ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE OR ANY OF THE CONTENT OR SERVICES PROVIDED VIA THE SITE WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, RATHER THAN IN COURT, AND YOU HEREBY WAIVE THE RIGHT AND AGREE NOT TO JOIN IN ANY CLASS ACTION INVOLVING THE SITE OR ANY OF SUCH CONTENT OR SERVICES.
If you access and/or or use the Site or the Services on behalf of an entity, you represent and warrant that you have legal authority to bind such entity to this Agreement, and in such event the terms “you” and “your” also refer to such entity, except that if you do not have actual legal authority to bind such entity, you are and shall be personally bound and liable under these Terms of Service and you agree to indemnify Nationwide Compliant with respect to any claims, losses, expenses (including, without limitation, legal expenses), damages or other liability (collectively, “Claims”) arising or resulting therefrom. Nationwide Compliant shall not have any liability for any Claims arising or resulting from reliance on any representation, warranty, agreement, instruction, notice or communication received from you whether on your own behalf or on behalf of such entity.
- Description of the Services. Subject to Nationwide Compliant’s acceptance of your registration and your compliance with the terms and conditions of this Agreement, Nationwide Compliant will provide you with the following service (the “Services”): Online software platform services for the management of notice letters, the requesting real property evictions online, the managing the related documentation and processing for evictions, and the submitting of accounts to collections organizations in the state(s) for which you are authorized to use the Services. Nationwide Compliant is not a law firm and does not perform or provide legal services. Nationwide Compliant is not a debt collector. Nationwide Compliant is a platform that allows you to communicate and engage directly with your chosen eviction and collection providers electronically.In your use of the Services, you are responsible for providing the following: (i) all equipment, such as a computer and modem, necessary to access the World Wide Web; (ii) your own access to the World Wide Web; and (iii) payment of all telephone or other fees associated with such access. It is possible that one or more of the Services may not be available at certain times. Please see the home page to get current status on the Services.
- Use of the Site and Services. As a condition of your use of the Site and Services, you represent, warrant and covenant to Nationwide Compliant that you will not use the Site or the Services for any purpose that is unlawful or prohibited by these Terms. You may not use the Site or the Services in any manner that could damage, disable, overburden, or impair the Site or the Services or interfere with any other party’s use and enjoyment of the Site or the Services. Your use of the Services is subject to all applicable local, state, national and international laws and regulations. Nationwide Compliants may use automated procedures to detect unacceptable level of usage and may immediately disable offending accounts, and the process of detection may vary from time to time, based on misuse detected. You agree that you shall not use the Site or the Services in order to obtain knowledge and information regarding the Site or the Services to then directly or indirectly create or cause to be created a site or software product or service that performs the same or substantially the same functions and/or has the same or substantially the same features, whether for your own internal use or for use by others.By way of example, and not as a limitation, you agree that when using the Site and/or the Services and when submitting any information or content to the Site or via the Services, you will not:
- Use a robot, spider or other automated device, process or means to access the Site or the Services, or defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
- Send viruses, corrupted files, or any other similar software or programs that may damage the operation of the Site, the Services or third party systems.
- Send false or misleading information.
- Send messages that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary authorizations.
- Conduct or forward surveys, contests, pyramid schemes or chain letters.
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material that is provided to or by you via the Site or the Services.
- Restrict or inhibit any other user from using and enjoying the Site or the Services.
- Harvest or otherwise collect information about others, including contact information such as e-mail addresses, for the purpose of building “contact” or “lead” lists.
- Violate any applicable laws or regulations.
Nationwide Compliant shall have no obligation to monitor the usage of the Site or the Services. However, Nationwide Compliant reserves the right to review any communications or submissions directed to the Site or submitted via the Services and to remove any of same in its sole discretion. Nationwide Compliant may, at any time and without notice to you, terminate your access to the Site and/or the Services or block your access to same if Nationwide Compliant believes in its sole discretion that you have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, person, or property of the Site or the Services or other users or third parties, or if requested by law enforcement or other government agencies; or if your account has extended periods of inactivity. Nationwide Compliant further reserves the right to terminate your access to the Site and/or the Services at any time without notice for any reason whatsoever. Nationwide Compliant further reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, as Nationwide Compliant determines in its sole discretion.
Materials presented on the Site or via the Services are subject to limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations.
You may not use the Site or its content or any of the Services to send unsolicited e-mail to any recipient that has not specifically made its e-mail available for such purposes. The forwarding or propagation of chain letters of any type (including charity requests or petitions for signatures) is prohibited. “Mailbombing” (i.e., flooding the Site or the Services with large or numerous e-mail messages) is prohibited. CGI script sharing with domains not hosted by Nationwide Compliant is not permitted. Any CGI-scripts deemed to be adversely affecting server performance or network integrity will be shut down without prior notice. Nationwide Compliant does not allow IRC or IRC bots to be operated on our servers.
