These terms of service ("TOS") are effective as of January 31, 2007 and govern the terms under which you may access and use this website and the money transfer services associated with it (the "Service"). As used herein, the term "You" and terms of similar import mean the person accessing and using the Service. Also as used herein, the term "this website" and terms of similar import mean the money transfer website Jamacia National Overseas through which you have accessed this TOS and through which you access the Service. The Service is offered by virtue of a relationship between Eagle National Bank, a national bank located in Upper Darby, Pennsylvania ("Bank") and PayQuik.com, Inc., a Delaware corporation headquartered in Bala Cynwyd, Pennsylvania ("Program Manager") As used herein, the term "Providers" and terms of similar import mean the money transfer website Jamacia National Overseas, Eagle National Bank and PayQuik.com, Inc.. By accessing and using the Service, you are agreeing to the TOS, which is an agreement between you and the Providers. You may not access or use the Service if you do not agree to be bound by the TOS.
1. ELECTRONIC COMMUNICATIONS
You understand and agree that this TOS will be entered into electronically, and that the following categories of information ("Communications") may be provided by electronic means: (i) this TOS and any amendments, modifications or supplements to it; (ii) your records of transactions through the Service; (iii) any initial, periodic or other disclosures or notices provided in connection with the Service, including without limitation those required by applicable law; (iv) any customer service communications, including without limitation communications with respect to claims of error or unauthorized use of the Service; and (v) any other communication related to the Service or Providers.
Although the Providers reserve the right to provide Communications in paper format at any time, you agree that they are under no obligation to do so. All Communications in either electronic or paper format will be considered to be "in writing" and in accordance with applicable law. You should print a paper copy of this TOS and any Communication that is important to you and retain them for your records. If you do not wish to receive this TOS or the Communications electronically, you may not use the Service. You may withdraw your consent to receive Communications electronically, but if you do, your use of the Service will be terminated. To withdraw your consent, you must contact us by one of the contact methods described in Section 23 of the TOS.
To access and retain Communications, you must have: (i) an Internet browser that supports 128-bit encryption, such as Netscape Navigator version 4.0 or above or Internet Explorer version 4.0 or above, (ii) an e-mail account and e-mail software capable of interfacing with Program Manager's e-mail servers, (iii) a computer, operating system and telecommunications connection to the Internet capable of supporting the foregoing, (iv) sufficient electronic storage capacity on your computer's hard drive or other data storage unit, and (v) a printer that is capable of printing from your browser and e-mail software. In addition, you must promptly update us with any change in your email address by updating your profile by following the instructions at this website (or such other website to which the Providers may direct you).
Subject to applicable law, Communications may be posted on this website, on another website disclosed to you, or sent to the e-mail address you provide. All Communications will be deemed to have been received by you immediately after a Provider sends it to you by e-mail or posts the Communication on the website, whether or not you have received the e-mail or retrieved the Communication from the website. A Communication by e-mail is considered to be sent at the time that it is directed by the Provider's e-mail server to the e-mail address provided by you. A Communication posted to a website is considered to be sent at the time it is publicly available. You agree that these are reasonable procedures for sending and receiving Communications.
2. OVERVIEW OF THE SERVICE
The Service enables you to (1) open an FDIC-insured remittance account with Bank (an "Account"), (2) fund the Account with your credit card, debit card, electronic check, or other mechanisms that the Providers may make available to you (each, a "Funding Mechanism"), and (3) request that funds in your Account be sent to particular recipients (each, a "Recipient") in different countries around the world (each, a "Destination Country"). Each such request to send money or make payments out of your Account is a "Transaction." The amount sent is the "Transaction Amount."
The Service is offered through this website. Bank holds your Account and any funds that you place in the Account. Records are maintained by the Providers about you, your Account, and your Transactions. By initiating a Transaction through the Service, you are instructing Bank, through Program Manager, to transfer your funds to a third-party funds handler (a "Local Market Associate") to disburse funds to the designated Recipient. Program Manager is not a bank, and neither holds nor transfers any funds directly. All funds transfers are executed by Bank.
3. OPENING AN ACCOUNT
a. Eligible Users. You must be an individual at least 18 years of age and be able to form legally binding contracts under applicable law. You must have a valid postal mailing address and an active e-mail address. You must have either (i) a valid credit card or debit card or (ii) a deposit account with a financial institution in the United States. Your mailing address must match the billing address for your credit card, debit card and/or deposit account (as applicable). Other restrictions may apply.
b. Opening an Account. You must open and fund an Account to initiate a Transaction. To open an Account, you must provide complete and correct information about yourself sufficient to verify your identity. Such information will include, at a minimum, your name, address, date of birth, and social security number or taxpayer identification number. Providers reserve the right to accept or reject your request to open an Account.
c. Terms of the Account. The Account you open at the Bank is a non-interest-bearing account owned by you in an individual capacity. Although the account information is separately delineated for each individual, the funds from various account holders are held in a pooled account in the name of the Program Manager For the Benefit of Others (FBO) until they are disbused. The Account is not and cannot become a joint account (with or without survivorship rights), a revocable trust or pay-on-death account, or any other type of account. The Providers may at any time close the Account and tender the balance to you by mail or otherwise. The Providers may (without prior notice and when permitted by law) set off the funds in your Account against any due and payable debt you owe to a Provider. The Account is insured by the FDIC, subject to the FDIC's rules, as they may be changed from time to time.
d. Accessing Your Account. You will create a unique user ID and password to access your Account. Your user ID together with your password has the same effect as your written signature and can be used to authorize Transactions. Contact Providers immediately if you suspect your password or user ID has been compromised.
