Effective Date: April 1, 2020
These General Terms of Service (“Terms”), together with the documents and policies incorporated and referenced in these Terms, are a contract (the “Agreement”) between you (“You”, “Your”, “Yourself”), and Settle, Inc. (“Settle”, “We”, “Us, or “Our”). This Agreement governs your use of or interactions with Settle's products and services (collectively, the “Service”). All capitalized terms have the meanings given to them in these Terms, unless otherwise indicated.
By electronically accepting this Agreement or by establishing a Settle account or using the Service after the Effective Date of these Terms, You consent to and agree to comply with these Terms. This Agreement includes and You are consenting to:
When You agree to these Terms and accept this Agreement, You do so on behalf of Yourself and any person that You entitle or authorize to use Your Settle account (with You, each a “User” of Your Settle account), as well as on behalf of Your Customer(s) and Your Vendor(s) to the extent provided in these Terms. You are responsible for obtaining all consents and authorizations needed to accept this Agreement for others.
USING THE SERVICE ON BEHALF OF ANOTHER. If You use the Service on behalf of another, whether a natural person (an “Individual”) or legal non-natural person or entity (an “Organization”), You represent and warrant that You (1) are duly authorized and empowered by and for that Individual or Organization to agree to these Terms and accept this Agreement on behalf of the Individual or Organization, and (2) do accept this Agreement on behalf of the Individual or Organization; unless the Individual or Organization has a separate contract with Settle, in which event the terms of that separate contract will control. You also represent and warrant that You are duly authorized and empowered to use the Service on behalf of the Individual or Organization.
AGREEMENT TO ARBITRATE. You understand that this Agreement contains an agreement to arbitrate disputes (“Agreement to Arbitrate”), and You agree to the Agreement to Arbitrate as well as the included jury trial and class action waiver.
1. Using the Settle Service
The Service. The Service includes a platform that enables You to make payments to third parties (Your “Vendors”), receive payments from third parties (Your “Customers”), and manage (on Your own behalf or on behalf of third parties who authorize You to do so) accounts payable and accounts receivable electronically.
Eligibility to Use the Service. You represent and warrant that: (a) all Users are at least 18 years of age; (b) You have not previously been suspended or removed from the Service; and (c) You will provide any and all documentation as requested by Settle, included as needed to verify identity and creditworthiness.
Third Party Service Providers. You grant to Us and Settle reserves the right to use third parties to provide or facilitate the Service. If Settle uses third parties to provide or facilitate the Service, We will remain responsible to You for providing the Service under this Agreement.
Updates to the Service. Settle reserves the right to, from time to time to: update the Service; and/or make new applications, tools, features or functionalities available through the Service, the use of which may be contingent upon Your agreement to additional Terms and/or Service Fees. Settle reserves the right to discontinue the Service, or certain applications, tools, features or functionalities of the Service, for any reason at any time, in Settle's sole discretion, without any liability to You.
2. Account Security
User Account Creation and Login Credentials. To use the Service, You may be required to register a Settle account and/or to enroll as a User. To register a Settle account and/or enroll as a User, You will be required to provide Us with information about Yourself, including but not limited to Your name, address, email address and other contact or identifying information, and about Your Organization or Individual, as appropriate. You agree that the information You provide to Us will be accurate and that You will keep it up-to-date at all times. Users will be asked to create a strong password and provide a device on which to receive a multi-factor authentication code, one-time password or similar authentication token or mechanism (collectively, the User’s “Login Credentials”). Users are solely responsible for maintaining the confidentiality of Login Credentials, and to the extent allowed by law, You accept responsibility for all activities on Your account authenticated through User Login Credentials, whether authorized or not. Each User agrees to keep User Login Credentials confidential and secure, and Users will not give or make Login Credentials available, directly or indirectly, to any unauthorized individual. You acknowledge and agree that if Users allow, whether through action or inaction, a person to gain access to Login Credentials, with or without permission, the User is authorizing that person to use the Service, and You will be responsible for all transactions that result from such access, even if You did not want the transactions performed, and even if they are unauthorized or fraudulent.
Commercially Reasonable Security Procedures. You acknowledge and agree that Settle's security procedures are a commercially reasonable method of verifying Your identity and payment instructions, providing security against unauthorized payment instructions and fraud, and protecting Your Settle account.
Lost, Stolen or Compromised Account or Login Credentials. You agree to immediately notify Settle if You believe that Your Settle account has been compromised or accessed without authorization, or User Login Credentials have been lost, stolen or compromised, or that someone has attempted or may attempt to make or request payments through Your Settle account without authorization.
To the extent allowed by law: You agree to be bound by all payment instructions or transactions initiated in compliance with Settle's security procedures and this Agreement, whether or not authorized. You agree that You will be liable for all losses or payments resulting from the theft, loss, compromise, or unauthorized use of Your Settle account or User Login Credentials, unless (1) You have notified Settle of possible theft, loss, compromise or unauthorized use, and (2) We have had a reasonable opportunity to act on that notice. You will also be responsible for any losses or unauthorized payments resulting from any fraudulent or illegal compromise of Your systems. You agree that You will be responsible and liable for payments or transfers containing inaccurate instructions or other errors, unless limited by law. Upon Your timely report, We may, in our sole discretion, use good faith measures to attempt to reverse and recover any unauthorized or erroneous payments or transfers on Your behalf, but Settle will have no responsibility, obligation, or liability in relation to such payments or transfers or any reversal or recovery attempts.
