Updated:
February 13, 2024
CONSUMER TERMS AND CONDITIONS
YOU AGREE THAT THESE CONSUMER TERMS AND CONDITIONS WILL BE EFFECTIVE AS OF THE DATE OF LAST UPDATE
These Consumer Terms and Conditions (“Terms and Conditions”) are a legally binding Agreement (“Agreement”) between POSaBIT Inc. (“POSaBIT”) and you and apply to your use of the POSaBIT Mobile Web Application (“POSaBIT Services”). POSaBIT and you are referred to herein each as a “Party” and together as the “Parties”.
By accessing and/or using the POSaBIT Services, you agree that you have read, agree with, and accept all of these Terms and Conditions, as well as the POSaBIT Privacy Policy (“Privacy Policy”), which is available at www.posabit.com/privacy-policy and is incorporated herein by this reference. If you do not agree to these Terms and Conditions, you must immediately stop using the POSaBIT Services. THESE TERMS AND CONDITIONS CONTAIN ARBITRATION AND INDEMNITY PROVISIONS, AS WELL AS A CONSENT TO RECEIVE COMMUNICATIONS ELECTRONICALLY IN LIEU OF MAILING YOU PAPER COPIES.
POSaBIT may modify these Terms and Conditions at any time by posting a revised version on posabit.com. We will provide you with notice of such modifications as required by applicable law. Amended Terms and Conditions will be considered effective at the time they are posted at posabit.com and your continued use of the POSaBIT Services will constitute your acceptance of the amended Terms and Conditions.
The POSaBIT Services are a payment platform that allow Participating Merchants to accept electronic payments from their Customers for goods and services. By agreeing to these Terms and Conditions, you acknowledge that you understand and agree with the following: (1) POSaBIT provides the POSaBIT Services; (2) POSaBIT does not control, receive, hold, instruct, or transmit funds in connection with a Transaction involving the POSaBIT Services, nor does POSaBIT direct the transmission of money or monetary value; (3) neither your bank nor any Participating Merchant’s bank is party to this Agreement; and (4) to the extent that your bank, or any Participating Merchant’s bank, has any responsibilities contemplated by this Agreement, such responsibilities are governed by separate agreements between you and your bank, and Participating Merchant and their bank, respectively.
The POSaBIT Services enable Customers to conduct Transactions with Participating Merchants who have enrolled to use the POSaBIT payment software. By using the POSaBIT Services to conduct a Transaction for goods or services with a Participating Merchant, you authorize payment via an Automated Clearing House (“ACH”) transfer from your Designated Bank Account to the Participating Merchant's bank account. As a technology provider to Participating Merchant’s bank, POSaBIT creates a Data File(s) on behalf of Participating Merchant’s bank in connection with your purchase of goods or services using the POSaBIT Services. Upon receipt of the Data File(s), the Participating Merchant’s bank processes it in accordance with applicable rules and regulations. In light of the foregoing, you acknowledge that POSaBIT is not a bank, credit reporting institution, money service business, or money transmitter.
The POSaBIT Services can only be used at Participating Merchants and in a manner consistent with these Terms and Conditions. POSaBIT does not guarantee the identity of a merchant or that your transactions will be completed. POSaBIT does not insure, endorse, or assume any liability for products or services you purchase from a Participating Merchant. POSaBIT does not assume any liability for payments, returns, refunds, chargebacks, declined transactions, or any responsibility with respect to questions or disputes you may have with a Participating Merchant.
Eligibility. By using the POSaBIT Services, you represent and warrant that you are a resident of the United States, 18 years or older, and not listed on any U.S. Government list of prohibited or restricted parties. The POSaBIT Services may only be used in the United States.
