Terms & Conditions

THW MARKETING LLC DBA RAPID PAY USA’S

TERMS & CONDITIONS RECIPIENT 

 

THESE TERMS OF SERVICE, together with any documents they expressly incorporate by reference (collectively, these “Terms”) are entered into by and between TWH Marketing LLC DBA Rapid Pay USA (the “Company” “we” or “us”) and the user (“User,” “you,” or “your”) (Company and User each a “Party” and collectively the “Parties”).  The Terms govern your access to and use of the Company’s website at https://rapidpayusa.com, including any subpages (the “Website”), the Company mobile application, if any (the “App), or any services offered by Company on the Website or App, which includes, but is not limited to, the rapid pay feature (“Rapid Pay”), which allows you to obtain earned wages from an employer-sponsored plan prior to payday (all services offered by Company via the Website or App are collectively the “Services).


PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION IN SECTION 19 THAT REQUIRES THE USE OF ARBITRATION.  PUSRANT TO SECTIONS 19B, 19J, AND 19K, YOU WAIVE YOUR RIGHT TO BE PART OF A CLASS ACTION LAWSUIT OR HAVE A JURY TRIAL.


OTHER IMPORTANT TERMS INCLUDE DISCLAIMERS (SECTION ‎2), AND LIMITATIONS ON LIABILITY (SECTION ‎3). PLEASE READ THESE TERMS, INCLUDING THOSE SECTIONS, CAREFULLY.


1. Requirements for Use; Eligibility; Not Responsible for Transfer of Unpaid Earnings

By Using Company’s Website, App, and/or Services, you agree that you have read, accepted, and agree to be bound by these Terms, as well as the Company Privacy Policy, which can be found at https://rapidpayusa.com/privacy, and which is incorporated fully herein. (the “Privacy Policy”) PLEASE READ THESE TERMS CAREFULLY BEFORE USING COMPANY’S WEBSITE, APP, AND/OR SERVICES.  If you do not agree with these Terms or the Privacy Policy, you must not access or use the Website, App, and/or Services.  The Website, App, and Rapid Pay are a copyrighted works belonging to Company.

If you wish to use the Website, App, and/or Services, you will be required to create an account by providing Company with certain information, including information about your identity and, in some cases, banking information; you will need to establish user access credentials, including a password and other multi-factor authentication credentials, to protect your account; and you also authorize us to collect such data and other data, including third-party information and information from your employer, about you (collectively, “Personal Information”).

If you have not reached the age of majority in the state or territory in which You reside (18) except in Nebraska (19), Alabama (21), Mississippi (21), and Puerto Rico (19), You cannot use the Services without written consent of Your parent or legal guardian.  Such written consent must be provided at the time You establish an account with Company.  By using the Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements.  If you do not meet all of these requirements, you must not access or use the Services.


Your eligibility to use the Services is based on and subject to the rules and regulations of your bank and will only be allowed if your bank allows the transactions involved in the Services.


Company is not responsible for ensuring the transfer of your Unpaid Earnings from your employer’s account to your Bank Account (as defined below) is completed.  Transfers of Unpaid Earnings may take up to an hour to post to your Bank Account depending on who you bank with.


2. Disclaimer of Warranties

We make no representations concerning any content contained on the Website or App, or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or content contained on the Website or App, or accessed through the Services.


THE SERVICES AND CONTENT ON THE WEBSITE AND APP ARE PROVIDED "AS IS," “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE WEBSITE, APP, AND/OR SERVICES IS SOLELY AT YOUR OWN RISK.


3. Limitation of Liability

Company is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms, including, but not limited to:


if your use of the Services causes your income to drop below the federal or state minimum wage;
if your Unpaid Earnings are transferred to the incorrect bank account for any reason whatsoever, including without limitation, misrepresentation or fraud by a third party;
if the Unpaid Earnings fail to transfer from your employer’s account to your Bank Account (as defined below);
fraudulent charges to your Bank Account;
payroll discrepancies or errors;
your use of or your inability to use our Website, App, or Services;
delays or disruptions in our Website, App, or Services;
viruses or other malicious software obtained by accessing, or linking to, our Website, App, or Services;
glitches, bugs, errors, or inaccuracies of any kind in our Website, App, or Services;
damage to your hardware device from the use of the Website, App, or Services;
the content, actions, or inactions of third parties’ use of the Website, App, or Services;
a suspension or other action taken with respect to your account; and
your reliance on the quality, accuracy, or reliability of job postings, profiles, ratings, recommendations, and feedback (including their content, order, and display), or other information on the Website, App, or Services.


UNDER NO CIRCUMSTANCES WILL COMPANY’S LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS, OR YOUR USE OF THE WEBSITE, APP, AND/OR SERVICES, EXCEED THE AMOUNT OF THE RAPID PAY FEE (AS DEFINED BELOW) CHARGED TO THE PARTICULAR USER FOR THE SERVICES, IF ANY. IN ADDITION, IN NO EVENT WILL COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, MANAGERS, MEMBERS, OR REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, APP, AND/OR SERVICES, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR APP, OR SUCH OTHER WEBSITES, OR ANY SERVICES, ADVICE, OR ITEMS OBTAINED THROUGH THE SERVICES, OR ONLINE PLATFORM OR SUCH OTHER WEBSITES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, DEATH, DISABILITY, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, WHETHER RELATED TO YOU OR ANY OTHER PARTY, AND EVEN IF FORESEEABLE. 


4. Reliance on Information Posted; Content by Third Parties; Information Collected by Company

The information presented on or through the Website or App is made available solely for general information purposes.  Company does not warrant the accuracy, completeness or usefulness of this information.  Any reliance you place on such information is strictly at your own risk.  COMPANY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE WEBSITE OR APP, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.


The Company Platform may include content provided by third parties, including materials or User Contributions provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services.  All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials.  These materials do not necessarily reflect the opinion of the Company.  Company is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.


All information Company collects on or through the Company Website or App is subject to our Privacy Policy.  By using the Company Website or App, you consent to all actions taken by Company with respect to your information in compliance with the Privacy Policy.


