KAPED, INC.

Last updated on 12. 09, 2022

PLEASE READ THESE TERMS OF USE CAREFULLY, INCLUDING THE AGREEMENT TO ARBITRATE AT SECTION 13, AS THEY AFFECT YOUR LEGAL RIGHTS. THESE TERMS OF USE (THE “TERMS”) ARE A LEGALLY BINDING AGREEMENT BETWEEN YOUR COMPANY AND ITS PERSONNEL (COLLECTIVELY, “YOU”) AND KAPED, INC. (“KAPED”, “KAPED CAPITAL”, “WE”, “US”, OR “OUR”)  (EACH, A “PARTY”). BY PERMITTING YOUR PERSONNEL TO DOWNLOAD, ACCESS, OR USE THE SITES AND SERVICES, OR BY OTHERWISE AGREEING TO THESE TERMS, YOU AGREE TO BE BOUND CONTRACTUALLY BY THESE TERMS OF USE AND THE TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED HERIN, AND YOU REPRESENT AND WARRANT THAT: (1) YOU WILL NOT ALLOW ANY THIRD PARTY PERSON OR ENTITY TO USE THE SITES OR SERVICES UNDER YOUR ACCOUNTS OR REGISTRATIONS, AND (2) YOU HAVE READ, UNDERSTAND, AND AGREE THAT YOU ARE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU ARE NOT PERMITTED TO USE KAPED, INC.’S SERVICES.

KAPED provides the content, white-label credit card platform, or other products and services (“Services”) available, via application programming interfaces or otherwise, at www.kaped.io[BW1] [VH2] , through the KAPED: Private Client mobile application or through any other technology platforms (“Sites”) owned or operated by KAPED.

As part of the Sites and Services:

KAPED does not provide any banking function on your behalf, including any fund holding or transmittal; but provides financial technology services that may be used by our partner banks or other financial institutions (“Partners”) as well as participating merchants (“Merchants”) for your benefit.

The Services shall include access to and use of the following functionalities: core systems (i.e., card issuance, transaction date, and portfolio monitoring); a banking ledger reporting tool to track and monitor flow of funds; rewards (e.g., cashback, cryptocurrency, travel perks, and discounts); fraud and Know Your Customer (“KYC”) check capabilities; an artificial intelligence chatbot to automate customer service and collections; and a credit scorecard to approve applications faster per user-defined parameters.

KAPED authorizes you to access, view, and download a single copy of the materials on our Sites solely for your personal, informational, and non-commercial use, provided that you retain all proprietary notices, including those notices pertaining to copyright, contained in the original material on any copied material.

These Terms of Use (“Terms”) are an electronic contract that sets out the legally binding terms of the relationship between KAPED and you. By accessing the Sites or Services or otherwise agreeing to the Terms, you accept and agree to be bound by the terms, conditions, and notices contained and/or referenced herein.

ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND KAPED AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND KAPED WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. SEE SECTION 13 FOR MORE INFORMATION.

IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OR ACCESS OUR SITES OR SERVICES.

Table of Contents:

1. Use of the Services and Sites

2. Our Intellectual Property and License to You

3. Prohibited Uses of the Sites or the Services

4. Your Information

5. KAPED Communications

6. Marketing Promotions and Referrals

7. Disclaimer

8. Limitation of Liability

9. Indemnity

10. Third-party Links

11. Modification of Terms

12. Dispute Resolution

13. Arbitration Agreement

14. General Terms

1.                Use of the Services and Sites.

1.1.            Age.  Your users may only use our Sites and Services if they can form a legally binding contract under applicable law. Our Services and Sites are unavailable to minors (people under the age of 18) or to those who have had an account with KAPED temporarily or permanently deactivated. If your users are under 13 years old, they may not provide personal information to us or register on the Sites.

1.2.            Eligibility.  You represent and warrant that you (i) remain a duly organized entity in good standing under the local laws of its jurisdiction, (ii) maintain a valid United States employer identification number (“EIN”), (iii) do not participate in any prohibited activities specified by us or our Partners, and (iv)  are not an agent to collect or distribute issued cards. You acknowledge that you may be required to verify certain information at any point. If you operate outside of the United States, Canada, Mexico, Brazil, or the United Kingdom, you are not eligible for the Services. If KAPED has previously prohibited you from accessing the Services or the Sites in writing or verbal communication, you do not have permission to access the Services or Sites, respectively.

1.3.            Creation of Account.  You  shall use best industry practice measures to ensure that your  users register for and maintain an active personal user account to use most aspects of our Services and Sites. Account registration may require your users to submit certain personal information, such as their name, email addresses, mobile number, financial data and history, and company information, such as employee names, email addresses, mobile numbers, and financial data and history. In return for using our Services and Sites, you agree to ensure your users (i) provide true, accurate, current, and complete account information, and (ii) maintain and promptly update your information to keep it true, accurate, current and complete. You must have at least one account held by a financial institution connected to our Services (“Connected Account”). You authorize KAPED and its Partners to make a nominal deposit to and withdraw from your Connected Account as provided in Section 1.6. [BW3] [VH4] You may be required to submit additional information or documents to verify submitted information at any point. We have the right to block your current or future use of the Services or the Sites if you users provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that the information is false, inaccurate, not current, or incomplete. Your users may only have one account unless otherwise permitted by us in writing.