Registration. During the registration process, you will be required to provide certain personal information, including your name, address, birth date, email address, text-enabled cellular/wireless telephone number, social security number, bank, bank account, and bank routing number (collectively, “Customer Information”). You will also be required to create a POSaBIT Services password and personal access code (“PAC”). You represent and warrant that the Customer Information you provide to POSaBIT is accurate and complete. You also agree to keep such information true and accurate at all times by logging on to secure.posabit.com and updating such information, as appropriate. You authorize POSaBIT, directly or through third parties, to make any inquiries or otherwise use such information to verify your identity, obtain a personal credit report from a credit bureau in accordance with the Fair Credit Reporting Act, and perform the services that are necessary to enable you to use the POSaBIT Services, as well as other uses permitted by POSaBIT's Privacy Policy. To the extent that we are unable to verify any of your Customer Information, we reserve the right to deny you access to the POSaBIT Services.
POSaBIT Profile. In the event you satisfy the registration requirements set forth above, you will become an authorized POSaBIT Services user with a POSaBIT Profile containing your Customer Information. You will need your registered email and password to access your POSaBIT Profile, manage Customer Information, and view Transaction History at secure.posabit.com.
Mobile Device Requirements. In order to use the POSaBIT Services, your mobile device must have the ability to receive SMS text messages, an internet connection, and support an up to date version of one of the following browsers: Chrome, Safari, or Edge.
Checking In At Participating Merchants. In order to conduct a Transaction at a Participating Merchant, you must first “check in” by selecting the merchant where you wish to transact. As part of the “check in” process, you must enable the GPS function on your mobile device. Once you have “checked in”, the Participating Merchant will be notified and you will be able to transact.
Conducting a Transaction: At the point-of-sale, you will be prompted to enter your PAC into the Participating Merchant’s personal identification number (PIN) pad. By entering your PAC, you confirm the amount of the Transaction and authorize the Participating Merchant to originate an ACH debit from your Designated Bank Account in that amount to pay for your purchase. The Participating Merchant may require you to provide a valid driver's license or other government-issued photo identification.
Your Bank Account. You are solely responsible for complying with any terms set by your bank with respect to your bank account. You may be subject to third-party fees, such as insufficient fund fees, reversal, ACH insufficient funds, or other fees that your bank may charge. The POSaBIT Services are not a debit card, and the terms, benefits, and protections associated with the POSaBIT Services may vary from those that apply to a debit card issued by your bank. If you use the POSaBIT Services to make a purchase that exceeds the balance in the checking account linked to the POSaBIT Services, that account may become overdrawn even if you chose to not allow overdrafts with respect to a debit card issued by your bank. Similarly, the liability limits applicable to the POSaBIT Services may be different than those applicable to a debit card issued by your bank.
Participating Merchant Not Required to Accept. A Participating Merchant is not required to accept your payment for goods or services using the POSaBIT Services. You may not hold POSaBIT liable for any damages resulting from a Participating Merchant's decision not to accept a payment, including the cost of any substitute goods that you purchase due to such decision.
Collection and Use of Technical Information. You agree that POSaBIT may collect and use technical data and related information including, but not limited to, information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the POSaBIT Services. POSaBIT may also use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
Your privacy is extremely important to POSaBIT. POSaBIT will comply with its Privacy Policy and applicable law and regulations relating to POSaBIT's collection of your Customer Information. Beyond the disclosure of limited Customer Information necessary to complete a Transaction, POSaBIT will not share or disclose Customer Information outside the parameters of this Agreement unless compelled to do so by law.
Message and Data Rates May Apply. Messaging and data usage are required to utilize the POSaBIT Services. Therefore, you may incur message and data charges billed by your data and message provider.
Consent. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that POSaBIT provides in connection with your POSaBIT Profile and your use of the POSaBIT Services. Communications include, but are not limited to:
POSaBIT will provide these Communications to you by posting them on posabit.com and/or by emailing them to you at the email address that you provide to POSaBIT in connection with registration or through updates to your POSaBIT Profile. Any electronic Communication will be considered to be received by you within 24 hours after the time POSaBIT posts it to POSaBIT's website, posts it for viewing through the POSaBIT Services, or emails it to you.