- Electronic Communications. All of your transactions with or through the Site and/or the Services may, at our option, be conducted electronically, except where paper documents and handwritten signatures are required under applicable legal requirements. If we decide to proceed non-electronically, those services will still be governed by the remainder of these Terms unless you enter into different terms on a form provided by us. If the law allows you to withdraw this consent or if we are ever required to deal with you non-electronically, we reserve the right to charge or increase fees and you agree to print or make an electronic copy of the Terms and any other contract or disclosure that we are required to provide to you. By clicking “Submit” on any step of a transaction on this Site or using the Services, you agree to conduct such transaction by electronic means. You understand that by clicking the box titled “I agree to the Terms & Conditions” or similar wording you are agreeing to conduct an electronic transaction and to use and receive communications through electronic means. You agree to enter the requested information electronically via the Internet, and to be notified regarding any transaction electronically through the email address you have provided. You understand that electronically signed documents have the same legal effect as hard copies with ink signatures. You understand that you may refuse to conduct other electronic transactions in the future. Any payment or other transactions undertaken using the Services are subject to these Terms, which are agreed upon when you proceed with your transaction. These Terms shall supercede and control in the event of any conflict with any agreement with your Property Manager, owner, tenant, or the owner of the merchant account to which you are submitting an electronic payment, or any third party.Except as otherwise provided in these Terms, we will give you any notices regarding the Site and the Services by posting them on the Site. You also authorize Nationwide Compliant to send notices (including notice of subpoenas or other legal process, if any) via electronic mail. You must check the Site for notices, and you will be considered to have received a notice when it is posted on the Site, or when sent by us via electronic mail, whether or not received by you. You must keep your email address current and any notice sent by us to an email address that you have provided to us will be considered effective notice.
- Use of IP Addresses. An IP address is a number that’s automatically assigned to your computer whenever you’re surfing the Web. Nationwide Compliant may collect IP addresses for the purposes of system administration, to audit the use of our Site. We can and will use IP addresses to identify a user when we feel it is necessary to enforce compliance with our house rules or terms of service or to protect our Services, the Site, customers, or others. Some services and Emails sent from Nationwide Compliant, such as registration related, may display IP addresses along with the message.
- Security of Site, Services and Stored Data. Nationwide Compliant will endeavor to restrict access to the data and files you store or retrieve from your account to persons accessing such data and files through use of your account or password. However, it may be necessary to access users accounts for support requirements. It may also be necessary to access users accounts to verify that the accounts are not being misused, especially with respect to digital copyright laws and resource misuse checks including bandwidth. Violations of system or network security are STRICTLY prohibited and may result in criminal and civil liability. Examples include but are not limited to the following: unauthorized access, use, probing, or scanning of systems security or authentication measures, data, or traffic; interference with service to any user, host, or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system, broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting. Nationwide Compliant will be the sole determiner as to what constitutes a violation of this provision. You are also in violation of this provision if you engage in spamming using the service of another ISP or IPP, but reference in the spam a Web site hosted on a Nationwide Compliant server. Violators may be assessed a minimum administration fee of $250 and will face immediate suspension of their accounts. Any attempts to undermine or cause harm to a Nationwide Compliant server or customer are strictly prohibited.
- Individual Information. You are solely responsible for any personal individual information you enter or upload to your account or to the Services. You represent and warrant that you have provided all notices and received any and all permissions, consents, and authorizations required by law in order to provide or upload such individual personal information, including but not limited to information relating to your Property Manager(s), owner(s), tenant(s), and employee(s). You agree that you shall not upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements). You further represent and warrant that the applicable permissions, consents, and authorizations obtained authorize Nationwide Compliant to further use and process the personal individual information for their own business any commercial purposes, without limitation.
- Proprietary Rights. You agree to allow Nationwide Compliant to process, analyze, share, and commercialize any individual personal information and content provided to Nationwide Compliant, and represent and warrant that you have the legal right to do so. By submitting, posting, or uploading personal individual information and content to Nationwide Compliant, you give Nationwide Compliant, its affiliated companies, sublicensees, and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works from any personal individual information and content that you submit, post, or display on or through the Services. You acknowledge and agree that this license includes a right for Nationwide Compliant to make such personal individual information and content available to other companies, organizations, or individuals with whom Nationwide Compliant has relationships, and to use such content in connection with the provision of those services. You understand that by providing any personal individual information and content, you acquire no rights in any research or commercial products that may be developed by Nationwide Compliant or its collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your personal individual information and content.
- Backups of Your Data. While Nationwide Compliant maintains regular backups of data to recover from software/hardware failures, it is your responsibility to maintain backups of your data. Nationwide Compliant disclaims any liability with respect to data backups or any loss of your data.
- Software Distribution. Nationwide Compliant accounts are not configured for the purposes of distributing software and/or multimedia products. You are prohibited from using the site and services for this purpose.