4. ACCOUNT SECURITY
a. Security Procedures. Access to your Account and your ability to initiate and authorize a Transaction will be verified based on security procedures that are offered as part of the Service. Each time you attempt to access your Account, you will be asked to provide your unique user ID and password. Providing this information will give you full Account access with the ability to initiate Transactions and review your online Transaction history. You agree to follow any additional on-screen instructions from Providers with regard to Account security. You also agree to update and upgrade your Internet browser software on a regular basis as such updates or upgrades may become available from time to time. You acknowledge and agree that this Security procedure is commercially reasonable and that in selecting a user ID and password as your security procedure you have elected not to use any other commercially reasonable procedures that may be available.
b. Confidentiality of Security Procedures. You agree not to divulge your password or user ID to any other person, and you agree not to use another person's password or user ID. If, notwithstanding the foregoing prohibition, you give your password to another person or persons, you will be deemed to have authorized them to use your password and Account for any and all purposes, without limitation. You agree that the Providers will not have any responsibility or liability to you or any other person for any losses or damages which you or anyone else may suffer if you disclose your password to any other person, including any losses or damages arising out of the disclosure of this information by the recipient to another person.
c. Breach of Security. If you believe that any user ID or password has become known to any unauthorized person or become otherwise compromised, you must notify the Providers immediately by using one of the methods described in Section 23 of the TOS. In such case, you should discontinue using the Service until such time as security has been restored.
5. INITIATING A TRANSACTION
a. Information. You initiate a Transaction by accessing your Account through the Service, following the security procedures, and providing complete and correct information, as requested by the Providers, about yourself, the intended Recipient (sufficient to verify identity) and the legitimate purpose and funding source of your Transaction. Providers reserve the right to accept or reject your request to initiate a Transaction.
b. Service Fees. In consideration for the use of the Service, you agree to pay applicable fees for each Transaction ("Service Fees"). These fees will be shown to you prior to your final submission of a Transaction for processing and will be added to the amount you send to the Recipient, resulting in a total amount that may be higher than the amount you requested to be sent to the Recipient. The standard Transaction-related Service Fees are set forth on the Service Fees schedule provided at this website; there may be additional fees for non-standard services related to your Account or a Transaction. A "Non-Standard Service" would be any element of the Service that you request specifically from a customer service representative (orally, by email, or by any other means) to manage your Account or a Transaction that would not otherwise be provided by the Providers as a standard part of the Service. Service Fees are subject to change upon prior notice to you by any method permitted under this TOS and applicable law.
6. FUNDING A TRANSACTION
a. Funding Mechanisms. You can initiate and fund a Transaction by using a valid Funding Mechanism (but not cash, check, or wire transfer). You authorize your Funding Mechanism to be debited in the amount of the Transaction Amount plus Service Fees. Funds will then be credited to and held in one of a series of master pooled accounts for the benefit of Account holders (the "Master Account"). Although funds will be held at Bank prior to receipt by Recipient, the funds may pass through one or more other financial institutions before they are disbursed in the Destination Country.
b. Your Ability to Withdraw Funds; Delays. Bank's general policy is that funds you deposit into an Account through electronic means such as ACH transfers or credit card transactions will be available for withdrawal on the day Bank receives the deposit. It may take several days for funds to be actually received by Bank, depending on the Funding Mechanism you select. For example, while credit and debit cards typically settle within the same day, electronic check payments may take four (4) days or more to settle and the funds are not considered received by Bank until such time as Bank has received payment in actually and finally collected funds. Once the funds are available for withdrawal, they may be used to fund Transactions, subject to other security and Account set-up requirements described in this document. There may be additional time to disburse those funds to the Recipient. In addition, there may be delays associated with our verifying your identity, the identity of your Recipient, the validity of your Funding Mechanism and the purpose of your transaction. Disbursement will not occur until these verification procedures have been completed.
c. Fees Imposed by Other Financial Institutions. Providers do not control and are not responsible in any manner for any fees or charges that may be imposed by the financial institution associated with your Funding Mechanism. In particular, some credit card issuers may treat the use of your credit card to fund your Account as a "cash advance" rather than a purchase transaction and may impose additional fees and interest rates for the Transaction. These fees are imposed by your credit card issuer, not by Providers. You can avoid most cash advance fees by paying with an electronic check or debit card. Contact your credit card issuer for more information.
