Agreement for Use of Our Website
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SITE
This website (the "Site") is provided by Genesis Financial Solutions, Inc. and/or Genesis Bankcard Services, Inc. ("we," "us" or "our"). By accessing the Site, you agree to the terms and conditions of this Agreement for Use of Our Website (this "Agreement"). By using the Site, you agree to the terms of the Agreement just as if you had signed it. If you do not agree to abide by the Agreement, do not use the Site or access materials from the Site.
We reserve the right, at our sole discretion, to modify, add or remove ("Change") any portion of this Agreement in whole or in part, at any time. Changes in this Agreement will be effective when posted on the Site. Your continued use of the Site after any Changes to this Agreement are posted constitutes acceptance of those Changes. We may terminate, change, suspend or discontinue any aspect of the Site, including the availability of any features of the Site, at any time. We also may impose limits on certain features and services or restrict your access to part or all of the Site without notice or liability. The Agreement may only be modified in writing or by our posting on the Site and cannot be modified through course of conduct nor by trade practices.
USE OF THE SITE:
The Site may be used for obtaining information about us and our products, or to transact business with us. In order to access the Site, you must be at least 18 years old and a resident of the United States. We do not knowingly market to, solicit or collect information from children under the age of 18 or non-US residents. Access to the Site from territories where its contents are illegal is prohibited. If we knowingly obtain personally identifiable information of children under the age of 13, we will delete that information from our systems.
Additionally, we reserve the right to investigate suspected violations of the Agreement and other potentially illegal conduct. Any violation of the Agreement or of any applicable law or regulation may be referred to law enforcement authorities.
We reserve the right, without notice and liability, to terminate your use of the Site at our sole discretion.
You agree not to: (1) disrupt or interfere with the security of, or otherwise abuse, the Site or any services, system resources, accounts, servers or networks connected to or accessible through the Site or affiliated or linked web sites; (2) disrupt or interfere with any other user’s access, use or enjoyment of the Site or affiliated or linked web sites; (3) upload, post or otherwise transmit through or on the Site any viruses or other harmful, disruptive or destructive files; (4) use or attempt to use or access another person's account or personal information, or create or use a false identity on the Site; (5) attempt to obtain unauthorized access to the Site or portions of the Site which are restricted from general access; and (6) violate any local, state or federal laws or regulations that apply to your access to or use of the Site. You further agree that you are solely responsible for actions and communications undertaken or transmitted under your Account.
You may not use any robot, spider or other device to monitor, "scrape" or otherwise copy or duplicate Content on the Site.
We reserve the right to seek all remedies available at law and in equity for violations of the Agreement. Our failure to act with respect to a breach of the Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. No waiver by us will be in full force and effect unless made in writing and signed by a duly authorized officer.
We may establish an account on the Site for you ("Account") in which you can obtain information, from time to time, about your business with us. Access to your Account at the Site requires you to use a login identification ("Login ID") and password ("Password") that you select. You agree to keep your Login ID and Password confidential and not share them with anyone else. We may treat any person using your Login ID and Password to have authority to access your Account and act on your behalf with respect to your business with us.
OWNERSHIP OF CONTENT:
The Site, including past, present and future versions, information, content available for download, domain names, images, photographs, animation or video clips, source code, object code, HTML and other codes, audio, music, text and the "look and feel" of the Site are owned or licensed by us or our affiliates, and are protected from unauthorized use, copying and dissemination by U.S. copyright, trademark, patent and other laws, rules and regulations. By using this Site, you agree to comply with all copyright laws and acknowledge that we do not grant you any express or implied right under copyright, patent, trademark, or trade secret law. You may not reproduce, transmit, remove, modify, copy, display, sell or in any way use any of content or materials on or within the Site without our express consent. All content remains exclusively ours, and nothing in the Agreement shall be read as a transfer of title.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE:
We will promptly process, investigate and respond to all claims of intellectual property infringement and will take appropriate action under the Digital Millennium Copyright Act and other applicable intellectual property laws. Upon receipt of a notice that complies with the Digital Millennium Copyright Act, we will act to promptly remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and to any reference or link to material or activity claimed to be infringing. Provide notice of claimed copyright infringement to one of the addresses or numbers below:
Genesis Financial Solutions
Attn: Compliance Department
15220 NW Greenbrier Parkway Suite 200
Beaverton, OR 97006
By Facsimile: 1-503-268-4711
By Email: email@example.com
Please include in the subject line the word "copyright" for all claims of copyright infringement and the words "intellectual property" for all claims of any other intellectual property infringement.