5. Fees for Using the Services; All Transactions Final

By using the Services, you agree to allow Company to collect from your Unpaid Earnings a per transaction fee of up to the greater of (a) Four and 99/100 Dollars ($4.99) or (b) Four and 99/100 Percent (4.99%) of the amount of Unpaid Earnings paid to you in the particular transaction (the “Rapid Pay Fee”).  The amount of the Rapid Pay Fee, subject to the limitations described in the prior sentence, is determined at Company’s sole discretion. THE RESPONSIBILITY IS ON YOU AND YOUR EMPLOYER TO ENSURE THAT YOUR USE OF THE SERVICES OR PAYMENT OF THE CONVENIENCE FEE DOES NOT CAUSE YOUR INCOME TO DROP BELOW THE FEDERAL OR YOUR STATE MINIMUM WAGE.


Your employer may also charge a fee for your use of the Services (“Employer Fee”) equal to its costs in allowing you to access Unpaid Earnings prior to payday.  The Rapid Pay Fee and Employer Fee, if any, are collectively referred to herein as the “Convenience Fee.”  


You authorize Company, or its third-party payment processor, to collect the Convenience Fee For the Services by deducting the amount of the Convenience Fee from your Unpaid Earnings upon completion of the transaction.  


You acknowledge and agree that, once the transaction is complete, you will not request Company reverse the transaction or refund you the Convenience Fee.


6. Restrictions on Services; Right to Advertise

Company may, at its sole discretion and without notice, limit the total amount of Unpaid Earnings that you can access at any given time or for a period of time. Company also may, at its sole discretion and without notice, deny access to your Unpaid Earnings if we reasonably believe such refusal is necessary or advisable for legal or security reasons.


Company reserves the right to sell advertising space on the Website or App to any third party.


7. Requirements for Use of the Website, App, or Services

In order for you to use the Services, you must:


Have an account in your name, at a United States-based depository financial institution that issues you a debit card (some types of prepaid debit cards also work) (“Bank Account”), that is in good standing and not overdrawn; and

Have a current source of income that you regularly deposit into this Bank Account.

8. Accessing the Website, App, and/or Services

If you use the Website, App, or Services, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.  Company and its associates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion. 


We reserve the right to withdraw or amend the Website or App, and any Services provided on the Website or App, in Company’s sole discretion without notice.  We will not be liable if for any reason all or any part of the Website, App, or Services are unavailable at any time or for any period.  From time to time, we may restrict access to some parts or all of the Website, App, or Services, to users, including registered users. 


If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity.  You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information.  You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.  You also agree to ensure that you exit from your account at the end of each session.  You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. 


We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. 


9. Representations and Warranties 

By using the Services, you represent and warrant to Company as follows:


A. You are fully authorized to enter into and perform these Terms;

B. These Terms constitute a legal and valid contract that is binding on you and enforceable against you as written;

C. The execution, delivery, and performance of these Terms by You does not violate any local, state, federal, or international law or the provisions of any agreement to which you are bound;

D. You are the sole accountholder on the Bank Account you have connected with your Company account.  If you have a joint account, you represent and warrant that you have the authority to (i) bind the absent accountholder; and (ii) enter into these Terms independently. You further agree that you will indemnify and hold Company harmless from any claims by any other owner of the Bank Account;

E. The name you used or verified to establish your account is your legal name, and you have not used any other name with Company;

F. Any information, materials, data, content, or documents you provide or make available to Company are and will remain true, correct, and complete;

G. You will maintain and update Personal Information to keep it true, accurate, current, and complete;

H. You will keep all login details, user accounts, and passwords secure at all times and will not allow anyone else, other than your authorized agents, to access your Company account;

I. There is no Dispute between your employer and you with regards to any Unpaid Earnings;
 

J. You are and will remain solely liable for the activity that occurs in connection with your Company account and will notify us immediately if you become aware of any unauthorized access to your Company account; and

K. Each time you ask us to access any of your Unpaid Earnings, you also represent and warrant to Company that at the time of your request:
 

i. You hold all legal right, title, and interest to and in the Unpaid Earnings, free and clear of any liens, encumbrances, judgments, or garnishments; and you have not sold, pledged, assigned, or encumbered the Unpaid Earnings;
ii. The Unpaid Earnings are presently and unconditionally owing and have not been modified, dismissed, settled, or paid; are not currently past due; and represent the amount owed by your employer arising solely from your actual and timely provision to your employer in the ordinary course of business of lawful services, which you have accurately recorded and described to your employer;
iii. The Unpaid Earnings are not subject to any Dispute, claim, offset, deduction, discount, defense, or counterclaim of any kind; and
iv.here has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of you with respect to the Unpaid Earnings or their underlying services.

10. Covenants by You

During the Term (as defined below), you covenant to Company as follows:


A. Your use of the Services and payment of the Convenience Fee will not cause your income to drop below the then stated minimum wage for the United States of America and the state in which you reside. 

B. You will use the Services only for lawful purposes and in accordance with these Terms of Service. 

C. You will not to use the Website, App, or Services for any of the following:

i. In any way that violates any applicable federal, state, local, or international law or regulation. 
ii. For the purpose of exploiting, harming, or attempting to exploit or harm others.
iii. To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards (see Content Standards below) set out in these Terms.
iv. To impersonate or attempt to impersonate Company, an employee or representative of Company, another User, or any other person or entity (including, without limitation, by using e-mail addresses or User screen names associated with any of the foregoing).
v. To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, App, or Services, or that, as determined by Company, may harm Company or expose it to liability.

D. You will not:

i. Use the Website, App, or Services in any manner that could disable, overburden, damage, or impair the Website, App, or Services or interfere with any other party’s use of the Website, App, or Services, including their ability to engage in real time activities through the Website, App, or Services.
ii. Use any robot, spider, or other automatic device, process, or means to access the Website, App, or Services for any purpose, including monitoring or copying any of the material on the Website, App, or Services.
iii. Use any manual process to monitor or copy any of the material on the Website, App, or Services or for any other unauthorized purpose without Company’s prior written consent.
iv. Use any device, software, or routine that interferes with the proper working of the Website, App, or Services.
v. Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
vi. Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, App, or Services, the server on which the Website, App, or Services are stored, or any server, computer, or database connected to the Website, App, or Services. 
vii. Attack the Website, App, or Services via a denial-of-service attack or a distributed denial-of-service attack.
viii. Otherwise attempt to interfere with the proper working of the Website, App, or Services.