d. Funding by Electronic Check. If you choose to fund your Account with an electronic check, then you are representing that you have sufficient funds in the existing bank account associated with your electronic check payment, and you are stating the following to whom it may concern: "I hereby authorize my bank to initiate debits from my account in the amount of the Transaction Amount plus Standard and Non-Standard Service Fees and to credit the same to the Master Account."
e. Failed Funding. If your attempt to fund a Transaction is reversed, rejected for insufficient funds or any other reason, or is charged back for any reason, you authorize Providers, in their discretion, to resubmit the Transaction Amount to your Funding Mechanism and consent to pay all standard and Non-Standard Service Fees (as that term is defined in Section 5(b), above). Providers also have the right to collect from you the amount of any uncollected or reversed Transaction, plus any collection expenses, court costs and reasonable attorneys' fees. You agree to hold Providers harmless from any losses, costs, expenses or damages any of them may incur in connection with collecting any negative balance, or in defending any of the foregoing actions, including court costs and attorneys' fees. You acknowledge that Transactions may be reported to a collection agency or credit bureau if you do not pay Bank in accordance with this TOS. Bank's disbursement of any Transaction without receiving sufficient funds does not create any obligation on the part of Bank to make any such Transaction in the future.
7. DISBURSING A TRANSACTION
a. Disbursement Mechanisms. The Transaction Amount will be disbursed to the Recipient in the manner that you specify from the list of available disbursement options at the time you initiate your Transaction (each, a "Disbursement Mechanism"). Disbursement Mechanisms vary by Destination Country but generally include disbursement by cash pickup, home delivery and direct deposit. You cannot change the Disbursement Mechanism after you submit your Transaction. You hereby appoint the Recipient as your agent for the purpose of receiving funds in connection with the Service. A Local Market Associate will disburse your funds to your Recipient if you select cash pickup, home delivery, or direct deposit as your Disbursement Mechanism. Pickup means that the Recipient can go to a designated Local Market Associate branch office to receive funds, in person. Delivery means that funds will be delivered to the Recipient at the address you provide. Direct Deposit means that the funds will be delivered directly into the Recipient's bank account. Note that the time it takes to disburse funds via delivery may depend on where your Recipient lives and the accuracy of the address you provide.
b. Currency of Disbursement; Exchange Rate. Funds are disbursed in the currency you specify from the list of available currencies for the relevant Destination Country. If you select a currency other than U.S. Dollars, you will be shown a representative exchange rate at the time you authorize and pay for your Transaction and the corresponding total amount to be disbursed to your Recipient, unless this website provides a fixed rate at the time you initiate a Transaction. If no fixed rate is shown, the Providers will (i) fix the exchange rate after you initiate your Transaction using methods as the Providers may deem appropriate (which is normally a function of the rate obtained by the Providers from one or more correspondent banks that convert funds into the destination currency) and (ii) will inform you of the final rate by email within one business day of such rate being fixed. YOU AGREE THAT SUCH PROCESS IS APPROPRIATE AND ACCEPT THE OUTCOME THAT RESULTS FROM IT. PROVIDERS MAY MAKE MONEY WHEN FUNDS ARE CONVERTED TO A FOREIGN CURRENCY FOR DISBURSEMENT.
c. Timing of Disbursement. Funds will be made available to Recipient for disbursement as soon as possible, subject to possible delays associated with the verification procedures outlined above, receipt of good funds from your Funding Mechanism, attempts to contact and locate your Recipient, currency availability, and the conditions, laws, and regulations applicable in the Destination Country. The availability of funds may be affected by events beyond our control, such as civil disturbances, weather conditions, delays caused by failures in telecommunications and technological processes, distance from delivery centers to the address and location of Recipient, acts of God or other recognized force majeure. Providers therefore cannot and do not guarantee when a particular Transaction will be disbursed.
d. Transaction Failure. If a disbursement is undeliverable, or is rejected by the Recipient, or is not deposited within one (1) year of delivery if disbursed in the form of a demand draft, the Transaction will be canceled. Generally, you will be credited the Transaction Amount; however, because of currency export controls in effect in certain countries, it may not be possible to credit the amount to you if the funds have been converted into a local currency. If this occurs, you will be given the opportunity to designate a different Recipient residing in the same Destination Country as the original Recipient. You may be charged Non-Standard Service Fees for processing and handling of such Transactions (as that term is defined in Section 5(b), above). After a disbursement has become undeliverable, rejected or undeposited for one year, should the Providers use reasonable efforts (e.g., email, telephone, and/or written notice) and be unable to contact you for another 30 days using the contact information provided by you, then you authorize Program Manager to designate an alternate Recipient at that time, using its sole discretion.
