INTERCHECKS E-SIGN CONSENT
Important Notice: As a condition of registering an Account with Interchecks, Interchecks may need to provide you certain communications in writing ("Communications") regarding its products and services ("Services"). Under law, Interchecks may only provide such Communications to you electronically, rather than in paper form, and obtain and use your electronic signature in a transaction with Interchecks, if and only if, it obtains your consent as set forth in this Agreement ("Consent"). If you choose not to agree to this Consent or you withdraw your consent, you may be restricted from using the Services.
By checking the "I agree to have the Terms and Conditions presented electronically," which I hereby adopt as my electronic signature, I affirmatively consent and agree that:
- You can provide all Communications and disclosures required by law and other information about my legal rights and duties to me electronically.
- My electronic signature on agreements and documents has the same effect as if I signed them in ink.
- If applicable, you will receive your Form 1099 electronically.
You can send all Communications to me electronically (1) via email; (2) by access to a web site that you designate in an e-mail notice you send to me at the time the information is available; (3) via SMS or (3) to the extent permissible by law, by access to a web site that You generally designate in advance for such purpose.
What I Will Need:
I understand that in order to access and retain the electronic Communications, I will need the following hardware and software:
- A computer with an Internet connection.
- A current web browser that includes 128-bit encryption. Minimum recommended browser standards are Microsoft Internet Explorer version 8.0 and above (see www.microsoft.com/ie for current version), Mozilla Firefox current version (see www.mozilla.com for current version), Apple Safari current version (see www.apple.com/safari for current version), or Opera current version (see www.opera.com for current version). The browser must have cookies enabled.
- A valid email address that was used to establish an account with Interchecks that will remain updated with Interchecks at all times.
- Sufficient storage space to save past Communications and/or an installed printer to print them.
- If I use a spam filter that blocks or re-routes emails from senders not listed in my email address book, I must add [email protected] to my email address book.
Changes to Hardware or Software Requirements:
If Your hardware or software requirements change and that change would create a material risk that I would not be able to access or retain my electronic records, You will give me notice of the revised hardware or software requirements. Notwithstanding this, I agree that continuing to obtain electronic communications after receiving notice of the change is reaffirmation of my consent.
Requesting Paper Documents and Withdrawing Consent:
I understand that I have the right to receive these Communications in paper form, may request paper copies of the Communications, and that you will provide them to me by mail at no charge. I further understand that I can request paper copies and/or withdraw my Consent to electronic communications by contacting you at: Interchecks Technologies, LLC [email protected]. Any withdrawal of my consent to receive electronic Disclosures will be effective only after you have a reasonable period of time to process my withdrawal. I understand and agree that if I withdraw my consent to receive electronic Communications you may, though you are not obligated, to cancel my Interchecks Account.
Updating Email Address:
I can change my email address by signing into my Interchecks Account at any time. I can also do this by contacting You at: Interchecks Technologies, LLC, [email protected]
INTERCHECKS SERVICE AGREEMENT
INTERCHECKS TECHNOLOGIES, LLC. SERVICE TERMS AND CONDITIONS ("AGREEMENT")
THESE SERVICE TERMS AND CONDITIONS ("SERVICE TERMS") SHALL APPLY TO "PAYMENT ORIGINATOR" WHO USES THE INTERCHECKS SOLUTION TO AUTHORIZE AND SUBMIT PAYMENTS AND TO "PAYEE" WHO USES THE INTERCHECKS SOLUTION TO ACCEPT AND RECEIVE PAYMENTS. IF YOU ARE A PAYMENT ORIGINATOR, YOU WILL BE REQUIRED TO EXECUTE AN ORDER FORM OUTLIINING THE FEES AND PAYMENT TERMS ("ORDER FORM’) AND COMPLETE AN ONBOARD QUESTIONNAIRE PRIOR TO ACTIVATION OF AN ACCOUNT WITH INTERCHECKS. THE FOLLOWING SERVICE TERMS SHALL BE INCORPORATED INTO THE ORDER FORM.