1.4.            Account Information.  You are responsible for maintaining the confidentiality and security of your users’ accounts and for all activities or any other actions that occur under, or someone takes in connection with your users’ accounts or passwords. You agree to (i) immediately notify us of any known or suspected unauthorized use of your user’s accounts, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your user’s passwords; and (ii) ensure that your users exit from their account at the end of each session. KAPED will never ask you for your login credentials by phone or through email.[BW5] [VH6]  KAPED will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with (i) and (ii) or for any acts or omissions by you or someone else using your users’ accounts. Further, you agree to notify us in any event in which you (a) become unable to perform under this Agreement and become insolvent or are subjected to any liquidation or insolvency proceeding; (b) assign for the benefit of all or substantially all your creditors; (c) adjust or extend all or substantially all your debts or obligations; or (d) file for bankruptcy or are subjected to bankruptcy proceedings, which is not dismissed within 60 days of the filing date. To comply with U.S. federal law regarding anti-terrorism and anti-money laundering activities, KAPED and its Partners must obtain, verify, and record personal information and company information, and provide such information upon subpoena or warrant. You agree to keep all information true, accurate, and current throughout the use of our Services.

1.5.            Acceptance of Terms.  These Terms apply to your use of the Services and the Sites, including but not limited to: the white-label credit card platform, www.kaped.io[BW7] , and KAPED: Private Client mobile application. Your access to, review of, and/or use of the Sites and Services is conditioned on your acceptance of and compliance with these Terms. We may revise this Agreement at any time, and we will send you any notices electronically. Your continued use of the Services or the Sites will be deemed as you accepting the revised Agreement.

1.6.            Authorization to Transfer Funds[BW8] [VH9] .

(a)    Generally.  Certain Services require your authorization to initiate the transfer of funds. These fund transfers may be Automated Clearing House (“ACH”) (of the National Automated Clearinghouse Association (“NACHA”)) credit or debit. You agree to authorize KAPED to initiate the transfer of funds.[BW10] [VH11]  It is your responsibility to ensure that there are sufficient funds in your bank account for the fund transfer activity initiated by KAPED. Once you have requested to transfer funds, you will not be able to cancel the electronic transfer and KAPED may resubmit any ACH debit you authorized that is returned for insufficient or uncollected funds, except as defined by NACHA’s ACH rules or applicable law. If there are not sufficient funds, KAPED or our Partners may choose to decline or cancel the request to transfer funds. KAPED is not responsible for any associated fees assessed by your bank, including, but not limited to, overdraft fees.

(b)    Conversion to U.S. Dollars.  For all transactions made in currencies other than the U.S. Dollar (USD), the amount credited or debited will be converted by the Partner card network to USD. For such transactions, the conversion date may occur at a different time than the actual transaction time, thereby resulting in a different conversion rate. You agree to pay the converted amount and any applicable conversion fees by our Partners or its card network. Transactions in U.S. Territories may be deemed an international transaction.

(c)     Limits on ACH Debit Transactions.  The cut-off time for scheduling ACH transfers is 4:00 PM (UTC -6). Any transfer scheduled after the cut-off time will be treated as if it were scheduled on the next business day.

(d)    ACH Debit Limits.  The limitation to the amount of funds that can be transferred from your Connected Account per day are as follows:

Transaction Type

Amounts[BW12] [VH13] 

ACH Debits (from external bank/provider)

$10,000

ACH Credits from Mobile App[BW14] [VH15] 

$10,000

ACH Credits from external Financial Institution

$10,000

(e)    Types of Electronic Funds Transfers Available.  You may arrange with another party, such as your employer or a government agency, to electronically deposit funds on a one-time or recurring basis directly to your account held by KAPED. You may authorize another party, such as a merchant, to make a one-time or recurring payments directly from your Connected Account to your account held by KAPED. You may use debit cards issued by our Partners and provided by KAPED to make purchases at merchants that accept the debit card or to obtain cash, subject to availability, at automated teller machines (“ATMs”) or via over-the-counter transactions or Point of Sale (“POS”) terminals.

(f)     Limits on Electronic Funds Transfers.  You may make cash withdrawals and POS purchases, not to exceed the limits of your Connected Account. If your Connected Account is closed, blocked, or suspended for any reason, you will not be able to transact using your debit card.

(g)    Statements.  Once your account is created, you may access electronic monthly statements from our Sites.

(h)    Payment Dispute Procedures.  If you discover any discrepancies regarding your statements or transactions, you must promptly contact KAPED’s Customer Support by emailing us at support@kaped.io or by calling us at 1-888-656-3823 no more than 60 days after the statement date of the statement which first contained the discrepancy, and providing (i) your name; (ii) Connected Account number and/or 16-digit KAPED card number; and (iii) a sufficient description of the error or transfer including the transaction date, approximate transaction amount, and grounds for why it is an error. If you need more information about a transaction listed in a statement receipt, you may contact us for additional information. If you submit any inquiry verbally, you may be required to send such inquiry in writing within 10 business days. Failure to timely submit inquiries in writing with the required information upon our request may result in your forfeit for the disputed amount. We will determine whether an error occurred within 10 business days from your last response and promptly correct any errors. On occasion, we may take up to 45 days to investigate inquiries, and, in such events, we will credit your Connected Account within 10 days for the disputed amount.