INFORMATION PROVIDED BY YOU:
THIRD PARTY SITES:
The Site may contain links to third party services and resources. If you use these third party sites, you will leave our site and will do so at your own risk including but not limited to risk of viruses or other disruptive or destructive files. We do not control the availability and content of these third party sites. Any concerns regarding any such service or resource, or any link thereto, should be directed to the particular third party service or resource that provides the content. The existence of a link to a third party site does not constitute our endorsement or recommendation of the third party or the third party's site and does not constitute a warrant that the third party site is authorized to use any trademark, trade name, logo or copyright displayed or accessible through the link. WE DISCLAIM ALL LIABILITY FOR ANY LOSS OR DAMAGES ARISING FROM THE CONTENT OR PROVISION OF SERVICES OF ANY THIRD PARTY SERVICE OR RESOURCE.
You must receive our prior written permission before creating a link to the Site. Any unauthorized links or false or misleading uses of the Site or our trademarks or service marks are prohibited.
DISCLAIMER AND LIMITATION OF LIABILITY:
All information provided on the Site (the "Information") is subject to change without notice. While efforts have been made to make the Site helpful and accurate, we do not warrant that the Information is accurate, free of typographical errors, complete, or reliable, and you acknowledge that reliance on Information is at your sole risk. We do not warrant that use of the Site or use of any Content downloaded from the Site will be virus-free or free of disruptive or destructive files.
YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT SUCH USE IS AT YOUR SOLE RISK AND THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, ECONOMIC, EXEMPLARY, SPECIAL, INCIDENTAL, CONTINGENT, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, ATTORNEY’S FEES, LOSSES OR EXPENSES ARISING IN CONNECTION WITH YOUR USE OF THE SITE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE ASSUME NO LIABLITY FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING BUT NOT LIMTED TO, LOSSES FROM DELAYS, NON-DELIVERABLES OF CONTENT, ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE, ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR INTELECTUAL PROPERTY OWNERS, COMMUNICATIONS, ERRORS, SYSTEM DOWNTIME, DATA BREACHES, MISCOMMUNICATIONS, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, VIRUSES, DAMAGE TO YOUR COMPUTER, MOBILE DEVICE OR OTHER EQUIPMENT, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE OR SERVICE INTERRUPTIONS OR ANY ERRORS OR OMISSIONS OF CONTENT WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE.
IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND/OR CAUSES OF ACTION EXCEED 100 UNITED STATES DOLLARS ($100.00).
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
THE SERVICES PROVIDED BY US WITH RESPECT TO THE SITE AND ALL CONTENT ON THE SITE ARE PROVIDED "AS IS," ON A "WITH ALL FAULTS" BASIS, AND, WE DO NOT WARRANT THAT THE SITE OR ITS CONTENT WILL BE TIMELY, SECURE OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE AND ANY WARRANTY THAT THE SERVICES SUPPLIED UNDER THIS AGREEMENT ARE OF A REASONABLY ACCEPTABLE QUALITY. WE DO NOT WARRANT THAT FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SITE, CONTENT OR THE SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
WE WILL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO YOUR TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF YOUR NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD.
BY ACCESSING AND USING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN, AND YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND EXPRESSLY WAIVED THE BENEFITS OF ANY STATE LAW WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS TO WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
You agree to defend, indemnify and hold us and our subsidiaries, affiliates, successors and assigns, and our and their respective shareholders, directors, officers, employees and agents, harmless from and against any and all claims, investigations, liability, judgments, settlements, damages, costs and expenses, including but not limited to attorneys' fees, arising from or relating to your use of the Site, except to the extent that we fail to perform our express obligations to you under this Agreement. You further agree to cooperate fully in the defense of any claim or any investigation in which both you and we are named parties and additionally agree that we reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You expressly agree that you will not settle any claim without our prior written content.
READ THIS PROVISION (the "Arbitration Provision") CAREFULLY AS IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW DISPUTES AND CLAIMS THAT YOU AND/OR WE HAVE AGAINST EACH OTHER ARE RESOLVED.