- Multimedia Files. Multimedia files are defined as any graphics, audio, and video files. Nationwide Compliant accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Nationwide Compliant reserves the right to disallow the storage of any file type at its sole discretion.
- Proprietary Software. If under any circumstances you gain access to the source code of Nationwide Compliant software you shall not reproduce, distribute, retain possession of, store or transcribe or use any of such source code in any way and you shall immediately erase, remove and/or destroy any electronic or printed copies of same and notify Nationwide Compliants. Such code is the exclusive property of Nationwide Compliant and may not be downloaded, copied, or in any other way removed from the Nationwide Compliant servers. Such code constitutes proprietary trade secret information and is subject to US and international copyright laws as well as state and federal trade secret laws. You may not copy or reuse in any form any algorithms used by any such code.
- Server Resources. Any Nationwide Compliant account that uses a high amount of server resources (such as, but not limited to, CPU time, memory usage, and network resources) will be given the option to either pay additional fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade its service to a dedicated server plan. Nationwide Compliant shall be the sole arbiter of what is considered to be a high level of server usage. Any Nationwide Compliant account deemed to be adversely affecting server performance or network integrity may be shut down immediately without prior warning or notice at the discretion of Nationwide Compliant.
- Integration. Nationwide Compliant may, in its sole and exclusive discretion, utilize integrations when performing the services, including but not limited to Yardi, Yardi Procure to Pay, Ops Merchant, Netdirector, and National Credit Systems. Any integration or implementation or other services shall be subject to the parties entering into a statement of work setting forth the details and additional terms and conditions for same.
The following additional terms apply if you or the Nationwide Compliant client (“Client”) under which you are authorized to use the Services has requested that Nationwide Compliant permit it to initiate electronic signals for paperless entries through its Originating Financial Institution, as amended from time to time, to accounts maintained at other financial institutions by means of the Automated Clearing House (ACH) Network operated by the National Automated Clearing House Association (NACHA). Nationwide Compliant has agreed to do so on the following terms and conditions.
- Types of Entries. Nationwide Compliant will transmit debit and/or credit entries initiated by you to the ACH Network as provided in the NACHA Operating Rules (referred to as the “Rules”) and this Agreement (the “ACH Services”).
- Rules. You agree to comply with and be bound by the Rules as they exist on the date of this agreement and as amended from time to time. You acknowledge that Nationwide Compliant has not provided you with a copy of the Rules and that if desired, a copy may be purchased from NACHA at www.nacha.org or any local ACH Association. Any fines or liabilities imposed against Nationwide Compliant for a violation of the Rules caused by an action and/or inaction on your part may be assessed against you and/or Client.
- United States Laws. You agree not to generate transactions that violate the laws of the United States. This includes, but is not limited to; sanction laws administered by the Office of Foreign Assets Control (OFAC). It shall be your responsibility to obtain information regarding such OFAC-enforced sanctions. (This information may be obtained directly from the OFAC Compliance Hotline at 800540-OFAC or from the OFAC’s Web site at http://www.ustreas.gov/ofac .)
- Nationwide Compliant Obligations. In a timely manner and in accordance with the Rules, Nationwide Compliant will process, transmit, and settle for the entries received from you which comply with the terms of this Agreement. Nationwide Compliant shall have no obligation to transmit entries if you or Client is in default of any of its obligations under this Agreement, including any obligation to pay Nationwide Compliant.
- Warranties. You certify to Nationwide Compliant all warranties Nationwide Compliant is deemed by the Rules to make with respect to entries originated by you. Without limiting the foregoing, you warrant and agree that (a) each entry is accurate, is timely, has been authorized by the party whose account will be credited or debited, and otherwise complies with the Rules; (b) each debit entry is for the sum which, on the settlement date with respect to it, will be owed to you from the party whose account will be debited, is specified by such party to be paid to you, or is a correction of a previously transmitted erroneous credit entry; and (c) you will comply with the terms of the Electronic Funds Transfer Act, if applicable, or Uniform Commercial Code Article 4A, if applicable, and shall otherwise perform your obligations under this Agreement in accordance with all applicable laws and regulations. You certify your compliance with all warranties made by Nationwide Compliant pertaining to all entries exchanged through the ACH Network, including but not limited to, RCK (Represented Check), ARC (accounts Receivable), POP (Point-of-Purchase), WEB (Internet-Initiated), TEL (Telephone Initiated), PPD (Pre-authorized Payment or Disbursement) and CCD (Cash Concentration or Disbursement) entries. You and/or Client shall indemnify Nationwide Compliant against any loss, liability, or expense (including attorney’s fees and expenses) resulting from or arising out of any breach of any of the foregoing warranties or agreements.
- Provisional Credit. You acknowledge that the Rules make provisional any credit given for an entry until the financial institution crediting the account specified in the entry receives final settlement. If the financial institution does not receive final settlement, it is entitled to a refund from the credited party, and the originator of the entry shall not be deemed to have paid the party.