Access through Third Party Platforms. If Users choose to access Your account through a third party platform, You are making a determination that the third party platform and its login protocol are sufficiently secure to protect User Login Credentials and Your Settle account, and You accept full responsibility and liability if access through the third party platform leads to the compromise of User Login Credentials or Your Settle account.
3. Rights We Grant to You
License We Grant to You. Subject to this Agreement, including payment of all Service Fees, Settle grants You a personal, limited, non-exclusive, non-assignable, non-transferable and non-sublicensable license to access and use the Service, including without limitation the software that enables the Service, together with any updates, bug fixes, help content, and other related materials that Settle provides to You (collectively, the "Software"), solely for Your own use for so long as You are authorized to use the Service. You acknowledge and agree that if You are in violation of this Agreement, Settle may, in its sole discretion and without notice to You, immediately suspend or terminate Your license and/or access to the Service.
Reservation of Rights by Settle. Settle reserves and retains all rights in the Service not expressly granted to You in this Agreement. The Service is protected by copyright, trade secret, and other intellectual property laws. Settle and its licensors, if any, own the title, copyright, and other worldwide intellectual property rights in the Service and all copies thereof. This Agreement does not give You any rights in Settle's or its licensors’ intellectual property, including its trademarks or service marks.
4. Restrictions on Use
Acceptable Use Policy. You represent and warrant that You will not use the Service in connection with any business or industry prohibited under Settle's Acceptable Use Policy. Settle reserves the right, in its sole discretion, to update or change the Acceptable Use Policy at any time. You are solely responsible for ensuring that Your use of the Service complies with the current Acceptable Use Policy.
Service for Authorized and Lawful Purposes Only. You agree that You will use the Service only as permitted by applicable law and exclusively for authorized purposes, consistent with this Agreement. You will not, and You will not allow any third party, to:
Prohibited Payments. You acknowledge and agree that You will not use the Service for payment of alimony, child support, taxes or other court-directed or government payments, fines or penalties or payments to settle securities transactions.
No Assignment or Transfer. You may not assign or transfer the Agreement, in whole or in part, without Settle's written consent. Any attempted assignment or transfer in violation of this Section or this Agreement will be null and void. Settle may assign its rights or delegate its obligations hereunder without Your consent. Subject to these restrictions, the Agreement will inure to the benefit of the successors and permitted assigns of the parties. ****
No Office of Foreign Assets Control (“OFAC”) Sanctions. You represent and warrant that (i) You are not located in a country that is subject to U.S. Government sanctions, embargos, or that has been designated by the U.S. Government as a Specially Designated National (SDN) or “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
No Marketing. If Settle provides You with information about another user of the Service, You acknowledge and agree that You will not use the information for any purpose other than the purpose for which the information is provided to You. You may not disclose, sell, rent, or distribute another user’s information for any purpose unrelated to Your use of the Service. You may not use the information for marketing purposes, unless You separately obtain the appropriate consent of the specific user to do so.
Not a “Business Associate” under HIPAA. You acknowledge and agree that Settle is not, and will not at any time be, a “business associate” of any user of the Service, including You, for the purposes of The Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”). You agree that You will not send or transmit any electronic “Protected Health Information” (“ePHI”, as defined in HIPAA) to Settle or otherwise in any manner through the Service. You are solely responsible for ensuring that Your use of the Service complies with all applicable laws and regulations, including HIPAA. If We become aware that You have sent or transmitted ePHI in any manner through the Service in violation of this Agreement, We may delete the ePHI without any liability or notice to You, and You agree to pay any costs or fees associated with that ePHI deletion.
How you may not use Settle. Under the Settle General Terms of Service, you confirmed that you will not use the Settle service in connection with the following businesses or business activities. The following list is representative but not exhaustive.
5. Rights You Grant to Us
Right to Refuse to Make Payment. You grant to Us and Settle reserves the right to limit or to refuse to make, process or issue any payment initiated or requested through the Service, in Our reasonable discretion, without any liability to You. Settle will use commercially reasonable efforts to provide notice promptly if We decide to limit or to refuse to make, process or issue a payment. This notification is not required if the payment is prohibited by law or this Agreement.
Transaction Limits. When You use the Service, You grant to Us and We reserve the right, in Our sole discretion, the right to impose limits on the amount of money sent through the Service, on a per transaction or a cumulative basis, and to change those limits at any time, without any liability to You. If We impose or change such limits, We will use commercially reasonable efforts to provide notice to You, but will not be required to do so.
Right of Set Off. To the extent permitted by law, You grant to us the right to apply or set off any money or credit balance in which You have an interest and which is in our possession, custody or control, in satisfaction of any amounts or liabilities that You owe to Us.
Account Termination. Settle reserves the right to suspend or terminate Your account or Your access to the Service at any time, for any reason (including for a violation of this Agreement, the failure to pay applicable Service Fees, or inactivity), in Our reasonable discretion, without any liability to You. If We suspend or terminate Your account or access to the Service, We will use commercially reasonable efforts to provide notice to You, but will not be required to do so.
