Terms Of Service
IMPORTANT: Please read these Terms carefully, as they form a contract between you and PayGround, Inc. (“PayGround”) that governs your access to, interactions with, and use of: (a) PayGround’s proprietary payment aggregation platform (together with all features, designs, content, functionality, software, modifications, updates, and derivative works thereof, the “PayGround Platform”), and (b) third party services, information, products, or content available through the PayGround Platform (collectively, “Third-Party Services”) (a and b, collectively, the “Payground Solution”).
By accessing or using the Payground Solution, you agree that you have read, understand, and agree to be bound by these Terms, as amended from time to time. If you do not agree to be bound by these Terms, you may not access or use the Payground Solution. If you are accessing or using the Payground Solution on behalf of a person or an organization, you are agreeing to these Terms for that person or organization and promising to PayGround that you have the authority to bind that person or organization to these Terms (in which event, “you” and “your” will refer to that person or organization, as applicable). You may access and use the Payground Solution only in compliance with these Terms, and only if you have the power to form a contract with PayGround and are not barred under any applicable laws from doing so.
No Warranties and Limited Liability; Arbitration: These Terms provide you with certain legal rights, but you may have other, additional legal rights, which vary from jurisdiction to jurisdiction. PayGround doesn't provide warranties for the Payground Solution, and these Terms limit our liability to you. Please see Sections 3 and 4 for details. Some jurisdictions do not permit the exclusion of implied warranties or the exclusion or limitation of certain damages or other rights, so those provisions of these Terms may not apply to you. These Terms require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please see Section 6 for details, including instructions to follow in order to opt out of binding arbitration and the class action waiver.
Use of Payground Solution and Accounts.
Use of and Access to Payground Solution
Subject to your continued compliance with these Terms, PayGround grants you on a non-exclusive, non-transferable, and non-sublicensable right to access and use the PayGround Platform. PayGround reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the PayGround Platform at any time. PayGround may add or remove functionalities or features, and or suspend or stop the PayGround Platform altogether, at any time and without prior notice to you. PayGround will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Payground Solution or any part of the Payground Solution. All rights not granted in these terms are reserved by Payground.
PayGround may provide Third-Party Services through the PayGround Platform. Your use of or interaction with any Third-Party Services is solely between you and the third party. PayGround does not control or endorse, and makes no representations or warranties regarding, any Third-Party Services, and access to and use of such Third-Party Services is at your sole risk.
Only individuals age 18 and older are permitted to use the Payground Solution. If you are between the age of 13 and the age of majority in the jurisdiction where you reside, you will use the Payground Solution only under the direct supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Payground Solution by individuals under the age of 13 is prohibited and is a violation of these Terms.
You will not (and will not assist others to): (a) publish, copy, rent, lease, lend, sell, license, display, host or otherwise commercially exploit the Payground Solution, (b) access the Payground Solution in order to build a similar or competitive service or other commercial offering or for any other purposes except as expressly authorized herein, (c) remove any product identification, proprietary, copyright, or other notices contained in or displayed with the Payground Solution, (d) assign or transfer the Payground Solution (except as permitted by Section 7.7), (e) work around any technical or security restrictions or limitations in the Payground Solution, (f) modify, create derivative works of, reverse engineer, decompile, or disassemble any part of the Payground Solution, except to the extent the foregoing restrictions are prohibited by applicable law or by the licensing terms governing the use of open-source components that may be included with the Payground Solution, (g) copy, reproduce, distribute, download, display, or transmit the Payground Solution (or any portion of the Payground Solution) in any form or by any means, except as expressly permitted by these Terms, (h) use any Internet-based features in any way that could interfere with others’ use of them or to try to gain access to or use any service, data, account, or network in an unauthorized manner, (i) use any data mining, robots or similar data gathering or extraction methods except as provided by the Payground Solution, (j) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Payground Solution, or any other system, device or property; or (k) use any of the Payground Solution other than for its intended use.
Except for the limited license rights expressly provided in these Terms, PayGround or its licensors, as applicable, have and will retain all rights, title, and interest (including all intellectual property rights) in and to the Payground Solution. Any suggestions, information or feedback provided by you to PayGround regarding the Payground Solution (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Payground Solution) (“Feedback”) is voluntary and you hereby grant to PayGround a world-wide, royalty free, irrevocable, transferrable, perpetual license to use (and authorize others to use) any Feedback without restriction.
These Terms will remain in effect so long as you continue to access or use the Payground Solution, or until terminated in accordance with the provisions of these Terms. Sections 1.4, 1.5, 1.6, 3, 4, 5, 6 and 7, and any other terms which by their nature are intended to survive, survive any expiration or termination of these Terms.