- Cancellation or Amendment of Entries. You shall have no automatic right to cancel or amend any entry/file after its receipt by Nationwide Compliant without written consent by Nationwide Compliant.
- Rejection of Entries. Nationwide Compliant may reject any entry which does not comply with the requirements of this Agreement and may reject any entry if you are not otherwise in compliance with the terms of this Agreement. Nationwide Compliant shall notify you of such rejection no later than the business day such entry would otherwise have been transmitted by Nationwide Compliant to the ACH Network. It shall be your responsibility to remake any entries or files rejected by Nationwide Compliant.
- Returned Entries. Nationwide Compliant shall notify you of the receipt of a returned entry from its financial institution upon receipt. Nationwide Compliant shall have no obligation to re- transmit a returned entry if Nationwide Compliant complied with the terms of this Agreement with respect to the original entry. You authorize Nationwide Compliant to charge back any debit returns to your designated account and you will promptly provide immediately available funds in that account to indemnify Nationwide Compliant if any debit entry is returned after Nationwide Compliant has settled the entry to your account.
- Reversals. You may initiate a reversing entry or file of entries for erroneous or duplicate transactions, as permitted by the Rules. For both reversing entries and files, you indemnify all parties of the transaction(s) from and against any claim, demand, loss, liability, or expense.
- Fees. You may authorize Nationwide Compliant to debit your designated account for ACH Services provided under this Agreement in accordance with Nationwide Compliant’s then current Schedule of Fees. Nationwide Compliant may change its fees from time to time upon written notice to you and/or Client, as applicable.
- Authorized Representatives. Nationwide Compliant shall be entitled to rely on any notice or other communication believed by it in good faith to be genuine and to have been issued by an authorized representative of you and/or Client, as applicable.
- Liability. Nationwide Compliant shall be responsible only for performing the ACH Services or any other Services expressly provided for in this Agreement, and shall be liable only for its gross negligence or willful misconduct in performing those services. In no event shall Nationwide Compliant have any liability for any consequential, special, punitive, or indirect loss or damage which you may incur or suffer in connection with this Agreement. Nationwide Compliant shall be excused from failing to transmit or delay in transmitting an entry if such transmittal would result in Nationwide Compliant exceeding any limitation upon its intra-day net funds position established pursuant to present or future Financial Institution guidelines or the violation of any provision of any present or future risk control program of its Financial Institution or any rule or regulation of any other U.S. governmental regulatory authority. Nationwide Compliant shall not be held liable for any delay by any ACH Operator or Financial Institution in processing any credit or debit entry you originate. Nationwide Compliant shall not be responsible for any act or omission of yours and you agree to indemnify Nationwide Compliant against any loss, liability, or expense, including attorney fees or expenses, resulting from or arising out of any claim that Nationwide Compliant is responsible for any act or omission of yours or any other person or entity described in this section, or otherwise related to the ACH Services. Subject to the foregoing limitations, Nationwide Compliant’s liability for loss shall be limited to general monetary damages not to exceed the total amount paid by you or Client, as applicable, for the affected ACH Service, as performed by Nationwide Compliant under this Agreement.
- Name and account Number Inconsistency. You acknowledge that, if an entry describes the receiver inconsistently by name and account number, payment of the entry may even if it identifies a person different from the named receiver.
- Data Retention. You shall retain data adequate to allow remaking of entries for five (5) business days following the date of their transmittal to Nationwide Compliant as provided herein and shall provide such data to Nationwide Compliant upon request.
- Credit Information. As a condition of Nationwide Compliant’s obligations to provide ACH Services hereunder, you agree to provide Nationwide Compliant all information regarding your creditworthiness and financial wherewithal as Nationwide Compliant may from time to time reasonably request and you further agree to immediately notify Nationwide Compliant of any material change in any credit information supplied to Nationwide Compliant.
- Amendments to Agreement. From time to time, Nationwide Compliant may amend any of the terms and conditions contained in this Agreement, including any part of any schedules attached hereto. Such amendments shall become effective upon receipt of notice by you or such later date as may be stated in Nationwide Compliant’s notice to you.
The following terms and conditions govern the depositing of your checks through the Internet or by creating information to deposit checks through Nationwide Compliant software, based on information submitted by you to Nationwide Compliant (the “Check 21 Service.”)
- Representations, Warranties, Covenants, and Liability.
- 2 Representations and Warranties. You represent and warrant that: (a) you are fully authorized to enter into and perform under this Agreement, and that this Agreement constitutes its legal, valid, and binding obligation; (b) you are solvent; (c) it is not your present intent to seek protection under any bankruptcy laws; (d) your checks are currently and were at the time of their creation, bona fide and existing obligations of customers of yours, free and clear of all security interests, liens, and claims whatsoever of third parties and are not now nor have they ever been declared in default; (e) the documentation under which the checks are payable authorize the payee to charge and collect the monies owed; and (f) all checks and all documents and practices related to them comply with all applicable federal and state laws.