BY SETTING UP AN ACCOUNT, USING AND/OR ACCESSING THE INTERCHECKS WEBSITE, APPLICATION, CONTENT, SOFTWARE, SYSTEM, MATERIALS, DOCUMENTATION, PLATFORM, TECHNOLOGY AND ALL UPDATES AND REVISIONS RELATED THERETO (COLLECTIVELY "SOLUTION"), YOU, AS PAYMENT ORIGINATOR OR YOU, AS PAYEE, ACKNOWLEDGE THAT YOU HAVE READ THE FOLLOWING TERMS AND CONDITIONS AND HEREBY CONSENT AND AGREE TO BE FULLY BOUND BY ALL THE TERMS HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE PROHIBITED FROM USING OR BENEFITTING FROM THE SOLUTION OR ANY OTHER WEBSITES OR RELATED TECHNOLOGY.
FOR PURPOSES OF THIS AGREEMENT, IF YOU ARE USING THE SOLUTION TO SUBMIT PAYMENTS, YOU SHALL BE DEEMED A PAYMENT ORIGINATOR IN YOUR INDIVIDUAL AND BUSINESS CAPACITY, AND REPRESENT AND WARRANT THAT YOU ARE THE LEGAL AUTHORIZED REPRESENTATIVE FOR PAYMENT ORIGINATOR COMPANY OR ANY OTHER ENTITY ON WHOSE BEHALF PAYMENT ORIGINATOR IS USING THE SOLUTION. IF YOU ARE USING THE SOLUTION TO ACCEPT AND RECEIVE PAYMENTS AS AN INDEPENDENT CONTRACTOR, VENDOR, OR PAYEE OF SETTLEMENT PROCEEDS, COMMISSIONS, AWARDS, OR OTHER NON RELATED PAYROLL FEES, YOU SHALL BE DEEMED A PAYEE IN YOUR INDIVIDUAL CAPACITY OR BUSINESS CAPACITY, AND REPRESENT AND WARRANT THAT YOU ARE THE LEGAL AUTHORIZED REPRESENTATIVE FOR PAYEE OR ANY OTHER ENTITY ON WHOSE BEHALF PAYEE IS USING THE SOLUTION. PAYMENT ORIGINATOR AND PAYEE SHALL SOMETIMES BE HEREINAFTER COLLECTIVELY REFERRED TO AS "ACCOUNT HOLDERS".
1. The Interchecks Solution. Interchecks is not a financial institution nor a money transmission business. Rather, Interchecks Is a technology services company that offers a hosted technology solution that enables a Payment Originator to upload payment information related to non-employee payroll payments, service fees, commissions, awards, settlements, bonuses, promotions, or any other form of compensation into the Platform (hereinafter defined) for purposes of creating, disbursing and otherwise distributing virtual eChecks, or other similar instant funding methods (such as direct deposit or ACH payments) that Interchecks may later employ for purposes of delivering immediate and virtual payments to Payees ("Services").
2. Payment Originator Account Setup and Access. Prior to use of the Services, Payment Originator must register an account with Interchecks by: i) completing an onboard questionnaire to provide Interchecks certain default information, including without limitation, Payment Originator’s legal name, address, date of formation, TIN, SIC Code, (and other information and due diligence as may be needed) to initially verify and approve Payment Originator’s access and use of the Solution as required under Federal law; and ii) setting up an admin user profile, user id, password, bank account information, and user profiles for administrator (employee only) ("Admin User") and authorized employees or 3rd party professionals authorized to use the Solution with specific permissions solely for the purposes intended under the Services ("Originator Account Information"). To the extent Interchecks reasonably believes Account Information to be inaccurate, incomplete,or untrue, Interchecks reserves the right, at its sole discretion, to reject Payment Originator’s request to open up an account and use the Intercheck’s Solution.