8. LIMITATIONS OF SERVICE
a. General Restrictions. Any Provider may, in its sole discretion, refuse any Transaction or limit the amount to be transferred, either on a per transaction basis or on an aggregated basis. These limits are at the sole option of the Providers and may be changed from time to time. You may not maintain multiple Accounts through this website or through any other website for which the Providers provide a similar service. For purposes of these limitations, the Providers will aggregate funds from the same credit card, check card and deposit account, regardless of the name of the sender. Moreover, funds initiating from the same address or being the received at the same address are subject to aggregation and limitation. For example, if you and your spouse each charge the same credit card account $2,500 to fund Transactions, your funding requests will be combined and you each will be considered to have sent $5,000 in aggregate Transactions. Providers reserve the right at any time and from time to time to modify or discontinue the Service (or any part thereof) with or without notice, subject to applicable law.
b. Limited Use of the Account. The funds in your Account can only be used to fund Transactions. The Providers limit your ability to initiate Transactions with a set of caps on the amount of individual Transactions and the aggregate amount of Transactions that you may initiate in a period of time. These limits vary with several factors, including how you fund a Transaction (i.e., by credit card or ACH), by how long you have been an Account holder, and how many other Transactions you have initiated recently. By way of example, the Providers may cap your first Transaction at $1,000 and limit the total Transactions that you may initiate in your two months at $1,000 per Transaction and $5,000 in the aggregate. Thereafter, the Providers may impose limits of $5,000 per Transaction and $15,000 in a rolling two month period. The Providers may grant limited exceptions to these restrictions on a case-by-case basis where customers provide additional information about themselves and their Transactions. Contact the Providers to request an exception using one of the methods described in Section 23 of the TOS. Providers reserve the right to change the foregoing limits at any time.
c. Forbidden Transactions. The Service may not be used for the improper, unlawful, or fraudulent transfers of funds ("Forbidden Transactions"). Forbidden Transactions include but are not limited to attempts (a) to transfer funds using stolen, unauthorized, or otherwise compromised credit card, check card, debit card, bank account, or Account information, (b) to transfer funds using an account with insufficient funds (c) to seek reimbursement of funds that have already been disbursed, (d) to launder funds, (e) to use the Service in connection with gambling or pornography, (f) to fund terrorist organizations or individuals identified from time to time by the U.S. Department of the Treasury or other appropriate governing authority, and (g) to violate applicable local, state, or federal laws of the United States and its Territories, laws of the Destination Country, international laws, credit card association rules and regulations, or the laws of any other relevant jurisdiction.
d. Commercial Transactions. Providers have no control over, and are not responsible for, the quality, safety, legality, or delivery of goods or services that you pay for using the Service ("Commercial Transactions"). You acknowledge that any use of the Service for Commercial Transactions is at your own risk. Should you have any dispute with a Recipient regarding a Commercial Transaction, you agree to pursue any related claims directly with the Recipient. You agree to hold Providers harmless for any loss or expense they incur as a result of a Commercial Transaction.
e. Ineligible Recipients. Providers reserve the right to refuse disbursement to certain Recipients, countries, territories, addresses or other geographic designations in their sole discretion, including without limitation, destinations and individuals that are included on the Specially Designated Nationals list, Non-cooperative Countries and Territories list, and such other lists as may be issued from time to time by the U.S. Department of Treasury, other government agencies, and other sources. You acknowledge that in certain circumstances Providers may be required to freeze Transaction funds and/or suspend a Recipient's receipt of Transaction funds, and/or segregate those funds in compliance with applicable law.
9. CANCELLATION AND REFUNDS
You may cancel and obtain a refund of a Transaction upon written request if, at the time your request is processed (not received), the Transaction has not already been released to a Local Market Associate. Cancellation requests must include the following information: (a) your full name, address, and phone number, (b) Recipient's full name, address, and phone number, (c) the date of the Transaction, (d) the location to which funds were to be disbursed, and (e) the amount of the Transaction. Send your written request by one of the methods described in Section 23 of the TOS. Oral cancellation requests will not be accepted.
A Transaction that is scheduled in advance may be cancelled at any time before it is initiated by using the cancellation pages on this website (or such other website to which the Providers may direct you).
Refunds will only be made in the Transaction Amount (not including Service Fees) and will always be made in the same form of payment originally made. If the Transaction had been converted to another currency and must be re-converted to the original currency, then the refunded amount may be less than the original Transaction Amount. In addition, there may be an additional Non-Standard Service Fee to cancel a Transaction (as that term is defined in Section 5(b), above). Under no circumstance will refunds be made if a Transaction has already been released to a Local Market Associate.