You and we agree that any claim, dispute or controversy between you and us (a "Claim") will be resolved, upon the election of either you or us, by mandatory, binding arbitration. "Claim" shall be construed broadly to include any matter arising out of or relating to this Agreement or the relationship between you and us.
For a Claim subject to arbitration, neither you nor we will have the right to: (1) have a court or a jury decide the Claim; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action in court or in arbitration; or (4) join or consolidate your Claim(s) with claims of any other person. The right to appeal is more limited in arbitration than in court and other rights in court may be unavailable or limited in arbitration.
Arbitration Provision Governing Law
Notwithstanding any choice of law or other provision in this Agreement, you and we agree and acknowledge that this Arbitration Provision evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) ("FAA") will govern its interpretation and enforcement and proceedings pursuant thereto. Any state Arbitration Act or Code, including any amendments thereto, of the state law governing this document does not apply to this Agreement to any arbitration or award under this Agreement.
An Administrator is one of the following: (1) American Arbitration Association ("AAA") – 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, 1-800-778-7879; (2) JAMS – 1920 Main Street, Suite 300, Irvine, CA 92614, www.jamsadr.com, 1-800-352-5267; or (3) if both JAMS and AAA are unable or unwilling to serve as Administrator, a neutral and impartial arbitrator mutually acceptable to you and us. If you and we cannot agree on an Administrator, you and we agree that an Administrator may be appointed by a court in accordance with the FAA; provided, however, that no company may serve as Administrator, without our and your consent, if such company adopts or has in place any formal or informal policy that is inconsistent with and purports to override the terms of this Arbitration Provision. The rules and forms of JAMS and AAA may be obtained by writing to these organizations at the addresses listed above.
If you or we elect to arbitrate a Claim, the electing party must notify the other party in writing. This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit. Otherwise, we may send notice of arbitration to you at the most recent address we have on file for you (or, if we have no address on file, the most recent address we can find for you), and you may send notice of arbitration to us at P.O. Box 4477, Beaverton, Oregon 97076. If such a notice is given, the Claim(s) described in the notice will be resolved by individual arbitration under this Arbitration Provision and, to the extent consistent with this Arbitration Provision, the applicable rules of the Administrator then in effect. If a party files a lawsuit in court asserting Claim(s) that are subject to arbitration and the other party files a motion to compel arbitration with the court, which motion is granted, it will be the responsibility of the party prosecuting the Claim(s) to select an Administrator in accordance with this Arbitration Provision and the Administrator’s rules and procedures.
A single arbitrator will be appointed by the Administrator and, unless you and we agree otherwise, must be a practicing attorney with 10 or more years of experience or a retired judge. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court, nor by state or local laws that relate to arbitration provisions or proceedings. The arbitrator will honor and enforce statutes of limitation and claims of privilege recognized under applicable law. In determining liability and/or awarding damages or other relief, the arbitrator will follow the applicable substantive law (consistent with this Agreement and the FAA) that would apply if the matter had been brought in court. The arbitrator may award any damages or other relief or remedies permitted by applicable law. The arbitrator will write a brief explanation of the grounds for the decision. A judgment on the award may be entered by any court having jurisdiction.
Arbitration Location and Costs
Upon receipt of your written request, we will pay all filing, hearing and/or other fees that the Administrator and arbitrator charge you for Claim(s) that you assert in arbitration after you have paid an amount equivalent to the fee, if any, for filing such Claim(s) in state or federal court (whichever is less) in the judicial district in which you reside. (If you have already paid a filing fee for asserting the Claim(s) in court, you will not be required to pay that amount again). In addition, the Administrator may have a procedure whereby you can seek a waiver of fees that the Administrator and arbitrator charge you. We will always pay any fees or expenses (1) that we are required to pay by law or the Administrator’s rules or (2) that we are required to pay for this Arbitration Provision to be enforced. The arbitrator will have the authority to award attorneys’ and expert witness fees and costs to the extent permitted by this Agreement, the Administrator’s rules, or applicable law. The arbitrator will always award you your reasonable attorneys’ and expert witness fees and costs (1) if and to the extent you prevail on Claims you assert against us in an arbitration commenced by you or (2) to the extent required under applicable law for this Arbitration Provision to be enforced.