Hardware and software requirements. In order to access and retain electronic Communications, you will need the following hardware and software:
POSaBIT will notify you if there are any material changes to the hardware or software needed to receive electronic Communications from POSaBIT. By giving your consent, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of these Communications for your records as they may not be accessible online at a later date.
Withdrawing your consent. You may withdraw your consent to receive Communications electronically by writing to POSaBIT at 15 Lake Bellevue Dr #101, Bellevue, WA 98005 , or by contacting us via e-mail at support@posabit.com. If you withdraw your consent to receive Communications electronically, POSaBIT reserves the right to deny, restrict, or deactivate your use of the POSaBIT Services. Withdrawal of your consent to receive electronic Communications will be effective only after POSaBIT has a reasonable period of time to process your withdrawal. In the meantime, you will continue to receive Communications in electronic form. If you withdraw your consent, the legal validity and enforceability of prior electronic Communications will not be affected.
Requesting paper copies. POSaBIT will not send you a paper copy of any Communication, unless you request it or POSaBIT otherwise deems it appropriate to do so. You can obtain a paper copy of an electronic Communication by printing it yourself or by contacting POSaBIT as described above and requesting that POSaBIT mail you a paper copy, provided that such request is made within a reasonable time after POSaBIT first provided the electronic Communication and that you have a current mailing address on file with POSaBIT. If you request paper copies, you understand and agree that POSaBIT may charge you a fee up to $10.
Updating your contact information. It is your responsibility to keep your primary email address up to date so that POSaBIT can communicate with you electronically. You understand and agree that if POSaBIT sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, POSaBIT will be deemed to have provided the Communication to you.
Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add POSaBIT to your email address book so that you will be able to receive the Communications POSaBIT sends to you.
You can update your primary email address or street address at any time by logging into secure.posabit.com or through the POSaBIT Services on your mobile device. If your email address becomes invalid such that electronic Communications sent to you by POSaBIT are returned, POSaBIT may deem you to be "inactive", and you will not be able to use the POSaBIT Services until we receive a valid, working email address from you.
Communications in Writing. All Communications in either electronic or paper format from POSaBIT to you will be considered to be “in writing.” You should print or download for your records a copy of this Agreement and any other Communications that are important to you.
Federal Law. You acknowledge and agree that your consent to electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”), and that both Parties intend that the E-Sign Act applies to the fullest extent possible to validate POSaBIT's ability to conduct business with you by electronic means.
Termination/Changes. POSaBIT reserves the right, in its sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions by which POSaBIT provides electronic Communications. POSaBIT will provide you with notice of any such termination or change as required by law.
Limits. At their discretion and without notice, the Participating Merchant and/or Participating Merchant’s bank may impose Transaction limitations as they deem appropriate.
Transaction History. POSaBIT will maintain a record of your Transactions using the POSaBIT Services for the previous two (2) years. You may access and view your Transaction History through the POSaBIT Services or by logging on to secure.POSaBIT.com.
Lost or Stolen Information or Phone. If you believe that any of your POSaBIT Profile account information, or your mobile device registered to use the POSaBIT Services, has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your POSaBIT Profile, you should immediately contact POSaBIT at 1 (855) 767-2248 or support@posabit.com.
Error Resolution. In case of errors or questions about Transactions using the POSaBIT Services, you should contact the Participating Merchant where you conducted your purchase or your bank for resolution.
Your use of the POSaBIT Services may be subject to separate agreements you may enter into with your mobile device operating system provider, your mobile device manufacturer, your mobile service carrier, and other parties involved in providing your mobile device service. You agree to comply with all applicable third party terms of agreement that might apply when using the POSaBIT Services. POSaBIT is not a party to those agreements and has no responsibility for the products and services provided by third parties.
Compliance with Law and Accuracy of Payments. You are solely responsible for ensuring that your use of the POSaBIT Services is in conformance with applicable federal, state and local laws and regulations (with the exceptions of any federal laws regarding the sale, use, or distribution of state-legal marijuana). You acknowledge that you are responsible for the accuracy of all payments sent using the POSaBIT Services, including, but not limited to, the accuracy of the amount paid and the recipient.