10. PRIVACY POLICY/COLLECTION OF INFORMATION
By agreeing to this TOS, you acknowledge and consent to Providers' Privacy Policy. The Privacy Policy can be found on the website (or such other website to which the Providers may direct you). In addition, you agree that Bank will own and possess the data that you provide in connection with the Services and that Bank may provide access and use of such data to Program Manager. You also agree that the Providers may use such information to provide Services, to implement marketing programs, to help protect against fraud and to conduct research and analysis. In addition, you agree that the Providers may disclose such information for the same purposes to companies that work with the Providers, including the portal through which you access the Services. For example, the Providers may provide certain information to companies that perform business operations or services, including marketing services, on their behalf. If you do not wish the Providers to disclose such information for the same purposes to companies that work with the Providers, including the portal through which you access the Services, you may not use the Service. You may withdraw your consent to disclose such information, but if you do, your use of the Service will be terminated. To withdraw your consent, you must contact the Providers by one of the contact methods described in Section 23 of the TOS. The Providers may also provide certain information to others as permitted by law, such as government entities or other third parties in response to subpoenas.
11. RECORDS AND REPORTS
Providers maintain records of your Transaction history to the extent required under applicable law. Records will be updated on a continuing basis as Transactions are made and received. At the end of each calendar month, you agree to review your online Transaction history, which is available at this website (or such other website to which the Providers may direct you). You agree that such availability shall constitute your periodic statement, as required by law. At each review, you must review your online account history for the preceding sixty (60) days.
You agree that consumer reports may be obtained in connection with your use of the Service. Upon your request, Providers will inform you whether such a report was requested, and if so, the name and address of each agency which furnished such a report.
12. ERRORS AND QUESTIONS
You must contact Providers immediately if you think your Transaction history is wrong or if you need more information about a listed Transaction. Contact information for the Providers is located in Section 23 of the TOS. In your correspondence, (1) provide your name and user ID; (2) describe the error or the Transaction you are unsure about, and explain why you believe it is an error or why you need more information; and (3) provide the dollar amount of the suspected error. You must notify Providers within sixty (60) days of the end of the calendar month in which the problem or error appeared on your online Transaction history. Providers will determine whether an error occurred within ten (10) business days after it receives notice from you and will correct any error promptly. If Providers need more time to investigate, however, a credit will be made to your Account within ten (10) business days for the amount you think is in error. You will have the use of the money during the time it takes Providers to complete the investigation.
If an item is posted to your Account and you do not object to it within (60) days of the end of the calendar month in which the item appeared by contacting the Providers as detailed above, you expressly accept that item and waive any claims against the Providers related to it (either directly or indirectly).
For errors involving an Account that has been open for less than ninety (90) days, (a "New Account"), Providers may take up to ninety (90) days to investigate your complaint or question and up to twenty (20) business days to credit your Account for the amount you think is in error.
Providers will tell you the results within three (3) business days after completing the investigation. If Providers decide that there was no error, a written explanation will be sent to you via email. You may obtain copies of documents used in Providers' investigation for a fee.
13. YOUR LIABILITY FOR UNAUTHORIZED TRANSACTIONS
Tell Providers at once if you believe your password has been lost or stolen, or if your Account has been compromised in any way, or if someone has transferred or may transfer money without your permission (an "Unauthorized Transaction"). The best way to minimize your possible losses is to telephone or email Providers. Contact information for the Providers is located in Section 23 of the TOS.
a. Timely notice given. If you notify the Providers within two business days after you learn or should have learned of the loss or theft of your password or an Unauthorized Transaction, your liability shall not exceed the lesser of $50 or the amount of Unauthorized Transactions that occur before you notify the Providers.
b. Timely notice not given. If you fail to notify the Providers within two business days after you learn or should have learned of the loss or theft of your password or an Unauthorized Transaction, your liability shall not exceed the lesser of $500 or the sum of:
(i) $50 or the amount of Unauthorized Transactions that occur within the two business days, whichever is less; and
(ii) The amount of Unauthorized Transactions that occur after the close of two business days and before notice to the Providers, provided the Providers establish that these transfers would not have occurred had you notified the Providers within that two-day period.
c. Periodic statement; timely notice not given. You must report the loss of your password or an Unauthorized Transaction that appears on your periodic statement within 60 days of the availability of the statement to avoid liability for subsequent Transactions. If you fail to do so, your liability shall not exceed the amount of the Unauthorized Transactions that occur after the close of the 60 days and before notice to the Providers, and that the Providers establish would not have occurred had you notified them within the 60-day period.
14. ACCURACY OF INFORMATION YOU PROVIDE
You represent and warrant that all information you provide in connection with the Service, including but not limited to information about yourself, your Funding Mechanism, and your Recipient, will be complete and accurate in all respects. Providers are entitled to rely on any such information, and you agree to update your personal information if it changes. Providers also reserve the right to take steps to verify the information you provide, although they may not be required to do so. Your ability to use the Service may be terminated and any pending Transactions may be cancelled if you provide false information. In addition, you may be subject to civil and criminal penalties.
15. INDEMNITY
You agree to indemnify and hold Providers and their respective affiliates, subsidiaries, officers, agents, co-branders and other partners, directors, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
16. RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service, other than as provided within the scope of the Service.