3. Payee Account Setup and Access. Prior to use of the Services, Payee must register an account with Interchecks by: i) setting up a user id and password; ii) setting up a user profile with certain default information, including without limitation, Payee’s legal name, address, (date of formation, TIN, and SIC Code if company), (social security number and birthdate if individual (and other information and due diligence as may be needed) to initially verify and approve Payee’s access and use of the Solution as required under Federal Law; and iii) designating an email address (and any email address changes) for Payment Originator to forward payment notifications to Payee ("Payee Account Information"). To the extent Interchecks reasonably believes Account Information to be inaccurate, incomplete, or untrue, Interchecks reserves the right, at its sole discretion, to reject Payee’s request to open up an account and use the Intercheck’s Solution
4. Verification of Accounts and Protection of Account Information. Account Holder shall be solely responsible for updating and maintaining accuracy of the Account Information and to maintain the confidentiality and security of its User id’s and passwords ("Security Id’s") and email addresses. Failure to timely provide updated or accurate Account Information, maintain confidentiality of Security Id’s and email addresses, and comply with all the terms of this Agreement may result in Account Holder’s registration being suspended or terminated without notice and without liability to Interchecks. Account Holder shall use diligent, prudent efforts to ensure restricted access to Security Id’s and email addresses both in documentation and on Platform accessible computers and devices. Account Holder is prohibited from authorizing any other person or third party to use Account Holder’s account on Account Holder’s behalf, provided however that Payment Originator may set up multiple user accounts with selective permissions with the understanding that it shall be solely accountable and liable for maintaining and/or deleting its user accounts and for all actions or omissions related to or arising from transactions initiated by its users. To the extent Account Holder believes its Account Information may have been compromised and disclosed to an unauthorized user, Account Holder shall immediately contact Interchecks Customer Service for assistance. Interchecks shall not be liable, in any manner whatsoever, for any damages or losses related to Account Holder’s negligence or failure to maintain restricted and confidential access of Security Id’s and email addresses, maintain accuracy of Account Information, maintain user profiles, or in regards to any unauthorized use of Account Holder’s Account.
5. Ownership of Interchecks Solution. Account Holder understands and agrees that Interchecks owns all right, title and interest, including all intellectual property rights and third party license rights (where applicable) in the: i) Interchecks Solution and the user accessible system interface embodied in the Solution, as updated (including without limitation, all software text, graphics, interfaces, workflow processes, spreadsheets, images, audio and visual information, online tutorials, documents, specifications, and materials or other technology made available to Account Holder)(collectively "Platform"); and ii) all common law and registered trademarks, tradenames, trade secrets, service marks, copyrights, patents and any other intellectual property rights relating to the Solution provided under applicable intellectual property laws in the US and by international treaty provisions.
6. Limited License. Access and use of the Solution is licensed, not sold. Subject to compliance with this Agreement, Interchecks hereby grants Account Holder a non-exclusive, personal and nontransferable limited license to access the Platform, and use the Solution strictly for the purposes set forth herein, solely within the United States of America, and only for the time Account Holder’s account remains open. The Solution shall be accessible online at Intercheck’s designated URL (the "Web Site") and only by persons or companies who have registered and been approved as an Account Holder by Interchecks or who have been designated by Account Holder as an administrative user or other user with selective user profiles. By accessing the Platform and using the Solution, Account Holder hereby agrees to use the Solution in accordance with all applicable laws, rules and regulations. In addition, Account Holder agrees and warrants that
it shall not : i) upload, post, e-mail or otherwise send or transmit any material that contains illegal or inappropriate content, malware, or software viruses or any other computer code, files, programs, or elements designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Solution; ii) interfere with the servers or networks connected to any portions of the Solution; or iii) violate any of the procedures, policies or regulations of networks connected to the Solution.