Disputes with Participating Merchants. POSaBIT is not responsible for any dispute you may have with a Participating Merchant relating to the payment of goods or services using the POSaBIT Services. Accordingly, you hereby release POSaBIT, its affiliates, and their respective officers, directors, agents, employees and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
Indemnification. You agree to defend, indemnify and hold harmless POSaBIT, its affiliates, and their respective officers, directors, agents, employees, and representatives from any third party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) arising from: (a) your violation of these Terms and Conditions; (b) your use of the POSaBIT Services; (c) any purchases you make using the POSaBIT Services; or (d) your actual or alleged violation of any third party rights, or any applicable laws, regulations or rules.
LIMITATION OF LIABILITY. IN NO EVENT SHALL POSABIT, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (i) THESE TERMS AND CONDITIONS, (ii) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE POSABIT SERVICES, OR (iii) ANY GOODS OR SERVICES PURCHASED, RECEIVED, OR PAID FOR USING THE POSABIT SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER POSABIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Force Majeure. POSaBIT shall not be liable for any delay or failure in the performance or in delivery or shipment of materials, or for any damages suffered by you by reason of such delay or failures, directly or indirectly caused by or in any manner arising from or connected with acts of God, acts of public enemies, riots, strikes, acts of governmental agencies, labor difficulties, failure of our power, telecommunications or other suppliers, viruses or other malware, security breaches, delays in securing or shortages of raw materials, breakdown or destruction of any system or equipment, or any other cause or causes beyond POSaBIT's control, whether or not similar to those enumerated herein.
THE POSABIT SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. USE OF THE POSABIT SERVICES ARE AT YOUR OWN RISK. POSABIT, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND REPRESENTATIVES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, DATA SECURITY, VIRUS FREE OPERATION, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. POSABIT DOES NOT HAVE CONTROL OF, OR LIABILITY FOR, ANY PRODUCTS OR SERVICES THAT ARE PAID FOR IN CONNECTION WITH YOUR USE OF THE POSABIT SERVICES AND CANNOT ENSURE THAT ANY THIRD PARTY YOU TRANSACT WITH WILL COMPLETE THE TRANSACTION. POSABIT DOES NOT REPRESENT OR WARRANT THAT THE POSABIT SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POSABIT OR THROUGH THE POSABIT SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. POSABIT SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS OR SYSTEM FAILURES THAT MAY AFFECT THE PROCESSING, COMPLETION OR SETTLEMENT OF TRANSACTIONS. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
(A) You agree that in connection with your use of the POSaBIT Services, or your interaction with POSaBIT, you will not:
(i) breach these Terms and Conditions;
(ii) provide false or inaccurate information to POSaBIT, including identity information;
(iii) engage in transactions involving illegal activities, goods, or services (except those involving the sale, distribution, or use of state-legal marijuana);
(iv) engage in transactions involving sexually oriented materials or services;
(v) engage in transactions involving ammunition, firearms, or firearm parts or accessories;
(vi) engage in transactions involving the sale of traveler's checks or money orders;
(vii) engage in transactions involving currency exchanges or check cashing businesses or digital currencies such as bitcoins;
(viii) infringe POSaBIT's or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
(ix) facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
(x) use any robot, spider, other automatic device, or manual process to monitor or copy POSaBIT's website;
(xi) use any device, software or routine to bypass robot exclusion headers, or interfere or attempt to interfere, with POSaBIT's website or the POSaBIT Services;
(xii) violate any posted Acceptable Use Policy;
(xiii) exploit the POSaBIT Services and related POSaBIT services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity; or
(xiv) export the POSaBIT Services or POSaBIT software outside of the United States.
(B) If POSaBIT has reason to believe that you have engaged in any action prohibited by Section (A), we may take various actions, including, but not limited to, the following:
(i) close, suspend, or limit your access to the POSaBIT Services;
(ii) contact your bank, law enforcement, or impacted third parties; and
(iii) take legal action against you.