11. Disputes Between Your Employer and You

Your employer and you may disagree from time to time with you about the amount of Unpaid Earnings you earned or the amount that it owes you. We do not resolve or otherwise become involved in Disputes between you and your employer. Instead, resolving such Disputes is your sole responsibility. 


12. Debiting Your Bank Account to Correct Errors Only

You authorize Company to initiate an automatic account debit from your linked bank account in the amount specified below whenever any of the following events occur:


A. If we pay a portion of your Unpaid Earnings you an amount you did not request or more than you requested due to an operational error, then the difference up to the amount of the error;

B. If you otherwise receive money that is determined by Company to be (i) in excess of your Unpaid Earnings at the time of the transaction, or (ii) a misdirect funds from Company or your employer; or

C. You commit any other act (or omit any other act) that is a breach the representations, warranties, covenants, or promises of Sections ‎10 or 11.

If we decide to debit your linked bank account, we will notify you at least one business day before we debit your account; provided, if we reasonably and in good faith believe that you have defrauded or intend to defraud us, we may notify you contemporaneously with the debit transaction. In addition to exercising the automatic account debit authority you provide us in this Section ‎12, we retain the right to pursue any other remedy permitted by law or equity.


13. No Professional Advice

The information contained in or made available through the Services (including, but not limited to, information contained on the Website, the App, message boards, in text files, in video files, or in chats) cannot replace or substitute the services of trained professionals in any field, including, but not limited to, financial matters. YOU ARE ADVISED TO CONSULT A CERTIFIED FINANCIAL PLANNER OR OTHER SIMILAR FINANCIAL PLANNING PROFESSIONAL PRIOR TO USING THE WEBSITE, APP, AND/OR SERVICES. Company and its licensors, suppliers, employees, members, managers, and contractors make no representations or warranties concerning any action or application of information or preparation by any person following the information offered or provided within or through the Website, App, or Services, or whether your use of the Website, App, or Services is a good financial decision. 


You are responsible and accountable for your decisions, actions, and results thereof, and by your use of the Website, App, and/or Services, you agree not to attempt to hold Company or any of the foregoing parties liable for any such decisions, actions, or results, at any time, under any circumstance.


14. Changes to These Terms

Company may revise and update these Terms from time to time in Company’s sole discretion and timing upon a notification on the Website or the App, if any. All revisions, updates, or changes are effective immediately when Company posts them to the Website or the App, if any, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set forth in Section 19 below will not apply to any disputes for which the Parties have actual notice on or prior to the date the revision, update, or change is posted. Your continued use of the Website, App, and/or Services following the posting of revised, updated, or changed Terms means and constitutes your acceptance and agreement to the revision(s), update(s), or change(s). You are expected to check, read, and agree to this page when Company posts a notification on the Website or App, if any, or sends you a notification through email, prior to continuing to access or utilize the Website, App, and/or Services so you are aware of any revision, update, or change, as they are binding on you.


15. Intellectual Property.  

The Website, App, and Services and their entire contents, features, and functionality (including, but not limited to, all information, source code, algorithms, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof), are wholly owned by Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other applicable jurisdictions’ intellectual property or proprietary rights laws. 


These Terms permit you to use the Website, App, and Services in accordance with these Terms only. These Terms do not constitute a sale or convey to you any rights, title, or interest of ownership in or related to the Website, App, or Services or any intellectual property rights owned by Company. Company, Company’s logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Company or its affiliates or licensors. You must not use such marks without the prior written permission of Company. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.


A. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material from the Website, App, or Services, except as follows:
i. Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
ii. You may store files that are automatically cached by your Web browser for display enhancement purposes.

You must not:


iii. Modify copies of any materials from the Website, App, or Services.
iv. Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
v. Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Website, App, or Services.

If you print, copy, modify, or otherwise use or provide any other person with access to any part of the Website, App, or Services in breach of these Terms, your right to use the Website, App, and Services will cease immediately and you must, at Company’s option and direction, return or destroy any copies of the materials you have made. Any use of the Website, App, or Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.


16. Term and Termination.

(a)Term.  The term of this Terms commences on the date User creates an account through the Website or App, whichever is earlier.  The Term continues until terminated by either Company or User (the “Term”).

(b)Termination by Company.  Company reserves the right to, at any time and for any reason or no reason at all, terminate User’s account, including any access to the Website, App, or Services.

(c)Termination by User.  User can terminate his or her Company account and the use of Website, App, or Services by providing seven (7) days’ prior written notice to Company.  

(d)Provisions Surviving Termination.  Section 12, 15, 17, 18, and 19 will survive termination.

17. Confidentiality.  In connection with this Terms, a Party may disclose, or the other Party may learn of or have access to, certain confidential proprietary information owned by a Party or its affiliates, business partners, or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to a Party or any of Party’s existing or contemplated business activities, business and marketing strategies, technology, developments, software, software designs, methods, trade secrets, and clients. Each Party may use the Confidential Information of the other Party only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care.  Confidential Information also includes the terms of this Agreement and the Services.

18. Indemnification. User agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, manager, members, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to (i) your use of the Website, App, or Services, or (ii) a breach of any term, condition, representation, warranty, or covenant in these Terms, including without limitation, a claim by any government agency that any one of your employee’s use of the Services caused his or her income to drop below the federal or state minimum wage.

19. Dispute Resolution and Arbitration Agreement.
 

A. Pre-Arbitration Dispute Resolution and Notification. In the event any dispute arises between you and the Company you must first send written notice to Company’s Customer Service Center of your intent to arbitrate ("Notice"). The Notice to Company should be sent by electronic mail to support@rapidpayusa.com. The Notice must: (i) describe the nature and basis of the claim or dispute; (ii) set forth the specific relief sought; and (iii) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you.  Prior to initiating an arbitration, You and Company each agree to attempt to negotiate an informal resolution to it first. If after thirty (30) days of good faith efforts to negotiate, one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.

