HAMSA PAY, INC. BUYER TERMS OF SERVICE
Last Updated: October 26, 2020
Welcome to HamsaPay. Our mission is to unite the world through enlightened trade. We are an exclusive private network that provides select Chinese B2B merchants and their global buyers with a convenient, easy and cost effective B2B payments platform.
To keep our network secure and to help the government fight the funding of terrorism and money laundering activities, US Federal and other laws require HamsaPay to obtain, verify, and record information that identifies each person who registers with HamsaPay.
What this means for you: When you register with HamsaPay, we will ask for your name, address, date of creation, and other information that will allow us to identify you. We may also ask to see government certification of your existence or other identifying documents. This will help to make HamsaPay the safe, secure preferred platform for Chinese B2B payments.
Please read these Terms of Service carefully before accessing or using the Services (defined below). These Terms of Service, along with any exhibits or documents attached to this Agreement or referenced or linked in this Agreement, including our Privacy Policy (collectively, this “Agreement”), govern the availability and use of the services provided by Hamsa Pay, Inc. and its subsidiaries and/or affiliates (collectively “HamsaPay,” “we,” “us” or “our”). This Agreement is an agreement between us and the entity (“you,” “your,” or “user”) that registered for an account through which to access the Services (“Account”) or is using the Services through our website or application. By registering an Account or downloading, accessing, registering or otherwise using any part of the Services, you accept and enter into this Agreement.
This Agreement is effective and legally binding on the date when you register an Account and accept these Terms of Service in writing or electronically (“Effective Date”). This Agreement will continue from the Effective Date until terminated in accordance with the terms of this Agreement. To keep our network secure, our obligations under this Agreement are conditional on our acceptance of you as a customer at our sole discretion upon the completion of the Account registration process, and we reserve the right to terminate the provision of any or all of the Services at any time.
Protecting your privacy is very important to us. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your information. By entering into this Agreement, you acknowledge that you have reviewed and agreed to the terms of our Privacy Policy.
1. Definitions
The following terms have the following meanings as used in this Agreement:
1.1. “Account Jurisdiction” means the jurisdiction in which you establish your Account and in which your Bank Account is located.
1.2. “Applicable Law” means any law, regulation, rule, regulatory guidance, directive, policy, order, or determination of (or agreement with), and mandatory written direction from (or agreement with), any duly authorized federal, national, supranational, state, provincial, local, or other government, governmental, regulatory, or administrative authority, agency, or commission, or any court, tribunal, or judicial or arbitral body, of competent jurisdiction in the Account Jurisdiction, or any other jurisdiction applicable to your use of the Services, including, but not limited to, those governing payment services, anti-money laundering or terrorist financing, sanctions and export controls, anti-corruption, consumer protection, data privacy or data security, anti-discrimination, gambling, false advertising, illegal sale or purchase or exchange of any goods or services, export/import activity, taxes or foreign currency transactions.
1.3. “Approved Country” means the countries in which the Services are available, as listed on our website or application and as we may update from time to time.
1.4. “Approved Payee” means a Seller or Platform approved by us to receive payments through the Services.
1.5. “Bank Account” means the bank account associated with your Account from which you can initiate Outbound Payments or receive Inbound Payments through the Services.
1.6. “Business Day” means a calendar day with the exception of Saturdays, Sundays and public holidays in the Account Jurisdiction, on which the payment infrastructures of the Account Jurisdiction are open and banks carry out their regular business activities.
1.7. “Buyer” means a person or entity, other than a Consumer, that purchases goods or services from a Seller or a Platform and seeks to pay for such goods or services using the Services.
1.8. “Consumer” means a natural person who uses payment services primarily for personal, family or household purposes, or a consumer or comparable term as defined under Applicable Law in the Account Jurisdiction.
1.9. “Inbound Payment” means a payment settled to the Bank Account of an Approved Payee in connection with the purchase of goods or services by a Buyer.
1.10. “Outbound Payment” means a payment, initiated by a Buyer, from the Buyer to an Approved Payee in connection with the purchase of goods or services.