Survival. In the event of termination of your use of the POSaBIT Services, the provisions herein that by their nature are continuing shall survive such termination, including, but not limited to, the disclaimers and limitations of liabilities. Obligations that have accrued on or prior to such termination shall also survive termination.
Governing Law. The laws of the State of Washington, without regard to principles of conflict of laws, govern these Terms and Conditions and any claim or dispute that has arisen or may arise between you and POSaBIT.
Entire Agreement. These Terms and Conditions and other documents (including, but not limited to, the POSaBIT Privacy Policy) referenced in or linked to herein, which are hereby incorporated herein and made a part of these Terms and Conditions by this reference, contain the entire agreement regarding your use of the POSaBIT Services. If any provision of these Terms and Conditions is deemed to be illegal or unenforceable, such provision shall be enforced to the extent possible, and any remaining illegality or unenforceability will not affect the validity or enforceability of any other provisions of these Terms and Conditions, which together will be construed as if such illegal or unenforceable provision had not been included herein. The section headings are for convenience of reference only and are not to be considered as parts, provisions or interpretations of these Terms and Conditions. You may not transfer or assign any rights or obligations you have under these Terms and Conditions without POSaBIT's prior written consent. POSaBIT reserves the right to transfer or assign these Terms and Conditions or any right or obligation hereunder at any time. POSaBIT's failure to act with respect to a breach by you or others does not waive our right to act with respect to that breach or subsequent or similar breaches.
Termination by You. You may terminate your use of the POSaBIT Services at any time by contacting POSaBIT customer service at support@posabit.com. You will remain responsible for the payment of any pending Transactions at the time of termination.
Termination by POSaBIT. POSaBIT may terminate your access to the POSaBIT Services at any time, for any reason, without liability. Reason for termination may include, but is not limited to, your violation of these Terms and Conditions. To the extent possible, POSaBIT will use commercially reasonable efforts to provide advance notice to you of termination.
Effect of Termination. Upon termination by either you or POSaBIT, you will no longer be able to conduct Transactions using the POSaBIT Services, nor will you be able to access your POSaBIT Profile or your Transaction History. Notwithstanding termination, you may request a written copy of your Transaction History by contacting POSaBIT at 1 (855) 767-2248 or support@posabit.com. This may entail processing and postage fees of $10 per request.
This Section (“Arbitration Provision”) sets forth the circumstances and procedures under which Claims may be arbitrated instead of litigated in court.
Opt-Out Process. If you do not wish to be subject to this Arbitration Provision, you must notify POSaBIT in writing within sixty (60) calendar days of registering for the POSaBIT Services at the following address: 15 Lake Bellevue Dr #101, Bellevue, WA 98005. Your written notice must include your name, address, social security number, and a statement that you wish to opt out of the Arbitration Provision.
Initiation of Arbitration Proceeding/Selection of Administrator. Any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed. Claims shall be referred to either the Judicial Arbitration and Mediation Services ("JAMS"), or the American Arbitration Association ("AAA"), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you have the right within thirty (30) days after you receive notice of our election to select either of the other organizations listed to serve as arbitrator administrator. For a copy of the procedures to file a Claim or for other information about these organizations, contact them as follows: (i) JAMS at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website at www.jamsadr.com; (ii) AAA at 335 Madison Avenue, New York, NY 10017; website at www.adr.org.
Significance of Arbitration. IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR POSABIT WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF THE JAMS, OR AAA, AS APPLICABLE (THE "CODE"). FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Restrictions on Arbitration. If either Party elects to resolve a Claim by arbitration, that Claim shall be arbitrated on an individual basis. There is no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other users of the POSaBIT Services or other persons similarly situated. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties.
