FingerCheck Terms of Use

Last Updated: December 8, 2020

These Terms of Use along with any other terms and policies referenced herein, and are incorporated herein by reference and form an integral part hereof, as amended from time to time (these “Terms”) constitute a legally binding agreement as of the Effective Date (as defined below), governing your access to, and the use of www.fingercheck.com (the “Site”), and any related website owned or operated by Fingercheck, the use of our products and services, a mobile application or through any other means (collectively, the “Services”). These Terms are between Fingercheck LLC (“Fingercheck”, “us”, “we” or “our”) and you, either individually, or on behalf of a company, organization or other entity which you represent (“you” or “your”).

When you use the Services to obtain Fingercheck’s Pay-On-Demand services (“POD Services”) as an Employee that allow you to request an earned wage payment, you are assigning to Fingercheck a portion of your earned wages. Please see the Fingercheck POD Services Program Terms for Employee for the terms and conditions that apply to your request for an earned wage advance, including any assignment (if any) of your earned wages.

THESE TERMS OF USE CONSTITUTE A BINDING CONTRACT ON YOU AND GOVERN THE USE OF AND ACCESS TO THE SERVICES BY YOU AND USERS, WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.

BY USING THE SERVICES, YOU ACCEPT AND AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER IN SECTION 17. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.

CONTENTS

The Services

Additional Terms; Modifications

Eligibility; Account Registration

Customer Data

Prohibited Conduct

Intellectual Property

Privacy and Security

Subscription Term; Renewal and Fees Payment

Third Party Services; Links

Term and Termination; Suspension

Confidentiality

Warranty Disclaimer

Limitation of Liability

Indemnification

Export Controls; Sanctions

Modifications

Government Use

Governing Law and Jurisdiction; Class Action Waiver and Mandatory Arbitration

Consent to Electronic Communications

Miscellaneous

Pay On-Demand

Contact Fingercheck

1. THE SERVICES

  • 1.1 The Services. The Fingercheck platform is an all-in-one cloud-based human resources platform that enables companies to manager their individual employees, workers, consultants, substitutes or contractors (each, an “Employee”). Specific terms may apply to you or to some of the Services, such specific terms are incorporated herein by reference and form an integral part hereof.
  • 1.2 Modification or Discontinuation of the Services. We may add, modify or discontinue any feature, functionality or any other tool, within the Services, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Services, then we will notify you by posting an announcement via the Services or by sending you an email.
  • 1.3 No Contingency on Future Releases and Improvements. You hereby acknowledge that your subscription to the Services and/or Third Party Services (as defined below) hereunder are not contingent on the delivery by us of any future release of any functionality or feature, including without limitation, the continuance of: (i) certain Services beyond their current Subscription Term; or (ii) Third Party Services.

2. ADDITIONAL TERMS; MODIFICATIONS

Fingercheck may offer you Services, such as the POD Services, which are subject to additional terms and conditions that are available on the Site or through the Services or otherwise made available to you separately from these Terms (“Additional Terms”). The Pay-On-Demand Program Terms are an example of Additional Terms. Any Additional Terms are incorporated and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control with respect to the conflict.

We reserve the right, in our sole discretion, to change these Terms and any Additional Terms from time to time. Any new features that augment or enhance the current Services, including the release of new functions or features, shall be subject to these Terms. If we make changes, we will provide you with notice of such changes by posting on the Site, through the Services or otherwise making available to you any changes. Unless we say otherwise in our notice, the amended Terms or amended Additional Terms will be effective immediately, and your continued use of the Site or the Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms or the amended Additional Terms, you must stop using the Site or Services.