1.11. “Platform” means an e-commerce marketplace or other third-party selling platform that facilitates the sale of goods or services to a Buyer, and that is approved by us to receive payments through the Services.
1.12. “Representative” has the meaning given to it in Section 3.1.1 below.
1.13. “Seller” means an entity (and expressly excludes all Consumers), that sells goods or services to a Buyer, either directly or through a Platform, and that is approved by us to receive payments through the Services.
1.14. “Services” means our provision of a platform that facilitates payment services, including processing and storage of data, trust and privacy protection, data and entity authentication, information technology and communication network, and customer support services, but excluding any payment initiation, funds transfer, financial account creation, or account information services.
1.15. “Taxes” has the meaning given to it in Section 9.8.
2. Our Services
2.1. Services. Through our platform, Approved Payees can access payment tools provided by our carefully selected Service Providers for quick and seamless payment for goods sold or services provided to Buyers. We have designed the Services to be digitally native, cost effective, time efficient, convenient, transparent and secure, and our Customer Success team will ensure that your questions will be answered in a timely manner.
2.1.1. Cost-effective. Neither HamsaPay nor its Approved Payee platforms charge fees to Buyers for the Services.
2.1.2. Time-efficient. We provide payment initiation services and access to payment tools that allow Buyers to safely and securely transmit funds in a time efficient manner from their Bank Accounts to the Bank Accounts of Approved Payees.
2.1.3. Convenient. For Buyers, you no longer have to go to the bank and manually send a payment through wire transfers. You can just click on a secure online link tied to a Seller invoice to initiate the payment to your Bank Account with the click of a button.
2.1.4. Transparent. We provide you with a dashboard that provides the status of the payment. This allows you to have full transparency regarding the status of the payment and to help foster trust and trade between Buyers and Sellers.
2.1.5. Secure. By providing a link that Sellers can send to Buyers, we have created a way to reduce manual input errors that you might see in wire transfers. Our platform utilizes secure socket and encryption technology to ensure the protection of your data. We also partner with Approved Payee providers to help ensure of your transaction data.
2.1.6. Customer Success. The motto of our Customer Success team is “enlightened customers for life.” We aspire to respond within 24 hours, Mondays through Fridays as a means to ensure that Buyers have an excellent customer experience. For Buyers, please contact us at help@hamsapay.com.
2.2. Limitations of Our Services. While HamsaPay provides value-added services and we aspire to create an excellent customer experience, there are limitations on the Services we provide. For instance, we are not in the flow of funds or involved in any underlying transaction between Sellers and Buyers and you are solely responsible for resolving any disputes with such parties or concerning any underlying transaction. We have no power of disposal on any funds that may be transferred in connection with the Services. No Bank Account is in the custody or control of HamsaPay and none of the accounts that are used in connection with the Services with third parties are owned, maintained or opened in our name and we do not have power of disposal over the transferred funds or any account authorization. These limitations allow HamsaPay to focus on taking steps to meet its aspiration of providing Sellers and Buyers with an excellent customer experience.
2.3. Third Party Service Providers.
2.3.1. In order to allow you to complete payment transactions in connection with the Services, we rely on the services of third-party payment service providers, financial institutions, or other service providers (collectively, “Service Providers”). Any payment initiation, funds transfer, financial account creation, or account information services used in connection with the Services are provided by Service Providers. You acknowledge and authorize our use of Service Providers in connection with the Services, and you agree that your use of certain features of the Services may be subject to your acceptance of separate agreements with such Service Providers. We are not a party to any such separate agreements. You acknowledge that we have no responsibility for the services provided by Service Providers.
2.3.2. We use tools provided by several of our Service Providers, including, but not limited to NIUM Pte., Ltd. (“NIUM”) and TrueLayer Limited (www.truelayer.com) (“TrueLayer”) to allow you to initiate payments from a Buyer’s Bank Account. When you instruct a payment through our website or application using TrueLayer or NIUM, as the case may be, NIUM’s terms of service or TrueLayer's terms of service (collectively “TOS”) will apply to the payment initiation. The TOS sets out the terms on which you agree to initiating payment from your Bank Account. NIUM and TrueLayer are subject to UK and EU data protection laws and are required to treat your data in accordance with those laws, as well as the TOS and NIUM or TrueLayer’s, as the case may be, Privacy Policy. NIUM and TrueLayer are authorized by the UK Financial Conduct Authority under the Payment Services Regulations 2017 to provide account information services and payment initiation services.