- 3 Liability. Nationwide Compliant will exercise ordinary care in providing the Check 21 Service and will be responsible for any loss sustained by you only to the extent such loss is caused by Nationwide Compliant’s reckless or willful misconduct. In no event shall clerical errors or mistakes in judgments constitute failure to exercise ordinary care, nor shall Nationwide Compliant have any liability for any indirect, incidental, consequential (including lost profits), special, or punitive damages, whether arising in contract or in tort, and whether or not the possibility of such damages was disclosed to or could have been reasonably foreseen by Nationwide Compliant. Under no circumstances shall Nationwide Compliant be responsible for any liability, loss, or damage resulting from any delay in performance of or failure to perform in connection with the Check 21 Service which is caused by employees or agents authorized to act for you in connection with the Check 21 Service. Nationwide Compliant shall not be liable for failure to perform any of its obligations in connection with the Check 21 Service if such performance would result in it being in breach of any law, regulation, or requirement of any governmental authority. If Nationwide Compliant fails to credit any of your accounts utilized in connection with the Check 21 Service, upon discovery or notification of such error, Nationwide Compliant will properly credit such account, but Nationwide Compliant shall not incur any liability therefore, including any loss resulting from failure by you to invest the amount of funds not properly credited to the account.
- Security Procedures and Communication. Certain security procedures designed to verify the origination (but not errors in transmission or content) of instructions, orders, and other communications sent by Nationwide Compliant and you might be used in connection with the Check 21 Service. You agree that any such mutually agreed-upon security procedures shall be deemed commercially reasonable. Nationwide Compliant shall not be obligated to act on a communication not transmitted in accordance with the security procedures and may refuse to act on any communication where Nationwide Compliant reasonably doubts its authorization, contents, origination, or compliance with the security procedures. Nationwide Compliant shall have no duty to discover, and shall not be liable for, errors or omissions by you.
- Intermediaries. Nationwide Compliant may act on any communication and provide the Check 21 Service using any payment system or intermediary organization it reasonably selects. Nationwide Compliant’s performance of the Check 21 Service is subject to the rules and regulations of any such system or organization. Nationwide Compliant may engage third parties to provide the Check 21 Service. Nationwide Compliant shall have no obligation to disclose arrangements with third parties to Client or obtain your consent thereto. You authorize the transfer of information relating to you to agents of Nationwide Compliant or you for use in connection with the Check 21 Service or as required by law.
- Recordings and Records. Either you or Nationwide Compliant may produce telephonic or electronic recordings or computer records, including email and telefacsimile transmissions, as evidence in any proceedings brought in connection with the Check 21 Service. You agree to Nationwide Compliant’s telephonic or electronic recording for security and quality of service purposes with respect to any and all of the Services.
- Discrepancies. You shall promptly notify Nationwide Compliant in writing of any error in connection with the Check 21 Service and any discrepancies between any records maintained by you and any notice you receive from Nationwide Compliant with respect to the Check 21 Service, and you shall provide Nationwide Compliant with any information it may reasonably request in connection therewith. You agree that fourteen (14) days is a reasonable time for you to notify Nationwide Compliant of errors or discrepancies, unless any other agreements, laws, rules, or regulations provide for a shorter period. Nationwide Compliant shall have the right to correct the amount in the data field for any Check that has an incorrect amount to be consistent with the image of the Check. Notwithstanding the foregoing, if Nationwide Compliant at any time discovers that the legal amount of the Check is different than the amount that has been credited to your account, Nationwide Compliant will make the necessary adjustment to the account to correct the discrepancy.
- Compliance. You shall comply with all laws, rules, and regulations in connection with the Check 21 Service. You agree to be bound by such rules and agrees that no entries that violate United States law may be initiated. You shall be responsible for and shall fully indemnify Nationwide Compliant for any and all fines and assessments imposed on Nationwide Compliant as a result of any infraction or violation of such rules caused by or attributable to you.
- Disclosure. You acknowledge that Nationwide Compliant may have certain legal record keeping and reporting requirements with respect to the Check 21 Service and consents to Nationwide Compliant’s disclosure to governmental authorities of information concerning you and the Check 21 Service provided to you which Nationwide Compliant believes to be appropriate or necessary to fulfill such legal requirements.
- Fiduciary Status. Nothing contained herein shall be deemed to create fiduciary status on the part of Nationwide Compliant in connection with the provision of the Check 21 Service. The foregoing notwithstanding, to the extent, if any, that Nationwide Compliant is deemed to be a fiduciary of your in providing the Check 21 Service, this Agreement is not intended to, nor shall, relieve Nationwide Compliant of any fiduciary responsibility otherwise imposed on it by law.