Marketing. To the extent permitted by law, You agree and consent that Settle may list or identify You as a customer of Settle, including through the use of Your brand or logo, for Our marketing or promotional purposes. You may revoke this consent at any time by changing Your account profile settings, or by contacting Settle.
Right to Contact You. As permitted by law, Your use of or interaction with the Service provides Your consent to receive informational calls and text messages from Settle at any telephone number provided to Us in connection with Your Settle account. We may place these calls or texts for any purpose consistent with this Agreement or Our Privacy Notice, including to provide multi-factor authentication or a one-time password, notify You regarding Your account, help You with Your Settle account, or resolve a dispute. Standard rates and text charges may apply. You can opt out of receiving calls from Settle at any time by contacting Settle.
Recording of Telephone Calls. You understand and agree that Settle may, in its sole discretion, itself or using a third party service, monitor any telephone calls between You and its employees, contractors or agents for purposes of quality control and for Settle's own protection. If You do not consent to the recording of telephone calls by Settle, Your only remedy is to not engage with Settle by means of a telephone call.
6. Anti-Money Laundering and Know Your Customer Requirements
US Patriot Act. To help the U.S. government fight the funding of terrorism and money laundering activities, federal and state law requires financial institutions, including money services businesses, to obtain, verify, and record information that identifies every customer.
What this means for You: When You use the Service, We will ask You for Your name, address, date of birth, and other information that will allow Us to identify You. We may also ask to see Your driver’s license or other identifying documents, such as business related documents. We will let You know if additional information is required.
Verification Required. We reserve the right to refuse to allow any User, Vendor or Customer to use or participate in the Service if We are unable to obtain or verify information relating to identity or financial condition, such as identifying information for an Organization’s representatives or beneficial owners. Notwithstanding any steps that We take to verify the information provided to Us, You represent and warrant that all information You provide is complete, truthful, accurate, and up-to-date.
Review of Accounts and Payments. You grant to Us and Settle reserves the right to review or place on hold any Settle account or any payment requested through the Service for any reason, including but not limited to credit and fraud risk or compliance with applicable laws, such as anti-money laundering regulations, combating terrorist financing laws and OFAC sanctions. In Our sole discretion, Settle may place a hold on a payment for as long as reasonably necessary to conduct an appropriate inquiry regarding the payment, a Settle account, a User, an Organization or Individual, a Customer, a Vendor, or any related facts or circumstances. Depending on the results of this review, Settle reserves the right to take any appropriate action, including cancelling the payment, reversing the payment, or continuing to hold the payment pending instructions from a government agency.
Reports. You acknowledge that We may make appropriate reports regarding payments made through the Service, including but not limited to financial institutions, regulators, tax agencies and law enforcement authorities, as required or permitted by law, and We will cooperate with the appropriate authorities in any resulting investigation or prosecution.
7. User Data
Settle's Access to User Data. If You upload, store, share, or otherwise process documents, information, data and other content ("User Data") or synch User Data from Your accounting software to the Service, You consent to Settle's access and processing of User Data in accordance with Our Privacy Notice, this Agreement, the settings on Your Settle account, or the features of the Service You elect to use. Settle reserves the right to remove or delete User Data from the Service for any reason, including if the User Data violates this Agreement or applicable law, in Settle's reasonable discretion, without any liability to You. Except as otherwise provided in this Agreement, We do not claim ownership of any User Data. ****
No Monitoring. You acknowledge and agree that Settle has no responsibility to monitor or police Your use of the Service, including but not limited to communications, information or data transmitted through the Service, such as User Data, and Settle will not be responsible for the content of any such communications, data or transmissions. However, Settle reserve the right, at all times, to review, retain and disclose any such information as necessary to ensure compliance with this Agreement or as required or permitted by law.
Settle Access to Technical Data. You agree that Settle may collect and use technical data and related information (including but not limited to information about Your device, system and application software, and peripherals), to provide You with the Service, Software updates, product support, risk and fraud management and other services related to the Service, and to track and report Your activity inside of the Service. You understand that Settle may use aggregated and anonymized data for analytics purposes. Please see Our Privacy Notice for more details on how Settle collects, uses, shares and protects Your information.
No Liability. Subject to Our Privacy Notice, You agree that Settle will have no responsibility or liability with respect to any User Data that You request or choose to have processed, transmitted, disclosed, or stored in connection with the Service, including with respect to any User Data that Your request to have deleted from the Service, other than as provided under this Agreement.
8. Fees and Payment Terms
Service Fees. Access to the Service, or to certain features of the Service, may require You to pay certain fees (individually and collectively, “Service Fees”), including but not limited to account subscription fees, transaction fees, payment processing fees, and other special services fees. Information on Service Fees can be found on the Settle Website. You agree to pay when due all Service Fees applicable to Your use of the Service. You agree that You are responsible for the full amount of applicable Service Fees for each billing cycle in which You use the Service or maintain a Settle account, even if You don’t use the Service during the billing cycle or use the Service for only a portion of the billing cycle. Settle reserves the right to refuse to cancel Your Settle account if Your account is not in good standing or has any overdue Service Fees.
Changes to Service Fees. Settle reserves the right to change the Service Fees from time to time, in its sole discretion. Settle will provide advanced notice of any material increase of a change in Service Fees. If the increase in Service Fees is not acceptable, Your sole and exclusive remedy will be to stop using the Service and/or cancel Your Settle account, as applicable. By continuing to use the Service after notice of the new Service Fees, You accept all changes in Service Fees. All Service Fees are non-refundable, except in the sole discretion of Settle.