2.4. Availability of the Services. The Services may be subject to certain limitations, and certain parts of the Services may not be available to you depending on your location, Applicable Law in your Account Jurisdiction, and other similar factors determined by us in our reasonable discretion. We reserve the right to terminate the provision of any or all of the Services at any time.
2.5. Status of Your Account. HamsaPay is a scalable platform that helps to facilitate payment transactions for our Sellers and their Buyers. However, HamsaPay is not a bank, credit, financial, payment, e-money or other financial institution and is as such not regulated or licensed/authorized by a financial supervisory authority. The Services do not offer the features or benefits of a bank account, including deposit insurance protection. Neither we nor any Service Provider will pay interest to you on any funds the Service Providers transfer or hold in connection with the Service. While it is not our business model, you acknowledge that if any such funds earn interest, then we are or our Service Provider is authorized to retain any such interest. You further acknowledge that your Account does not qualify as a deposit account and that any funds transferred or held in connection with the Services are not insured under any deposit insurance or similar scheme.
2.6. No Fiduciary Relationship or Advice. We are an independent contractor that provides the Services to our customers. We do not act as a fiduciary, trustee or escrow holder on your behalf, and we are not a selling agent in connection with any sale or purchase by you of goods or services to or from any person or entity. We do not, and may in no situation be deemed to, provide any tax or legal advice or approval or counsel with respect to transactions, their amount and timing, your relationship with any other person or entity, or your tax, legal or business status.
2.7. License Grant. To help us facilitate your transactions, you are granted a revocable non-exclusive, limited license or right to access the Services and to print copies of any content only for your permitted use of the Services. You may not rent, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation and use requirements contained in all documentation accompanying the Services. If you do not comply with our implementation and use requirements, please know that you will be liable for all resulting damages suffered by you, us, Service Providers and other third parties. You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the software. You acknowledge that all right, title and interest in and to our software is owned by us or our licensors.
2.8. Our Intellectual Property Rights. HamsaPay and the HamsaPay logo and any names, brands, marks, or the like, are our service/trademarks of us and our affiliates. All other featured logos are service/trademarks. You acknowledge and agree that the Services’ contents, including their text, graphics, images, logos and button icons, photographs, editorial content, notices, software, look and feel (including html-based computer programs) and other material used by us for the Services are proprietary to us and our licensors and protected under applicable copyright, trademark and other laws. As such, you will not gain any ownership or other right, title or interest in or to any of them by reason of this Agreement or otherwise. You agree not to reverse engineer, modify, or decompile any of the technology that we make available to you. Except as otherwise expressly stated herein, the Services and its contents may not be copied, reproduced, transmitted, displayed, performed, distributed (for compensation or otherwise), licensed, altered, framed, stored for subsequent use or otherwise used in whole or in part in any manner without our prior written consent.
2.9. Customer Success. HamsaPay aspires to provide excellent customer service. Our motto is “enlightened customers for life.” Our value pillars are integrity, service, excellence, and innovation. We aspire to ensure that you have a great customer experience with us. As such, if you have any issue or questions, please contact HamsaPay customer success (“Customer Success”) with questions about this Agreement or the Services. For Buyers, please contact us at help@hamsapay.com.
3. Your Account; Representations and Warranties
3.1. Account Registration. Use of the Services requires registering for an Account. Your rights in and to the Account are limited by this Agreement. To be eligible to open an Account:
3.1.1. Any individual who registers your Account (“Representative”) must be eighteen (18) years of age or older. You, and your Representative and any other individual who provides their personal information to us or uses the Services, represent that all such individuals are eighteen (18) years of age or older.