Class Action Waiver
Notwithstanding any other provision of this Agreement, if either you or we elect to arbitrate a Claim, neither you nor we will have the right (1) to participate in a class action, private attorney general action or other representative action in court or in arbitration, either as a class representative or class member; or (2) to join or consolidate Claims with claims of any other persons. No arbitrator will have authority to conduct any arbitration in violation of this provision; provided, however, that the Class Action Waiver does not apply to any lawsuit or administrative proceeding that a state or federal government agency files against us, even when such agency is seeking relief on behalf of a class of persons, including you. This provision means that we will not have the right to compel arbitration of any claim brought by such an agency. You and we acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between us and is non-severable from this Arbitration Provision. If the Class Action Waiver is limited, voided, or found unenforceable, then this Arbitration Provision (except for this sentence) will be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver, you and we acknowledge and agree that under no circumstances will a class action be arbitrated.
Effect of Arbitration Award
The arbitrator's award will be final and binding on all parties, except for any right of appeal provided by the FAA. However, if the amount of the Claim exceeds $50,000 or includes a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to you or us exceeding $50,000, either you or we may, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel that the Administrator oversees. The panel will reconsider anew any aspect of the initial award that the appealing party requests. The decision of the panel will be by majority vote. Reference in this Arbitration Provision to "the arbitrator" will mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with the above paragraph titled "Arbitration Location and Costs." Any final decision of the appeal panel is subject to judicial review only as provided under the FAA.
Continued Effect of Arbitration Provision, Severability and Conflicts
Notwithstanding any other provision of this Agreement, to the extent permitted by applicable law, this Arbitration Provision will survive the termination of this Agreement or our relationship, and your or our bankruptcy or insolvency. If any portion of this Arbitration Provision (other than the Class Action Waiver) cannot be enforced, the rest of this Provision will continue to apply. In the event of a conflict between this Arbitration Provision and any applicable rules of JAMS or AAA or other Administrator used, the provisions of this Arbitration Provision will control.
Excluded Claims or Proceedings
None of the following claims will be subject to the Arbitration Provision: (1) any dispute or controversy about the validity, enforceability coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the Class Action Waiver and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide; however, any dispute or controversy that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide; (2) any individual action brought by you or us in small claims court or your state's equivalent court, unless such action is transferred, removed or appealed to a different court; (3) any self-help or non-judicial remedy; (4) any action to the extent that it seeks provisional or ancillary remedies in connection with the foregoing; and (5) any individual action in court by one party that is limited to preventing the other party from using a self-help remedy and that does not involve a request for damages or monetary relief of any kind. The institution and/or maintenance of any such right, action or litigation will not constitute a waiver of the right of either you or us to compel arbitration regarding any other dispute subject to arbitration pursuant to the Arbitration Provision. Moreover, the Arbitration Provision will not apply to any Claims that are the subject of (a) a class action filed in court that is pending as of the effective date of the Arbitration Provision in which you are alleged to be a member of the putative class (however, you and we will continue to be bound by any prior version of the Arbitration Provision) or (b) a motion to compel arbitration filed by us against you before the effective date of the Arbitration Provision pursuant to a prior version of the Arbitration Provision (however, you and we will continue to be bound by any prior version of the Arbitration Provision).
ENFORCEMENT AND CHOICE OF LAW:
This Agreement shall be governed by the laws of Oregon, without regard to its conflict of laws principles. If any part of this Agreement is unenforceable, such part will not make any other part of this Agreement unenforceable, except that if the part of the Arbitration Provision prohibiting arbitration involving a class action or multiple claimants is unenforceable, all of the Arbitration Provision in this Agreement shall be unenforceable. By using the Site, for any claims that are not arbitrated, you agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Washington or Multnomah Counties, Oregon.
ENTIRE AGREEMENT; INTERPRETATION
Subject to the terms of any other agreement(s) applicable to any products or services accessed or purchased by you from us, this Agreement constitutes the entire agreement between you and us governing your use of this Site. The headings used in this Agreement are for the convenience of reference only and are not intended to define or describe the scope or intent of any portion of the Agreement. You agree that the Agreement will not be construed against us by virtue of our having drafted the Agreement.
If you questions about this Agreement, please call us at 1-800-958-2556, or write to us at Bankcard Services, P.O. Box 4477, Beaverton, Oregon 97078.
January 1, 2014