Payment of Service Fees. You authorize Settle to use the credit or debit card You have provided to Us (as updated from time to time), or the bank account associated with Your Settle account (each a "Billing Account") to automatically charge You in U.S. dollars for the Service Fees applicable to Your Settle account or Your use of the Service, plus any applicable taxes. If Settle is unable to charge the Billing Account for any reason, You agree to pay all past due Service Fees and taxes within 10 business days of notice of non-payment from Settle. If Your Settle account becomes overdue, Settle will be entitled to reimbursement for the reasonable costs of collection, including reasonable attorneys’ fees and expenses. ****
Inactive Accounts. If Your Settle account becomes inactive because You do not process a payment for an extended period of time, or because You have not linked a valid bank account, You may have a balance that is deemed “unclaimed” or “abandoned” under applicable state law. Settle may transfer any such "unclaimed" or "abandoned" funds in Your Settle account as required or permitted by applicable law. As provided by law, Settle may deduct a dormancy fee from any funds transferred under this paragraph.
10. Deactivating a User or Cancelling Your Settle Account
Your Right to Cancel. You may request to deactivate a User or cancel Your Settle account at any time by submitting a request through Your Settle account.
Effective Date of Cancellation: Subscription Accounts. This section applies to You if Your Settle account is an account (“Subscription Account”) with monthly subscription Service Fees. When You request to deactivate a User, the User deactivation will be effective on the last billing day of the then-current billing cycle for the Subscription account. When You request to cancel a Subscription account, the cancellation will be effective on the last day of the then-current billing cycle for Your Subscription account, if there are no pending payments on the Settle account or if all pending payments will be posted and completed before the end of that billing cycle. If there are pending payments that will not be posted and completed by the last day of the billing cycle in which You request to cancel Your Subscription account, the account cancellation will be effective on the last day of the next billing cycle. Settle reserves the right to void any payments that have not been processed and paid on or before the effective date of account cancellation, without any liability to You. You will be responsible for all Service Fees that accrue up to the effective date of cancellation.
Effective Date of Cancellation: Non-Subscription Accounts. If You do not have a Subscription Account with Settle, Your request to deactivate a User or to cancel Your Settle account will be effective on the date the request is processed or the date on which the last requested payment is posted and completed, whichever is later. You will be responsible for all Service Fees that accrue up to the effective date of cancellation.
Your Documents. If You cancel Your Settle account, Settle may maintain copies of any information or data that You upload to or create in the Service, such as Your User Data, Bills, and Documents, as required or permitted by law, this Agreement or Our Privacy Notice.
11. Warranty and Disclaimer
THE SERVICE IS PROVIDED "AS-IS" WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. SETTLE DOES NOT WARRANT THAT THE SERVICE IS COMPLETELY SECURE OR IS FREE FROM BUGS, INTERRUPTIONS, ERRORS, OR OTHER PROGRAM LIMITATIONS, OR THAT ALL ERRORS WILL BE CORRECTED. SETTLE FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SETTLE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
12. Third-Party Services, Websites, and Products
Through the Service, You may access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third-Party Services”).
No Control Over Third-Party Services. Settle does not have or maintain any control over Third-Party Services, and is not responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, Settle does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third-Party Services.
Disclaimer of Liability for Third-Party Services. You are solely responsible for taking the precautions necessary to protect Yourself from fraud when using Third-Party Services, and to protect Your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services. Settle disclaims any and all responsibility or liability for any harm resulting from Your use of Third-Party Services, and You irrevocably waive any claim against Settle with respect to the content or operation of any Third-Party Services.
Third Party Disputes. SETTLE IS NOT AFFILIATED WITH ANY OTHER SETTLE USER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY OTHER SETTLE USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE SETTLE (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. SETTLE WILL NOT, AND WILL NOT ATTEMPT, TO REVERSE OR OTHERWISE RECOVER ANY PAYMENT OR TRANSACTION THAT IS SUBJECT TO A BONA FIDE DISPUTE.
13. Limitation of Liability
IN NO EVENT SHALL SETTLE BE LIABLE TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SETTLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. SETTLE WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW. ****
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL SETTLE'S AGGREGATE LIABILITY TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL FEES PAID BY YOU OR YOUR ORGANIZATION OR INDIVIDUAL TO SETTLE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT(S) THAT GAVE RISE TO SUCH LIABILITY, OR ONE HUNDRED USD ($100.00), WHICHEVER IS GREATER, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under this Agreement. Each of these provisions is severable and independent of all other provisions of this Agreement. All limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies will remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.
You agree to full liability and responsibility for Your use of the Service, and You will defend and indemnify Settle and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) Your violation of any portion of this Agreement, or any applicable law or regulation; (b) Your violation of any third-party right, including any intellectual property right, or publicity, confidentiality, other property or privacy right; or (c) any dispute or issue between You and any third party. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations with respect to that matter), and in that case, You agree to cooperate with Our defense of that claim.
15. Agreement to Arbitrate
Agreement to Arbitrate. In the interest of resolving disputes between You and Settle in the most expedient and cost-effective manner, You and Settle agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The Agreement to Arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. BY ENTERING IN THIS AGREEMENT, YOU AND SETTLE ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. YOU UNDERSTAND AND AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS.