3.1.2. You must be located in an Approved Country.
3.1.3. You must be a business or individual using the Services for business-related and commercial activities only, and not for personal, family or household purposes or as a Consumer. Please know that the Services are intended to enable payments for business-related and commercial activities and are not intended for personal, family, household or person-to-person use. You acknowledge and represent that at all times while using the Services you do so exclusively for business purposes and not primarily for personal, family or household purposes and that you are not a Consumer.
3.1.4. You must be authorized to conduct business by the jurisdiction in which you operate and your Representative (or any other individual acting on your behalf) must be your authorized signatory. You warrant that you and your Representative or any individual acting on your behalf has the full legal capacity to enter into this Agreement and to bind you to its terms.
3.1.5. You must only use the Services to transact on your own Account and not on behalf of any other person or entity. You may not impersonate or falsely claim an affiliation with any person or entity while using the Services.
3.2. Required Information. To create a safe and secure network for our Sellers and their Buyers and to protect the financial system and prevent bad actors from engaging in transactions through the Services, your use of the Services is subject to our compliance process and internal controls, including our know-your-customer and approval processes, and your use of the services provided by our Service Providers may also be subject to their respective compliance processes and internal controls, including their know-your-customer and approval processes. As such you will need to provide us with your legally authorized business name and any trade names, address, email address, phone number, tax identification number, website URL, the nature of your business or activities, valid Bank Account information, and certain other information that we request in our sole discretion. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and Representative. You agree to provide us with accurate and verifiable information about you and your business. In certain jurisdictions, Applicable Law requires that we verify some of your information, and you agree that we may take means that we determine necessary to check and verify information you provide, including through the use of third-party intermediaries or databases. You must provide accurate and complete information in response to our questions, and you must promptly update any such information that changes during the term of this Agreement. Until you have submitted, and we have reviewed and approved, all required information, your Account will be available to you on a preliminary basis only (if at all), and we may close, suspend, or limit access to your Account or the Services if we are unable to obtain or verify your information or for any other reason. You also authorize us to share any information collected pursuant to our know-your-customer and approval processes with our Service Providers or regulators to the extent permitted by Applicable Law.
3.3. Additional Information. At any time during your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, assess the risk associated with your business, or for other purposes in our sole discretion. This additional information may include, but is not limited to, business invoices, copies of government-issued identification, business licenses, copies of bank statements, or other information related to your business or your beneficial owners, principals, sources of funds or Representative. Your failure to provide this information may result in us limiting, suspending or terminating your Account or placing a hold on your transactions. You also authorize us to share any such information with our Service Providers or regulators to the extent permitted by Applicable Law.
3.4. Compliance with Applicable Law. We respect each business as its own independent entity. As such, you are solely responsible for understanding and complying with all Applicable Law. You represent and warrant that you will comply (and will cause your employees, agents, and representatives to comply) with all Applicable Law in connection with your use of the Services and the operation of your business as it relates to your use of the Services.
3.5. Prohibited Activities. You warrant and represent that your use of the Services is solely to facilitate the sending and/or receiving of payments for goods or services as permitted by this Agreement. You agree that in connection with your use of the Services, you will not:
3.5.1. breach this Agreement, the Privacy Policy and any other agreements or policies that apply to you;
3.5.2. violate any Applicable Law, including any laws or regulations of the country where you manufacture, purchase, store or sell your goods or provide services if you are a Seller, or engage in unlawful businesses or activities or sell counterfeit goods;
3.5.3. access the Services while residing or being located in a jurisdiction other than an Approved Country;
3.5.4. infringe or misappropriate the intellectual property rights or rights of publicity or privacy of us, our Service Providers, or any other third party;
3.5.5. act in a manner that is defamatory, trade libelous, threatening or harassing;
3.5.6. provide false, inaccurate or misleading information in connection with your use of the Services or transactions associated with your use of the Services;
3.5.7. refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
3.5.8. send or receive funds that we or our Service Provider reasonably believes may involve money laundering, terrorist financing, a sanctioned party or other illegal activities, or otherwise engage in transactions that we or our Service Provider believes to be suspicious or fraudulent; or
3.5.9. take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; attempt to hack; scrape; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, upload material containing viruses or any other harmful programs, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our website or the Services.