17. PROVIDERS' INTELLECTUAL PROPERTY
You acknowledge that the Service, including but not limited to the content of this website, text, graphics, links, buttons, logos, and images, as well as all other copyrights, trademarks, service marks, logos, and product and service names are owned exclusively by Providers and/or their partners ("Providers' Intellectual Property"). You agree not to display, use, copy, or modify Providers' Intellectual Property in any manner. You are authorized solely to view and retain a copy of the pages of this website for your own personal, non-commercial use. You further agree not to: (a) use any robot, spider, scraper or other automated device to access the Service or (b) remove or alter any author, trademark or other proprietary notice or legend displayed on this website (or printed pages thereof).
ANY USE, COPYING OR REPRODUCTION OF THE JAMAICA NATIONAL OVERSEAS (USA) INC. TRADEMARKS OR LOGOS CONTAINED IN THIS SITE, WITHOUT PRIOR WRITTEN PERMISSION OF JAMAICA NATIONAL OVERSEAS (USA) INC., IS STRICTLY PROHIBITED.
18. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. (a) PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (b) PROVIDERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; AND (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PROVIDERS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
19. LIMITATION OF LIABILITY
EXCEPT FOR ANY RIGHT TO A REFUND EXPRESSLY DESCRIBED HEREIN, YOU UNDERSTAND AND AGREE THAT NEITHER PROGRAM MANAGER, NOR BANK, NOR MONEY TRANSFER WEBSITE, NOR LOCAL MARKET ASSOCIATES SHALL BE LIABLE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF A PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) DELAY, NONPAYMENT, OR UNDERPAYMENT OF ANY MONEY TRANSFER; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING A BREACH OF PROVIDER'S SECURITY; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ABOUT THE SERVICE; AND (v) FAILURE TO MAINTAIN THE CONFIDENTIALITY OF ANY INFORMATION SUPPLIED TO THE PROVIDERS BY YOU.
IF PROGRAM MANAGER, BANK, OR LOCAL MARKET ASSOCIATES ARE DEEMED LIABLE TO YOU IN CONNECTION WITH ANY TRANSACTION MADE OR NOT MADE IN ACCORDANCE WITH THIS TOS, THE MAXIMUM AGGREGATE LIABILITY OF PROGRAM MANAGER, BANK, AND LOCAL MARKET ASSOCIATES SHALL BE THE CORRESPONDING TRANSACTION AMOUNT, WITHOUT INTEREST, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
20. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF THE TOS MAY NOT APPLY TO YOU.
21. DISPUTE RESOLUTION AND GOVERNING LAW
This Arbitration Provision ("Provision") facilitates the prompt and efficient resolution of any disputes that may arise between you and us. Arbitration is a form of private dispute-resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (an arbitrator) for a binding decision. You have the right to opt-out of this Provision, which means you would retain your right to litigate your disputes in a court, either before a judge or jury. To exercise your right to opt-out you must provide us with written notice no later than the earlier of 30 days after your Account is first opened. If we do not receive your written notice within that time frame, your rights to opt out will terminate, and you agree that the provisions of this section will apply.
PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ALL DISPUTES ARISING OUT OF OR CONNECTED TO THIS TOS SHALL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT. IN THE ABSENCE OF THIS PROVISION, YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO BRING CLAIMS IN A COURT, BEFORE A JUDGE OR JURY, AND/OR TO PARTICIPATE IN OR BE REPRESENTED IN A CASE FILED IN COURT BY OTHERS (INCLUDING, BUT NOT LIMITED TO, CLASS ACTIONS). EXCEPT AS OTHERWISE PROVIDED, ENTERING INTO THIS AGREEMENT CONSTITUTES A WAIVER OF YOUR RIGHT TO LITIGATE CLAIMS AND ALL OPPORTUNITY TO BE HEARD BY A JUDGE OR JURY.
a. Parties and Matters Subject to Arbitration. For purposes of this Provision, "us" means the Providers, their parents, subsidiaries, affiliates, licenses, predecessors, successors, assigns, and all of the employees, directors, parents, subsidiaries, affiliates, beneficiaries, agents and assigns of any and all of them. For purposes of this Provision, "you" includes your employees, parents, subsidiaries, affiliates, beneficiaries, agents and assigns. For purposes of this Provision, "Claim" means any claim, dispute, or controversy by either you or us, arising out of or relating in any way to this TOS, this Provision (including claims regarding the applicability, enforceability, or validity of this Provision), your Account, the Service, any Transaction, and our relationship. "Claim" also refers to any interaction or communication between you and us that occurred prior to or concurrent with entering into the TOS, including those Claims now in existence, regardless of present knowledge. "Claim" shall refer to claims of every kind and nature, including, but not limited to, initial claims, counterclaims, cross-claims and third-party claims. All Claims are subject to arbitration, regardless of legal theory and remedy sought, including, but not limited to, claims based in contract, tort (including negligence, intentional tort, fraud, and fraud in the inducement), agency, statutory law (federal and state), administrative regulations, or any other source of law (including equity).