Arbitration Procedures. This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the "FAA"). The arbitration shall be governed by the applicable Code, except that (to the extent enforceable under the FAA) this Arbitration Provision shall control if it is inconsistent with the applicable Code. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator shall not apply the Federal or any state rules of civil procedure or rules of evidence. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, which shall consider anew any aspect of the initial award objected to by the appealing party. The appealing party shall have thirty (30) days from the date of entry of the written arbitration award to notify the arbitration organization that it is exercising the right of appeal. The appeal shall be filed with the arbitration organization in the form of a dated writing. The arbitration organization will then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel which will conduct an arbitration pursuant to its Code and issue its decision within one hundred twenty (120) days of the date of the appellant’s written notice. The decision of the panel shall be by majority vote and shall be final and binding.
Location of Arbitration/Payment of Fees. Any arbitration hearing that you attend shall take place in the federal judicial district of your primary residence. At your written request, we will consider in good faith making a temporary advance of all or part of the filing administrative and/or hearing fees for any Claim you initiate as to which you or we seek arbitration. At the conclusion of the arbitration (or any appeal thereof), the arbitrator (or panel) will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration (or appeal).
Continuation. This Arbitration Provision is binding upon and benefits you, your respective heirs, successors and assigns. This Arbitration Provision is binding upon and benefits us, our successors and assigns, and related third parties. This Arbitration Provision shall survive termination of your use of the POSaBIT Services and these Terms and Conditions as well as voluntary payment of any debt in full by you, any legal proceeding by us to collect a debt owed by you, and any bankruptcy by you or us. If any portion of this Arbitration Provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this Arbitration Provision, these Terms and Conditions or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.
If you have questions or concerns regarding these Terms and Conditions or your use of the POSaBIT Services, you may contact us at 1 (855) 767-2248 between the hours of 9:00 am and 5:00 pm PT, Monday through Friday, excluding federal holidays, or e-mail us at support@posabit.com.
“ACH” means the Automated Clearing House network for the electronic funds transfer system governed by the NACHA Rules.
“ACH Debit” means a withdrawal of funds from Customer’s bank account for payment to a Participating Merchant.
“Applicable Law” means, as applicable, all federal, state or other governmental statutes, codes, ordinances, laws, regulations, rules, guidance, written directives, orders and decrees applicable to the POSaBIT Services or the NACHA Rules.
“Bank” means a bank, credit union, or other U.S. depository financial institution.
“Claim” means any claim, dispute, or controversy between you and POSaBIT arising from or relating to the POSaBIT Services and/or these Terms and Conditions.
“Customer” means an individual who has created a POSaBIT Profile for the purpose of conducting Transactions using the POSaBIT Services.
“Customer Information” means any information collected by POSaBIT from Customers, including name, address, date of birth, social security number, phone number, photograph, username, password, and personal access code.
“Data” means Transaction Information and Customer Information.
“Data File” means properly formatted NACHA files created by POSaBIT.
“Designated Bank Account” means the checking or share draft account at a U.S. depository financial institution designated by Customer for debit/credit to conduct Transactions using the POSaBIT Services.
“POSaBIT Services” means the services provided by POSaBIT, including (i) the creation of NACHA files, on behalf of Merchant’s bank, upon a Customer authorizing Merchant to originate ACH debit/credit transaction(s) to the Customer's Designated Bank Account for debit/credit to Merchant's account in exchange for goods or services provided by Merchant to the Customer; (ii) access to and use of the POSaBIT software.
“POSaBIT Profile” means Customer Information and Transaction History held by POSaBIT.
“NACHA” means the National Automated Clearing House Association.
“NACHA Rules” means the bylaws, operating rules, guidance or other requirement of NACHA, as amended from time to time.
“Participating Merchant” means a merchant utilizing the POSaBIT payment software.
“Transaction” means a Customer's purchase of goods or services from a Participating Merchant utilizing the POSaBIT Services.
“Transition History” means a record of Customer’s Transactions with Participating Merchants using the POSaBIT Services.
“Transaction Information” means information generated in connection or related to a Transaction utilizing the POSaBIT Services.