If we believe, in our sole discretion, that you have engaged in any of the above activities, we may limit, suspend or terminate your Account or refuse to provide you any Services in the future.
3.6. Account History. All funds transfer and financial account information services will be performed by our Service Providers.
3.7. Account Security. You are solely responsible for maintaining adequate security and control of your Account, including of any IDs, passwords, or any other codes that you use to access your Account and the Services. You are solely responsible for all activity that occurs under your Account. We will have no liability for any unauthorized payments or transfers made using your Account that occur before you have notified us of possible unauthorized use and we have had a reasonable opportunity to act on that notice. Accordingly, you should log into your Account regularly and review your transaction history for unauthorized transactions or access.
3.8. Account Termination, Suspension or Limitation. You may close your Account at any time, and, to the extent permitted by law, we may terminate, suspend, or limit your Account or your use of the Services at any time for any reason. No such termination, suspension, or limitation will relieve you of obligations to pay Fees incurred prior to such termination, suspension, or limitation, or to fulfill your obligation with respect to any transaction intimated prior to such termination, suspension, or limitation. We will have no liability for any losses that you incur in connection with our termination, suspension, or limitation of your Account in accordance with this Agreement.
4. Sending and Receiving Payments
4.1. Payment Limits. As a B2B payment facilitation platform, we offer our customers the ability to send and receive payments, where permissible, in the minimum amount of USD5,000 and the maximum amount of USD200,000. For risk management and other purposes, we may restrict the amount of funds that you can send or receive in connection with the Services at our sole discretion based on a risk assessment of information or other reasons related to your Account and individual transactions or other Applicable Law.
4.2. Payment Review. We and our Service Providers review and monitor payment transactions for a range of risks, including, but not limited to, fraud, money laundering and terrorist financing, financial sanctions, and other purposes (“Payment Review”). Based upon the results of the Payment Review, we and our Service Provider may place a hold on the transaction, conduct a further review or investigation, contact you for additional information (or request you contact us with additional information), and take any action in our sole discretion based upon the results of the review or investigation. In addition, we or our Service Provider may be required or find it desirable to file reports with governmental agencies or otherwise take actions under Applicable Laws. You acknowledge that if we or our Service Provider may take such action and we or our Service Provider may share information about you with law enforcement or other governmental agencies.
4.3. Payment Methods. The Services will only facilitate the acceptance or sending of funds through wire and bank transfer networks approved by us or our Service Provider, as applicable. The Services do not support cash, credit card, debit card or check payments.
5. Inbound Payments.
5.1. Bank Account. You must ensure that the Bank Account information associated with your Account is accurate. Neither we nor our Service Providers will be responsible for any funds sent to an incorrect bank account as a result of you providing incorrect Bank Account information, your Bank Account not being able to receive funds or your bank maintaining your Bank Account rejects receipt of such funds. If our Service Provider is unable to complete an Inbound Payment to you as a result of you providing incorrect Bank Account information, you will be responsible for any resulting fees. You authorize us and our Service Provider to withhold the amount of any such fees that remain unpaid from Inbound Payments directed to you. In the case of any incorrect or misdirected payment, we will take reasonable measures to assist you with tracing and, if reasonably feasible, recovering such payments, but neither we nor our Service Providers will be liable for any payments that cannot be recovered.
6. Changes to the Services
6.1. Changes to Services. We will occasionally provide automatic updates to the Services and their functionality to improve your experience or as we determine is appropriate, although these upgrades may not be consistent across all platforms, devices, and jurisdictions. You agree to take no action to interfere with such automatic upgrades or changes to the Services. We reserve the right at any time to change, modify, add to, discontinue or retire any aspect or feature of the Services including the hours of availability, equipment needed for access or use, the maximum or minimum payment amounts or the availability of the Services on any particular device or platform or in any particular jurisdiction. We have no obligation, but will make a reasonable effort, to provide you with advance notice of any such changes that we expect will materially affect your use of the Services.