b. Agreement to Arbitrate. Any Claim arising out of or relating to this TOS, or the breach thereof, shall be resolved and settled exclusively and finally by binding arbitration, in accordance with this Provision. Binding arbitration shall not be required, however, for collection actions by us relating to your Account or the Service. Furthermore, both you and we retain the right to pursue in a small claims court any Claim that is within that court's jurisdiction, provided the Claim proceeds on an individual basis. However, only a court of law, not an arbitrator, shall determine the validity and effect of this Provision's prohibition of class arbitration. For any Claims covered by this Provision, a party who asserted a Claim in a lawsuit in court may elect arbitration with respect to any Claim subsequently asserted in that lawsuit by any other party.
c. Voluntary Waiver of the Right to a Jury Trial and Class Action Participation. As a result of this Provision, neither you nor we have the right to litigate any Claim in court or the right to a jury trial on any Claim. YOU AGREE THAT YOU ARE VOLUNTARILY AND KNOWINGLY WAIVING ANY RIGHT YOU MAY HAVE TO GO TO COURT OR TO HAVE A JURY TRIAL. FURTHERMORE, NEITHER YOU NOR WE MAY SERVE AS A REPRESENTATIVE, A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY. SIMILARLY, NEITHER YOU NOR WE MAY PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN A LAWSUIT OF ANY CLAIM.
d. Prohibition of Class Arbitration. All Claims shall be resolved by binding arbitration on an individual basis. Claims made and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis. Therefore, the arbitrator has no authority to conduct class-wide proceedings and will be restricted to resolving individual Claims. UNDER THIS ARBITRATION PROVISION THERE IS NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS BASIS. Arbitration will only be conducted on an individual Claim basis, and there is no right or authority to consolidate or join any of your Claims with any other Claims. YOU AGREE THAT YOU ARE VOLUNTARILY AND KNOWINGLY WAIVING ANY RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION UNDER THIS PROVISION.
e. Governing Law. This agreement to Arbitrate is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as it may be amended. If for any reason the Federal Arbitration Act does not apply, the substantive law of the Commonwealth of Pennsylvania shall govern.
f. Arbitration Location and Procedure. Any arbitration hearing at which you wish to appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. The party bringing the Claim may file its Claim at either of two national arbitration organizations: the National Arbitration Forum ("NAF") or the American Arbitration Association ("AAA"). The arbitration organization that is selected will administer the arbitration pursuant to its procedures in effect at the time of filing, subject to this Provision. In the event of a conflict or inconsistency between the respective organization's rules and this Provision, this Provision shall govern. The arbitration will be conducted before a single arbitrator, whose authority is limited solely to individual Claims between you and us. The arbitration will not be consolidated with any other arbitration proceeding. Any decision rendered in such arbitration proceeding will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. The rules and forms of each respective organization may be obtained as follows: National Arbitration Forum, (1-800-474-2371), P.O. Box 50191, Minneapolis, Minnesota 55405, website at www.arb-forum.com; and American Arbitration Association, (1-800-778-7879), 335 Madison Avenue, Floor 10, New York, New York 10017, website at www.adr.org.
g. Arbitrator's Authority. The arbitrator shall apply the applicable substantive law, consistent with the Federal Arbitration Act; shall apply statutes of limitation; and shall honor claims of privilege recognized at law. In conducting the arbitration proceeding, the arbitrator shall not apply any federal or state rules of civil procedure or evidence. PURSUANT TO THIS ARBITRATION PROVISION, THERE IS NO RIGHT TO ENGAGE IN PREARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES AND PROCEDURES OF THE RESPECTIVE CHOSEN NATIONAL ARBITRAL ORGANIZATION. Either party may, however, request to expand the scope of discovery. If a request is made, within fifteen (15) days of the requesting party's notice, the objecting party may submit objections to the arbitrator with a copy of the objections provided to the party requesting expansion. The grant or denial of a party's request will be in the sole discretion of the arbitrator, who shall notify the parties of the final decision within twenty (20) days of the objecting party's submission.
h. The Arbitrator's Award. The arbitrator has the ability to award to the prevailing party all remedies available at common law, by statute, or in equity, including injunctive relief, declaratory relief, arbitration costs and attorney fees. The arbitrator shall not, however, have authority to award any punitive damages. YOU AND WE AGREE THAT PUNITIVE DAMAGES ARE NOT RECOVERABLE IN ANY ARBITRATION OR OTHER PROCEEDING UNDER THIS AGREEMENT. For awards not in excess of $5,000, upon the timely request of any party, the arbitrator shall provide a brief written explanation of the basis for the award. In the event an award exceeds $5,000, or in which there is a request for equitable relief with a potential financial impact or value in excess of $5,000, the award of the arbitrator shall be in writing and shall specify the facts and the law on which it is based. In such case, the arbitrator's findings of fact must be supported by substantial evidence and the arbitrator's conclusions of law must not be based on legal error or be erroneous under the applicable substantive law. Further, in addition to the Federal Arbitration Act's grounds for vacation, modification or correction of the arbitrator's award, the parties shall have the right to judicial review of the arbitrator's award to determine whether the arbitrator's findings of fact are supported by substantial evidence and whether the arbitrator's conclusions of law are based on legal error or are erroneous under the applicable substantive law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. However, if the award is in excess of $5,000, judgment may be entered only upon determination by the court that the award is supported by substantial evidence and is not erroneous or based on legal error.