For disputes involving new Connected Accounts, transactions with a merchant’s POS terminal, whether in-person, online, by telephone, mail, or otherwise, or foreign-initiated transactions, we may take up to 90 days to investigate your inquiry. For new Connected Accounts, we may take up to 20 business days to credit your Connected Account for the disputed amount. For disputes involving unauthorized preauthorized debits, you are required to complete and sign an Affidavit of Unauthorized ACH[BW16] [VH17]  and promptly return it to us to assist us in our investigation.

Once the investigation is completed, we will send you the results within 3 business days. If we decided no error occurred, we will send you a brief written explanation. You may request copies of the documentation by contacting KAPED’s Customer Support.

(i)      Stop Payment of Preauthorized Transfers.  If you elect to make regular, scheduled payments from your Connected Account, you may stop future payments by: (a) contacting the merchant to request cancellation of the recurring payment to stop a recurring ACH transfer to the merchant, whom you preauthorized to debit your Connected Account; (b) contacting support@kaped.io and providing your full name, the name of the payee, the future transaction date(s), and transaction amount provided that the request to us is made (i) at least 3 business days before the schedule payment to stop the transaction;  or (ii) at least 14 days before the scheduled payment to stop all future recurring transactions pertaining to the request. If you submit a  request to us to stop a preauthorized payment at least 3 business days before the transfer is scheduled occur and such transfer occurs, we will be liable for losses or damages only to the extent provided by Section 8.

(j)      Your Liability for Unauthorized Transfers.  If you believe your KAPED-provided card, PIN, or Connected Account credentials has been stolen or a party has transferred or may transfer money from your Connected Account without your permission, you must promptly contact KAPED’s Customer Service at 1-888-656-3823. Under Visa U.S.A. Inc. Operating Regulations, your liability for unauthorized Visa debit transactions on your Deposit Account is $0.00 if you are not grossly negligent or fraudulent in the handling of your Debit Card. This reduced liability does not apply to certain commercial card transactions, transactions not processed by Visa or to ATM transactions outside the U.S. You must notify us immediately of any unauthorized use. If the Visa Zero Liability Rules do not apply, if you notify us within two (2) business days after you learn of any unauthorized transactions, you may be liable for no more than $50.00 if someone used your Deposit Account without your permission. If you do not notify us within two (2) business days after you learn of the loss or theft of your Debit Card, Deposit Account number or PIN and we can prove that we could have stopped someone from using your Deposit Account without your permission if you had promptly notified us, you may be liable for up to $500.00.

If you become aware of and/or your statement shows transactions that you did not make, notify us at once following the procedures stated in the section labeled “Information About Your Right to Dispute Errors“. If you do not notify us within 60 days after you become aware of the transaction(s) and/or the statement was made available to you, you may not get back any of the value you lost after the sixty (60) days if we can prove that we could have stopped someone from taking value if you had notified us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods. If your Debit Card, PIN or Deposit Account number has been lost or stolen, we will close your Debit Card and/or Deposit Account to keep losses down and send you a replacement Debit Card and/or Deposit Account number.

2.                Our Intellectual Property and License to You.

2.1.            Reservations of Rights. Except for your Information (as defined below), KAPED and its affiliates and any applicable licensors retain all intellectual property and other proprietary rights, including all patent, copyright, trade secret, trade name, trademark, and other proprietary rights, related to the Services, Sites and everything on them, from text to photos to videos to graphics and software (collectively, the “content”) which are protected under United States intellectual property laws and international treaty provisions. Except as otherwise indicated on the Services or the Sites and except for the trademarks, service marks, logos and trade names of other companies we display on the Sites, all trademarks, service marks, logos, trade dress, and trade names are proprietary to KAPED, including but not limited to the KAPED logo; and the KAPED trade dress. KAPED will enforce its intellectual property rights to the fullest extent of the law. You acknowledge and agree that KAPED and its affiliates and any applicable licensor’s retention of contractual and intellectual property rights is an essential part of these Terms. KAPED and its affiliates and any licensor (as applicable) will own and you hereby assign to KAPED all rights in (i) any copy, translation, modification, adaptation or derivative work of the content, including any improvement or development thereof, whether provided as part of content or otherwise, and (ii) any suggestions, ideas, enhancement requests, feedback, or recommendations provided by or on behalf of you.

2.2.            License to Services and Sites. We grant you a limited, non-exclusive, non-transferable and revocable license to access and use the Services and Sites for your personal use as expressly permitted by these Terms, all applicable intellectual property laws, and any Additional Terms (as defined below). Any other use of the Service or the Sites is strictly prohibited, and you may not copy, republish, upload, post, transmit, distribute or modify the Services or Sites without our express written permission. You should not interpret any language on the Sites as us granting you a license or right to use the content or third-party proprietary content without our express written permission or that of the relevant third-party owner. You also may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce to a human-perceivable form any software that you download from the Sites or the Services.