3. ELIGIBILITY; ACCOUNT REGISTRATION

  • 3.1 Eligibility. You may use the Services only if you can form a binding contract with Fingercheck, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
  • 3.2 Minors. Any use or access to the Services by anyone under 13 is strictly prohibited and in violation of these Terms. Any use of or access to the Services by anyone under 18 is only permitted with the express written permission of such individual’s legal guardian, and, if necessary, you represent and warrant that you have received such permission. The Services are not designed for use by or in connection with anyone under the age of 18 without the consent of a parent or legal guardian, and you accept all responsibility that may arise from your use of the Services in connection with any minors. The Services are not available to any Users (as defined herein) previously removed from the Services by Fingercheck.
  • 3.3 Geographic Restrictions. The Services are designed for use by employers, Employees and individuals in the United States, except for those other countries expressly supported for the onboarding function as reflected in the Services. Other than for expressly supported international onboarding, you are not authorized to use the other features of the Services for Employees not located in the United States.
  • 3.4 Account Registration. To register to the Services for the first time, you will be required to create an account through the Services (“Account”). Fingercheck may maintain different types of accounts for different types of Users. If you open a Fingercheck Account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf; and (c) you will be deemed to be a Fingercheck customer (“Customer”). Additionally, if you open a Fingercheck Account on behalf of a Fingercheck Customer, the first user of your Account will automatically be assigned as the Account administrator (the “Admin”). These Terms apply to all visitors, users, and others who access the Services, whether on behalf of a company or on their own individual behalf, including any Admin(s) (“Users”).
  • 3.5 Employee Use. You acknowledge and agree that if you are opening a Fingercheck Account or otherwise using the Services as or on behalf of an employer company, organization or other entity, your Employees who open Employee Accounts must and do separately agree to be bound by these Terms.
  • 3.6 Your Registration Information. When creating an Account, you: (i) agree to provide us with accurate, complete, and current registration information about yourself; (ii) acknowledge that it is your responsibility to ensure that your password remains confidential and secure; (iii) agree to never use another User’s account without permission; (iv) agree that you are fully responsible for all activities that occur under your Account and password, including any integration or any other use of third party products or services (and associated disclosure of data) in connection with the Services; and (v) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of your Account and/or any breach of these Terms. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. We may assume that any communications we receive under your Account have been made by you. Customer will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the Account by either you or any other User or third party on your behalf.
  • 3.7 User Verification. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account. In the event that you or any Admin lose access to an Account or otherwise request information about an Account, we reserve the right to request from you or such Admin (as the case may be) any verification we deem necessary before restoring access to or providing information about such Account.
  • 3.8 Account Admins. The Admin(s) of a Customer Account are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin, is deemed as a decision or action of Customer. An Admin may assign or add other members of the Account as Admins, which possess important privileges and controls over the use of the Services and the Account, including, without limitation: (i) control your (and other Users) use of the Account; (ii) purchase, upgrade or downgrade the Services; (ii) create, monitor or modify Users’ actions and permissions; (iii) manage the access to, control, remove, or otherwise change, all or part of the Customer Data (as defined below); and (iv) integrate or disable integration with Third Party Services. You also acknowledge that your Account can become managed by a representative of the entity that owns or controls the email address domain with which your Account was created or registered.
  • 3.9 Responsibility for Users. Customer is solely liable and responsible for understanding the settings, privileges and controls for the Services and for controlling whom Customer permits to become a User and what are the settings and privileges for such User, including without limitation, the right to incur charges on the Account, etc. Customer is responsible for the activities of all of its Users, including how Users use the Customer Data, even if those Users are not from Customer’s organization or domain. Further, Customer acknowledges that any action taken by a User of Customer’s Account, is deemed by us as an authorized action by Customer, hence Customer shall have no claim in this regard. Without limiting the foregoing, Customer is solely responsible for ensuring that Customer’s use of the Services is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with Users.
  • 3.10 Internal Business Purposes Only. Unless otherwise authorized by Fingercheck in these Terms or expressly agreed to otherwise in writing by Fingercheck, you may not use the Services in any manner where you act as a service bureau or to provide any outsourced business process services. Accordingly, you agree not to license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or resell the Services to any third party, other than authorized Admins and Users in furtherance of your internal business purposes as expressly permitted by these Terms, unless expressly agreed to otherwise in writing by Fingercheck.
  • 3.11 No Competitive Access. You may not access the Services if you are a direct competitor of Fingercheck, except with Fingercheck’s express prior written consent. You may not access the Services for competitive purposes.

4. CUSTOMER DATA

  • 4.1 Customer Data. Customer Data is any of Customer’s data processed or stored by or transmitted to Fingercheck in connection with the Services, including, without limitation, all personal information contained therein (the “Customer Data”). For the avoidance of doubt, Anonymous Information (as defined below) is not regarded as Customer Data. Customer retains all right, title, interest and control, in and to the Customer Data, in the form submitted to the Services. Subject to these Terms, Customer hereby grants Fingercheck a worldwide, royalty-free, limited license to access, host, use, process, copy, distribute, perform, export, and display the Customer Data, and solely to the extent that reformatting Customer Data for display in the Services constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. The afore-mentioned license is hereby granted solely: (i) to maintain and provide you the Services; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Customer Data is in violation of these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process; and (v) as expressly permitted in writing by you. Customer acknowledges and agrees that it will determine the means and purposes of processing Customer Data, and that Fingercheck acts solely as a service provider that processes Customer Data on behalf of and at the direction of Customer for the sole purpose of performing the Services under this Agreement.
  • 4.2 Responsibility for Customer Data Compliance. You represent and warrant that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Customer Data that you submit, post or display on or through the Services; (ii) the Customer Data is in compliance with, and subject to, Section 4 (Prohibited Conduct); and (iii) the Customer Data you submit, your use of such Customer Data, and our use of such Customer Data, as set forth in these Terms, does not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy, biometric data and data transfer and exportation (the “Laws”); (c) violate any of your or third party’s policies and terms governing the Customer Data. We assume no responsibility or liability for Customer Data, and you shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. Customer is solely responsible for obtaining legally sufficient authorizations and consents from Employees to allow FingerCheck to perform the Services, including any necessary consents and authorizations from Employees related to biometric data. It is hereby clarified that Fingercheck shall not monitor and/or moderate the Customer Data and there shall be no claim against Fingercheck of not acting so. Customer agrees to implement data security-related procedures that will not be less protective than those imposed on Fingercheck by this Agreement and the Fingercheck Privacy Policy.
  • 4.3 No Sensitive Data. Except as explicitly permitted herein (such as biometric data as set forth in the Fingercheck Biometric Data Privacy Policy), you shall not submit to the Services any data that is protected under a special legislation and requires a unique treatment, including, without limitations, (any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), as amended and supplemented, or any similar legislation in other jurisdiction).