B. Agreement to Arbitrate. You and Company mutually agree that any Disputes will be settled by binding arbitration. If there is a dispute about whether this arbitration agreement can be enforced or applies to our Dispute, you and Company agree that the arbitrator will decide that issue. THIS AGREEMENT TO ARBITRATE IS SPECIFICALLY ENFORCEABLE.  THERE IS NO JUDGE OR JURY IN ARBITRATION, 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 THESE TERMS AS A COURT WOULD.

C. Exceptions to Arbitration Agreement. You and Company each agree that the following claims are exceptions to the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

D. Cost of Arbitration.  The Parties will equally split the cost of arbitration.

Modification of AAA Rules - Attorney’s Fees and Costs. You and Company each agree that either party may be entitled to seek an award of attorney fees and expenses if they prevail in arbitration, to the extent provided under applicable law and the AAA rules.

Modification of AAA Rules – Limitation on Damages. The arbitrator will have no authority to award punitive, consequential, special, or indirect damages.

G. Choice of Law. The validity of this Arbitration Agreement, its construction, interpretation, and enforcement, and the rights of the parties hereto shall be determined under, governed by, and construed in accordance with the laws of the Commonwealth of Virginia.

H. Venue for Arbitration.  The arbitration shall be conducted in Norfolk, Virginia.  The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable.

I. Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

J. JURY TRIAL WAIVER. YOU AND COMPANY ACKNOWLEDGE AND AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AS TO ALL ARBITRABLE DISPUTES.

K. No Class Actions or Representative Proceedings. You and Company acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Company both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. 

L. Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

20. Miscellaneous.

A. Notice.  Any notice or other communication given hereunder shall be deemed sufficient if in writing and sent by either e-mail at support@rapidpayusa.com or to your email address or physical address provided by your when initiating your Company account.

B. Terms Binding.  This Terms shall be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, legal representatives, successors, and assigns. 

C. Entire Agreement.  These Terms, including all documents incorporated herein by reference, including the Privacy Policy, constitute the sole and entire agreement between you and Company with respect to the Website, App, and Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the Website, App, or Services.

M. Governing Law; Venue.  If a court of competent jurisdiction finds the arbitration provisions in Section 19 invalid or inapplicable, you and Company each agree to the exclusive jurisdiction and the exercise of personal jurisdiction of the state or federal court located in the City of Norfolk, Commonwealth of Virginia, United States of America, for the purpose of litigating all claims or disputes, and waive any objection as to inconvenient forum. You also both agree that Company may bring suit in the state of federal courts in the City of Norfolk, Commonwealth of Virginia, United States of America for injunctive relief to enjoin infringement or other misuse of intellectual property rights.  In such a case where a court of competent jurisdiction finds the arbitration provisions in Section 19 invalid or inapplicable, the validity of this these Terms, its construction, interpretation, and enforcement, and the rights of the parties hereto shall be determined under, governed by, and construed in accordance with the laws of the Commonwealth of Virginia, without regards to its conflict of laws principles.  

D. Waiver; Severability.  The waiver by any Party of a breach of any provision of this Terms will not operate or be construed as a waiver of any subsequent breach by any Party.  If any term or provision of this Terms or the application thereof to any person or circumstance shall, to the extent applicable, be invalid or unenforceable, the remainder of these Terms and the application of such term of provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of these Terms shall be valid and be enforced to the fullest extent permitted by law.

E. Limitation of Term of Action.  User agrees that any cause of action arising from or related to the relationship with Company shall have a one (1) year statute of limitations.  Otherwise, it is time-barred.

F. Force Majeure.  The Parties to these Terms will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to acts or circumstances beyond the reasonable control of the Parties, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

G. Assignment.  User may not assign the Terms, or any of its rights or obligations hereunder, without Company’s prior written consent in the form of a written instrument signed by a duly authorized representative of Company. Company may freely assign this Terms without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.

H. Sections Headings Non-Binding.  All section and subsection headings are not legal binding or a part of this Terms. 

21. Definitions of Yet to be Defined Terms

“Disputes” shall mean a dispute, claim, disagreement, or controversy arising out of, relating to, or in any way in connection with these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Website, App, or Services.


“Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.


“Intellectual Property Right” means all patent rights, copyrights, trademark rights, rights in trade secret (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (whether registered or unregistered) throughout the world.


“Unpaid Earnings” means the right to payment (e.g., account receivable) owed to you by your employer arising out of services you have already provided to your employer or its customers and any other related rights.

 


THW MARKETING LLC DBA RAPID PAY USA’S 

TERMS & CONDITIONS EMPLOYER

 

THESE TERMS OF SERVICE, together with any documents they expressly incorporate by reference (collectively, these “Terms”) are entered into by and between TWH Marketing LLC DBA Rapid Pay USA (the “Company” “we” or “us”) and the user (“User,” “you,” or “your”) (Company and User each a “Party” and collectively the “Parties”).  The Terms govern your access to and use of the Company’s website at https://rapidpayusa.com, including any subpages (the “Website”), the Company mobile application, if any (the “App), or any services offered by Company on the Website or App, which includes, but is not limited to, the rapid pay feature (“Rapid Pay”), which allows your employees or contractors to obtain earned wages from a plan sponsored by you prior to payday (all services offered by Company via the Website or App are collectively the “Services).


PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION IN SECTION 19 THAT REQUIRES THE USE OF ARBITRATION.  PUSRANT TO SECTIONS 19B, 19J, AND 19K, YOU WAIVE YOUR RIGHT TO BE  PART OF A CLASS ACTION LAWSUIT OR HAVE A JURY TRIAL.


OTHER IMPORTANT TERMS INCLUDE DISCLAIMERS (SECTION ‎2), AND LIMITATIONS ON LIABILITY (SECTION ‎3). PLEASE READ THESE TERMS, INCLUDING THOSE SECTIONS, CAREFULLY.