3.                Prohibited Uses of the Sites or the Services. You may not do any of the following, or allow any third party to do any of the following:

(a)              copy, distribute, rent, lease, lend, sublicense or transfer the Services or the Sites, or make the Services or the Sites available to any third party, including your affiliates, parents or subsidiaries, without KAPED’s express prior written consent;

(b)              modify, decompile, reverse engineer, or disassemble the Services or the Sites or otherwise attempt to discover any underlying source code, ideas, algorithms, file formats or programming interfaces, or create derivative works based on the Services or the Sites;

(c)               modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Services or the Sites;

(d)              use the Services or the Sites to develop a competitive product offering;

(e)              use, or attempt to use, the Services or the Sites for improper, illegal, or unauthorized purposes;

(f)               use any automated devices, such as spiders, robots or data mining techniques to download, store or otherwise reproduce, store or distribute content or to manipulate the Services or the Sites;

(g)              access, tamper with, or use non-public areas of the Services or the Sites, KAPED’s computer systems, or the technical delivery systems of KAPED’s affiliates;

(h)              probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;

(i)                forge any TCP/IP packet header or any part of the header information in any email, or in any way use the Services or the Sites to send altered, deceptive, or false source-identifying information; or

(j)                interfere with, or disrupt (or attempt to do so), the access of any user, host or network, including, without limitation, sending virus, overloading, flooding, spamming, mail-bombing the Services or the Sites, or using the Services or the Sites in such a manner as to interfere with or create an undue burden on the Services or the Sites.

4.                Your Information (“Information”).

4.1.            Use of Information.  Your Information is required to perform Services and provide the Sites. Your Information also includes data from using our Sites and our Services, which may include information you provide, publish or post to or through our Services (including any account information) and our Sites or send to other users (including by in-application feedback, any email feature, or through any KAPED-related social media posting). You consent to us using your Information to create an account that will allow you to access and use our Services and our Sites. Our collection and use of your Information is as provided in our Privacy Policy located at https://www.kaped.io/legal-pages[BW18] [VH19] .

4.2.            License to Information.  IN CONSIDERATION OF YOUR USE OF KAPED’S SERVICES AND SITES YOU GRANT KAPED A NON-EXCLUSIVE, WORLDWIDE, PERPETUAL, IRREVOCABLE, ROYALTY-FREE, TRANSFERABLE, SUB-LICENSABLE (THROUGH MULTIPLE TIERS) RIGHT AND LICENSE TO EXERCISE THE COPYRIGHT, PUBLICITY, AND DATABASE RIGHTS YOU HAVE IN YOUR INFORMATION, AND TO USE, COPY, PERFORM, DISPLAY AND DISTRIBUTE SUCH INFORMATION TO PREPARE DERIVATIVE WORKS, OR INCORPORATE INTO OTHER WORKS, OR INTO ANY MEDIA NOW KNOWN OR NOT CURRENTLY KNOWN.

4.3.            Ownership of Information. KAPED does not assert any ownership rights over your Information; rather, as between you and KAPED, you retain full ownership of all of your Information and any intellectual property rights or other rights associated with your Information.

5.                 KAPED Communications.

5.1.            Generally.

(a)              Subject to Section 14.10(a), as consideration for using our Services and the Sites, your users consent to receive communications from us, including via email, text, facsimile, voice and push notifications, to keep users informed about the Services and Sites. Your users expressly consent to receive text messages, faxes, telephone calls or prerecorded messages generated by automatic telephone dialing systems or other technologies. SMS text messages are for informational purposes only. While messages and notifications are intended to enhance your use of the Services and Sites, users may (1) disable push notifications on their device, and/or (2) reply “STOP” to remove yourself from our text message database. Depending on your current carrier plan, you may incur charges for these messages and notifications and agree to not hold KAPED liable for any charges incurred. You acknowledge that any terms between your you and any third-party provider create no obligation or responsibility on the part of KAPED, and that KAPED is not responsible for any failure of warranty by any such third party. KAPED cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures. Except where provided by these Terms of Use, we have no obligation to respond to any inquiries to respond.

(b)              IF YOUR USERS  WISH TO OPT OUT OF PROMOTIONAL EMAILS, CALLS, OR TEXTS TO THEIR MOBILE DEVICE OR DESKTOP COMPUTER, THEY CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. YOU ACKNOWLEDGE, BY PERMITTING YOUR USERS TO CONTINUE TO USE THE SITE OR THE SERVICES THAT YOUR USERS ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS, TEXTS, OR CALLS AS A CONDITION OF USING THE SITE OR OUR SERVICES. IF THEY WANT TO OPT OUT OF ALL PROMOTIONAL EMAILS, TEXTS, OR CALLS TO THEIR MOBILE DEVICE OR DESKTOP COMPUTER (INCLUDING OPERATIONAL OR TRANSACTIONAL EMAILS, TEXTS, OR CALLS), THEY CAN UNSUBSCRIBE ENTIRELY OR SUSPEND THEIR ACCOUNT.

6.                Marketing Promotions and Referrals.

(a)              KAPED may, in its sole discretion, offer first- or third-party promotions on or through our Services, Sites or communications.[BW20] [VH21]  We reserve the right to withhold or deduct benefits you may obtain through any such promotion if we determine or believe that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotional terms or these Terms.