Waiver of Class Actions and Right to Trial by Jury. To the fullest extent permitted by law, You acknowledge and agree that You may bring claims against Settle only in Your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. CLASS ACTIONS, CLASS ARBITRATIONS, REPRESENTATIVE ACTIONS, AND/OR CONSOLIDATION OF ACTIONS OR ARBITRATIONS ARE NOT ALLOWED. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION AND TO A TRIAL BY JURY.
Procedures. Any arbitration between You and Settle will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org.
Notice. If You intend to seek arbitration, You must first send a written notice (“Notice”) of Your claim or dispute to Settle by certified U.S. Mail or by Federal Express (signature required). Settle's address for Notice is Settle's address of record as listed on the Settle Website, ATTN: LEGAL. The Notice must describe: (a) the nature and basis of the claim or dispute; and (b) the remedy that You want (“Demand”). You and Settle agree to make good faith efforts to resolve the claim directly, but if You and Settle do not reach an agreement within 60 days after the Notice is received, You or Settle may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by You or Settle must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Fees. If You commence arbitration in accordance with this Agreement, the payment of fees related to the arbitration will be decided by the AAA Rules. If Your claim is less than ten thousand dollars ($10,000.00), Settle will reimburse You for the payment of the filing fee. However, if the arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), You agree to reimburse Settle for any fees paid on Your behalf that would otherwise be Your obligation under the AAA Rules.
Location. The arbitration hearing will take place at a location to be agreed upon in Douglas County, Nevada. If Your claim is for $10,000 or less, You may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Your billing address.
Severability. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this Agreement. If this Agreement to Arbitrate is found to be, in whole or in part, invalid or unenforceable, the remaining provisions of this Agreement will remain in effect, and, where this Section 16 cannot be enforced, You agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to this Agreement.
Exceptions to Agreement to Arbitrate. Notwithstanding any other provision of Section 16, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right to: (a) bring an individual (non-class, non-representative) action in small claims court so long as such action remains in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency, if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16. Governing Law; Choice of Forum
This Agreement and all matters arising out of or relating to this Agreement, including any disputes between You and Settle, will be governed by the laws of the State of Nevada, without regard to its conflicts of law provisions. To the extent that any dispute or action relating to this Agreement is permitted to be brought in a court of law, You agree that the legal action or proceeding will be brought exclusively in the state courts located in Douglas County, Nevada. Subject to the provisions of Section 15, You and Settle agree to submit to the exclusive jurisdiction of and agree that venue is proper in the state courts located in Douglas County, Nevada in any legal action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
17. Other Provisions
Force Majeure. Settle will not be liable for any delay or failure to perform any obligation related to the Service if the delay or failure is due to unforeseen events that are beyond Settle's reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action.
Waiver. The waiver of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except as otherwise stated in this Agreement, the exercise of any remedy under this Agreement will be without prejudice to other remedies available under this Agreement or otherwise.
Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.
Compliance with Laws. You and Settle each agree to comply with all applicable laws and regulations with respect to the Service and Your use of the Service, including without limitation any export laws and regulations of the United States.
Entire Agreement. This Agreement constitutes the complete and exclusive agreement between You and Settle concerning the Service and supersedes all other agreements or understandings, written or oral, about the Service.
18. Updates and Changes to This Agreement
Settle reserves the right to modify or change this Agreement, as well as its policies relating to the Service, at any time, in Our sole discretion. Settle will post revised Terms or policies on Our Website, and will provide notice to You of material changes to this Agreement. You will be deemed to have accepted and agreed to any revisions or changes to this Agreement at the time of (i) Your electronic acceptance of the revised, changed or new Agreement, or (ii) Your use of the Service after the effective date of the revised, changed or new Agreement. If the revised, changed or new Agreement is not acceptable to You, Your sole and exclusive remedy will be to stop using the Service and/or to cancel Your account as provided in Section 10.
Bill Payment Service
1. Using the Bill Payment Service
Using the Bill Payment Service. The “Bill Payment Service” is a set of services, features and functionalities that enables You to make payments to Vendors through the Service.
Payment Accounts. To use the Bill Payment Service, You must associate one or more bank account(s) (individually and collectively, Your "Payment Account*"*) with Your Settle account. When You enter Payment Account information for purposes of the Bill Payment Service, You represent and warrant:
Authorized Payers. By entitling a User to make payments through the Service (a “Payer”), You represent and warrant to Us that the Payer is authorized to instruct Settle to make payments and to initiate debit or credit entries, as applicable, to or from the Payment Account, as provided under this Agreement, the terms of the financial institution holding the Payment Account, and any applicable laws, regulations or rules. You will be responsible for payments requested or made by a Payer, whether or not authorized by You.
Payment Instructions. When We receive a payment instruction from a Payer, We will use commercially reasonable efforts to make and deliver the payment, subject to this Agreement, and You authorize Us to debit Your Payment Account and remit funds on Your behalf, all in accordance with the payment instructions. You agree to be bound by any payment instructions that a Payer provides to Us, to the fullest extent allowed by law.