1. Requirements for Use; Eligibility; Not Responsible for Transfer of Unpaid Earnings

By Using Company’s Website, App, and/or Services, you agree that you have read, accepted, and agree to be bound by these Terms, as well as the Company Privacy Policy, which can be found at https://rapidpayusa.com/privacy, and which is incorporated fully herein. (the “Privacy Policy”) PLEASE READ THESE TERMS CAREFULLY BEFORE USING COMPANY’S WEBSITE, APP, AND/OR SERVICES.  If you do not agree with these Terms or the Privacy Policy, you must not access or use the Website, App, and/or Services.  The Website, App, and Rapid Pay are a copyrighted works belonging to Company.

TO USE THE SERVICES, YOU WILL BE REQUIRED TO SET UP A PREFUND ACCOUNT WITH OUR PARTNER BANK (the “Employer Account”), OUT OF WHICH YOUR EMPLOYEES OR CONTRACTORS CAN BE PAID THEIR UNPAID EARNINGS (AS DEFINED BELOW) VIA THE RAPID PAY FEATURE OF THE SERVICES.  You will create the Employer Account by providing Company with certain information about you and your business, including information about your identity, your business name, address, email, phone number, etc.  

You will need to establish user access credentials for your Employer Account, including a password and other multi-factor authentication credentials, to protect your Employer Account; and you also authorize us to collect such data and other data, including third-party information about you.

If you are an individual, you agree that you have reached the age of majority in the state or territory in which you reside and your business is located, which is 18 years of age, except in Nebraska (19), Alabama (21), Mississippi (21), and Puerto Rico (19).  If you have not reached this age, you cannot use the Services or offer the Services to your employees or contractors.  Such written consent must be provided at the time you establish your Employer Account.  By using the Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements.  If you do not meet all of these requirements, you must not access or use the Services.

Your eligibility to use the Services is based on and subject to the rules and regulations of our partner financial institutions.


Company is not responsible for ensuring the transfer of your employee’s or contractor’s Unpaid Earnings from your Employer Account to your employee’s or contractor’s bank account is completed.  Transfers of Unpaid Earnings may take up to an hour to post to your employee’s or contractor’s bank account depending on who they bank with.


2. Disclaimer of Warranties

We make no representations concerning any content contained on the Website or App, or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or content contained on the Website or App, or accessed through the Services.


THE SERVICES AND CONTENT ON THE WEBSITE AND APP ARE PROVIDED "AS IS," “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE WEBSITE, APP, AND/OR SERVICES IS SOLELY AT YOUR OWN RISK.


3. Limitation of Liability

Company is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms, including, but not limited to:


- if your employee’s or contractor’s use of the Services causes his or her income to drop below the federal or state minimum wage;
- if the Unpaid Earnings paid to your employee or contractor are transferred to the incorrect bank account for any reason whatsoever, including without limitation, misrepresentation or fraud by a third party;
- if the Unpaid Earnings fail to transfer from your Employer Account to your employee’s or contractor’s bank account;
- fraudulent charges to your Employer Account;
- payroll discrepancies or errors;
- the overpayment of Unpaid Earnings to your employee or contractor;
- your use of or your inability to use our Website, App, or Services;
- delays or disruptions in our Website, App, or Services;
- viruses or other malicious software obtained by accessing, or linking to, our Website, App, or Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Website, App, or Services;
- damage to your hardware device from the use of the Website, App, or Services;
- the content, actions, or inactions of third parties’ use of the Website, App, or Services;
- a suspension or other action taken with respect to your account; and
- your reliance on the quality, accuracy, or reliability of profiles, ratings, recommendations, and feedback (including their content, order, and display), or other information on the Website, App, or Services.


UNDER NO CIRCUMSTANCES WILL COMPANY’S LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS, OR YOUR USE OF THE WEBSITE, APP, AND/OR SERVICES, EXCEED THE AMOUNT CHARGED TO YOU FOR THE SERVICES, IF ANY. IN ADDITION, IN NO EVENT WILL COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, MANAGERS, MEMBERS, OR REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, APP, AND/OR SERVICES, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR APP, OR SUCH OTHER WEBSITES, OR ANY SERVICES, ADVICE, OR ITEMS OBTAINED THROUGH THE SERVICES, OR ONLINE PLATFORM OR SUCH OTHER WEBSITES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, DEATH, DISABILITY, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, WHETHER RELATED TO YOU OR ANY OTHER PARTY, AND EVEN IF FORESEEABLE. 


4. Reliance on Information Posted; Content by Third Parties; Information Collected by Company

The information presented on or through the Website or App is made available solely for general information purposes.  Company does not warrant the accuracy, completeness or usefulness of this information.  Any reliance you place on such information is strictly at your own risk.  COMPANY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE WEBSITE OR APP, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.


The Website or App may include content provided by third parties, including materials or User contributions provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services.  All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials.  These materials do not necessarily reflect the opinion of the Company.  Company is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.


All information Company collects on or through the Company Website or App is subject to our Privacy Policy.  By using the Company Website or App, you consent to all actions taken by Company with respect to your information in compliance with the Privacy Policy.


5. Fees for Using the Services

By using the Services, you agree to allow Company to charge from your employees’ or contractors’ Unpaid Earnings a per transaction fee of up to the greater of (a) Four and 99/100 Dollars ($4.99) or (b) Four and 99/100 Percent (4.99%) of the amount of Unpaid Earnings paid to your employee or contractor in the particular transaction (the “Rapid Pay Fee”).  The amount of the Rapid Pay Fee, subject to the limitations described in the prior sentence, is determined at Company’s sole discretion.  THE RESPONSIBILITY IS ON YOU TO ENSURE THAT YOUR EMPLOYEES’ OR CONTRACTORS’ USE OF THE SERVICES OR PAYMENT OF THE CONVENIENCE FEE DOES NOT CAUSE ANY EMPLOYEE’S OR CONTRACTOR’S INCOME TO DROP BELOW THE FEDERAL OR YOUR STATE MINIMUM WAGE.  


User may also charge a fee for User’s Work Force’s use of the Services (“Employer Fee”) equal to the of the costs in allowing the Work Force to access Unpaid Earnings prior to payday.  The Rapid Pay Fee and Employer Fee, if any, are collectively referred to herein as the “Convenience Fee.”  


