Thank you for your interest in Tensile, a service developed and provided by Tensile LLC, a Delaware limited liability company and its subsidiaries and affiliated entities (collectively, “Tensile”, “we”, or “us”). These terms of use (“Terms of Use”) are a legally binding contract between you and Tensile governing your use of the Tensile payment, information retrieval, and other services provided by Tensile (the “Tensile Services”). The Tensile Services are provided to certain merchants, providers of goods or services, and other organizations (“Merchants”) pursuant to an agreement between Tensile and such Merchants. These services are then made available to you via a link, button or other artefact on a Merchant’s web site, mobile, tablet, console, kiosk, point of sale or other device applications, or within an SMS, instant message, email or other notification sent to you by or on such Merchant’s behalf. When clicked, such link, button or other artefact connects you to the user interface for the Tensile Services, on which a link to these Terms of Use is displayed. These Terms of Use include Tensile’s privacy policy located at https://www.tensilepayments.com/privacy (“Privacy Policy”).
Please read these terms of use and the privacy policy carefully. By clicking the “Agree and Sign In,” “Agree,” “Sign in,” “Log In,” “Continue”, “Pay Now”, “Donate Now” or equivalent action button on the Tensile user interface, you acknowledge that you have read, understood, and agree to be bound by these Terms of Use and the Privacy Policy (collectively, the “Terms”). If you are not eligible to use the Tensile Services (see the section labeled “Eligibility” below), or you do not agree to the Terms, then do not use the Tensile Services.
These terms provide that potential disputes between you and Tensile, if any, will be resolved by binding arbitration. Please see the section labeled “Dispute Resolution” below. 1. OVERVIEW OF THE TENSILE SERVICES You were probably directed to the Tensile Services because you are purchasing goods or obtaining services from a Merchant. To obtain these goods or services, you need to provide payment and/or information to the Merchant. That Merchant has entered into an agreement with us to enable you to provide such payment and/or information to the Merchant in connection with the goods or services you are obtaining from them. In some cases, you may even be receiving funds from the Merchant. The Tensile Services enable you to (i) provide information and/or payment to a Merchant, and/or (ii) authorize a Merchant to obtain information and/or payment from, or send payment to, you, for the goods or services you wish to obtain from such Merchant. The Tensile Services, in some cases or for some Merchants, may be limited to use within a certain U.S. state.
2. ELIGIBILITY You must be at least eighteen (18) years of age to use the Tensile Services. By agreeing to these Terms, you represent and warrant to us: (a) that you are at least eighteen (18) years of age; (b) that your use of the Tensile Services has not been suspended or terminated for any reason; and (c) that your use of the Tensile Services is in compliance with any and all applicable laws and regulations and all agreements that you may have with third parties. You are not eligible to use the Tensile Services if you do not agree to these Terms. If you are using the Tensile Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such entity, organization or company to these Terms and you agree to be bound by these Terms on behalf of such entity, organization or company. 3. SECURITY OF YOUR ONLINE BANKING ACCESS CREDENTIALS
You are responsible for maintaining the confidentiality as well as adequate security and control of any and all online banking access credentials that you use to access the Tensile Services. Please protect such information. We will never share your online banking access passwords, PIN numbers, security questions and answers, or any other authentication information provided by you which is used to access your online banking account with any third party other than your Bank. If you have reason to believe that your Bank account is no longer secure, then you must immediately notify us at support@tensilepayments.com
4. YOUR INFORMATION AND AUTHORIZATION (a) Using the Tensile Services for Information and Payment. As described above, through or via the Tensile Services made available to you by a Merchant, you are able to provide information to such Merchant, Tensile, and/or other third party service providers (or to a third party on such Merchant’s, Tensile’s and/or other third party service providers’ behalf), in order to (a) retrieve and verify information about you, (b) obtain payment(s) from your Bank account, or (c) make payment(s) to your Bank account, all in connection with such Merchant’s provision of goods or services to you. As used in these Terms, “Bank” means a U.S. federal- or state-chartered bank, credit union, thrift, or other chartered depository institution.
(b) Information We May Request From You or Obtain About You. To access and use the Tensile Services made available to you by a Merchant, you may be asked for, among other things, a Bank name, a Bank login ID, password, PIN number, answers to security questions or other authentication information (i.e. your online banking access credentials), a Bank account number and bank routing transit number, a Bank account type, other Bank account information, and potentially other personal identification data, such as your name, driver’s license number, or taxpayer identification number. With the authorization you have provided in these Terms, we may also retrieve information about you from such Merchant, your Bank or other third parties to facilitate your use of the Tensile Services as enabled by such Merchant.
(c) How Your Information Is Used. By using the Tensile Services made available to you by a Merchant, you authorize us to process, use, disclose and store the information you provide to us, or that we retrieve about you, in accordance with the Terms, to enable the transmission of information about you to such Merchant, to facilitate payment(s) between you and such Merchant, and to use it in other ways as described in the Terms. Tensile is a service provider to Merchants, but is not a Merchant itself, and will not use the information we retrieve from or about you to market any goods or services to you. Below are some examples of how we may use the information you provide to us, or that we obtain about you, to facilitate the provision of goods or services to you by a Merchant: (i) accessing your Bank account and retrieving information associated with your Bank account (including personal information), via an interactive session based on a user interface, or one or more server-to-server sessions without a user interface; (ii) verifying that you are the holder of such Bank account and that you have all necessary rights and authority to use such Bank account; (iii) verifying your identity and other information (including personal and financial information); (iv) verifying that your Bank account is in good standing; (v) collecting and verifying the Bank account information (including bank account and routing numbers, name on account, and account type) required for Merchants to obtain payments from you or make payments to you; (vi) providing relevant information per the above (but not your online banking access credentials) to Merchants, service providers and other third parties to facilitate payments and other transactions between you and our Merchants;(vii) storing information provided by you per the above in order to facilitate the processing of future payments and other transactions between you and our Merchants. Please review the Privacy Policy located at https://www.tensilepayments.com/privacy for more information regarding how your information is collected, shared, used, and disclosed.
(d) Your Authorization. By using the Tensile Services, as made available to you by a Merchant, you are authorizing Tensile to retrieve information from your Bank account, and to obtain information about you from such Merchant and third parties, and to share such information (except your online banking access credentials) with such Merchant and third parties, and to store such information in accordance with our policies and procedures in place from time to time, for the foregoing purposes in connection with the provision of goods or services by such Merchant to you, as described in these Terms and such Merchant’s own terms of service. You are also authorizing Tensile, either directly or through third parties, to make any inquiries we consider necessary to verify your identity and financial standing. For example, we may ask you for additional information like your date of birth, mobile phone number, or physical address. We may also verify your information against a third party database or through another source. Anti-money laundering and counter-terrorism financing laws may require that we verify certain information you provide us, or that we obtain about you, before using some of the Tensile Services.
(e) Your Authorization with respect to Payments. If you authorize a Merchant to obtain payment(s) from you or make payment(s) to you via the Tensile Services, you agree that you are giving electronic consent and authorization to Tensile to obtain and share the information necessary to enable the Merchant to transfer payment from, or, as applicable, to your Bank account via the U.S. Automated Clearing House (“ACH”) system, intrabank transfer, or other systems or methods, in the amount specified. Any payment you authorize a Merchant to obtain from you may be presented to your Bank multiple times for collection. If the payment is not collected from your Bank, we, the Merchant, or a collection agency, may contact you for payment via an alternate method using the contact information you have provided to us or the Merchant or which we obtain when you use the Tensile Services (please see Section 5 regarding Collection of Payment).
(f) Your Authorization to Use Your Information and to Access Third-Party Online Sites. By using the Tensile Services, as made available to you by a Merchant, you hereby authorize Tensile to access the online sites of third parties designated by you (including your Bank’s online and mobile banking services), on your behalf, to retrieve and/or verify information needed in connection with our provision of the Tensile Services to such Merchant, and you by extension. You hereby also authorize and permit Tensile to process and use information submitted by you to the Tensile Services (such as your name, your online banking access credentials, your Bank routing number, account number, and account type, your driver’s license number, or your taxpayer identification number) to accomplish the foregoing and to configure the Tensile Services so that the Tensile Services are compatible with the third party online sites for which you submit your information. Finally, you hereby authorize Tensile to store your payment credentials and other information for use in connection with other payments or transactions with other Merchants. Tensile will not share your payment credentials with other Merchants.
(g) Your Authorization to share your information with and access the Dwolla Platform. In order to use the payment functionality of our application, you must open a "Dwolla Platform" account provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service. You authorize us to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla account activity, and can be reached at tensilepayments.com, support@tensilepayments.com, and/or (423) 802-7617. (i) LIMITED POWER OF ATTORNEY. Except as set forth in Section 4(f)(ii) below, for all purposes described in these Terms, you hereby grant Tensile a limited power of attorney, and you hereby appoint Tensile as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name, place and stead, in any and all capacities, to access third party sites, retrieve and/or verify information, process and use your information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person. You acknowledge and agree that when Tensile is accessing, retrieving, and/or verifying information on or from third party sites, Tensile is acting as your agent and on your behalf, and is not the agent of, or acting on behalf of, a Merchant or any other third party
(ii) Reliance on Authorization; Payment Obligation. You agree that the relevant Merchants and other third parties engaged in the provision of goods or services to you shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you in favor of Tensile. You also understand and agree that any payment to a Merchant which you authorize via the Tensile Services, is your payment obligation and if not collected from the Bank, we, the Merchant, or a collection agency, may contact you for payment via an alternate method using the contact information you have provided to us or the Merchant or which we obtain when you use the Tensile Services (please see Section 5 regarding Collection of Payment).
(iv) No Relationship with Third Party Sites. Tensile has no relationship to, or affiliation or connection with, any third party site accessed by Tensile in connection with its provision of the Tensile Services. The Tensile Services are not endorsed or sponsored by any such third party sites. You agree that Tensile assumes no responsibility and shall incur no liability with respect to the acts, omissions, or determinations of any such third party site accessed or used in connection with the Tensile Services. You understand that Tensile may not maintain the same level of security against unauthorized access to your account information as the third party sites on or from which you authorize Tensile to access, retrieve and/or verify information on your behalf.
5. COLLECTION OF PAYMENT Any payment which you authorize a Merchant to obtain from your Bank via the Tensile Services may be presented to your Bank multiple times for payment if returned unpaid. In addition, you may be subject to returned item fees on payments which are returned by your Bank or presented multiple times to your Bank for payment. If a payment is returned by your Bank, we, the Merchant, or any third party appointed by us or the Merchant, may contact you for payment via an alternate method using the information you have provided to the Merchant, to us, or to any of the Merchant’s, or our, service providers to collect payment via an alternate method.
6. INFORMATION REGARDING STATUS OF PAYMENTS When you use the Tensile Services to make a payment to a Merchant, you authorize Tensile to obtain information on an ongoing and recurring basis about the status of payments you have authorized with such Merchant via the Tensile Services which have been returned unpaid and subsequently assigned to or collected by a third party service provider (such third party service provider, the “Payment Service Provider” and such payment obligation, the “Debt”). Specifically, you authorize us to obtain information from the Payment Service Provider regarding the payment status of the Debt on a recurring, ongoing basis until: (i) the applicable Debt has been satisfied by payment or otherwise; (ii) we no longer provide the Tensile Services to the original Merchant where the applicable Debt occurred; or (iii) you revoke this authorization, in writing (see our Contact Information at the end of these Terms of Use), whichever occurs first. You authorize Tensile to use the Debt information only to determine your continued eligibility to use the Tensile Services. You expressly prohibit Tensile from disclosing the Debt to any third party. The Debt information obtained by Tensile shall be destroyed upon satisfaction of the applicable Debt, whether by payment or otherwise, as a further condition of this authorization.
7. AVAILABILITY OF THE TENSILE SERVICES Tensile will use commercially reasonable efforts to provide you with the Tensile Services, including, if applicable, to enable the Merchant or applicable third parties to obtain information from or about you, or receive payment(s) from you or make payments to you in a timely manner. Despite our best efforts, the Tensile Services may not always be available to you. For example, not all Merchants or other third parties make the Tensile Services available to you for payment for goods or services, some of them may make the Tensile Services available only on a limited basis, for instance not as a means of reimbursing you or depositing funds in your Bank account. Sometimes, depending upon the type of transaction, you must be physically located within a certain state to use the Tensile Services. Even when a Merchant makes the Tensile Services available to you, your ability to use the Tensile Services is dependent on your Bank’s ability to support the retrieval of the information necessary to enable the Merchant’s provision of goods or services to you via the Tensile Services. Your Bank may impose restrictions or requirements regarding your use of the Tensile Services. Please see the terms of use published by your Bank.
8. ACCURACY OF INFORMATION You are responsible for confirming the accuracy of the information you provide about each information or payment transaction with a Merchant, including, if applicable, the amount of the transaction. A Merchant may not be able to complete an information or payment transaction with you if you provide inaccurate or incorrect information.
9. DISCLOSURE REGARDING GOODS OR SERVICES; MERCHANT ACTIONS Please note that while Tensile facilitates information transmission and payment transactions between you and a Merchant, it is the Merchant that actually delivers the goods or services to you and determines the amounts to be withdrawn, or deposited into, your Bank account. Thus, Tensile does not have control of, or responsibility or liability for, (i) any goods or services that are provided by such Merchant to you or are otherwise facilitated, paid for, or accessed through use of the Tensile Services; or (ii) the amounts that a Merchant decides to withdraw from, or deposit into, your Bank account. We make no warranties or representation with regard to any goods or services provided by any Merchant or other third party. You will not consider us (and we will not be construed as) a party to such transactions between you and a Merchant or other third party, whether or not we have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, such transactions or the goods or services you receive, or don’t receive, from a Merchant or other third party.
10. UNAUTHORIZED ACTIVITY ON YOUR BANK ACCOUNT You should regularly review your Bank statements and review your payment history to identify any activity which you may not have authorized. If you discover any unauthorized activity, please contact your Bank immediately.
11. REFUNDS Only a Merchant may provide a refund to you for (i) any goods or services which are defective, inadequate, or not received by you; or (ii) any payment you enabled the Merchant to obtain from you via the information you provided via the Tensile Services. You must contact the Merchant to initiate a refund transaction.
12. CIRCUMSTANCES AFFECTING YOUR USE OF THE TENSILE SERVICES In addition to other limitations on liability set forth in the Terms, Tensile shall incur no liability to you if a Merchant is unable to obtain or verify information about you, obtain payment from you, or make payment to you via the Tensile Services because of the existence of any one or more of the following circumstances:
(a) The Tensile Services are not working properly, and you know or have been advised by the Tensile Services about the malfunction before you confirm or execute a transaction;
(b) You have not provided the Tensile Services with the correct Bank account or other information requested from you;
(c) Your Bank account or the Merchant’s Bank account does not contain sufficient funds to complete the payment, or we determine, in our sole discretion, that the payment transaction does not meet our risk management criteria;
(d) We determine, in our sole discretion, that questionable activity has occurred with respect to your use of the Tensile Services or that a number of the payments to Merchants which you have authorized via the Tensile Services have been returned or remain unpaid;
(e) Circumstances beyond the control of Tensile, including delays by Merchants, financial institutions (including your Bank), ACH service providers, or the ACH network when using the information you provided via the Tensile Services to enable payments from or to you in a timely manner;
(f) The Merchant elects not to process, or to delay processing of, any requested transaction; and/or
(g) Any force majeure event beyond Tensile’s reasonable control, including any (i) pandemic, severe weather or natural disaster, (ii) war, riot or civil commotion, (iii) governmental acts or directives, or (iv) strikes, work stoppage, or equipment, or facilities shortages.
13. PROHIBITED CONDUCT. BY USING THE TENSILE SERVICES, YOU AGREE YOU WILL NOT: (a) Use the Tensile Services for any illegal purpose, or in violation of any local, state, national, or international law;
(b) Perform any fraudulent activity, including performing fraudulent transactions, impersonating any person or entity, claiming false affiliations, accessing the accounts of others without permission, providing false, inaccurate, or misleading information, sending or receiving what we reasonably believe to be potentially fraudulent funds, or falsifying your age or date of birth;
(c) Interfere with security-related features of the Tensile Services, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, (ii) reverse engineering or otherwise attempting to discover the source code of the Tensile Services or any part thereof except to the extent that such activity is expressly permitted by applicable law; or (iii) circumventing our geolocation or geoblocking technology;
(d) Breach these Terms;
(e) If the Tensile Services are limited for use within a certain state, access the Tensile Services from outside that state;
(f) Refuse to verify your identify or information or to cooperate with any investigation or our attempts to collect funds from you for a payment transaction;
(g) Infringe Tensile’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
(h) Interfere with the operation of the Tensile Services or any Merchant’s or user’s enjoyment of the Tensile Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Tensile Services, (iii) attempting to collect personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Tensile Services, or violating the regulations, policies, or procedures of such networks, equipment, or servers; and/or
(i) Attempt to do any of the foregoing, or assist or permit any persons in engaging or attempting to engage in any of the foregoing activities.
14. TERMINATION OF USE; DISCONTINUATION AND MODIFICATION OF THE TENSILE SERVICES
You should regularly review your Bank statements and review your payment history to identify any activity which you may not have authorized. If you discover any unauthorized activity, please contact your Bank immediately.
15. PRIVACY POLICY
Please carefully read the Privacy Policy, which is available at https://www.tensilepayments.com/privacy, for information regarding how we collect, process, use, store, and disclose your personal information. The Privacy Policy is hereby incorporated into, and made a part of, these Terms of Use. When we refer to “Terms” in these Terms of Use, we mean both these Terms of Use and the Privacy Policy.
16. ADDITIONAL TERMS
Your use of the Tensile Services is subject to any and all additional terms, policies, rules, or guidelines applicable to theTensile Services or certain features of the Tensile Services that we may post on or link to the Tensile Services, or any web site, mobile, tablet, console, kiosk, point of sale or other device applications, or SMS, instant message, email or other notification sent to you on or by which the Tensile Services are made available or accessible (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the TensileServices. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
17. CHANGES TO THESE TERMS
We reserve the right, in our sole discretion, to modify or update these Terms at any time without notice to you. The date of the most current Terms is at the top of these Terms. Please check these Terms periodically for any modifications. Any modification of theseTerms will be effective upon posting of the updated Terms, and your access to and/or use of any of the Tensile Services thereafter will constitute your acceptance of such modified Terms. If you do not accept the revisedTerms, please do not use the Tensile Services and be aware that we may terminate your access to and use of the Tensile Services. Disputes arising under these Terms will be resolved in accordance with the Terms in effect at the time the dispute arose.
18. LINKS
The web sites, mobile, tablet, console, kiosk, point of sale or other device applications, or SMS, instant messages, emails or other notifications sent to you on or by which the Tensile Services are made available or accessible may also contain links to other third-party web sites or resources. Such linked web sites or resources are not under our control, and we are not responsible for their content. These Terms apply only to the Tensile Services and not to the web sites, mobile, tablet, console, kiosk, point of sale or other device applications of, or SMS, instant messages, emails or other notifications sent to you by, any other person or entity.Tensile is not responsible for the availability of such external sites or resources, and does not endorse (and is not responsible or liable for) any content, advertising, products, or other materials on or available from such web sites or resources. You acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other linked web sites or resources(regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other web site or resource to that site/resource’s webmaster/administrator.
19. OWNERSHIP; PROPRIETARY RIGHTS
The Tensile Services are owned and operated byTensile. The visual interfaces, graphics, button icons, scripts, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the TensileServices (the “Materials”) which are a part of the Tensile Services or which are created, developed, obtained, compiled, or provided by Tensile, including the trademarks and logos of Tensile, such as the Tensile and Tensile trademarks and logos, are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the TensileServices are the property of Tensile or our third-party licensors. Except as expressly authorized by Tensile in writing, you may not make use of theMaterials. Tensile reserves all rights to the Materials not granted expressly in these Terms.
20. INDEMNITY
You agree that you will be responsible for your use of the Tensile Services, and you agree to defend, indemnify, and hold harmless Tensile and its officers, directors, employees, consultants, affiliates, subsidiaries and agents, the Merchants, the Merchant service providers, and other third parties who offer the Tensile Services to you or make the Tensile Services available to or accessible by you, and your Bank(collectively, the “Tensile Entities“) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Tensile Services; (ii) your violation of these Terms or any representation, warranty, or agreements referenced here in, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues 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 (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
21. WARRANTY
The Tensile Services and all materials and content available through the Tensile Services are provided “as is” and on an “as available” basis, without warranty or condition of any kind, either express or implied. Tensile, and its subsidiaries and affiliates (the “Tensile Entities”) specifically (but without limitation) disclaim all warranties of any kind, whether express or implied, relating to the Tensile Services and all materials and content available through the Tensile Services, or any web site, mobile, tablet, console, kiosk, point of sale or other device applications, or within any SMS, instant message, email or other notification sent to you on or by which the Tensile Services are made available or accessible, including but not limited to (i) any implied warranties of merchant ability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course of dealing, usage, or trade. The Tensile Entities do not warrant that the Tensile Services or any part thereof, or any materials or content offered through theTensile Services, or any web site, mobile, tablet, console, kiosk, point of sale or other device applications, or within any SMS, instant message, email or other notification sent to you on or by which the Tensile Services are made available or accessible, will be uninterrupted, secure, or free of errors, viruses, or other harmful components, and do not warrant that any of the foregoing will be corrected.
No advice or information, whether oral or written, obtained by you from the Tensile Services or any materials or content available on or through the Tensile Services, or any web site, mobile, tablet, console, kiosk, point of sale or other device applications, or with in any SMS, instant message, email or other notification sent to you on or by which the Tensile Services are made available or accessible, will create any warranty regarding any of the Tensile entities or the Tensile Services that is not expressly stated in these terms. You assume all risk for all damages that may result from your use of or access to the Tensile Services, your dealings with any merchants or other service users, and any materials or content available through the Tensile Services or any web site, mobile, tablet, console, kiosk, point of sale or other device applications, or within any SMS, instant message, email or other notification sent to you on or by which theTensile Services are made available or accessible. You understand and agree that you use the Tensile Services, and use, access, download, or otherwise obtain materials or content through the Tensile Services, or any website, mobile, tablet, console, kiosk, point of sale or other device applications, or within any SMS, instant message, email or other notification sent to you on or by which the Tensile Services are made available or accessible, and any associated sites or services, at your own risk, and you will be solely responsible for any damage to your property (including your electronic device used in connection with the services) or loss of data that results from the use of the Tensile Services or the download or use of such materials or content.
Some jurisdictions may prohibit a disclaimer of warranties and you may have other rights that vary from jurisdiction to jurisdiction.
22. LIMITATION OF LIABILITY
In no event will the Tensile Entities be liable to you for any indirect, incidental, special, consequential, or punitive damages (including, without limitation, damages for loss of profits, goodwill, use, data, or other intangible losses) arising out of or relating to your access to or use of, or your inability to access or use, the Tensile Services or any materials or content on the services, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, whether or not the Tensile Entities have been informed of the possibility of such damage.
You agree that the aggregate liability of the Tensile Entities to you for any and all claims arising out of relating to the use of, access to or any inability to use or access the Tensile Services (including any materials or content available through the Tensile Services, or any web site, mobile, tablet, console, kiosk, point of sale or other device applications, or within any SMS, instant message, email or other notification sent to you on or by which the Tensile Services are made available or accessible) or otherwise under these terms, whether in contract, tort, or otherwise, is limited to the greater of (i) the amounts (if any) you have paid to Tensile for access to and use of the Tensile Services in the 12 months prior to the claim, or (ii) $100.
Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. Accordingly, the above limitation may not apply to you.
Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these terms between you and Tensile. This allocation is an essential element of the basis of the bargain between you and Tensile. The limitations in this section will apply even if any limited remedy fails of its essential purpose.
23. GOVERNING LAW
These Terms shall be governed by the laws of the state of New York without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Tensile agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for the purpose of litigating all such disputes.
24. THIRD PARTY DISPUTES
Any dispute you have with any third party, including without limitation your Bank, any Merchant, or other third party involved in or related to any information, payment or other transaction made or attempted to be made through the Tensile Services, or otherwise in connection with the Tensile Services, is directly and solely between you and such third party, and you irrevocably release Tensile (and our officers, directors, agents, subsidiaries, joint ventures and employees) from 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.
25. DISPUTE RESOLUTION
It is our goal to learn about and address your concerns. If we are unable to do so, then Tensile aims to provide a neutral, expedient, and cost-effective means of resolving disputes between you and us via arbitration.
(a)Arbitration. You and Tensile each agree that any and all disputes that have arisen or may arise between you and Tensile, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be resolved exclusively through final and binding arbitration, rather than in court; except as set forth below. Arbitration is more informal 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.
(b) Exceptions. You and Tensile both agree that nothing in this arbitration provision will be deemed to waive, preclude, or otherwise limit your and Tensile’s right to (i) bring an individual action in small claims court, (ii) pursue equitable relief through applicable federal, state, or local agencies where such relief is available, (iii) seek any interim or preliminary relief from a court of law to protect the rights or property of either you or Tensile pending completion of arbitration, or (iv) file suit in a court of law to address intellectual property infringement claims.
(c) Arbitrator; Awards. Any arbitration between you and Tensile will be 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 these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Tensile. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Judgment on the arbitration award may be entered into any court having jurisdiction thereof.
(d) Notice; Demand for Arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Tensile’s address for Notice is located at the end of these Terms of Use. It is your responsibility to keep your address up to date with Tensile. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand“). You and Tensile agree to use good faith efforts to resolve the claim directly, but if you and Tensile are unable to do so within 30 days after the Notice is received, you or Tensile may commence an arbitration proceeding by submitting a demand for arbitration to AAA (“Demand for Arbitration”). A form for initiating arbitration is available on AAA’s website at www.adr.org.
(e) Fees; Process. In the event that you commence arbitration in accordance with these Terms, Tensile will, at your request, reimburse you for your payment of the filing fee for such arbitration, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any request for payment of fees by Tensile must be submitted by mail to AAA along with your Demand for Arbitration. Any arbitration hearings will take place at a location to be agreed upon in New York, New York; provided that if the claim is for $10,000 or less, you or Tensile may choose to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Tensile subject to the discretion of the arbitrators to require an in-person hearing. If an in-person hearing is held, you and/or Tensile may attend by telephone, unless the arbitrator requires otherwise. 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)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Tensile for all monies previously disbursed by Tensile that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. You and Tensile agree that you may each bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Tensile agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications. Notwithstanding any provision in these Terms to the contrary, you and Tensile agree that if Tensile makes any amendment to this arbitration provision (other than an amendment to any notice address or website link provided herein), that amendment shall not apply to any claim that was filed prior to the effective date of the amendment. The amendment shall otherwise apply to all other disputes or claims governed by this arbitration provision that have arisen or may arise between you and Tensile. We will notify you of amendments to this arbitration provision by posting a notice of changes to these Terms on www.Tensilepayments.com You may reject any amended arbitration provision by sending us written notice to Tensile’s address located at the end of these Terms of Use within 30 days of the posting of the amended Terms of Use. If you make a timely objection to an amended arbitration provision, then the arbitration provision in effect immediately prior to the amended arbitration provision shall remain in effect.
(h) Enforceability. Except for the “No Class Action” section above, if a court decides that any part of this arbitration provision is invalid or unenforceable, the other parts of this arbitration provision shall still apply. If a court decides that any of the provisions in the “No Class Action” section is invalid or unenforceable because it would prevent the exercise of a non-waivable right to pursue public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) shall be severed from arbitration and may be litigated in court. All other disputes subject to arbitration under the terms of this arbitration provision shall be arbitrated as set forth in this section.
26. Consent to Electronic Communications. By using the Tensile Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication.
27. General. These Terms of Use, together with the Privacy Policy, the Additional Terms, and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Tensile regarding your use of and access to the Tensile Services. You may not assign or transfer the Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign the Terms at any time without notice. The failure to require performance of any provision of these Terms will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms of Use, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 2 through 4 and 12 through 27.
28. Contact Information. You may contact us at the address below or e-mailing us at support@Tensilepayments.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.