6.2. Changes to this Agreement. In connection with our updates to the Services, we may change the terms of this Agreement. We may, in our sole discretion, amend, revise or update this Agreement. Subject to the Jurisdiction Specific Terms and to the extent permitted by law, the revised version of this Agreement will be effective at the time we publish it on our website or within the application. The effective date of any updated version will be listed at the top of this Agreement. You will receive notice of changes to this Agreement electronically, including via our website or application, email, mail, or text message, but you should check this Agreement yourself regularly. Continuing to use the Services will constitute your acceptance of any revised or amended Agreement. If you do not agree to any revisions or amendments to this Agreement, your only remedy will be to stop using the Services.
7. Indemnification; Release; Limitation of Liability; No Warranty
7.1. Indemnification. You agree to defend, indemnify and hold harmless HamsaPay, our affiliates, parents, our and their respective shareholders, members, directors, officers, employees, agents, and representatives (collectively, the “Indemnified Parties”) from any claim, suit, demand, loss, liability, damage, action, or proceeding, including reasonable attorneys’ fees, arising out of or related to: (i) your use of the Services; (ii) your breach of this Agreement or violation of Applicable Law; (iii) your obligation to pay Fees owed to us, our Service Providers or any other third parties; or (iv) any negligence or willful misconduct by you, your employees, contractors, agents or representatives. You further agree to defend, indemnify and hold harmless the Indemnified Parties from any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to any transaction submitted by you through the Services (including the accuracy of any content or product, service, or transaction information that you provide or any claim or dispute arising out of goods or services offered or sold by you).
7.2. Release. If you have a dispute with any other person or entity in connection with the Services, including any Service Provider, Platform, Buyer, or Seller, you release the Indemnified Parties from any and all claims, demands and damages (special, indirect, actual, consequential or punitive) of every kind and nature arising out of or in any way connected with such disputes. To the extent permitted by Applicable Law, you waive and release us from all defenses, rights, and claims you have or may have against us arising from or relating to this Agreement.
7.3. Limitation of Liability.
7.3.1. IN NO EVENT WILL THE INDEMNIFIED PARTIES, OUR JOINT VENTURERS, SUPPLIERS, DIRECT OR INDIRECT SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE, INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OF USE (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS), OR DAMAGE OR ANY CLAIM BY ANY THIRD PARTY, ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR THE SERVICES, INCLUDING THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES.
7.3.2. THE INDEMNIFIED PARTIES, OUR JOINT VENTURERS, SUPPLIERS, DIRECT OR INDIRECT SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, OR REPRESENTATIVES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (II) ANY MISUSE OF THE SERVICES; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (IV) ANY SOFTWARE BUGS, VIRUSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES; (V) ANY ERRORS, INACCURACIES, OR OMISSIONS IN THE SERVICES OR DATA, OR ANY LOSS OR DAMAGE RESULTING THEREFROM, REGARDLESS OF THE MANNER OF TRANSMISSION; (VI) DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; OR (VII) BEING PREVENTED FROM, HINDERED OR DELAYED BY REASON OF ACTS OF GOD, WAR OR WAR-LIKE HOSTILITIES, CIVIL COMMOTIONS, EPIDEMICS OR PANDEMICS, RIOTS, BLOCKADES, EMBARGOES, SABOTAGE, STRIKES, LOCK-OUTS, FIRE, FLOOD, SHORTAGE OF MATERIAL OR LABOR OR ACT OF STATE, INCLUDING CURRENCY CONTROL MEASURES, IN ITS PERFORMANCE UNDER THESE TERMS OF USE (E.G., “FORCE MAJEURE” EVENTS).
7.3.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE CUMULATIVE LIABILITY OF THE INDEMNIFIED PARTIES, OUR JOINT VENTURERS, SUPPLIERS, DIRECT OR INDIRECT SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, OR REPRESENTATIVES TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE TOTAL AMOUNT OF THE TRANSFER OR TRANSFER REQUEST.