Rights We Reserve. Settle reserves the right to limit or cap or to refuse to make any payment transaction requested or initiated, for any reason, in Settle's sole discretion, without any liability to You. By using the Bill Payment Service, You grant to Us and Settle reserves the right to suspend or cancel any payments requested or initiated by a Payer, including if Your Settle account is not in good standing. In the event that We suspend or cancel Your payment, Settle will credit the amount of any electronic ACH debit(s) received by Us to fund the payment to Your Payment Account, and You authorize Settle, in its sole discretion, to withhold and collect from any such credit(s) any Service Fees or other amounts owed by You to Settle.
2. Vendor Set Up and Management
Setting Up Your Vendors. To use the Bill Payment Service, You will be required to provide information for Your Vendors, including for Vendors that are not part of the Settle network. For each Vendor, You agree to provide correct and current information as requested by Settle. By providing, entering, connecting, or uploading any Vendor information to the Service, You represent and warrant that You have obtained all necessary authorizations or consents from the Vendor to share such information. You represent and warrant that the Vendor agrees, or You have the authority to agree on behalf of the Vendor, to be subject to and comply with this Agreement and all applicable laws, rules and regulations. You are solely responsible and Settle is not responsible for verifying the accuracy of any Vendor information provided in connection with Your Settle account or use of the Service. Settle will have no liability for losses or damages resulting from the accuracy or inaccuracy of Your Vendor’s information, including bank account information, or Your or Your Vendor’s actions or inactions. If You invite a Vendor to set up a Settle account, You acknowledge that it may take several business days to set up the Vendor in the Service. Settle does not guarantee that a Vendor will be set up in the Service within any specific time frame.
Payment Instruction Authorizations. When You create or link a Vendor to Your Settle account, You authorize Us to follow the payment instructions that We receive from a Payer to pay that Vendor. In order to process payments more efficiently and effectively, We may submit check payments to the best known Vendor address, or alter payment data or data formats for a Vendor, all in Our sole discretion and without notice to You. Settle reserves the right to refuse to make payments to any Vendor, in Settle's sole discretion.
3. Choosing a Payment Method
To use the Bill Payment Service, for each payment transaction, You must choose a payment method to pay Your Vendor. Available payment methods may include electronic ACH payment, wire payment, check payment, or card payment. The payment method selected may be governed by additional Terms, in this Agreement. Settle reserves the right to change or limit the payment method options available to any Payer or Vendor, or to select the method by which a payment transaction will be made, all in Settle's sole discretion.
4. Scheduling Bill Payment
Process Dates. Payment transactions made through the Bill Payment Service require sufficient time for Settle to debit Your Payment Account and for Your Vendor to receive payment. When making a payment through the Bill Payment Service, You must select an available date ("Process Date") on which Settle will process the ACH debit from Your Payment Account to fund the payment. You agree that You are solely responsible for scheduling payments and selecting an appropriate Process Date for each payment transaction. You understand that the selection of a future Process Date may not be available for all products and services.
No Warranty or Representation. When provided by Settle, estimated payment dates are for convenience only, and Settle does not guarantee that a payment to a Vendor will be made within any specific time frame of the Process Date, and Settle disclaims any responsibility or liability if a payment scheduled through the Bill Pay Service is not made to a Vendor on or before any specific date. It is Your sole responsibility to ensure that payment to a Vendor is made as required by agreement, contract or law. Except as otherwise agreed or required by law, You will be solely responsible and Settle will not be responsible for all penalties, interest charges, and other late payment fees associated with payments that are delivered after their due date.
5. Payment Cancellation or Modification
Payment Cancellation. You understand and agree that when You authorize a payment to be made to a Vendor through the Service, Your authorization remains in effect for up to 30 days. Payments that are scheduled but have not yet begun to be processed may be cancelled and, if a change is needed, reissued, through Your Settle account. Once Settle has begun to process a payment, the payment cannot be cancelled, and You must request to void the payment.
Void Payment Requests. To stop a payment after it has begun to process, You must request to void the payment through the Service. If You submit a Void Payment Request, Settle will use commercially reasonable efforts to stop the payment, but You understand and agree that Settle may not be able to stop the payment. Settle's ability to stop a payment depends on a number of factors, including but not limited to the payment method and whether the payment has cleared the Vendor’s account. You agree that Settle will not have any liability for failing to stop a payment that has begun to process. A Void Payment Request may be subject to a fee.
Rights We Reserve. Settle reserves the right to expire, void or cancel any payment if the payment is not deposited or otherwise received and processed by a Vendor within a reasonable amount of time, as determined by Settle in Our sole discretion. If We expire, void or cancel any payment, You authorize and We will credit the amount of the payment to Your Payment Account, less any Service Fees or other amounts owed by You to Settle.
6. Returned Transactions
You are solely responsible for the accuracy of the payment information or the payment instructions provided to Settle. If a payment is refused or returned, Settle will void the payment, unless Settle in its sole discretion agrees to take other action on the payment such as crediting or reissuing the payment. If a returned or refused payment is voided, You authorize Settle to credit the amount of the payment to Your Payment Account, less any Service Fees or other amounts owed by You to Settle.
7. Document Management
You may upload invoices, bills, statements of accounts from Vendors, or other documents ("Bills") to the Inbox of Your Settle account. ****You may also authorize Vendors to send electronic Bills to Your Settle account, or You can create Bills using the Service. You are solely responsible for the Bills uploaded, created, recorded, processed, approved, paid, and/or synced or shared with third parties through Your Settle account. Settle is not responsible for any Bills, including those that are misdirected or not received.