(b)              We may, from time to time, offer you incentives to refer new users to us. These incentives may come in many forms, and we may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in our sole discretion. Your participation in any referral program is subject to these Terms and any additional referral program rules.

(c)               KAPED may allow access to or make available opportunities for you and your users to view certain content and receive other products, services and/or other materials based on your and their location. To make these opportunities available to you and your users, KAPED may determine your users’ locations using one or more reference points, such as GPS, Bluetooth and/or software within their mobile device. If your users have set their mobile device to disable GPS, Bluetooth or other location determining software or do not authorize KAPED to access your location data, your users will not be able to access such location-specific content, products, services, and materials. For more about how the KAPED uses and retains your and your users’ information, please read our Privacy Policy at https://www.kaped.io/legal-pages.

7.                DISCLAIMER.

(a)              THE SITES, SERVICES AND ALL OTHER CONTENT ON OUR SERVICES OR SITES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” KAPED DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALSO, WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF OUR SERVICES, SITES OR ANY SERVICES REQUESTED THROUGH THE USE OF OUR SERVICES OR SITES, OR THAT OUR SERVICES OR SITES WILL BE UNINTERRUPTED OR ERROR-FREE. KAPED DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTIES. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SITES, OUR SERVICES, AND ANY SERVICE REQUESTED IN CONNECTION WITH YOUR USE OF OUR SERVICES OR SITES, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

(b)              UNLESS OTHERWISE PROVIDED IN WRITING, THE CONTENT ON THE SERVICE IS STRICTLY FOR INFORMATIONAL PURPOSES. NO INDEPENDENT CONTRACTOR, EMPLOYER-EMPLOYEE, JOINT VENTURE, PARTNERSHIP, OR AGENCY RELATIONSHIP EXISTS BETWEEN YOU AND KAPED AS A RESULT OF THESE TERMS OR YOUR USE OF OUR SERVICES OR SITES.

8.                LIMITATION OF LIABILITY.

8.1.            INDIRECT DAMAGES; LIABILITY CAP.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, KAPED AND ITS AFFILIATES SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (EVEN IF YOU PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE SITES, HOWEVER CAUSED AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY). WE ASSUME NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS A RESULT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOAD OF ANY MATERIALS FROM THE SITES. WE ALSO ASSUME NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR RELATING TO ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SITES, AS WELL AS ANY THIRD-PARTY WEBPAGES OR ADDITIONAL WEBSITES LINKED TO THE SITES, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, OR INACCURACY CONTAINED ON THE SITES OR HARM TO ANY PERSON OR PROPERTY CAUSED BY YOUR USE OF THE SITES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW,  IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR NEGLIGENCE EXCEED $1,000[BW22] [VH23] .  YOU AND KAPED AGREE THAT THE WARRANTY DISCLAIMERS, AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE MATERIAL, BARGAINED-FOR BASES FOR THESE TERMS, AND THAT YOU AND KAPED TOOK THEM INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN UNDER THESE TERMS AND IN THE DECISION BY YOU AND KAPED TO ENTER INTO THESE TERMS. YOU AND KAPED AGREE THAT THE WARRANTY DISCLAIMERS, AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE FAIR AND REASONABLE.

8.2.            EXCLUSIVE REMEDY.  YOUR SOLE AND EXCLUSIVE REMEDY IF YOU ARE NOT SATISFIED WITH THE SITES OR OUR SERVICES, OR YOU DO NOT AGREE TO THE TERMS OF THESE DISCLAIMERS IS TO DISCONTINUE USING THE SITES OR OUR SERVICES, EXCEPT AS PROVIDED IN THIS SECTION.

9.                Indemnity. You agree to indemnify, defend and hold KAPED and its affiliates and our officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with (i) your use of our Sites or as a result of your use of our Services; (ii) your breach or violation of any of the terms of these Terms; (iii) KAPED’s use of your Information; or (iv) your violation of the rights of any third party.

10.             Third-Party Links.

10.1.         Third-Party Websites. The Sites may contain links to websites that third parties own, control, develop, sponsor or maintain and that may be subject to additional terms and conditions (“Third-Party Websites”). KAPED does not review, monitor, operate or control the Third-Party Websites, and it makes no guarantees, representations or warranties as to, and shall have no liability for, the content available on or through or the functioning of the Third-Party Websites. By providing access to Third-Party Websites, we are not recommending or otherwise endorsing the products or services provided by the sponsors or owners of the Third-Party Websites. Your access or use of the Third-Party Websites, including providing information, materials or other content to the Third-Party Websites, is entirely at your own risk. KAPED has the right to discontinue links to any Third-Party Websites at any time and for any reason, without notice.

10.2.         SNS Accounts.  Your users may be able to create or log-in to their KAPED account through social networking accounts (each such account, an “SNS account”). Your users understand by connecting to KAPED through an SNS account that we may access or store any SNS account content, or make it available to you or others, according to the permission settings of your SNS account (e.g., friends, mutual friends, contacts or following or followed lists (the “SNS content”). Your users understand that SNS content may be available on and through the Sites or our Services. By using the Services or the Sites, your users agree to comply with any applicable terms, conditions or requirements promulgated by any SNS provider.