Company will collect the Employer Fee, if any, on your behalf.  You agree to invoice Company monthly (January 1, February 1, March 1, April 1, May 1, June 1, July 1, August 1, September 1, October 1, November 1 and December 1 are each the “Start of a Month”) in each year during the Term (as defined below).  If you fail to invoice Company within fifteen (15) days of the Start of a Month, you forfeit the amount of the Employer Fee collected by Company.

Company reserves the right to charge you a monthly minimum transaction fee at the sole discretion of the company.


6. All Transactions Final; No Clawbacks

You acknowledge and agree that all information Company has with regards to your employees’ or contractors’ Unpaid Earnings available to be paid to them is provided by you and it is your responsibility to ensure that all such information is correct and up to date.  Company is not responsible for the overpayment to one or more of your employees or contractors based on incorrect information provided to Company regarding your employees’ or contractors’ Unpaid Earnings.  If there is an overpayment to one or more of your employees or contractors, you agree and acknowledge that Company is not responsible to remedy the overpayment or clawback any of the Unpaid Earnings already paid to your employees or contractors.


7. Restrictions on Services; Right to Advertise

Company may, at its sole discretion and without notice, limit the total amount of Unpaid Earnings that your employees or contractors can access at any given time or for a period of time. Company also may, at its sole discretion and without notice, deny access to your employees’ or contractors’ Unpaid Earnings if we reasonably believe such refusal is necessary or advisable for legal or security reasons.


Company reserves the right to sell advertising space on the Website or App to any third party.


8. Accessing the Website, App, and/or Services

If you use the Website, App, or Services, you are responsible for maintaining the confidentiality of your Employer Account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your Employer Account or password.  Company and its associates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion. 


We reserve the right to withdraw or amend the Website or App, and any Services provided on the Website or App, in Company’s sole discretion without notice.  We will not be liable if for any reason all or any part of the Website, App, or Services are unavailable at any time or for any period.  From time to time, we may restrict access to some parts or all of the Website, App, or Services, to users, including registered users. 


If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity.  You also acknowledge that your Employer Account is personal to your business and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information.  You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.  You also agree to ensure that you exit from your Employer Account at the end of each session.  You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. 


We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. 


9. Representations and Warranties 

By using the Services, you represent and warrant to Company as follows:


A. You are fully authorized to enter into and perform these Terms;

B. These Terms constitute a legal and valid contract that is binding on you and enforceable against you as written;

C. The execution, delivery, and performance of these Terms by You does not violate any local, state, federal, or international law or the provisions of any agreement to which you are bound;

D. You are the sole accountholder on the Employer Account.  If you have a joint account, you represent and warrant that you have the authority to (i) bind the absent accountholder; and (ii) enter into these Terms independently. You further agree that you will indemnify and hold Company harmless from any claims by any other owner of the Employer Account;

E. The name you used or verified to establish your Employer Account is your legal name and/or the legal name of your business, and you have not used any other name with Company;

F. Any information, materials, data, content, or documents you provide or make available to Company are and will remain true, correct, and complete;

G. You will maintain and update any information relating to your business to keep it true, accurate, current, and complete;

H. You will keep all login details, user accounts, and passwords secure at all times and will not allow anyone else, other than your authorized agents, to access your Employer Account;

I. There is no Dispute between any of your employees or contractors and you with regards to any Unpaid Earnings;
 

J. You are and will remain solely liable for the activity that occurs in connection with your Employer and will notify us immediately if you become aware of any unauthorized access to your Employer Account; and

K. Each time any of your employees or contractors ask us to access any of his/her/their Unpaid Earnings, you also represent and warrant to Company that at the time of your request:
 

i. You hold all legal right, title, and interest to and in the Unpaid Earnings, free and clear of any liens, encumbrances, judgments, or garnishments; and you have not sold, pledged, assigned, or encumbered the Unpaid Earnings;
ii. The Unpaid Earnings are presently and unconditionally owing and have not been modified, dismissed, settled, or paid; are not currently past due; and represent the amount owed by your employer arising solely from your actual and timely provision to your employer in the ordinary course of business of lawful services, which you have accurately recorded and described to your employer;
iii. The Unpaid Earnings are not subject to any Dispute, claim, offset, deduction, discount, defense, or counterclaim of any kind; and
iv. There has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of you with respect to the Unpaid Earnings or their underlying services.

10. Covenants by You

During the Term (as defined below), you covenant to Company as follows:


A. Your employees’ or contractors’ use of the Services and payment of the Convenience Fee will not cause his/her/their income to drop below the then stated minimum wage for the United States of America and the state in which your employee or contractor resides. 

B. You will use the Website, App, and/or Services only for lawful purposes and in accordance with these Terms. 

C. You will not to use the Website, App, or Services for any of the following:

i. In any way that violates any applicable federal, state, local, or international law or regulation. 
ii. For the purpose of exploiting, harming, or attempting to exploit or harm others.
iii. To impersonate or attempt to impersonate Company, an employee or representative of Company, another User, or any other person or entity (including, without limitation, by using e-mail addresses or User screen names associated with any of the foregoing).
iv. To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, App, or Services, or that, as determined by Company, may harm Company or expose it to liability.

D. You will not:

i. Use the Website, App, or Services in any manner that could disable, overburden, damage, or impair the Website, App, or Services or interfere with any other party’s use of the Website, App, or Services, including their ability to engage in real time activities through the Website, App, or Services.
ii. Use any robot, spider, or other automatic device, process, or means to access the Website, App, or Services for any purpose, including monitoring or copying any of the material on the Website, App, or Services.
iii. Use any manual process to monitor or copy any of the material on the Website, App, or Services or for any other unauthorized purpose without Company’s prior written consent.
iv. Use any device, software, or routine that interferes with the proper working of the Website, App, or Services.
v. Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, App, or Services, the server on which the Website, App, or Services are stored, or any server, computer, or database connected to the Website, App, or Services. 
vii. Attack the Website, App, or Services via a denial-of-service attack or a distributed denial-of-service attack.
viii. Otherwise attempt to interfere with the proper working of the Website, App, or Services.