7. License Restrictions. Pursuant to the Limited License, Account Holder shall not: (i) remove or alter any Interchecks or third party copyright notices or other proprietary legends from any documentation or other materials related to the Solution; (ii) disassemble, decompile, or reverse engineer any aspect or portions of the Solution; (iii) create Internet "links" to the Solution; (iv) reproduce, distribute, "frame", or "mirror" any part of any Solution on any other computer system or hosting platform; (v) access or copy the Solution in order to build a similar or competitive product or service; (vi) make the Solution accessible or available to a third party; (vii) use any part of the Solution to operate a service bureau; (viii) copy, resell, redistribute, publish, or assign this license or any materials or documentation related to the Solution; (ix) use the Solution in violation of any law or regulation, including United States export control laws and associated regulations; (x) take any action that will infringe on the intellectual property or other proprietary rights of Interchecks or any third party software providers; (xi) provide Security Id’s to another entity or person without written permission from Interchecks; or (xii) use or publish Interchecks trademarks or services marks without written permission of Interchecks, provided, however that Interchecks may publish Account Holder’s trademarks on its marketing and promotional materials and website, unless expressly prohibited otherwise. In addition to the foregoing, Account Holder agrees to comply with all terms and conditions related to third party software programs that are used in connection with the Solution.
9. Ownership, License and Distribution of Data. Interchecks shall own and retain all proprietary rights, title and interest in and to any information and data generated in connection with the Solution or provided by Account Holder, together with all recommendations, suggestions, enhancement requests, comments, responses to questionnaires, information, ideas, concepts, reviews, or techniques or any other material contained in any communication between Account Holder and Interchecks, (collectively "Data’); provided however that the Data shall be anonymous and shall not include Personally Identifiable Information, personal financial information or any other information that Interchecks is prohibited from collecting or sharing under applicable privacy laws, without agreement and the appropriate legal notices. In connection therewith, Account Holder acknowledges and agrees that Interchecks may collect, use, track, report and share the Data with partners and affiliates for purposes of compiling and aggregating the Data with information from other sources in order to analyze, evaluate, create derivative works of, and otherwise develop market intelligence and statistical information from such data. Interchecks and Account Holder agree to comply with all laws and regulations, in addition to
its own privacy policies, with respect to use and distribution of the Data. Notwithstanding the foregoing, Interchecks has no responsibility or liability for the deletion or failure to store Data or other content maintained or published by Interchecks or to scan, review or assess the quality, legality or content of any Data provided by Account Holder. The parties agree that Interchecks shall determine, in its sole discretion, how long to retain the Data based on its then current business practices, policies or as otherwise required by law.
10. Communications. As part of Account Holder’s relationship with Interchecks, Interchecks shall, from time to time, publish Solution related communications, together with new and revised agreements and policies, on its website or disburse such communications by email. These communications shall, include without limitation, revisions to agreements and policies, notices regarding Account Holder"s account (e.g., password change confirmation, emails and other transactional information) and information concerning or related to the Solution. Account Holder consents to receipt of communications by email and agrees that any such notices, agreements, disclosure or other communications that Interchecks sends to Account Holder electronically will satisfy any and all legal communication requirements, including that such communications be in writing and as further set forth in Interchecks E-sign Consent Policy at https://www.interchecks.com/site/esign.
11. Confidentiality. The Solution and all documentation, drawings, websites, designs, specifications, business and marketing plans, Order Forms, questionnaires, pricing, contracts, engineering details and related information pertaining to the Solution whether in oral, written, graphic or electronic form, are and shall remain the confidential and the proprietary ownership of Interchecks (collectively, the "Confidential Information"). Account Holder shall: (1) disclose Confidential Information to only those employees, directors and authorized agents and professional service providers of Account Holder (collectively, "Affiliates") whose duties justify their need to know such information and who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information; and (2) use the Confidential Information solely for the purpose of accessing the Platform and using the Solution, and never for any purpose which would be detrimental to Interchecks. For purposes of this provision, Affiliates may not include any third parties or subcontractors of Account Holder who shall be prohibited from using the Confidential Information and/or accessing the Platform, unless such persons are authorized by Account Holder’s Admin User with the issuance of a Security Id. Account Holder and Account Holder’s Affiliates shall treat the Confidential Information as strictly confidential and shall use the same care to prevent disclosure of such information as Account Holder uses with respect to its own similar confidential and/or proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Neither Account Holder nor any of its Affiliates shall copy any Confidential Information without the prior express written consent of Interchecks. Account Holder shall promptly return all Confidential Information, and any copies thereof, upon the request of Interchecks or upon termination of Account Holder’s account. Account Holder shall ensure that its Affiliates strictly comply with all provisions herein, and Account Holder shall be solely liable for any breach resulting from any act or omission of Account Holder’s Affiliates.