Warranty Disclaimer; Additional Use Limitations.
THE PAYGROUND SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYGROUND AND ITS LICENSORS AND SERVICE PROVIDERS MAKE NO (AND SPECIFICALLY DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, (A) ANY WARRANTY THAT THE PAYGROUND SOLUTION WILL BE UNINTERRUPTED, ERROR-FREE, FREE OF HARMFUL COMPONENTS, TIMELY, OR SECURE, (B) ANY IMPLIED WARRANTY OF ACCURACY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND (C) ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT, SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
YOUR USE OF THE PAYGROUND SOLUTION IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR, AND PAYGROUND DISCLAIMS, ANY AND ALL LOSS, LIABILITY, OR DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE PAYGROUND SOLUTION.
Sole Risk and Indemnity
If you use the Payground Solution in violation of these Terms, including the restrictions set forth in Section 1.4: (i) you acknowledge that such use is at your sole risk, (ii) you agree PayGround is not liable, in whole or in part, for any claim or damage arising from such use, and (iii) you will indemnify, defend and hold PayGround harmless from and against any and all claims, damages, fines, sanctions, losses, costs, expenses and liabilities arising out of or in connection with such use in accordance with Section 5.
No Uptime or Availability Guarantee
The Payground Solution is provided AS-IS and AS AVAILABLE. PayGround makes no guarantee or warranty regarding the availability or reliability of the Payground Solution, including any failures or unavailability beyond PayGround’s control, such as the lack of an Internet connection. PayGround does not provide any specific uptime or availability guarantee for the Payground Solution.
Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL PAYGROUND, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS OR YOU BE LIABLE TO THE OTHER PARTY, (AND IN THE CASE OF PAYGROUND, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS), OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF, BASED ON, OR RESULTING FROM THESE TERMS, OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE PAYGROUND SOLUTION, EVEN IF YOU OR PAYGROUND (AND PAYGROUND AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES).
IN NO EVENT WILL PAYGROUND’S, ITS AFFILIATES’ AND ITS AND THEIR OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’, CONTRACTORS’, SUPPLIERS’, AND LICENSORS’ OR YOUR TOTAL LIABILITY TO EACH OTHER (AND IN THE CASE OF PAYGROUND, IT’S AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS), OR TO ANY OTHER THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE PAYGROUND SOLUTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING GROSS NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED FIFTY DOLLARS ($50.00).
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN SECTION 4 DO NOT APPLY TO LIABILITIES THAT ARISE FROM THE UNAUTHORIZED USE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY (INCLUDING UNAUTHORIZED ACCESS OR USE OF THE PAYGROUND SOLUTION), YOUR INDEMNIFICATION OBLIGATIONS, OR LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS, SUCH AS IN THE EVENT OF STATUTORILY MANDATED LIABILITY (INCLUDING LIABILITY UNDER APPLICABLE PRODUCT LIABILITY LAW) OR IN THE EVENT OF PERSONAL INJURY ARISING SOLELY FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE MATERIAL, BARGAINED FOR BASES OF THE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
You will indemnify, hold harmless and defend PayGround (including its affiliates, officer, directors, employees, contractors and agents), its licensors and service providers from any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by PayGround arising out of or relating to: (a) your breach of any term or condition of these Terms, (b) your use or misuse of the Payground Solution, or (c) violations of any laws, rules or regulations applicable to your use of the Payground Solution. PayGround reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify PayGround and your will cooperate with PayGround’s defense of such claims. You will not to settle any such claim without PayGround’s prior written consent.
Disputes and Arbitration.
Any dispute or claim relating in any way to these Terms or your access or use of any Payground Solution will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator can award on an individual basis the same damages and relief as a court, including injunctive and declaratory relief or statutory damages, and must follow the provisions of these Terms as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to PayGround, Attention: [ATTN: Legal Dept., 459 N. Gilbert Rd., STE A-240, Gilbert, AZ 85234]. Your notice to PayGround must (a) provide your name, mailing address, and email address, (b) describe the dispute, and (c) state the relief you are requesting. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. For any arbitration you initiate, you will pay the AAA filing fee and Payground will pay the remaining AAA fees and costs. For any arbitration initiated by Payground, Payground will pay all AAA fees and costs. PayGround will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at either a mutually agreed location or in Arizona.
Any claim arising out of or related to these Terms or the Payground Solution must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you will not have the right to assert the claim.
WAIVER OF CLASS ACTIONS
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in a state or federal court in Phoenix, AZ to enjoin infringement or other misuse of intellectual property rights.