7.3.4. This Section applies regardless of the legal theory that the claim is based on, including contract, tort (including negligence), strict liability, or any other basis. The limitations apply even if we have been advised of the possibility of such damage. Nothing in this Agreement will operate so as to exclude or limit our liability for any liability which cannot be excluded or limited by Applicable Law.
7.4. No Warranties. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. THE INDEMNIFIED PARTIES, OUR PARTNERS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESSED OR IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEROPERABILITY AND NON-INFRINGEMENT REGARDING THE SERVICES AND YOUR ACCOUNT, ANY FEATURE THEREOF, OR ANY SUBJECT MATTER COVERED BY THE SUBSTANCE OF THIS AGREEMENT. We do not have any control over the goods or services that are paid for through transactions facilitated through the Services and we cannot ensure that Buyer, Seller or Platform you are dealing with will actually complete the transaction or is authorized to do so. We do not guarantee continuous, uninterrupted or secure access to any part of the Services, and operation of our website or application may be interfered with by numerous factors outside of our control. We will make reasonable efforts to ensure that requests for debits and credits involving bank accounts are processed in a timely manner but we make no representations or warranties regarding the amount of time needed to complete processing because the Services are dependent upon many factors outside of our control, such as delays in the banking system, payment systems, or national or international mail services. Certain of the Services may not be available to you based on residency, geographic location or other eligibility criteria. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary from jurisdiction to jurisdiction.
8. Dispute Resolution; Arbitration; Class Action Waiver
8.1. Dispute Resolution. If a dispute arises between you and HamsaPay, our goal is to learn about and resolve your concerns. Disputes between you and HamsaPay regarding the Services may be reported to Customer Success. Customer Success will endeavor to resolve the dispute and related matters promptly in accordance with this Agreement and our policies. Any claim or dispute between you and a Service Provider will be handled in accordance with the dispute resolution provisions of your agreement with that Service Provider. You agree that we may take any action we reasonably consider appropriate in relation to a dispute, including suspending or limiting your Account or access to the Services pending a resolution of the dispute without previously notifying and/or without having received instructions from you.
8.2. Mandatory Arbitration. If we are unable to resolve any complaint or dispute you raise to your satisfaction, we endeavor to provide you with a neutral and cost-effective means of resolving the dispute quickly. FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES (EXCLUDING CLAIMS FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF), THE PARTY REQUESTING RELIEF MUST RESOLVE THE CLAIM IN A COST-EFFECTIVE MANNER THROUGH BINDING NON-APPEARANCE-BASED ARBITRATION. THIS MEANS THAT NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM. Other rights that you would have in court also may not be available or may be limited in arbitration, including your right to appeal and your ability to participate in a class action. Any claim will be resolved by arbitration through the American Arbitration Association (“AAA”). The AAA rules, information regarding initiating a dispute, and a description of the arbitration process are available at www.adr.org. Claims may be referred to any other arbitration organization that is mutually agreed upon in writing by you and us, and arbitrator(s) will enforce the terms of the restrictions on the arbitration provision set forth in this Agreement. The parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, with the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
8.3. Class Action Waiver and Other Restrictions. YOU AND HAMSAPAY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN SUCH PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
8.4. Improperly Filed Litigation. All claims you bring against us must be resolved in accordance with this Agreement. All claims filed or brought contrary to this Agreement will be considered improperly filed and a breach of this Agreement. Should you file a claim contrary to this Agreement, we may recover attorneys’ fees and costs from you, provided that we have notified you in writing of the improperly filed claim and you have failed to promptly withdraw the claim.
8.5. Modifications to Arbitration Provision. If we make any future change to this Section 8, you may reject the change by sending us written notice within thirty (30) days of the change, in which case such provisions as in effect immediately prior to the changes you rejected will survive.
9. General Provisions
9.1. Entire Agreement; Severability. This Agreement constitutes the entire agreement between you and us for provision and use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision of this Agreement is determined to be invalid or unenforceable under Applicable Law, the validity or enforceability of any other provision of this Agreement will not be affected. In lieu of such invalid or unenforceable provision, there will be added automatically, as part of this Agreement, a provision as similar in terms as may be valid and enforceable.
9.2. Governing Law; Venue. This Agreement will be construed in accordance with the laws of the State of California, and the obligations, rights and remedies of the parties hereunder will be determined in accordance with such laws, without regard to conflicts of law principles. Subject to Section 8, each party hereby irrevocably and unconditionally (i) consents to submit to the exclusive jurisdiction of the courts of the State of California and the federal courts of the United States of America, in each case, located in San Francisco County in the State of California, for any action, suit, or proceeding arising out of or relating to this Agreement; (ii) waives any objection to the laying of venue of any such action, suit, or proceeding in any such court; and (iii) waives and agrees not to plead or claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
9.3. Notices. You agree that we may provide notices or other information related to this Agreement or the Services, including any such notices or other information required to be delivered in writing, to you electronically by posting it on our website or application (including information which is only accessed by you by logging into your Account) or emailing it to the email address associated with your Account, by mailing it to the address associated with your Account, or by sending a text message to the phone number associated with your Account. Any electronic notice will be considered to be received by you within twenty-four (24) hours after it is posted to our website or application or emailed to you. Any notice sent by mail will be considered to have been received by you three (3) Business Days after it is sent. Any notice sent by text message will be considered to have been received by you when sent. You may request a copy of any legally required disclosures (including this Agreement) from us and we will deliver a copy to you in a form that allows you to store and reproduce the information (e.g., by email). If you do not notify us about an email address, postal address or mobile phone number change, information regarding your Account may be delivered to the wrong person or entity. Except as otherwise stated herein, any notice to us must be copied to the attention of our General Counsel: Jerome Walker, General Counsel and Chief Compliance Officer, Hamsa Pay, Inc., Jerome Walker PLLC, 43 West 43rd Street, Suite 241, New York, New York 10036. For purposes of this Section 10.3, notices sent to any of your authorized representatives will constitute notice to you.
9.4. Construction. Captions and headings are for convenience only and do not constitute a limitation of the terms hereof. The singular includes the plural, and the plural includes the singular. All references to “herein,” “hereunder,” and “hereinabove” as words will refer to this Agreement as a whole and not to any particular section, subsection, or clause contained in this Agreement. The terms “include” and “including” are not limiting. Reference to any agreement or document includes any permitted modifications, supplements, amendments, and replacements thereto.
9.5. Waiver. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that if we do not exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any Applicable Law), this will not be considered to be a formal waiver of our rights and that those rights or remedies will still be available to us.
9.6. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without our prior written consent, and any attempt to the contrary without our prior written consent will be null and void. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. This Agreement will inure to the benefit of all permitted successors and assigns.
9.7. Force Majeure. We will have no responsibility or liability for any failure or delay in performance of any Services, or any loss or damage that you may incur, due to any circumstance or event beyond our control, including any flood, extraordinary weather conditions, earthquake, or other act of God, fire, epidemic, war, acts of terror, insurrection, riot, labor dispute, accident, action of government, communications, power failure, equipment or software malfunction.
9.8. Taxes. You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. We specifically disclaim any liability for Taxes.
9.9. Insolvency Proceedings. If any proceeding by or against you is commenced under any provision of bankruptcy or insolvency law, we will be entitled to recover all reasonable costs or expenses (including reasonable attorneys' fees and expenses) incurred in connection with the enforcement of this Agreement.
9.10. Independent Contractor. We are an independent contractor for all purposes. Except as otherwise provided herein, neither we nor you have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on each other’s behalf, or to bind each other in any matter.
9.11. Survival. Any provision or term within this Agreement that provides for the rights or remedies which by their nature should continue after termination of this Agreement will survive termination of this Agreement.
9.12. Languages for Communications. We will communicate with you in the language(s) in which we have made this Agreement available to you. The language currently made available for communication is English. We reserve the right to communicate with you in English, which will be the prevailing language for our communications, with all other languages available for convenience only.
9.13. Agreement Translation. This Agreement was originally written in English. We may translate this Agreement or portions thereof into other languages. In the event of a conflict between a translated version of this Agreement and the English version, the English version will prevail.