11. Disputes Between Your Employee(s) or Contractor(s) and You

Your employees or contractors and you may disagree from time to time with you about the amount of Unpaid Earnings he/she/they earned or the amount that he/she/they are owed. We do not resolve or otherwise become involved in Disputes between you and your employees or contractors. Instead, resolving such Disputes is your sole responsibility.  It is also your sole responsibility to recover any monies you alleged were overpaid to your employees or contractors through his/her/their use of the Website, App, and/or Services. 


12. Your Approval of Delivery of the Unpaid Earnings to Your Employees or Contractors 

Each time one of your employees or contractors requests access to immediate payment of their Unpaid Earnings through use of the Services, you will be sent an electronic message to approve the transfer to your employee or contractor for a portion or all of the Unpaid Earnings (“Approval Confirmation”).  You acknowledge and agree that you, prior to sending the Approval Confirmation, you will ensure that your employee or contractor is, at that time, entitled to receive the amount of Unpaid Earnings he or she requests.  ONCE YOU SUBMIT AN APPROVAL CONFIRMATION, AND THE AMOUNT OF THE UNPAID EARNINGS REQUESTED BY YOUR EMPLOYEE OR CONTRACTOR IS TRANSFERRED INTO HIS OR HER ACCOUNT, COMPANY IS NOT LIABLE FOR, OR RESPONSIBLE TO HELP YOU RECOVER, ANY AMOUNTS OVERPAID DUE FOR ANY REASON, INCLUDING WITHOUT LIMIATION, LOSSES, FRAUD, OR DOUBLE PAYMENT, UNLESS THE OVERPAYMENT IS CAUSED SOLELY DUE TO A COMPANY ERROR.


13. No Professional Advice

The information contained in or made available through the Services (including, but not limited to, information contained on the Website, the App, message boards, in text files, in video files, or in chats) cannot replace or substitute the services of trained professionals in any field, including, but not limited to, financial matters. YOU ARE ADVISED TO CONSULT FINANCIAL PLANNING PROFESSIONALS PRIOR TO USING THE WEBSITE, APP, AND/OR SERVICES. Company and its licensors, suppliers, employees, members, managers, and contractors make no representations or warranties concerning any action or application of information or preparation by any person following the information offered or provided within or through the Website, App, or Services, or whether your use of the Website, App, or Services is a good financial decision. 


You are responsible and accountable for your decisions, actions, and results thereof, and by your use of the Website, App, and/or Services, you agree not to attempt to hold Company or any of the foregoing parties liable for any such decisions, actions, or results, at any time, under any circumstance.


14. Changes to These Terms

Company may revise and update these Terms from time to time in Company’s sole discretion and timing upon a notification on the Website or the App, if any. All revisions, updates, or changes are effective immediately when Company posts them to the Website or the App, if any, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set forth in Section 19 below will not apply to any disputes for which the Parties have actual notice on or prior to the date the revision, update, or change is posted. Your continued use of the Website, App, and/or Services following the posting of revised, updated, or changed Terms means and constitutes your acceptance and agreement to the revision(s), update(s), or change(s). You are expected to check, read, and agree to this page when Company posts a notification on the Website or App, if any, or sends you a notification through email, prior to continuing to access or utilize the Website, App, and/or Services so you are aware of any revision, update, or change, as they are binding on you.


15. Intellectual Property.  

The Website, App, and Services and their entire contents, features, and functionality (including, but not limited to, all information, source code, algorithms, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof), are wholly owned by Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other applicable jurisdictions’ intellectual property or proprietary rights laws. 


These Terms permit you to use the Website, App, and Services in accordance with these Terms only. These Terms do not constitute a sale or convey to you any rights, title, or interest of ownership in or related to the Website, App, or Services or any intellectual property rights owned by Company. Company, Company’s logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Company or its affiliates or licensors. You must not use such marks without the prior written permission of Company. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.


A. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material from the Website, App, or Services, except as follows:
i. Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
ii. You may store files that are automatically cached by your Web browser for display enhancement purposes.

You must not:


iii. Modify copies of any materials from the Website, App, or Services.
iv. Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
v. Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Website, App, or Services.

If you print, copy, modify, or otherwise use or provide any other person with access to any part of the Website, App, or Services in breach of these Terms, your right to use the Website, App, and Services will cease immediately and you must, at Company’s option and direction, return or destroy any copies of the materials you have made. Any use of the Website, App, or Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.


16. Term and Termination.

(a) Term.  The term of this Terms commences upon the date User creates an account through the Website or App, whichever is earlier.  The Term continues until terminated by either Company or User (the “Term”).

(b) Termination by Company.  Company reserves the right to, at any time and for any reason or no reason at all, terminate User’s account, including any access to the Website, App, or Services.

(c) Termination by User.  User can terminate his or her Employer Account and the use of Website, App, or Services by providing fifteen (15) days’ prior written notice to Company.  

(d) Provisions Surviving Termination.  Sections 15, 17, 18, and 19 will survive termination.

17. Confidentiality.  In connection with this Terms, a Party may disclose, or the other Party may learn of or have access to, certain confidential proprietary information owned by a Party or its affiliates, business partners, or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to a Party or any of Party’s existing or contemplated business activities, business and marketing strategies, technology, developments, software, software designs, methods, trade secrets, and clients. Each Party may use the Confidential Information of the other Party only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care.  Confidential Information also includes the terms of this Agreement and the Services.
 

17.1 Non-Circumvention. User shall not, directly or indirectly, except in collaboration with or with the prior express written consent of RAPID PAY USA: 

 

(a) Enter into any transaction with any party regarding the App, Services, Rapid Pay, or RAPID PAY USA (the “Third Party”) which could have the effect of preventing RAPID PAY USA from receiving the full benefit of, the transaction[s] contemplated by this Agreement;
 

(b) Solicit or contract with any known or unknown RAPID PAY USA vendors for a period of twenty-four (24) months after the termination of this agreement

17.2 Non-Disclosure. The User shall not use for User’s personal benefit, or disclose, communicate or divulge to, or use for the direct or indirect benefit of any person, firm, association or company other than Rapid Pay USA, any “Confidential Information,” which term shall mean any information regarding the business methods, business policies, policies, vendors, procedures, techniques, research or development projects or results, historical or projected financial information, budgets, trade secrets, or other knowledge or processes of, or developed by, RAPID PAY USA or any other confidential information relating to or dealing with the business operations of RAPID PAY USA, made known to User or learned or acquired by User, but Confidential Information shall not include information otherwise lawfully known generally by or readily accessible to the general public. The foregoing provisions of this subsection shall apply during and after the period when the User is a User of RAPID PAY USA and shall be in addition to (and not a limitation of) any legally applicable protections of RAPID PAY USA interest in confidential information, trade secrets, and the like. At the termination of User’s relationship with RAPID PAY USA, User shall return to Rapid Pay USA all copies of Confidential Information in any medium, including computer tapes and other forms of data storage.