5. PROHIBITED CONDUCT

You may not access or use the Services for any purpose other than that for which we make the Services available without our consent.

BY USING THE SERVICES YOU AGREE NOT TO:

  • breach these Terms or any other agreement between you and Fingercheck or violate any Fingercheck policy;
  • access or use any part of the Services for any non-personal, commercial purpose;
  • access or use the Services for any illegal purpose or in a manner inconsistent with or in violation of any applicable laws, statutes, ordinances, or regulations;
  • attempt to gain unauthorized access to any other user’s Account;
  • modify or attempt to modify or in any way tamper with, circumvent, disable, damage or otherwise interfere with the Services;
  • access or use the Services in a way that may infringe upon the intellectual property or other rights of any third party, including, without limitation, trademark, copyright, privacy, or publicity rights;
  • provide false, inaccurate or misleading information;
  • reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
  • modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law;
  • copy, distribute, transfer, sell or license all or part of the Services;
  • intentionally interfere with or damage operation of the Services or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
  • take any action to circumvent, compromise or defeat any security measures implemented in the Services;
  • use the Services to access, copy, transfer, retransmit or transcode information, Fingercheck Materials, names or designs or any other content in violation of any law or third party rights;
  • remove, obscure, or alter Fingercheck’s (or any third party’s) copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed through the Services;
  • disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.

6. INTELLECTUAL PROPERTY

  • 6.1 Fingercheck Intellectual Property. The Services, inclusive of materials, such as software, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any modifications, enhancements or derivative works of the foregoing (collectively, “Fingercheck Materials”), are the property of Fingercheck and its licensors, and may be protected by applicable copyright or other intellectual property laws and treaties. As between you and Fingercheck, Fingercheck retains all right, title and interest, including all intellectual property rights, in and to the Fingercheck Materials.
  • 6.2 Customer Reference. Customer acknowledges and accepts that Fingercheck has the right to use Customer’s name and logo to identify Customer as a customer of Fingercheck or User of the Services, on Fingercheck’s website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by emailing Fingercheck.
  • 6.3 Your Access and Use Rights. Subject to the terms and conditions of these Terms, and your compliance thereof, and specifically in strict compliance with Section 4 (Prohibited Conduct), we grant you a limited, worldwide, non-exclusive, non-transferable right to access and use the Services, during the applicable Subscription Term, solely for Customer’s internal purposes.
  • 6.4 Use Restrictions. Except as expressly permitted in these Terms, you may not, and shall not allow a User or any third party to: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, resell, display, transmit, broadcast, transfer or distribute any portion of the Services to any third party, including, but not limited to your affiliates, or use the Services in any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services; (iii) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of, the Services, or any components thereof; (iv) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Services, or any part thereof; (v) take any action that imposes or may impose (at Fingercheck’s sole discretion) an unreasonable or disproportionately large load on the Fingercheck infrastructure or infrastructure which supports the Services; (vi) interfere or attempt to interfere with the integrity or proper working of the Services, or any related activities; (vii) remove, deface, obscure, or alter Fingercheck’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Services, or use or display logos of the Services without Fingercheck’s prior written approval; (viii) use the Services for competitive purposes, including to develop or enhance a competing service or product; or (ix) encourage or assist any third party (including other Users) to do any of the foregoing.
  • 6.5 Feedback. As a User of the Services, you may provide suggestions, comments, feature requests or other feedback to any of Fingercheck Materials, the Fingercheck Services(“Feedback”). Such Feedback is deemed an integral part of Fingercheck Materials, and as such, it is the sole property of Fingercheck without restrictions or limitations on use of any kind. Fingercheck may either implement or reject such Feedback, without any restriction or obligation of any kind. You (i) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (ii) irrevocably assign to Fingercheck any right, title and interest you may have in such Feedback; and (iii) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights, worldwide, in or to such Feedback.