- Financial Accommodation. You and Nationwide Compliant agree that this Agreement and the Check 21 Services constitute an agreement to provide a “financial accommodation” as defined in 11 U.S.C. §365.
- Representations, Warranties, Covenants, and Liability.
SECTION IV: FEES AND OTHER CHARGES
- Fees. If you use the Services as an authorized user of one of our Clients, the applicable Client has agreed to pay the applicable fees. You or Client, as applicable, shall compensate Nationwide Compliant and/or the applicable third party service provider for the performance and provision of the Services in accordance with the fees, pricing and other charges established by Nationwide Compliant, which is attached to the Software Service Agreement relating to your use of the Services, or if not applicable, Nationwide Compliant’s then current Schedule of Fees. Amounts payable by you or Client to Nationwide Compliant shall be collected on a monthly basis by Nationwide Compliant. Nationwide Compliant may collect any of the foregoing amounts and any other amounts due by you or Client to Nationwide Compliant hereunder or in connection with the provision of the Services to you by debiting of your accounts, billing you or Client, as applicable, and/or setting off against any amounts Nationwide Compliant owes you or Client, without any obligation to give prior notice thereof to you. Nationwide Compliant may change pricing from to time to time by providing you or Client, as applicable, with written notice of a pricing change. Nationwide Compliant shall also have the right to credit or debit any of your or Client’s accounts, as applicable, to correct any processing irregularity in connection with the Services.If you are paying for the Services, you authorize a recurring monthly or annual charge to your credit card in exchange for use of the Nationwide Compliant service as indicated by published standard plans or a customized quote provided for your specific use. You also agree that the enrollment for the next service period is automatic. Please note that refunds on a pro-rated basis are issued only for monthly plans. When subscriptions are cancelled before the subscriptions end, refunds are issued based on a pro-rated calculation of the subscription charges at the monthly rate for the plan, for the actual number of days the account was subscribed (the number of days between the most recent charges and the cancellation date). If the calculated refund amount exceeds the subscription rate, then no refund is issued. Nationwide Compliant will not issue any pro-rated refunds for the remaining period during the month when an account with a monthly subscription plan (“current plan”) is downgraded to a smaller plan (“new plan”) (a plan that costs less per month than the current plan) during the middle of a month. However, the rate applicable to the new plan will automatically be charged starting the first of the subsequent month. This rate may change without notice. In case of non-action by the user, the account may be cancelled.
- Taxes. You or Client, as applicable, shall also pay any sales, use, or similar tax applicable to the Services. If Nationwide Compliant is required to pay any such taxes, you or Client, as applicable, shall reimburse Nationwide Compliant upon demand. You or Client, as applicable, shall also pay all attorneys’ fees and other costs and expenses Nationwide Compliant may incur in collecting any fees or other sums you may owe to Nationwide Compliant in connection with the Services.
- Other Charges. You further agree that Nationwide Compliant may pass through to you any other third party fees or charges incurred in connection with your access to and use of the Services.
SECTION V: TERM; TERMINATION
- Term. This Agreement shall remain in effect from the date that you executed and delivered a Software Services Agreement with Nationwide Compliant or your clicking in agreement with these Terms or use of the Services, whichever is earlier, and shall remain in effect until terminated.
- Termination. Either you or Nationwide Compliant may terminate this Agreement with or without cause at any time by giving notice of such termination to the other in the manner described herein. Further, if Nationwide Compliant believes that you have violated your obligations under this Agreement, Nationwide Compliant may, at its option and in addition to its other remedies, immediately and without notice, suspend your account, remove and destroy data and files stored by you on Nationwide Compliant’s servers and/or terminate this Agreement. Nationwide Compliant may also terminate or suspend the Services without notice to you if any of the following occurs:(a) you or Client, as applicable, become insolvent or files, or has filed against it, any bankruptcy or other insolvency, reorganization, liquidation, or dissolution proceeding of any kind; (b) a material adverse change occurs in your or Client’s, as applicable, business or financial condition; (c) Nationwide Compliant has reason to believe that you or Client has engaged in fraudulent or illegal activity; (d) you or Client, as applicable, fail to maintain balances in accounts sufficient to cover overdrafts; (e) you or Client violates the terms of this Agreement, including, without limitation, payment requirements; (f) You or Client fails to provide financial information reasonably requested by Nationwide Compliant; (g) Nationwide Compliant determines it is impractical or illegal to provide the Services because of changes in laws, regulations, or rules; or (h) Nationwide Compliant, in good faith, is unable to satisfy itself that the Services have been properly authorized by you or Client, as applicable. Notwithstanding any termination, the terms of this Agreement shall apply to all transactions, which have been initiated prior to termination.Nationwide Compliant will not be liable to you or any third party for any suspension or termination of your account or the Services. Should you object to any terms and conditions of this Agreement or any subsequent modifications thereto or become dissatisfied with the Services in any way, your only recourse is to immediately: (a) discontinue use of the Services; (b) terminate this Agreement; and (c) notify Nationwide Compliant of such termination.