8. Electronic Payments
Your use of the Bill Payment Service will include Your consent and authorization for Settle to process and originate electronic ACH debits and credits.
8a. ACH Rules
Applicable Rules and Law. You agree that all electronic ACH transactions requested or processed in connection with Your Settle account or Your use of the Service are subject to this Agreement, the Operating Rules of the National Automated Clearing House Association (“NACHA Rules”), and all other applicable laws, rules and regulations, which may include Uniform Commercial Code Article 4A or Regulation E. For purposes of the NACHA Rules, Settle is a “Third Party Service Provider” and a “Third Party Sender”.
Your Agreement and Representations. For purposes of ACH debits and credits, and all electronic payments made or received through the Service, You:
8b. ACH Debits
Debits from Your Payment Account. When You use the Bill Payment Service to pay a Vendor, You are responsible for the payment amount and agree to fund the payment to Settle. To fund the payment, You authorize Settle to process an ACH debit from Your Payment Account in the full amount of each payment requested. If an ACH debit from Your Payment Account to fund a payment made by You through the Service is rejected or returned by Your bank for any reason, YOU UNDERSTAND AND AGREE THAT YOU CONTINUE TO BE RESPONSIBLE FOR FUNDING THE PAYMENT AMOUNT AND AGREE PAY THE AMOUNT OF THE RETURNED DEBIT DIRECTLY TO SETTLE WITHIN 10 BUSINESS DAYS. You agree that We may resubmit a returned or rejected ACH debit to Your Payment Account, in Our sole discretion. You agree to pay all penalties, interest charges, late payment fees, service fees, and/or interest related to the rejected or returned funding ACH debit. You certify that the Your Payment Account is enabled for ACH debits, and agree to reimburse Settle for all penalties and fees incurred if any funding ACH debit is returned because Your Payment account was not properly configured to accept ACH debits. If an ACH debit processed by Us from Your Payment Account is rejected or returned for any reason, We reserve the right to suspend all payments from Your Settle account, or to terminate Your Settle account, all in Our sole discretion.
Debits from the accounts of Your Customers. When You use the Accounts Receivable Service, You represent and warrant to Settle that You have all necessary authorizations and approvals from Your Customer for Settle to originate an ACH debit from the Customer’s bank account to fund the full amount of each payment requested. You represent and warrant that Your Customer certifies, or You have the authority to certify on behalf of Your Customer, that the Customer’s bank account is enabled for ACH payments, and You agree to reimburse Settle for all penalties and fees incurred if any funding ACH debit is returned because the Customer’s bank account was not properly configured to accept ACH debits. You represent and warrant that Your Customer agrees, or You have the authority to agree on behalf of Your Customer, that the Customer will not dispute any ACH debit by Settle that funds a payment made through the Service. If an ACH debit from a Customer’s account to fund a payment requested by You through the Accounts Receivable Service is rejected or reversed for any reason, YOU AUTHORIZE SETTLE TO REVERSE THE CORRESPONDING PAYMENT VIA DEBIT FROM YOUR PAYMENT ACCOUNT, OR IF THERE ARE INSUFFICIENT FUNDS IN YOUR PAYMENT ACCOUNT AT THE TIME OF DEBIT, YOU AGREE TO PAY THE AMOUNT OF THE PAYMENT BACK TO SETTLE WITHIN 10 BUSINESS DAYS. You represent and warrant that Your Customer agrees, or You have the authority to agree on behalf of Your Customer, that Settle may resubmit a rejected or reversed funding debit to the Customer’s account, in Settle's sole discretion. You also agree to pay all penalties, interest charges, late payment fees and service fees related to any rejected, reversed or returned funding ACH debit.
Returns and Maintaining Sufficient Funds. When using the Service, You understand and agree that it may take more than 60 days for Settle to receive notice of the return or reversal of an ACH debit and/or to exercise any rights granted or reserved under this Agreement. You agree at all times to maintain sufficient funds in Your Payment Account to satisfy all obligations to Settle in connection with Your Settle account or Your use of the Service, including returns, reversals, and associated fees, and to add funds immediately if Settle notifies You that Your funds are insufficient.
Ownership of Funds Collected for Payment. In the event that Settle processes an ACH debit to fund a payment before Settle makes the associated bill payment disbursement, the funds collected through the ACH debit will be held in a master bank account owned by Settle, as custodian and agent on behalf of the payor, and for the benefit of the payor. These funds may be commingled with other funds similarly collected and held by Settle for purposes of making payments requested through the Service. Even though the funds will be held in an account owned by Settle, the funds are held solely for the benefit of the payor, not Settle, and the payor will be principal with respect to those funds.
8c. ACH Payments and Credits
ACH Payments. When using the Service, if permitted by Your account, Your settings and this Agreement, You may choose to pay Vendors or be paid by Customers by electronic ACH payment. ACH payments may not be available for all payments, including but not limited to payments made in international currency. Settle reserves the right to refuse to make any payment through the ACH Network, for any reason, in Settle's sole discretion.
Credit of Returned or Cancelled Payments. If a payment requested or made through the Service is returned or cancelled, Settle reserves the right to process an ACH credit in the amount of the payment to the Payment Account of the payor, less any Service Fees or other amounts owed to Settle.