7. PRIVACY AND SECURITY

  • 7.1 Security. 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.
  • 7.2 Privacy Policy. As a part of accessing or using the Services, we may collect, access, use and share certain personal information (as specified in the Privacy Policy) from, and/or about, you. Please read our Privacy Policy for a description of such data collection and use practices.
  • 7.3 Anonymous Information. Notwithstanding any other provision of these Terms, we may collect, use and publish Anonymous Information (defined below) relating to your use of the Services, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Services, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information. Fingercheck owns all Anonymous Information collected or obtained by Fingercheck.
  • 7.4 Customer Data. Fingercheck will process Customer Data in accordance with the terms of this Terms of Use and the Privacy Policy. Customer must maintain its own data collection, disclosure, retention, and storage policies in compliance with applicable Law.
  • 7.5 Biometric Data. To the extent that Customer collects, captures, stores, or otherwise uses Biometric Data relating to an individual, Customer must (i) first inform the individual from whom Biometric Data will be collected, in writing and prior to collecting his or her Biometric Data, that Biometric Data is being collected, stored, and/or used; (ii) indicate, in writing, the specific purpose(s) and length of time for which Biometric Data is being collected, stored, and/or used; and (iii) receive a written release from the individual (or his or her legally authorized representative) authorizing the Customer, Fingercheck, Fingercheck’s third-party service providers to collect, use, store, transmit and disclose such Biometric Data to Fingercheck and Fingercheck’s third-party service providers in the form set forth below:
    • 7.5.1 “I acknowledge that I have received and reviewed Fingercheck’s Biometric Data Privacy Policy. I understand that as described in that Policy, Fingercheck, its vendors and/or licensors may collect, store and use biometric data in connection with its timekeeping and attendance system. I voluntarily consent to the collection, storage, and use of biometric data by Fingercheck, its vendors and/or licensors for purposes of Fingercheck’s timekeeping and attendance system and on the terms described in the Biometric Data Privacy Policy. I also voluntarily consent to Fingercheck providing such biometric data to its vendors and/or licensors of Fingercheck’s timekeeping and attendance system and as otherwise required by law. This consent also applies with respect to other state or federal statutes that regulate biometrics to the extent it is consistent with those applicable laws.”
  • 7.6 Customer’s Privacy Policy. Where required by Law, Customer agrees to adopt a privacy policy in alignment with these Terms and all applicable Laws governing the collection, use, transfer and retention of personal information. Customer agrees to provide Fingercheck, upon reasonable request, Customer’s adopted privacy policy.