OPTION TO OPT-OUT
To opt out of the arbitration and class-action waiver terms in this Section 6, you must notify PayGround in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). You must mail your written notification to PayGround, Attention: Legal Department to the address in Section 6.2. Subject to Section 6.5, if you do not notify PayGround as outlined in this Section 6.4, you agree to be bound by the arbitration and class-action waiver provisions herein, including such provisions in any Terms revised after the date of your first acceptance.
You may reject any change PayGround makes to Section 6 (except address changes) by sending PayGround written notice within 30 days of the change by mail to the address in Section 6.2. If you do, the most recent version of Section 6 before the change you rejected will apply. It is not necessary to send PayGround a rejection of a future change to this Section 6 if you had properly opted out of the arbitration and class-action waiver provisions in this Section 6 within the first 30 days after you first accepted these Terms.
General Legal Terms and Contact Information.
Changes to Terms.
PayGround may change these Terms at any time by posting the amended Terms on PayGround's website, available at [www.payground.com/terms] (the "Site"). Any changes to these Terms will be effective upon posting the revised version of these Terms on the Site (or such later effective date as may be indicated at the top of the revised Terms). We may also notify you via the Payground Solution or by email to the email address associated with your account. If you do not agree to the Terms as amended, you must stop using the Payground Solution. Your continued use of the Payground Solution after the date the amended Terms are posted will constitute your acceptance of the amended Terms.
You agree that these Terms, and any claim, dispute, action, or issue arising out of or relating to these Terms or your use of the Payground Solution is governed by the Federal Arbitration Act, applicable federal law, and the laws of the State of Arizona without reference to conflict of laws principles. Unless a dispute would be governed by an applicable arbitration clause, you agree to submit to the personal jurisdiction of the state and federal courts in or for Arizona for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, PayGround may seek injunctive or other equitable relief to protect its (or its licensors or service providers’) confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
PayGround may need to communicate with you from time to time regarding these Terms or the Payground Solution. PayGround may provide such notice to you via email to the email address you provided to PayGround or on the Site. If you have questions regarding these Terms or need to contact PayGround, please see [www.payground.com/contact] for PayGround’s contact information.
These Terms, and any additional agreement you enter into with Payground in writing are the complete and entire understanding and agreement between PayGround and you regarding the Payground Solution and supersede all previous or contemporaneous written and oral agreements and communications relating to the subject matter of these Terms, all of which are merged into these Terms. In these Terms: (a) the word “including” and words of similar import will mean “including, without limitation,” unless otherwise specified and (b) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”.
All waivers by PayGround will be effective only if provided in writing. Any failure or delay by PayGround to strictly enforce any provision of these Terms will not operate as a waiver of that provision, any other provision, or any subsequent breach of that or any other provision.
Each provision in these Terms constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part of a provision) is unenforceable under or prohibited by any present or future law, then the unenforceable provision (or part of the unenforceable provision) is amended to be in compliance with such law, while preserving the intent of the original provision to the extent possible. Any provision (or part of a provision) that cannot be amended will be severed from these Terms; and, all the remaining provisions of these Terms will continue in full force and effect.
These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without PayGround’s prior written consent. These Terms may be assigned by PayGround without restriction. These Terms are binding upon any permitted assignee.
As between you and PayGround, PayGround owns all right, title, and interest in and to the PayGround Marks (as defined below), and any goodwill arising out of the use of the PayGround Marks will remain with and belong to PayGround and its licensors. The PayGround Marks may not be copied, imitated, or used without the prior written consent of PayGround or the applicable trademark holder. PayGround Marks means any trademarks, service marks, service or trade names, logos and other designations of PayGround and its affiliates.
The PayGround Solution are subject to the export control laws, regulations and orders of the United States and may be subject to the export or import control laws and regulations of other countries. You will comply with all such laws and regulations that apply to the PayGround Solution. These laws include restrictions on destinations, end users, and end use. You represent and warrant that you: (a) are not a citizen, national or resident of, nor under the control of, the government of Cuba, Iran, North Korea, Syria, Sudan, or any other country to which the United States has prohibited export, (b) are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor listed on the United States Department of Commerce Table of Denial Orders, nor any other United States Government exclusion lists, (c) are not under the control of or an agent for anyone on such lists or the entities listed above, (d) will not export or re-export any portion of the PayGround Solution, directly, or indirectly, to the above-mentioned countries or to citizens, nationals, or residents of those countries or to persons on the above mentioned lists, and (e) will not use the Payground Solution for, and will not allow the PayGround Solution to be used for, any purposes prohibited by United States law, including for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction.