Terms of Service
Revised: February 18th, 2019
1. ACCEPTANCE OF TERMS
This website is owned and operated by Renovate Simply, Inc., d/b/a Rabbet, and its affiliates (collective, “Rabbet”). Rabbet permits access to and use of this site and its related products and services, including any related Mobile Apps (as defined below) (collectively, the “Service”), subject to the terms and conditions in this Terms of Service (“TOS”). Rabbet may, at its sole discretion, update the TOS at any time. You can access and review the most current version of the TOS at the URL for this page or by clicking on the “Terms of Service” link within the Service or as otherwise made available by Rabbet.
PLEASE REVIEW THE TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS, DO NOT ACCESS OR USE THE SERVICE.
THE TOS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOS (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 25 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you are: (a) over eighteen years of age or the age of majority in our jurisdiction, whichever is greater; (b) of legal age to form a binding contract; (c) a resident of the United States; (d) not a person barred from using the Service under any applicable laws; and (v) not a person who markets, sells or distributes or works, directly or indirectly, for any entity that markets, sells or distributes any products or services that compete with those offered by Rabbet.
3. GRANT OF RIGHTS
(a) Rabbet grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view materials within the Service.
(b) To the extent that the Service provides access to any online software, applications or other similar components, then Rabbet grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only in the form within the online platform provided by Rabbet.
(c) Rabbet may make available mobile apps for access to and use of certain components of the Service (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to the applicable end user license agreement for each app.
(d) All rights granted to you under this TOS are subject to your compliance with the TOS in all material respects and may only be exercised for your personal use. Your access to and use of the Service must further comply in all material respects with any usage guidelines posted by Rabbet or set forth in the agreement between Rabbet and the entity through which you obtain access to the Service (“Services Agreement”).
4. REGISTRATION AND VERIFICATION
(a) You may browse the Service without registering, but some features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Rabbet reasonably suspects that you have done so (e.g., because any communication directed to contact information provided in Registration Data is returned as undeliverable), Rabbet may suspend or terminate your account.
(b) You authorize Rabbet, directly or through third parties, to make any inquiries it deems necessary to validate your identity. This may include asking you for further information or documentation, requiring you to provide a taxpayer or national identification number, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report or verifying your Information against third-party databases or through other sources.
(c) You authorize Rabbet to obtain your personal and business credit report from a credit reporting agency if: (i) you open an account within the service that will be used primarily for business purposes and not for personal, family or household purposes; (ii) you request certain products from Rabbet or through the Service that require a credit check; or (iii) Rabbet reasonably believes that there may be an increased level of risk associated with your account.
(d) You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone. You agree to notify Rabbet immediately of any unauthorized use of your account or password or any other similar breach of security.
5. SENDING AND RECEIVING LIMITS
(a) Account Types. Within the system exist two types of payment accounts with separate functionality and liabilities. Unless where noted, these Terms Of Services apply to both account types.
(ii) Receive Only Account. A Receive Only Account will only receive payments. It will not initiate payments on the account behalf. You expressly authorize Rabbet’s service provider, Dwolla, Inc. to originate credit transfers to your financial institution account.
(b) Sending Limits. Rabbet may, at its sole discretion, impose limits on the amount of payments you can send through the Service. You can view your sending limit, if any, by logging into your account. Rabbet reserves the right to decrease or otherwise adjust your sending limit at any time, for any reason.
(c) Account Limits. You may be limited with respect to the amount of money that can be sent from your account per transaction. The per transaction limit varies based on your account type.
(d) Transaction Reversal. Any payment that you receive may be reversed if: (i) the sender or the sender’s financial institution requests a reversal of the payment; (ii) the payment was sent to you as the result of an Error (as defined in Section 7(a)); or (iii) the payment was unauthorized (each of Sections 5(c)(i)-(iii), a “Reversal”). You are liable to Rabbet’s financial institution and payment processing service providers (“Service Providers”) for any amount you receive that is the subject of a Reversal, and you may be charged a Reversal fee, as may be updated from time to time by Rabbet.