11.             Modification of Terms.

11.1.         Changes to the Terms.  We may change these Terms from time to time and without prior notice. Any such modification will be effective as soon as we post it, and we will always post the most current version of these Terms. We may notify you if we make a change that we, in our sole discretion, deem material; you agree, however, that you will review these Terms periodically for any change. By continuing to use our Services or Sites after we post updated Terms at https://www.kaped.io/legal-pages[BW24] [VH25]  , you agree, except as provided in the Arbitration Agreement, to be bound by the updated Terms, and that, if you do not assent to the updated Terms, you will stop using our Services or Sites.

11.2.         Additional Terms.  We may also post or link additional terms, policies, rules or guidelines applicable to our Services, Sites, or certain features, such as end-user license agreements, or other agreements or rules applicable to particular features, promotions or content on the Services or the Sites (collectively, the “Additional Terms”). Your use of our Services and Sites is subject to any Additional Terms, and those terms are incorporated into these by reference.

12.             Dispute Resolution. KAPED encourages you to contact KAPED’s Customer Support by emailing us at support@kaped.io or by calling us at 1-888-656-3823  if you have concerns or complaints about the Services, Sites or KAPED. Generally, complaints can be satisfactorily resolved in this way. In the unlikely event that you are not able to resolve your concerns informally, you and KAPED each agree to resolve all disputes through binding arbitration or a small claims court rather than lawsuits in courts of general jurisdiction, jury trials, or class actions. Arbitration is more informal than a lawsuit. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. Arbitrators can award the same damages and individual relief affecting individual parties that a court can award, including an award of attorneys’ fees if the law allows. In addition, under certain circumstances (as explained below), KAPED will pay you more than the amount of the arbitrator’s award if the arbitrator awards you an amount that is greater than what KAPED has offered you to settle the dispute.

13.             Arbitration Agreement.[MB26] [VH27] 

13.1.         Claims Subject to Arbitration.

(a)            You and KAPED agree to arbitrate all disputes and claims between us that arise out of, relate to, or are associated with the Services, the Sites or KAPED. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to, all claims arising out of or relating to any aspect of our relationship, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that arose either before or during this or any prior agreement, or that may arise after termination of these Terms, including claims over marketing or communications by or on behalf of KAPED or claims involving the security, transfer, or use of data about you. It also includes claims that currently are the subject of class action or purported class action litigation in which you are not a member of a certified class. References to “KAPED,” “you,” and “us” include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future subsidiaries, affiliates, agents, employees, and all authorized or unauthorized users or beneficiaries of Services or Sites under this or prior agreements between us.

(b)           Notwithstanding the foregoing agreement, KAPED agrees that it will not use arbitration to initiate debt collection against you except in response to claims you have made in arbitration. In addition, by agreeing to resolve disputes through arbitration, you and KAPED each agree to unconditionally waive the right to a trial by jury or to participate in a class action, representative proceeding, or private attorney general action. Instead of arbitration, either Party may bring an individual action seeking only individualized relief in a small claims court for disputes or claims that are within the scope of the small claims court's authority, so long as the action remains in that court and is not removed or appealed to a court of general jurisdiction. (If these limitations on removal or appeal of small claims court actions are unenforceable, the dispute instead shall be arbitrated.) In addition, you may bring any issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.

(c)            These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms.

13.2.         Pre-Arbitration Notice of Dispute and Informal Settlement Conference.

(a)            A Party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to KAPED should be sent to KAPED electronically at [●][BW28] [VH29]  (“Notice Email Address”). The Notice must include, at minimum: (1) your name, mailing address, telephone number at which you can be reached, and e-mail address (if any); (2) any unique identifier KAPED provided; (3) a description of the nature and basis of the claim or dispute; (4) an explanation of the specific relief sought; (5) your signature; and (6) if you have retained an attorney, your signed statement authorizing KAPED to disclose your confidential account records to your attorney if necessary in resolving your claim. A Notice is not complete until all of the information required by (1)-(6) has been received by the other Party (“Notice Completion Date”).

(b)           After the Notice Completion Date, either Party may request a conference within 60 days to discuss informal resolution of the dispute (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. You and a KAPED representative must both personally participate in a good-faith effort to settle the dispute without the need to proceed with arbitration. Any counsel representing you or KAPED also may participate. The requirement of personal participation in an Informal Settlement Conference may be waived only if both you and KAPED agree in writing.

(c)            Any applicable statute of limitations will be tolled during the “Informal Resolution Period,” which is defined as the period between the Notice Completion Date and the later of (i) 60 days after the Notice Completion Date; or (ii) if an Informal Settlement Conference is timely requested, 30 days after completion of the Informal Settlement Conference.

13.3.         Commencing Arbitration. An arbitration may be commenced only if you and KAPED do not reach an agreement to resolve the claim during the Informal Resolution Period. A court will have the power to enforce this Section 13.3, including the power to enjoin the filing or prosecution of arbitrations without first providing a fully complete Notice and participating in a timely requested Informal Settlement Conference. Unless prohibited by applicable law, the arbitration administrator shall not accept or administer any arbitration or assess any arbitration fees unless the claimant has complied with the Notice and Informal Settlement Conference requirements of Section 13.2.