- Post-Termination Obligations. Upon any termination of this Agreement, you shall not be authorized to access or use the Site or the Services. Nationwide Compliant will remove your stored data files from main storage and archives within five (5)-day period from termination notice.
SECTION VI: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
- Disclaimer of Warranties. YOUR USE OF YOUR ACCOUNT AND THE SITE AND THE SERVICES IS AT YOUR SOLE RISK. YOUR ACCOUNT AND THE SITE AND THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. NATIONWIDE COMPLIANT, ON BEHALF OF ITSELF AND ITS DISTRIBUTORS, ADVERTISERS AND SUPPLIERS, DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO YOUR ACCOUNT AND THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT). PLEASE NOTE THAT YOUR ACCOUNT AND THE SITE AND THE SERVICES MAY NOT MEET YOUR NEEDS. NATIONWIDE COMPLIANT MAKES NO REPRESENTATION OR WARRANTY: (A) THAT YOUR ACCOUNT OR THE SITE OR THE SERVICES WILL MEET YOUR NEEDS; (B) THAT ACCESS TO YOUR ACCOUNT OR SITE OR THE SERVICES WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE; (C) THAT THE DATA AND FILES YOU STORE IN YOUR ACCOUNT WILL NOT BE LOST OR DAMAGED; (D) THAT THE DATA ON YOUR DESKTOP OR SERVER WILL NOT BE LOST OR DAMAGED; OR (E) THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU ACKNOWLEDGE THAT ANY MATERIAL OR DATA YOU RETRIEVE THROUGH THE USE OF THE SERVICES IS DONE AT YOUR CHOICE AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE RETRIEVAL OF SUCH MATERIAL OR DATA.
- Limitations of Liability. IN NO EVENT SHALL NATIONWIDE COMPLIANT OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES OR CONTRACTORS HAVE ANY OBLIGATION OR LIABILITY TO YOU FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR DATA OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE OR PROFITS OR BUSINESS INTERRUPTION) OR OTHER PECUNIARY LOSS ARISING OUT OF YOUR USE OR INABILITY TO USE YOUR ACCOUNT OR THE SERVICES OR YOUR LOSS OF DATA OR FILES STORED THEREIN. IN NO EVENT SHALL NATIONWIDE’S OR ITS PARENTS’, SUBSIDIARIES’, AFFILIATES’, AGENTS’, OFFICERS’, DIRECTORS’, EMPLOYEES’ OR CONTRACTORS’ TOTAL AGGREGATE LIABILITY UNDER OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO NATIONWIDE FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT THAT ARE THE BASIS FOR THE APPLICABLE CLAIM DURING THE SIX (6) MONTHS PRECEDING THE DATE THAT THE APPLICABLE CLAIM AROSE.
- Indemnification. You will, upon demand, defend, indemnify and hold Nationwide Compliant, its parents, subsidiaries, affiliates, agents, officers, directors and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of (a) your use of your account and any of the Services provided by Nationwide Compliant, (b) any data files and content stored by you in your account and otherwise on the Nationwide Compliant servers and (c) any violation of this Agreement by you. You agree that under these indemnification provisions you are required to indemnify Nationwide Compliants, its parents, subsidiaries, affiliates, agents, officers, directors and employees, to the fullest extent permitted by law even if the claims made are the result of sole or concurrent negligence of Nationwide Compliants, its parents, subsidiaries, affiliates, agents, officers, directors and employees.
SECTION VII: CHOICE OF LAW; ARBITRATION
- Arbitration. All disputes, controversies, or differences which may arise between the parties out of or in connection with the Agreement, which cannot be settled by negotiation within thirty (30) days of the matter first being notified in writing to the other by the complaining party, shall be finally settled by binding arbitration in accordance with the commercial arbitration rules. The arbitration of all matters shall be conducted by three (3) arbitrators (“Panel of Three”) with each party selecting one (1) arbitrator, and the third to be selected from the panel of arbitrators, who shall serve as the chair of the Panel of Three. The parties may agree to a single arbitrator instead of a Panel of Three. If either party refuses or neglects to appoint an arbitrator within thirty (30) days after receipt of written notice from the other party requesting it to do so, the requesting party may appoint two (2) arbitrators. The place of the arbitration shall be in the same city as the principal office that Nationwide Compliant is located. The arbitration award shall be final and binding upon the parties. Any judgment upon such award may be enforced in any court having jurisdiction, or application may be made to such court for a judicial confirmation of such award and judgment or order of enforcement, as the case may be. The cost of the arbitration shall be borne equally by the parties unless otherwise provided in the arbitration award. The parties hereto agree that the arbitration award will be the sole and exclusive remedy between them regarding any and all claims, counterclaims, or issues. In order to have arbitration as the sole and exclusive remedy the parties hereto exclude the right of appeal to courts of the United States, or any other courts, in connection with any question of law arising in the course of the reference to arbitration or out of the arbitration award. Notwithstanding the foregoing, Nationwide Compliant may bring legal action in the courts located in Mecklenburg County, North Carolina to seek specific performance, injunctive relief or other equitable remedies to enforce this Agreement, and you consent to personal jurisdiction in such courts and agree not to assert any claim, defense or argument that such courts present an improper or inconvenient forum.
