under these Terms of Use, in whole or in part, at any time and without notifying you or obtaining your consent. You may not assign, transfer, resell, or sublicense these Terms of Use or any or all of your rights or obligations under these Terms of Use, and if you attempt to assign, transfer, resell, or sublicense rights hereunder, FingerCheck may immediately terminate these Terms of Use without liability to FingerCheck.
3. (iii)Waiver: No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
4. (iv)Headings: The paragraph and section headings, captions and titles provided herein are for convenience only and shall have no effect on the meaning of the provision.

27. Pay On-Demand – Terms of Use (Employee) 

27.1. Pay On-Demand – Terms of Use (Employer)

28. Contact Fingercheck

If you have any questions regarding these Terms of Use or the Site, you can contact us at:

• By email to info@fingercheck.com; or
• By U.S. Mail post to: Governance

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