13.4.         Arbitration Procedure.

(a)            The arbitration will be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by the terms of these Terms, and will be administered by the AAA. (If the AAA is not available or unwilling to administer arbitrations consistent with this arbitration agreement, another arbitration administrator shall be selected by the parties or, if the parties cannot agree on a provider, by the court.) The AAA Rules and fee information is available from the AAA online at http://www.adr.org.

(b)           The arbitrator shall be a lawyer with at least 10 years’ experience or a retired judge. The arbitrator is bound by the terms of this arbitration agreement. All issues are for the arbitrator to decide, except that a court must decide issues relating to whether claims can or must be arbitrated, as well as other issues that this arbitration agreement specifies that a court shall decide. The arbitrator may consider rulings in other arbitrations involving other claimants, but an arbitrator’s ruling will not be binding in proceedings involving different claimants. If your claim is for $25,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator or through a telephonic, videoconference, or an in-person hearing as established by the AAA Rules. If your claim exceeds $25,000, the right to a hearing will be determined by the AAA Rules. Unless you and KAPED agree otherwise, any in-person hearings will take place at a location that the AAA selects in the state of your primary residence. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as specified in Section 13.7 below, the arbitrator can award the same damages and relief that a court can award under applicable law.

13.5.         Arbitration Fees. If KAPED initiates arbitration, KAPED will pay all AAA filing, administration, case-management, hearing, and arbitrator fees. If you wish to initiate arbitration, the AAA will govern the payment of these fees unless applicable law requires a different allocation of fees in order for this arbitration agreement to be enforceable. If you are unable to pay your share of the AAA fees, KAPED will consider a request to pay them on your behalf, so long as you have fully complied with the requirements in Sections 13.2, 13.3, and 13.8 for any arbitration you initiated.

13.6.         Alternative Payment. If you fully complied with the requirements in Sections 13.2, 13.3, and 13.8 and the arbitrator issues an award in your favor that is greater than the value of KAPED’s last written settlement offer made before an arbitrator was selected (or awards you any relief if KAPED did not make you a settlement offer), then KAPED will pay you $2,500 in lieu of any smaller award (the “Alternative Payment”). The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of attorneys’ fees, expenses, and the Alternative Payment at any time during the proceeding and upon request from either Party made within fourteen (14) days of the arbitrators’ ruling on the merits. In assessing whether you are entitled to the Alternative Payment, the arbitrator shall not consider amounts offered for or awarded in attorneys’ fees or costs.

13.7.         Requirement of Individual Arbitration. You and KAPED agree to seek, and further agree that the arbitrator may award, only such relief, whether relief in the form of damages, an injunction, or other non-monetary relief as is necessary to resolve any individual injury that either you or KAPED have suffered or may suffer. In particular, if either you or KAPED seeks any nonmonetary relief, including injunctive or declaratory relief, the arbitrator may award relief on an individual basis only, and may not award relief that affects individuals or entities other than you or KAPED. YOU AND [CLIENT] AGREE THAT WE EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. FURTHERMORE, UNLESS BOTH YOU AND [CLIENT] AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. If, after exhaustion of all appeals, any of these prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation is found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), then the parties agree that such claim or request for relief shall be decided by a court after all other claims and requests for relief are arbitrated.

13.8.         Mass Filings. If 25 or more claimants submit Notices raising similar claims and are represented by the same or coordinated counsel, all of the cases must be resolved in arbitration in stages using staged bellwether proceedings if they are not resolved prior to arbitration as set forth above in Section 13.2. The parties agree that the individual resolution of claims in arbitration might be delayed if the claims are pursued in connection with 25 or more similar claims. In the first stage, the parties shall each select up to 10 cases per side (20 cases total) to be filed in arbitration and resolved individually in accordance with this arbitration agreement, with each case assigned to a separate arbitrator. In the meantime, no other cases may be filed in arbitration, and the AAA or other arbitration administrator shall not accept, administer, nor demand payment for AAA fees or other fees for arbitrations commenced in violation of this Section. If the parties are unable to resolve the remaining cases after the conclusion of the first stage of bellwether proceedings, each side may select up to another 10 cases per side (20 cases total) to be filed in arbitration and resolved individually in accordance with this arbitration agreement, with each case assigned to a separate arbitrator. During this second stage, no other cases may be filed in arbitration, and the AAA or other arbitration administrator shall not accept, administer, nor demand payment for AAA fees or other fees for arbitrations commenced in violation of this Section. This process of staged bellwether proceedings shall continue until the parties are able to resolve all of the claims, either through settlement or arbitration. If these mass filing procedures apply to a claimant’s Notice, any statute of limitations applicable to the claims set forth in that Notice will be tolled from the time the first cases are selected for a bellwether proceeding until the claimant’s Notice is selected for a bellwether proceeding, withdrawn, or otherwise resolved. A court will have the authority to enforce this Section, and, if necessary, to enjoin the filing or prosecution of arbitrations or the assessment or collection of AAA fees or other fees.