9. International Payments
Your use of the Bill Payment Service will include Your consent and authorization for Settle to process and originate international payments.
9a. The International Payments Service
If You have an eligible Settle account, You may use the International Payments Service to make payments (“International Payments”) to Vendors located in certain eligible foreign countries. You understand and agree that the International Payments Service is part of and available only for the Bill Payment Service, and the International Payments Service is not available for the Accounts Receivable Service.
Settle reserves the right to select and change, at any time, for any reason, in Settle's sole discretion, the eligible countries to which or the eligible currencies in which You may request payments to be made using the International Payment Service. Settle reserves the right to refuse any payment transaction requested or initiated through the International Payments Service, for any reason, in Settle's sole discretion, without any liability to You.
9b. Making International Payments
Process Dates. You understand and agree that, for certain International Payments, You may not be able to select or schedule a future Process Date. We will provide You with an estimated delivery date for Your International Payment when You instruct Us to make the payment, but You understand and agree that actual delivery date may vary. It is Your sole responsibility to ensure that payment to Your Vendor is made as required by agreement, contract or law.
Currency Conversion Rates. You understand and agree that (i) International Payments may require the conversion of currency, and (ii) when making International Payments, the applicable rate of currency conversion may vary from the indicative rate displayed when You request the payment and You will be bound by the applicable rate of currency conversion.
Third Party Service Providers. You understand and agree that Settle may use one or more third-party service provider(s) to process or execute International Payments, to convert currency, and/or to transmit and distribute funds to Vendors outside the United States.
Applicable Rules. You understand and agree that International Payments may be governed by rules of payment networks used to process such payments, OFAC regulations, and may be subject to the laws of jurisdictions outside the United States, including the jurisdictions where the Vendors are located. The application of foreign laws or regulations to Your International Payments may impact the rights and remedies that You have with respect to the International Payments.
9c. Void Payment Requests
You acknowledge and agree that Settle cannot stop or void an International Payment after the payment has begun to process.
9d. Business Payments Only
Our International Payments Service is intended for business payments or payments made by business entities.
10. Accounts Receivable Service
The “Accounts Receivable Service” is a set of services, features and functionalities of the Service that enable You to receive payments from Customers through the Service.
10a. Using the Accounts Receivable Service
Payment Accounts. To use the Accounts Receivable Service, You must associate Your Payment Account **with Your Settle account. When You enter Payment Account information for purposes of the Accounts Receivable Service, You represent and warrant:
Payment Instructions. You are solely responsible for the accuracy of the payment information and the payment instructions provided in connection with Your use of the Accounts Receivable Service.
Agent of the Payee; Receipt of Funds. When You use Our Accounts Receivable Service, You appoint Settle to act as Your agent in connection with the receipt of funds from Your Customer. Receipt of funds from Your Customer by Settle will be deemed to be receipt of funds by You, and will satisfy any payment obligations of Your Customer even if payment is not received by You.
Rights We Reserve. Settle reserves the right to refuse to process a payment from a Customer for any reason, including any reason related to the Customer’s financial condition and creditworthiness, in Settle's sole discretion, without any liability to You. Settle may contact, in its sole discretion, for any reason, a Customer regarding any payments made, or to be made, by the Customer through the Accounts Receivable Service. Settle will not process any payment transaction requested from any Customer located outside the United States.
10b. Customer Set Up and Management
To use the Accounts Receivable Service, You may be required to provide accurate and current information about Your Customers. You agree to provide any information or documentation requested by Settle, including to verify the identity of the Customer or its payment information. When using the Accounts Receivable Service, You represent and warrant to Settle that:
10c. Customer Authorizations
Customer Consents and Authorizations. By providing, entering, connecting, or uploading Customer information to the Service, You represent and warrant that You have obtained all required authorizations or consents from the Customer to share the Customer’s information. You are solely responsible for verifying the accuracy of Customer information provided by You in connection with Your Settle account or use of the Service. Settle will have no liability for losses or damages resulting from the accuracy or inaccuracy of a Customer’s information, or Your or Your Customer’s actions or inactions.
Payment Authorizations. When requesting a payment from a Customer using the Accounts Receivable Service, You represent and warrant that Your Customer agrees, or You have the authority to agree on behalf of the Customer, to be subject to and comply with Agreement and all applicable laws, rules and regulations. You represent and warrant that You have obtained all necessary approvals and authorizations from the Customer to initiate the payment and to authorize ACH debits and credits from the Customer’s bank account, including to fund the payment.
10d. Invoice Creation and Management
You may create invoices through the Service, or import invoices from Your accounting software if the import is supported by both Settle. You may use the Accounts Receivable Service to send and track Your invoices, and to send reminders related to Your invoices. By using these features of the Accounts Receivable Service, You represent and warrant that You have all rights and consents necessary to send invoices and reminders to Customers in accordance with any governing agreements and applicable law. Settle is not responsible for any invoices or reminders that You send using the Service, including those that are misdirected or not received.
10e. Electronic Payments
Your use of the Accounts Receivable Service will include Your consent and authorization, and Your representation and warranty that You have obtained necessary consents and authorization from Customer(s), for Settle to process and originate electronic ACH debits and credits.