i. Expenses. Regardless of who demands arbitration, we will pay all expenses of arbitration, including the filing, administrative, hearing and arbitrator's fees ("Arbitration Fees"), to the extent that the Arbitration Fees exceed the amounts you would be required to pay for filing a lawsuit in a court. Throughout the arbitration, each party shall bear his or her own attorney fees and expenses, such as witness and expert witness fees. Whichever party prevails in the arbitration of any Claim shall reimburse the other for any fees paid to the arbitration organization in connection with the arbitration.
j. Binding Effect and Survival. You and we agree that, except as specifically provided for above, the arbitrator's decision will be final and binding on all parties subject to this Provision. This Provision is binding upon you, us, and the heirs, successors, assigns, and related third parties of you and us. This Provision shall survive termination of your Account.
k. Severability. If any portion of this Provision is deemed invalid or unenforceable under any law or statute consistent with the Federal Arbitration Act, such a finding shall not invalidate any remaining portion of this Provision, the TOS, or any other agreement entered into by you with us. However, the prohibition on class arbitration is not severable from the remainder of this Provision. In the event that a court deems the prohibition on class arbitration to be invalid and unenforceable, any subsequent class action or representative proceeding shall be in a court of law and will not be subject to binding arbitration.
22. GENERAL INFORMATION
a. Entire Agreement. The TOS constitutes the entire agreement between you and Providers and governs your use of the Service, superseding any prior agreements between you and Providers. You also may be subject to additional terms and conditions of third parties who are not subject to the TOS.
b. No Waiver. The failure of any Provider 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 the TOS is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give appropriately valid effect to the intention of the TOS as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect.
c. Modification. The TOS may be modified or amended by Providers from time to time without notice, except as may be required by law. You can review the most current version of the TOS at any time by reviewing this website (or such other website to which the Providers may direct you). You may terminate your use of the Service if you do not agree with any modification or amendment. If you use the Service after the effective date of an amendment or modification, you will be deemed to have accepted that amendment or modification. You agree that you will not modify this TOS and acknowledge that any attempts by you to modify this TOS shall be void.
d. Termination. The Providers reserve the right to terminate your ability to use the Service for any reason and may cancel any pending Transaction. Suspension or termination may occur if in a Provider's determination (i) you have not properly funded a requested Transaction; (ii) you attempt to initiate a Transaction from an account that does not belong to you; (iii) you use the Service, directly or indirectly, for any Forbidden Transaction; (iv) you provide incorrect or false information about yourself, your accounts or about a Recipient; (v) you use or attempt to use the Service for tampering, hacking, modifying or otherwise corrupting the security or functionality of any of the Providers' or any other website; (vi) the Providers receive conflicting claims regarding ownership of, or the right to use, an account used to fund a Transaction; (vii) the Providers receive a garnishment, levy or other legal process applicable to you, your Account, or a Transaction; (viii) you have breached a term or condition of this TOS, or any representation or warranty that you make under the TOS is false; or (ix) the Providers determine, in their discretion, that you are no longer actively using the Service. You agree that none of the Providers will be held responsible or liable to you, any Recipient or any other person for such termination. Moreover, you understand the Providers may report suspicious activity to appropriate law enforcement authorities.
Upon termination of your ability to initiate a Transaction for any reason, Providers may terminate all your pending Transactions. If you have no outstanding obligations in connection with the Service, the Bank may credit any balance to any Funding Mechanism that you used to fund Transactions. Termination of this TOS will not affect your liability related to acts or omissions prior to termination, including your liability for any Transaction.
e. Business Days. The phrase "business days" as used herein means Monday through Friday, excluding federal (U.S.) holidays. However, the Service will generally still be available online on non-business days.
f. Assignments and Transfers. You may not assign or otherwise transfer your rights under the Account or the TOS to any other person or entity.
23. CONTACT INFORMATION
Contact information for the Providers for questions, notifications, and requests for further information is as follows:
Online at svc@payquik.com
Telephone (TOLL FREE in USA) at 1-866-932-9300; UK at 207-993-2498; Canada 647-477-5286; (other countries, call +1-215-371-3909; Fax at +1-215-494-5483; or Mail at Customer Service, PayQuik, 150 Monument Road, Suite # 207, Bala Cynwyd, PA 19004, USA.
Please report any violations of the TOS to Chief Operating Officer, PayQuik, 150 Monument Road, Suite # 207, Bala Cynwyd, PA 19004, USA.