13.9.         Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you and KAPED agree that if KAPED makes any change to this arbitration provision during the period of time that you are receiving the Services or using the Sites (other than a change to the Notice Email Address), you may reject that change by providing KAPED with written notice within thirty (30) days of the change to the Notice Address and require KAPED to adhere to the language in this arbitration agreement. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration agreement.

13.10.      Opting Out of Arbitration. You may reject this arbitration agreement by sending an opt-out notice to the Notice Email Address (“Opt-Out Notice”). To be valid, an Opt-Out Notice must include: (1) your name, mailing address, telephone number at which you can be reached, and e-mail address (if any); (2) any unique identifier KAPED provided; (3) a statement that you are opting out of this arbitration agreement, and KAPED must receive the Opt-Out Notice within 30 days after the first day you used the Services or the Sites. If your Opt-Out Notice meets these requirements, this arbitration agreement will not apply to you. Rejecting this arbitration agreement will not affect your or KAPED’s rights or responsibilities under any other agreement. Nor will rejecting this arbitration agreement affect any prior arbitration agreement between you and KAPED.

13.11.      Miscellaneous. Except as specified in Section 13.7, if any provision of this arbitration agreement is determined to be unenforceable, that provision should be severed and the rest of this arbitration agreement shall be enforced. This arbitration agreement is the complete agreement between you and KAPED regarding the arbitration of disputes. If you do not opt out under Section 13.10, this arbitration agreement supersedes any prior or contemporaneous oral or written understandings on the subject except for claims covered by a prior arbitration agreement that are part of pending litigation or arbitration. Finally, you or KAPED may recover attorneys’ fees and other expenses from the other Party if you or KAPED file a lawsuit in court and the non-filing Party must file a motion to compel or other papers to enforce this arbitration agreement.

14.             General Terms.

14.1.         Governing law. These Terms shall be governed by the laws of the State of California, without giving effect to any laws, rules or provisions of California that would cause the application of the laws, rules or provisions of any jurisdiction other than California. This Section is only intended to specify the use of California law to interpret these Terms and it does not create any other substantive right to non-[governing state residents] to assert claims under California law whether by statute, common law, or otherwise.

14.2.         Assignment.  You will not assign, delegate, or otherwise transfer these Terms. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. We may assign, delegate, or otherwise transfer these Terms, in whole or in part, without your consent. Subject to this Section, these Terms will be binding on each Party and each Party’s successors and assigns.

14.3.         Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.

14.4.         Waiver.  No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.

14.5.         Cumulative Remedies.  All remedies provided for in these Terms are cumulative and in addition to any other rights and remedies available to either Party at law, in equity or otherwise.

14.6.         Changes to the Services and Sites. We reserve the right, at any time and in our sole discretion, to amend, modify, suspend, or terminate the Services and the Sites, and any part thereof without notice to you. KAPED shall have no liability to you or any other person or entity for any modification, suspension, termination, or loss of information.

14.7.         Term, Suspension and Termination.

(a)            These Terms will remain in full force and effect while you use the Services or Sites. You may terminate your use of the Services or Sites at any time.

(b)           KAPED may terminate, suspend or limit your access to or use of the Services or Sites at any time if: (i) You violate these Terms; (ii) in the sole discretion of KAPED, such action is necessary to prevent material errors or harm, or to limit KAPED’s liability; or (iii) You attempt to access or use the Services or Sites in an unauthorized or unlawful manner.

(c)            Any provisions of these Terms that would, by their nature, survive the termination or expiration of these Terms shall so survive.

14.8.         Headings. The headings of the sections contained in these Terms are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of the Terms.

14.9.         Entire Agreement. Except as provided in these Terms or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written.  No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms.

14.10.      Notification.

(a)            By entering into and accepting these Terms, you agree and consent to receive electronically all communications, agreements, notices, documents and disclosures relating to these Terms and your use of the Services or Sites (collectively, “Communications”) as permitted by the Electronic Signatures in Global and National Commerce Act, 15 USC §7001, et seq. (“E-SIGN Act”) and the Uniform Electronic Transactions Act. Communications include agreements and policies you agree to (for example, and not by way of limitation, these Terms, including the Privacy Policy), including updates to these agreements or policies; annual disclosures; transaction receipts or confirmations; statements and transaction history; and any other transaction information or other information related to the Services or Sites. You have the right to withdraw your consent at any time. To withdraw consent, you may send a written request by certified mail, postage prepaid and return receipt requested, to KAPED at 571 W. La Habra Blvd., #200, La Habra, California, 90631, United States. If consent is withdrawn, KAPED reserves the right to discontinue your access to the Services or Sites, terminate any and all agreements with you, and/or charge you additional fees for paper copies.

(b)           Notices to us under these Terms will be provided via email to Users, Partners, and Merchants.

14.11.      Force Majeure.  Neither you nor KAPED shall be liable or responsible to the other, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by or results from a Force Majeure Event. “Force Majeure Event” means acts beyond the affected Party’s reasonable control, including acts of God; flood, fire, earthquake or explosion; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; actions, embargoes or blockades in effect on or after the date of these Terms; action by any governmental authority; global health pandemic; and national or regional emergency.

YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEIR TERMS AND CONDITIONS.