8. SUBSCRIPTION TERM, RENEWAL AND FEES PAYMENT

  • 8.1 Subscription Term. The Services are provided on a subscription basis on a month to month basis, in accordance with the respective subscription plan purchased by you (the “Subscription Term” and the “Subscription Plan”, respectively, and collectively the “Subscription”).
  • 8.2 Subscription Fees. In consideration for the provision of the Services (except for any trial service), Customer shall pay Fingercheck the applicable fees per the purchased Subscription (the “Subscription Fees”). Unless indicated otherwise, Subscription Fees are stated in US dollars. Customer hereby authorizes Fingercheck, either directly or through our payment processing service, to charge such Subscription Fees via Customer’s selected payment method, upon due date. The Subscription Fees are non-cancelable and non-refundable. We reserve the right to change the Subscription Fees at any time, upon notice to Customer if such change may affect Customer’s existing subscriptions upon renewal. In the event of failure to collect the Subscription Fees owed by Customer, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel the Account, without notice.
  • 8.3 Taxes. The Subscription Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms and the purchase or sale, of the Services hereunder (the “Taxes”), except for Taxes imposed on our income. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to us, please notify us, in writing, promptly and we shall join efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax should be deemed as being added on top of the Subscription Fees, payable by Customer.
  • 8.4 Billing. As part of registering, or submitting billing information, to the Services, Customer agrees to provide us with updated, accurate and complete billing information, and Customer authorizes us (either directly or through our affiliates, subsidiaries or other third parties) to charge, request and collect payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment method or designated banking account, and to make any inquiries that we may consider necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account (e.g., updated expiry date or card number as may be provided to us by Customer’s credit card company).
  • 8.5 Subscription Auto-Renewal. In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription includes an automatic renewal option by default, according to which, unless Customer disables the auto-renewal option or cancels its Subscription prior to its expiration, the Subscription will automatically renew upon the end of the then applicable Subscription Term, for a renewal period equal in time to the original Subscription Term (excluding extended periods) and, unless otherwise notified to Customer, at the same price (subject to applicable Tax changes and excluding any discount or other promotional offer provided for the first Subscription Term). Accordingly, unless either Customer or Fingercheck cancels the Subscription prior to its expiration, we will attempt to automatically charge Customer the applicable Subscription Fees upon or immediately prior to the expiration of the then applicable Subscription Term. If Customer wishes to avoid such auto-renewal, Customer shall cancel its Subscription (or disable the auto-renewal option), prior to its expiration, at any time by contacting Fingercheck. Except as expressly set forth in these Terms, in case a Customer cancels its Subscription, during a Subscription Term, the Subscription will not renew for an additional period, but Customer will not be refunded or credited for any unused period within the Subscription Term.
  • 8.6 Failure to Make Payment. In the event that Customer fails to make payment, or upon any charge-back, Customer 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.
  • 8.7 Fees Charged by Third Party Sites. FingerCheck may provide links to a third-party payment processing website. Some of these third-party payment processors may charge separate fees, which are not included in any Subscription Fees or other fees that Customer may pay to FingerCheck.
  • 9.1 Third Party Services. The Services enable you to engage and procure certain third party services, products, apps and tools in connection with the Services, including, without limitation, third party applications and widgets offered via our integrations offering or which you decide to connect through our API, as part of the Services (collectively, “Third Party Services”).
  • 9.2 Independent Relationship. You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, we merely act as an intermediary platform between you and such Third Party Services, and we do not, in any way, endorse any such Third Party Services, or shall be in any way responsible or liable with respect to any such Third Party Services. Your relationship with such Third Party Services and any terms governing your payment for, and use of, such Third Party Services, including without limitation, the collection, processing and use of your data by such Third Party Services, are subject to a separate contractual arrangement between you and the provider of a Third Party Service (the “Third Party Agreement”). We are not a party to, or responsible, in any manner, for the compliance by you or by the provider of the Third Party Service with the Third Party Agreement.
  • 9.3 Integration with a Third Party Service and your Customer Data. Through the Services you and any other User within the Account, may enable an integration of your Account with Third Party Services, which will allow an exchange, transmission, modification or removal of data between us and the Third Party Service, including without limitation, the Customer Data. You hereby acknowledge that any access, collection, transmission, processing, storage or any other use of data, including the Customer Data, by a Third Party Service, is governed by the Third Party Agreement, including any applicable privacy policy, and Fingercheck is not responsible for any access, collection, transmission, processing, storage or any other use of data, including the Customer Data, by the Third Party Service or for such Third Party Service privacy and security actions, inactions or general practices. By integrating and/or using the Third Party Services, you acknowledge and agree that: (a) you are solely responsible for your compliance with applicable privacy restrictions, laws and regulations, including your use of the Third Party Service and other data activities you may conduct or may permit third parties, including the Third Party Service, to conduct; (b) the activities and use of the data by you and any other Users within the Account, may result in a modification and/or removal of data, either in the Account (i.e. Customer Data) and in the integrated Third Party Service. We shall have no obligation of any kind, for any such modification and/or removal of data, either in the Account with us and/or the integrated Third Party Service.
  • 9.4 Use Conditions and Limitations. Both Fingercheck and a Third Party Service may impose, each at its sole discretion, additional conditions or limitations on your access and use of certain Third Party Services, including without limitation, imposing a limited quota on the number of actions or other uses (as the case may be). Such additional conditions or limitations shall be indicated wherever relevant within the Services or the Third Party Service or otherwise notified to you or to any other relevant User of the Account.
  • 9.5 Discontinuation of a Third Party Service. Each of Fingercheck and the Third Party Service reserves the right to discontinue the use or suspend the availability of any Third Party Service, for any reason and with no obligation to provide any explanation or notice. Such discontinuation may result in the inability to utilize certain features and actions of the Third Party Service along with the Services.
  • 9.6 Links. The Services and/or any Third Party Services may contain links to third party websites that are not owned or controlled by us (the “Links”). You acknowledge that we have no control over, and assume no responsibility for the content, privacy policies, or practices of, any third party websites. You: (i) are solely responsible and liable for your use of and linking to third party websites and any content that you may send or post to a third-party website; and (ii) expressly release us from any and all liability arising from your, and in case of a Customer, all Users’, use of any third party website. Accordingly, we encourage you to read the terms and conditions and privacy policy of each third party website that you may choose to visit.