(e) Authorization to Recover Amounts Due. You authorize Rabbet and Service Providers to recover any amounts relating to Reversal by debiting the available balance within your Rabbet account. If your account balance is insufficient for Rabbet to recover any amounts relating to Reversal, you authorize Rabbet and Service Providers to take any of the following actions to recover the remaining amounts from you: (i) debit the financial institution accounts linked to your account (“Linked Accounts”; (ii) suspend your account and require your immediate payment; or (iii) engage in collection efforts.
(f) Refused and Refunded Payments. When you send a payment, the recipient is not required to accept it. Any unclaimed, refunded or refused payment will be returned to your account or your original payment method for the transaction. It may take up to thirty (30) days to return such amounts to you.
(g) Recipient Processing Delay. When you send a payment to certain recipients, you are providing an authorization to the recipient to process your payment and complete the transaction. The payment will be held as pending until the recipient processes your payment. Some recipients may delay processing your payment. In such instances, your authorization will remain valid for up to thirty (30) days.
6. WITHDRAWING MONEY
(a) How to Withdraw Money. You may withdraw funds from your account in any of these methods: (i) electronic transfer to a Linked Account; (ii) physical check sent by mail; or (iii) another method made available by Rabbet. For physical checks sent by mail, Rabbet may request documentation from you to verify the validity of the address, and it may not send the check to you until you have provided the documentation requested. If you fail to cash a check within one hundred eighty (180) days of the date of issuance, Rabbet may return the funds to the sending institution, minus applicable processing fees.
(b) Withdrawal Limits. Rabbet may limit your ability to withdraw funds until you comply with our requests for information. Withdrawals of large sums of money may be subject to delay in the event Rabbet conducts, at its sole discretion, a risk review.
(c) Withdrawal Fees. Withdrawals may be subject to applicable fees, depending on the method of withdrawal, as posted within the Service.
7. UNAUTHORIZED TRANSACTIONS AND ERRORS
(a) Assistance and Notice. If you become aware that a payment has been sent from your account that you did not authorize or an error occurred in any transaction involving your account (including an incorrect amount sent to or from your account) (each, an “Error”), Rabbet may assist in rectifying the Error, provided that you promptly notify Rabbet in writing of the Error, but in no case more than (60) days after it appears in your account statement. You should carefully review your account statements and transaction confirmations to ensure that they are accurate.
(b) Content of Notification. In your notification, please provide the following: (i) your full name and the email address as listed in Registration Data; (ii) a description of any suspected Error and an explanation of the basis for your belief that the Error exists or more information from Rabbet is needed to make a determination; and (iii) the amount of the suspected Error.
(c) Investigation. After you notify Rabbet of any suspected Error, or Rabbet otherwise becomes aware of one, Rabbet will use commercially reasonable efforts to: (i) conduct an investigation to determine whether an Error has occurred; and (ii) complete the investigation within ten (10) business days of the date it received your notification of the suspected Error. You will cooperate reasonably with Rabbet’s investigation and promptly provide any additional information and documentation that Rabbet may reasonably request.
(d) Rectifying Errors. Upon completion of its investigation, Rabbet will provide you with an explanation of its findings. Subject to the exclusions set forth in Section 7(e), Rabbet will: (i) credit the amount to your account that was deducted as the result of an Error to the extent the Error arose from any negligent act or omission or willful misconduct on the part of Rabbet; and (ii) at its sole discretion, credit the amount to your account that was deducted as the result of any other Error. In the event that an Error results in your receipt of more than the amount to which you are entitled, Rabbet will debit the amount you received as the result of the Error from your account.
(e) Exclusions. Notwithstanding anything to the contrary, under no circumstances shall Rabbet be liable for any Error to the extent it arises from: (i) your breach of the TOS; (ii) your negligence or willful misconduct; or (iii) any actions or circumstances beyond Rabbet’s reasonable control.
8. CLOSING YOUR ACCOUNT
(a) How to Close Your Account. You may close your account at any time by following the instructions provided within the Service. You must withdraw your balance prior to closing your account, and Rabbet will cancel any pending transactions upon account closure.
(b) Limitations on Closing Your Account. You may not evade an investigation by closing your account. If you close your account while we are conducting an investigation, we may hold your funds to protect Rabbet and its affiliates or a third party against the risk of Reversals, Errors, claims, fees, fines, penalties and other potential liabilities. You shall remain liable for all obligations related to your account even after the account has been closed.