 


18. Indemnification. User agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, manager, members, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) brought by any third party arising out of or relating to (i) your use of the Website, App, or Services, or (ii) your employee’s or contractor’s use of the Website, App, or Services, or (ii) a breach of any term, condition, representation, warranty, or covenant in these Terms, including without limitation, a claim by any government agency that any one of your employee’s or contractor’s use of the Services caused his or her income to drop below the federal or state minimum wage.

19. Dispute Resolution and Arbitration Agreement.
 

A. Pre-Arbitration Dispute Resolution and Notification. In the event any dispute arises between you and the Company, you must first send written notice to Company’s Customer Service Center of your intent to arbitrate ("Notice"). The Notice to Company should be sent by electronic mail to support@rapidpayusa.com. The Notice must: (i) describe the nature and basis of the claim or dispute; (ii) set forth the specific relief sought; and (iii) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you.  Prior to initiating an arbitration, You and Company each agree to attempt to negotiate an informal resolution to it first. If after thirty (30) days of good faith efforts to negotiate, one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.

B. Agreement to Arbitrate. You and Company mutually agree that any Disputes will be settled by binding arbitration. If there is a dispute about whether this arbitration agreement can be enforced or applies to our Dispute, you and Company agree that the arbitrator will decide that issue. THIS AGREEMENT TO ARBITRATE IS SPECIFICALLY ENFORCEABLE.  THERE IS NO JUDGE OR JURY IN ARBITRATION, 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 THESE TERMS AS A COURT WOULD.

C. Exceptions to Arbitration Agreement. You and Company each agree that the following claims are exceptions to the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

D. Cost of Arbitration.  The Parties will equally split the cost of arbitration.

E. Modification of AAA Rules - Attorney’s Fees and Costs. You and Company each agree that either party may be entitled to seek an award of attorney fees and expenses if they prevail in arbitration, to the extent provided under applicable law and the AAA rules.

F. Modification of AAA Rules – Limitation on Damages. The arbitrator will have no authority to award punitive, consequential, special, or indirect damages.

G. Choice of Law. The validity of this Arbitration Agreement, its construction, interpretation, and enforcement, and the rights of the parties hereto shall be determined under, governed by, and construed in accordance with the laws of the Commonwealth of Virginia.

H. Venue for Arbitration.  The arbitration shall be conducted in Norfolk, Virginia.  The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable.

I. Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

J. JURY TRIAL WAIVER. YOU AND COMPANY ACKNOWLEDGE AND AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AS TO ALL ARBITRABLE DISPUTES.

K. No Class Actions or Representative Proceedings. You and Company acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Company both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. 

L. Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

20. Miscellaneous.

A. Notice.  Any notice or other communication given hereunder shall be deemed sufficient if in writing and sent by either e-mail at support@rapidpayusa.com or to your email address or physical address provided by your when initiating your Company account.

B. Terms Binding.  This Terms shall be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, legal representatives, successors, and assigns. 

C. Entire Agreement.  These Terms, including all documents incorporated herein by reference, including the Privacy Policy, constitute the sole and entire agreement between you and Company with respect to the Website, App, and Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the Website, App, or Services.

M. Governing Law; Venue.  If a court of competent jurisdiction finds the arbitration provisions in Section 19 invalid or inapplicable, you and Company each agree to the exclusive jurisdiction and the exercise of personal jurisdiction of the state or federal court located in the City of Norfolk, Commonwealth of Virginia, United States of America, for the purpose of litigating all claims or disputes, and waive any objection as to inconvenient forum. You also both agree that Company may bring suit in the state of federal courts in the City of Norfolk, Commonwealth of Virginia, United States of America for injunctive relief to enjoin infringement or other misuse of intellectual property rights.  In such a case where a court of competent jurisdiction finds the arbitration provisions in Section 19 invalid or inapplicable, the validity of this these Terms, its construction, interpretation, and enforcement, and the rights of the parties hereto shall be determined under, governed by, and construed in accordance with the laws of the Commonwealth of Virginia. without regards to its conflict of laws principles.

D. Waiver; Severability.  The waiver by any Party of a breach of any provision of this Terms will not operate or be construed as a waiver of any subsequent breach by any Party.  If any term or provision of this Terms or the application thereof to any person or circumstance shall, to the extent applicable, be invalid or unenforceable, the remainder of these Terms and the application of such term of provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of these Terms shall be valid and be enforced to the fullest extent permitted by law.

E. Limitation of Term of Action.  User agrees that any cause of action arising from or related to the relationship with Company shall have a one (1) year statute of limitations.  Otherwise, it is time-barred.

F. Force Majeure.  The Parties to these Terms will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to acts or circumstances beyond the reasonable control of the Parties, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

G. Assignment.  User may not assign the Terms, or any of its rights or obligations hereunder, without Company’s prior written consent in the form of a written instrument signed by a duly authorized representative of Company. Company may freely assign this Terms without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.

H. Sections Headings Non-Binding.  All section and subsection headings are not legal binding or a part of this Terms. 

21. Definitions of Yet to be Defined Terms

“Disputes” shall mean a dispute, claim, disagreement, or controversy arising out of, relating to, or in any way in connection with these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Website, App, or Services.


“Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.


“Intellectual Property Right” means all patent rights, copyrights, trademark rights, rights in trade secret (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (whether registered or unregistered) throughout the world.


“Unpaid Earnings” means the right to payment (e.g., account receivable) owed to you by your employer arising out of services you have already provided to your employer or its customers and any other related rights.