10. TERM AND TERMINATION; SUSPENSION

  • 10.1 Term. These Terms are in full force and effect, commencing upon the Effective Date, until the end of the Services underlying the Account, either paid or unpaid, unless terminated otherwise in accordance with these Terms.
  • 10.2 Termination for Cause. Either Customer or us may terminate the Services and these Terms, upon written notice, in case that (a) the other party is in material breach of these Terms and to the extent, curable, fails to cure such breach, within a reasonable cure period, which shall not be less than 10 days following a written notice from by the non-breaching party; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 45 days.
  • 10.3 Termination by Customer. Customer may terminate its Subscription to the Serviced by cancelling the Serviced and/or deleting the Account, whereby such termination shall not derogate from Customer’s obligation to pay applicable Subscription Fees. In Unless mutually agreed otherwise by Customer and us in a written instrument, the effective date of such termination will take effect at the end of the then-current Subscription Term, and Customer’s obligation to pay the Subscription Fees throughout the end of such Subscription Term shall remain in full force and effect, and Customer shall not be entitled to a refund for any pre-paid Subscription Fees.
  • 10.4 Effect of Termination of Services. Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to you hereunder shall terminate, and we may terminate Account access. It is Customer’s sole liability to export the Customer Data prior to such termination or expiration. In the event that Customer did not delete the Customer Data from the Account, we may continue to store and host it until either Customer or we, at our sole discretion, delete such Customer Data. Customer acknowledges the foregoing and its sole responsibility to export and/or delete the Customer Data prior to the termination or expiration of these Terms, and therefore we shall not have any liability either to Customer, nor to any User or third party, in connection thereto. Unless expressly indicated herein otherwise, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Subscription Fees.
  • 10.5 Survival. Section 3.9 (Responsibility for Users), 4 (Customer Data), 6 (Intellectual Property), 7 (Privacy and Security), 8 (Subscription Term, Renewal and Fees Payment) in respect of unpaid Subscription Fees, 9 (Third Party Services), 10 (Term and Termination; Suspension), 11 (Confidentiality), 12 (Warranty Disclaimer), 13 (Limitations of Liability), 14 (Indemnification), 18 (Governing Law and Jurisdiction; Class Action Waiver and Arbitration) and 19 (General Provisions), shall survive the termination or expiration of these Terms, and continue to be in force and effect in accordance with their applicable terms.
  • 10.6 Suspension. Without derogating from our termination rights above, we may decide to temporarily suspend the Account (including any access thereto) and/or the Services, in the following events: (i) we believe, at our sole discretion, that you or any third party, are using the Services in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise any liability for us or any third party; (ii) we believe, at our sole discretion, that you or any third party, are using the Services in breach of these Terms or applicable Law; (iii) Customer’s payment obligations, in accordance with these Terms, are or are likely to become, overdue; or (iv) Customer’s or any of its Users’ breach of Section 4 (Prohibited Conduct). The afore-mentioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable Law.

11. CONFIDENTIALITY

  • 11.1 Confidential Information. In connection with these Terms and the Services (including the evaluation thereof), each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether disclosed prior or after the Effective Date (the “Confidential Information”). For the avoidance of doubt, (i) Customer Data is regarded as Customer’s Confidential Information, and (ii) the Services, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Services, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information.
  • 11.2 Confidentiality Undertakings by the Receiving Party. The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
  • 11.3 Compelled Disclosure. Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.

12. WARRANTY DISCLAIMER

NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

  • 12.1 Except as expressly stated in these Terms, we make no representations or warranties that your use of the Services is appropriate in your jurisdiction. Other than as indicated herein, you are responsible for your compliance with any local and/or specific applicable Laws, as applicable to your use of the Services.
  • 12.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND. WE AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING ANY THIRD PARTY SERVICE PROVIDERS), HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES AND/OR REPRESENTATIONS OF MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY. CUSTOMER’S USE OF THE SERVICES AND ANY CONTENT ARE ENTIRELY AT CUSTOMER’S OWN RISK. CUSTOMER ASSUMES THE ENTIRE RISK OF LOSS AND DAMAGE DUE TO CUSTOMER’S USE OF THE SERVICES AND THE CONTENT.
  • 12.3 WE AND OUR VENDORS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE SERVICES, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. WE AND OUR VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING CUSTOMER DATA) MAY SUFFER, THAT ARE BEYOND OUR CONTROL.
  • 12.4 EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION (I) THAT THE SERVICES (OR ANY PORTION THEREOF) ARE COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICES.
  • 12.5 FINGERCHECK BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD PARTY SERVICE’S OPERABILITY OR INTEROPERABILITY WITH THE SERVICES, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMISSIONS BY THIRD PARTIES. BY ACCESSING AND/OR USING THE THIRD PARTY SERVICES, YOU ACKNOWLEDGE THAT YOUR ACCESS AND USE OF THE THIRD PARTY SERVICES ARE AT YOUR SOLE DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD PARTY SERVICE’S OPERATION AND PRACTICES AND ITS RESPECTIVE THIRD PARTY AGREEMENT, MEET YOUR NEEDS.

13. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

  • 13.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF FINGERCHECK), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
  • 13.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, THE AGGREGATE LIABILITY OF FINGERCHECK AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, DISTRIBUTORS, SUBCONTRACTORS, SUBLICENSEES AND AGENTS (THE “FINGERCHECK PARTIES”) TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THESE TERMS, THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION FEES PAID BY YOU DURING THE SIX (6) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
  • 13.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, THE FINGERCHECK PARTIES’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
  • 13.4 Any claims or damages that you may have against Fingercheck shall only be enforceable against Fingercheck and not any other entity or its officers, directors, representatives or agents.
  • 13.5 You hereby acknowledge and confirm that the limitations of liability and warranty disclaimers contained in these Terms are agreed upon by you and us and we both find such limitations and allocation of risks to be commercially reasonable and suitable for our engagement hereunder, and both you and us have relied on these limitations and risk allocation in determining whether to enter these Terms.

14. INDEMNIFICATION

  • 14.1 By Customer. Customer hereby agrees to indemnify, defend and hold harmless the Fingercheck Parties from and against any and all claims, damages, obligations, liabilities, losses, reasonable expenses or costs (collectively, “Losses”) incurred as a result of any third party claim arising from (i) Customer’s use of, access to, activities in connection with, or conduct or connection with the Services, including without limitation any data or content transmitted or received by Customer or through Customer’s account; (ii) Customer’s and/or any of its Users’, violation of these Terms or applicable Law; (iii) FingerCheck’s and/or any of its subcontractors’ use of or reliance on data, materials or information provided by or on behalf of Customer, or actions that FingerCheck or any of its subcontractors takes upon Customer’s direction; (iv) allegations that Customer Data, including the use of Customer Data by Fingercheck and/or any of its subcontractors, infringes or violates, any third party’s rights, including, without limitation, intellectual property, privacy and/or publicity rights; (v) Customer’s gross negligence or willful misconduct, and/or (vi) any other party’s access and use of the Services with Customer’s username, password or other appropriate security code.
  • 14.2 By Fingercheck. Fingercheck hereby agrees to defend Customer, its affiliates, officers, directors, and employees, in and against any third party claim or demand against Customer, alleging that Customer’s authorized use of the Services infringes or constitutes misappropriation of any third party’s copyright, trademark or registered US patent (the “IP Claim”), and we will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on such IP Claim by a court of competent jurisdiction or agreed to via settlement we agreed upon, including reasonable attorneys’ fees. Fingercheck’s indemnity obligations under this Section 12.2 shall not apply if: (i) the Services (or any portion thereof) were modified by Customer or any of its Users or any third party, but solely to the extent the IP Claim would have been avoided by not doing such modification; (ii) if the Services are used in combination with any other service, device, software or products, including, without limitation, Third Party Services, but solely to the extent that such IP Claim would have been avoided without such combination; and/or (iii) any IP Claim arising or related to, the Customer Data or to any events giving rise to Customer’s indemnity obligations under Section 12.1 above. Without derogating from the foregoing defense and indemnification obligation, if Fingercheck believes that the Services, or any part thereof, may so infringe, then Fingercheck may in its sole discretion: (a) obtain (at no additional cost to Customer) the right to continue to use the Services; (b) replace or modify the allegedly infringing part of the Services so that it becomes non-infringing while giving substantially equivalent performance; or (c) if Fingercheck determines that the foregoing remedies are not reasonably available, then Fingercheck may require that use of the (allegedly) infringing Services (or part thereof) shall cease and in such an event, Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of the Subscription Term. THIS SECTION 12.2 STATES FINGERCHECK’S SOLE AND ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY FINGERCHECK AND/OR ITS SERVICES AND UNDERLYING TECHNOLOGY.
  • 14.3 Indemnity Conditions. The defense and indemnification obligations of the indemnifying party under this Section 12 are subject to: (i) the indemnified party shall promptly provide a written notice of the claim for which an indemnification is being sought, provided that such indemnitee’s failure to do so will not relieve the indemnifying party of its obligations under this Section 12, except to the extent the indemnifying party’s defense is materially prejudiced thereby; (ii) the indemnifying party being given immediate and exclusive control over the defense and/or settlement of the claim, provided, however that the indemnifying party shall not enter into any compromise or settlement of any such claim that that requires any monetary obligation or admission of liability or any unreasonable responsibility or liability by an indemnitee without the prior written consent of the affected indemnitee, which shall not be unreasonably withheld or delayed; and (iii) the indemnified party providing reasonable cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of, or response to, such claim.

15. EXPORT CONTROLS; SANCTIONS

The Services may be subject to Israeli, U.S. or foreign export controls, Laws and regulations (the “Export Controls”), and you acknowledge and confirm that: (i) you are not located or use, export, re-export or import the Services (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) you are not: (a) organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. economic or trade sanctions (currently, Cuba, Iran, Syria, North Korea, or the Crimea region of UkFingerchecke), (b) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or (c) otherwise the target of U.S. sanctions. Customer is solely responsible for complying with applicable Export Controls and sanctions which may impose additional restrictions, prohibitions or requirements on the use, export, re-export or import of the Services and/or the Customer Data; and (iii) Customer Data is not controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions, or otherwise requires any special permission or license, in respect of its use, import, export or re-export hereunder.