9. YOUR LIABILITY FOR TRANSACTIONS
(a) General. You are responsible for all Reversals, Errors (to the extent the Error did not arise from any negligent act or omission or willful misconduct on the part of Rabbet), claims, fees, fines, penalties and other liabilities incurred by Rabbet or other parties caused by or arising from your breach of the TOS or your use of the Service. You agree to reimburse Rabbet and such other parties for any such liabilities.
(b) Liability for Instructions Given by You. Rabbet may rely on any instructions it receives from you, and Rabbet shall not be liable for any loss or damage you or any other party may suffer as a result of Rabbet following those instructions in good faith.
(c) Reimbursement for Your Liability. In the event that you are liable for any amounts owed to Rabbet, Rabbet may immediately debit such amounts from your balance. If you do not have a balance that is sufficient to cover your liability, your remaining balance (if any) will be debited, your account will have a negative balance up to the amount of your liability, and you will be required to add sufficient funds to your account to eliminate the negative balance or reimburse Rabbet through an alternate method. If you do not do so, Rabbet may engage in collection efforts to recover such amounts from you.
10. PROTECTIONS FOR RABBET AND OTHER PARTIES
(a) General. Rabbet may, at its sole discretion, take appropriate action to protect itself and other parties from your breach of the TOS or violation of applicable law. Such actions may include, among any other actions specifically set forth herein: (i) terminating, suspending or limiting your access to your account or the Service; (ii) refusing to provide the Service to you now and in the future; and (iii) holding your funds for a period of time reasonably necessary to investigate or remediate fraudulent or suspicious activity, including the specific holds discussed in this Section 10.
(b) Risk-Based Holds. Rabbet, in its sole discretion, may place a hold on any of the payments you receive if Rabbet believes there may be a high level of risk associated with you, your account or your transactions. Rabbet’s determination may be based on different factors, and Rabbet may rely on information it receives from third parties. If Rabbet places a hold on a payment, the funds will appear as pending or withheld, and the payment status will indicate the hold. Rabbet may continue holding the payment in your account until Rabbet has completed its investigation and any remedial measures.
(c) Disputed Transaction Holds. If a Reversal, claim or dispute is filed on a payment you receive, Rabbet may place a temporary hold on the funds in your account to cover the amount of the liability.
(d) Account Closure, Termination of Service, Limited Account Access; Confidential Criteria. Rabbet, in its sole discretion, reserves the right to terminate the TOS and your access to the Service for any reason at any time upon notice and payment to you of any unrestricted funds held in your account. You acknowledge and agree that Rabbet’s decision to take certain actions, including limiting access to your account or placing holds, may be based on confidential criteria that is essential to Rabbet’s management of risk and the security of user accounts and the Service. Rabbet shall have no obligation to disclose the details of its risk management or security procedures to you.
It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct taxes to the appropriate tax authorities. Rabbet is not responsible for determining whether taxes apply to your transactions, or for collecting, reporting or remitting any taxes arising from such transactions. You may be subject to withholding taxes or other tax liabilities with respect to importing services from a foreign entity. You may also be subject to VAT, sales tax, income tax, or other tax liabilities as a seller of goods or services. It is your responsibility to check with your local tax advisor to determine which taxes apply to you, and it is your responsibility to pay such taxes to the appropriate tax authorities.
12. eDOCUMENTS AND SIGNATURE SOLUTIONS
(a) If the Services Agreement through which you obtain access to the Service includes access the eDocuments or Signature feature of the Service, then you may access such feature in accordance with the applicable Services Agreement. Rabbet may set and enforce limits for reasonable use in order to prevent abusive or unduly burdensome use.
(b) Rabbet may, at its sole discretion, delete: (i) incomplete eDocuments from the Service immediately and without notice upon the expiration of any applicable deadline for fully executing the eDocument; (ii) eDocuments, whether complete or incomplete, upon expiration or termination of the applicable Services Agreement.
(c) The Signature facilitates the execution of eDocuments between the parties to those eDocuments. Under no circumstances shall Rabbet be construed to be a party to any eDocument processed through the Signature feature.