- Waiver of Jury Trial; Waiver of Class Action/Arbitration. CLIENT AND NATIONWIDE COMPLIANT WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES USED BY YOU. YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST NATIONWIDE COMPLIANT INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
SECTION VIII: MISCELLANEOUS
- Notices. Any notice under this Agreement given by Nationwide Compliant to you will be deemed to be properly given if sent by email to your email address as set forth in the Registration Information, or by a startup screen that starts before your next use of the Services or by written communication mailed by first class U.S. mail to your address on record in the Registration Information or by a display about the changed information in the agreement on the index page if the change is generic. It is important that you maintain a correct working email id and update it if necessary to be able to receive Nationwide Compliant’s communication. Any notice under this Agreement given by you to Nationwide Compliant will be deemed to be properly given if received by email sent to Nationwide Compliant’s Customer Services at Support@Nationwidecompliant.com, except those that are related to cancellation or termination of the account. You are expected to login online at http://www.Nationwide Compliant.com, go to ‘My Profile’, choose ‘Cancel account’ and provide necessary information for cancellation. Sending an email to Support@Nationwidecompliant.comfor cancellation is not considered as a cancellation notice for security reasons. On successful cancellation of account by you, or by Nationwide Compliant due to various reasons including non-payment for the Services, user data files will be removed within five (5)-day period from cancellation date from main storage as well as archives.
- Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (a) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.
- Modifications to this Agreement. The terms and conditions of this Agreement may be changed by Nationwide Compliant from time to time. Upon any such change, Nationwide Compliant will notify you of such change and post an updated version of this Agreement on the Nationwide Compliant’s Nationwide Compliant website located at http://www.Nationwide Compliant.com. Your use of any Services after such notification will constitute your acceptance of such changed terms and conditions.
- Confidentiality. All user guides, manuals, data, software, processes, and other information provided to you in connection with the Services and all fee and pricing information with respect to the Services (“Information”) is the proprietary and confidential property of Nationwide Compliant and/or its relevant licensors or suppliers. You agree to use the Information only in the manner specified by Nationwide Compliant and in the ordinary course of your business, to return it to Nationwide Compliant upon termination of the relevant Services, and to keep the Information confidential and limit access thereto only to its agents and employees who require access in the normal course of their duties, except to the extent the Information is already in the public domain or you are required to disclose the Information by law.
- No Assignment. Your right to use the Services is personal to you, and you will not assign any of your rights, obligations or interest in this Agreement or your account. Without limiting the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns. This Agreement may not be assigned by you without Nationwide Compliant’s prior written consent. Nationwide Compliant may assign this Agreement without your consent.
- Force Majeure. Nationwide Compliant shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of telephone, telefacsimile, or communication facilities; delay in transportation, equipment breakdown, or mechanical malfunction; electrical, power, or computer failure; accidents, fire, flood, explosion, theft, natural disaster, or other catastrophe; acts or failure to act by you or any third party; strikes or lockouts; emergency conditions; or riots, war, acts of government, or other circumstances which are unavoidable or beyond Nationwide Compliant’s control.
- Entire Agreement. This Agreement, which includes and is incorporated into the Service Agreement entered into with Nationwide Compliant and you or Client, as applicable, manifests the entire agreement between the parties regarding the subject matter hereof and supersedes all prior understandings, writings, proposals, representations, or communications, oral or written, of either party. Neither party relied on any representation or promise by other party that is not set forth in this Agreement.
- No Use of Trademarks. Neither you nor Nationwide Compliant shall display any name, trademark, or service mark of the other without the prior written consent of the other. You shall not advertise or promote the Services without Nationwide Compliant’s prior written consent.
- Waiver. None of the terms of this Agreement may be waived except as Nationwide Compliant may consent in writing, and no agreement with or representation made by any employee of Nationwide Compliant that is in conflict with this Agreement will be binding on Nationwide Compliant unless contained in a written modification of this Agreement signed by an authorized officer of Nationwide Compliant. No delay on the part of Nationwide Compliant in exercising any right or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power under this Agreement preclude further exercise thereof or the exercise of any other right or power.
- Cumulative Remedies. The rights and remedies under this Agreement are cumulative and not exclusive of any rights or remedies which Nationwide Compliant would otherwise have.
- Section Headings. Section headings in this Agreement are for convenience of reference only and do not constitute a part thereof.