16. MODIFICATIONS

Occasionally we may make changes to these Terms for valid reasons, such as adding new functions or features to the Services, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as we deem necessary, at our sole discretion. When we make material changes to these Terms, we’ll provide Customer with notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Services or by sending Customer an email. Your continued use of the Services after the changes have been implemented will constitute your acceptance of the changes.

17. GOVERNMENT USE

If Customer is part of a U.S. Government agency, department or otherwise, either federal, state or local (a “Government Customer”), then Government Customer hereby agrees that the Services under these Customer Terms qualifies as “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of Federal Acquisition Regulation (“FAR”) 2.101, FAR 12.212, Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7201, and DFARS 252.227-7014. Government Customer further agrees that the terms of this Section 20 shall apply to Customer. Government Customer’s technical data and software rights related to the Services include only those rights customarily provided to the public as specified in these Terms in accordance with FAR 12.212, FAR 27.405-3, FAR 52.227-19, DFARS 227.7202-1 and General Services Acquisition Regulation (“GSAR”) 552.212-4(w) (as applicable). In no event shall source code be provided or considered to be a deliverable or a software deliverable under these Terms. We grant no license whatsoever to any Government Customer to any source code contained in any deliverable or a software deliverable. If a Government Customer has a need for rights not granted under the Terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. Any unpublished-rights are reserved under applicable copyright laws. Any provisions contained in these Terms that contradict any Law applicable to a Government Customer, shall be limited solely to the extent permitted under such applicable Law.

18. GOVERNING LAW AND JURISDICTION; CLASS ACTION WAIVER AND MANDATORY ARBITRATION

  • 18.1 Governing Law; Jurisdiction. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Courts of competent jurisdiction located in New York, shall have the sole and exclusive jurisdiction and venue over all controversies and claims arising out of, or relating to, these Terms. You and us mutually agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Notwithstanding the foregoing, Fingercheck reserves the right to seek injunctive relief in any court in any jurisdiction.
  • 18.2 Class Action Waiver. WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND FINGERCHECK AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Fingercheck mutually agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
  • 18.3 Arbitration. To the extent permitted under applicable Law, you and Fingercheck hereby irrevocably agree to the following provisions:
    • 18.3.1 Dispute resolution and Arbitration. Any dispute, claim, or controversy between you and us arising in connection with, or relating in any way to, these Terms (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination or expiration of these Terms) will be determined solely by mandatory binding arbitration. In arbitration there is no judge or jury and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms as a court would.
    • 18.3.2 Exception. Notwithstanding clause 16.3.1 above, you and Fingercheck both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to seek injunctive relief in a court of law. In addition to the above, notwithstanding clause 16.3.1 above, Fingercheck may file a suit in a court of law against you to address intellectual property infringement claims.
    • 18.3.3 Arbitration Process Rules. The arbitration shall be administered by the American Arbitration Association (the “AAA”), 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 AAA 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 AAA 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 AAA 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 clause 16.3.3 modifies, supplements, or is inconsistent with the Rules, this clause will govern. The arbitrator shall have no power or authority to amend or disregard any provision of this clause or any other provision of these Terms. 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 clause). 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 the 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. 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.
    • 18.3.4 Special Statute of Limitation. Any arbitration must be commenced by filing a demand for arbitration within 2 years after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits such limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable Law.

By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

20. MISCELLANEOUS

  • 20.1 Civil Code Section 1789.3 Notice. Under California Civil Code Section 1789.3, California consumers 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 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
  • 20.2 Translated Versions. These Terms were written in English, and translated into other languages for your convenience. If a translated (non-English) version of these Terms conflicts in any way with their English version, the provisions of the English version shall prevail.
  • 20.3 Force Majeure. Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
  • 20.4 Relationship of the Parties; No Third Party Beneficiaries. The parties are independent contractors. These Terms and the Services provided hereunder, do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to these Terms.
  • 20.5 Notice. 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 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 and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Notices to us shall be provided to Fingercheck LLC, 1000 Gates Avenue, 3rd Floor, Brooklyn, NY 11221 or sent to info@fingercheck.com.
  • 20.6 Assignment. These Terms, and any and all rights and obligations hereunder, may not be transferred or assigned by you without our written approval, provided that you may assign these Terms to your successor entity or person, resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting rights, except for an assignment to a competitor of Fingercheck, and provided that you provide us with prompt written notice of such assignment and the respective assignee agrees, in writing, to assume all of your obligations under these Terms. We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Services to a third party without your consent or prior notice to you. Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized under this Section 17.5 shall be null and void.
  • 20.7 Severability. These Terms shall be enforced to the fullest extent permitted under applicable Law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
  • 20.8 No Waiver. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

21. Pay On-Demand

22. Contact Fingercheck

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

 

Fingercheck

1000 Gates Avenue, 3rd Floor

Brooklyn, NY 11221

© 2021 Fingercheck – All Rights Reserved.