(d) As between you and Rabbet, you have exclusive control over and responsibility for the content, quality and format of any eDocument. eDocuments stored by Rabbet within the Service are maintained in an encrypted form, and Rabbet has no control of or access to their contents.
(e) Applicable laws may deem electronic signatures invalid for certain types of documents, or they may subject certain types of documents to regulations promulgated by various government agencies regarding electronic signatures and electronic records. You, and not Rabbet, are solely responsible for assessing and complying with any laws and regulations that may be applicable to eDocument and electronic signatures, including any such laws and regulations concerning validity, enforceability and retention.
(f) Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more consumers (as defined by such laws or regulations), such as a requirement that the consumer consent to the method of contracting or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. You are solely responsible for understanding and complying with all such laws, regulations and requirements. Rabbet shall have no obligation to: (i) determine whether any transaction involves a consumer; (ii) furnish or obtain any required consents or determine if any such consents have been withdrawn; (iii) provide any information or disclosures in connection with any attempt to obtain any required consents; (iv) provide legal review of or update or correct any information or disclosures currently or previously given in connection with applicable laws and regulations; (v) provide any required copies or access to consumers; or (vi) otherwise comply with any such special requirements that you may be required to fulfill.
13. RESPONSIBILITY FOR CONTENT
(a) You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Rabbet, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Rabbet, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
(b) You acknowledge and agree that Rabbet has no obligation to pre-screen Content (including Your Content and User Content), although Rabbet reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Rabbet shall have the right to remove any Content that violates the TOS or that it deems objectionable.
(c) To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOS with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party.
14. RIGHTS TO CONTENT
(a) Rabbet does not claim ownership of Your Content. However, you grant Rabbet and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to provide the Service. You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(b) Except with respect to Your Content, you acknowledge and agree that, as between you and Rabbet, Rabbet owns all rights, title and interest (including all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright and other intellectual property laws and treaties. Rabbet reserves all rights not expressly granted to you.
(c) Except with respect to Your Content, you may not: (i) use, capture, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the TOS; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by Rabbet; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; or (vi) remove or obscure any proprietary notice that appears within the Service.
15. USER CONDUCT
In connection with your access to or use of the Service, you shall not:
(a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
(b) participate in any fraudulent transactions;
(c) conduct your business or otherwise use the Service in a manner that results in or may result in complaints, disputes, claims, Reversals, Errors, fees, fines, penalties or other liability to Rabbet, you, other users or third parties;
(d) violate the terms of service, usage guidelines or other agreements or policies of any Service Provider;
(e) impersonate any person or entity, including Rabbet personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(f) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(g) act in a manner that negatively affects the ability of other users to access or use the Service;
(h) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or substantially download, reproduce or archive any portion of the Service;
(k) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including your user account and password; or
(l) violate any applicable local, state, provincial, federal or international law, statute, regulation or ordinance.
If you elect to provide or make available to Rabbet any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), Rabbet shall be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
17. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
(a) Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third-party. You agree that Rabbet shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
(b) In connection with your use of the Service, you may choose to use products or services that are provided or supported by third parties (collectively, “Third-Party Services”). Third-Party Services are provided pursuant to the terms of the applicable third-party license or other agreement between the provider of the Third-Party Services and you, and Rabbet assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services.
18. LINKS AND EXTERNAL MATERIALS
19. MODIFICATIONS TO THE SERVICE
Rabbet reserves the right at any time to modify or discontinue the Service (or any portion thereof) with or without notice, and Rabbet shall not be liable to you for any such modification or discontinuance.
You shall indemnify, defend and hold Rabbet and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Rabbet Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of your: (a) violation of the TOU or any law or regulation; (b) dealings with any borrower, bank, contractor or other party using the Service, including any disputes regarding payment between you and such parties; or (c) violation of any rights of another party.
21. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RABBET PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
(b) THE RABBET PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
(c) RABBET IS NOT A BANK, AND THE SERVICE PROVIDES PAYMENT PROCESSING SERVICES RATHER THAN BANKING SERVICES. RABBET IS NOT ACTING AS A TRUSTEE, FIDUCIARY OR ESCROW WITH RESPECT TO YOUR FUNDS, BUT IS ACTING ONLY AS AN AGENT TO YOU AND CUSTODIAN TO YOUR FUNDS. RABBET DOES NOT HAVE CONTROL OF, NOR LIABILITY FOR, THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE SERVICE, AND IT DOES NOT GUARANTEE THE IDENTITY OF ANY USER OR ENSURE THAT ANY BORROWER, BANK, CONTRACTOR OR OTHER PARTY THAT YOU DEAL WITH IS AUTHORIZED TO COMPLETE ANY TRANSACTION OR WILL COMPLETE ANY TRANSACTION. RABBET WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT REQUESTS FOR ELECTRONIC DEBITS AND CREDITS INVOLVING BANK ACCOUNTS, CREDIT CARDS AND CHECK ISSUANCES ARE PROCESSED IN A TIMELY MANNER, BUT RABBET MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE PROCESSING BECAUSE, AMONG OTHER REASONS, THE SERVICE IS DEPENDENT UPON MANY FACTORS OUTSIDE OF RABBET’S CONTROL, SUCH AS DELAYS IN THE BANKING SYSTEM OR MAIL SERVICE.
22. LIMITATION OF LIABILITY
(a) YOU ACKNOWLEDGE AND AGREE THAT THE RABBET PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE RABBET PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE RABBET PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO RABBET FOR ACCESS TO THE PORTION OF THE SERVICE AT ISSUE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
(b) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
23. INDEPENDENT ALLOCATIONS OF RISK
Each provision of the TOS that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of the TOS between the parties. This allocation is reflected in the pricing offered by Rabbet to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of the TOS, and each of these provisions shall apply even if the warranties in the TOS have failed of their essential purpose.
(a) This TOS may be terminated as set forth any applicable provision of the TOS, and Rabbet further reserves the right to terminate the TOS and all rights granted to you under the TOS immediate, with or without notice to you, upon your breach of the TOS. To the extent that your access to the Service arises from a Services Agreement, such access shall terminate upon termination of the applicable Services Agreement.
(b) Upon termination of the TOS for any reason: (i) Rabbet, in its sole discretion, may remove and discard Your Content; and (ii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination.
25. GOVERNING LAW
The TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOS.
26. BINDING ARBITRATION AND CLASS ACTION WAIVER
(a) ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Rabbet may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 25.
27. LEGAL COMPLIANCE
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
28. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOS with respect to the such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
29. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the TOS, there shall be no third-party beneficiaries to the TOS.
30. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Rabbet’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Rabbet’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
3300 N IH 35, Austin, TX 78705
31. NOTICES AND CONSENTS
All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of the TOS shall be in writing and sent as set forth below:
If to Rabbet:
Rabbet, Attn: Legal Department, 3300 IH 35, Austin, TX 78705
If to You:
Via the email address or mailing address set forth in your Registration Data; text message to the mobile phone number set forth in your registration data; or in-app notices posted in a Mobile App or notices otherwise posted within the Service. You agree that notice delivered to you and consent obtained from you through any of the foregoing means satisfy all legal requirements specifying that Rabbet shall provide notice to you or obtain consent from you in writing, except where expressly prohibited by applicable law. If Rabbet sends you a Notice but you do not receive it because your Registration Data is untrue, inaccurate, not current or incomplete, or if such Notice is blocked by your service provider or delivery otherwise fails for any reason beyond Rabbet’s reasonable control, Rabbet shall nevertheless be deemed to have effectively delivered such Notice to you.
32. INDEPENDENT CONTRACTORS
Except as set forth in Section 20(c), the relationship between you and Rabbet established by the TOS is solely that of independent contractors, and neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
33. GENERAL PROVISIONS
The TOS constitutes the entire agreement between you and Rabbet concerning your access to and use of the Service. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and Rabbet with respect to such subject matter. The TOS may not be amended by you except in a writing executed by you and an authorized representative of Rabbet. For the purposes of the TOS: the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the TOS as a whole. You may not assign or delegate any right or obligation under the TOS without the prior written consent of Rabbet. The failure of Rabbet to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOS. Any prevention of or delay in performance by Rabbet hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.