12. Termination of Account by Payment Originator. Payment Originator may terminate this Agreement by closing its Account at any time. In such event, all pending transactions will be automatically cancelled or reversed. If Interchecks is holding any advance fees or retainers on behalf of Payment Originator, Interchecks will deduct any applicable amounts, expenses, costs or other charges relating to the Account, and return any balance within 20 days to Payment Originator. Account Holder understands and agrees that once its account is closed, Payment Originator shall no longer be able to access the Account Information or the Data, nor use the Solution, in any manner, and Interchecks shall not be liable, whatsoever, for any termination of an Account by Payment Originator but rather such liability, damages or causes of action, including those in connection with Payee, shall remain strictly the liability of Payment Originator.
13.Termination of Account by Interchecks. Interchecks reserves the right to suspend, restrict or terminate Account Holder’s Account and access to the Solution (or any part thereof) and discard any and all Data, with reasonable notice and opportunity to cure in the event of a breach where feasible if Interchecks, in its sole discretion, believes Account Holder has : (i) breached any terms herein including without limitation, non payment of fees; (ii) poses an unacceptable credit risk or fraud risk to Interchecks or other third parties; (iii) provides Interchecks with any false, incomplete, misleading information or engages in any fraud or illegal conduct of any kind; or (iv) for any other reason that Interchecks reasonably believes violates laws, rules or regulations, or policies. In such event, Interchecks reserves the right to report any suspected illegal or fraudulent activity to appropriate law enforcement officials and to assess a reconnection fee to the extent Intercheck’s approves reconnection, at its sole discretion. In connection therewith, termination and/or suspension of an Account shall not exclude other remedies available to Interchecks at law or in equity and shall not result in liability to Interchecks for a refund or damages, of any kind, nor shall it affect or impair Account Holder’s obligations to pay all amounts owed Interchecks, including without limitation, all fees due Interchecks through the duration the Account remains open. In addition to the foregoing, Interchecks further reserves the right to terminate a Payment Originator or Payee Account that remains inactive for an extended period of time, at Interchecks sole discretion.
14.Effects of Termination. In the event of termination for any reason: (i) Account Holder shall be prohibited from accessing the Platform or using the Solution; (ii) all licenses provided to Account Holder under its account will automatically terminate; (iii) Account Holder shall remain bound by the terms and provisions herein that survive termination; and (iv) Interchecks shall not be liable to Account Holder or any third party, whatsoever, for any compensation, reimbursement or damages in connection with Account Holder’s use of the Solution or termination of
Account Holder’s Account.
15.Indemnification by Account Holder. Account Holder agrees to indemnify, defend and hold harmless Interchecks, its agents, employees, resellers, contractors, officers, directors, agents, third parties, licensors and partners from and against any and all claims, expenses, losses, damages, settlements and liabilities, including legal fees and expenses, arising out of or in connection with: 1. Account Holder’s access to the Platform and use of the Solution by authorized and unauthorized users; 2 the relationship between Payment Originator and Payee as to payments issued or not issued; and 3. Account Holder’s breach, violation, non compliance, actions, omissions, or failures to perform in connection with this Agreement. Interchecks reserves the right, at Account Holder’s expense, to assume the exclusive defense and control of any matter for which Account Holder is required to indemnify Interchecks, including rights to settle, and Account Holder agrees to cooperate with the defense and settlement of such claims.
16.Force Majeure. Except for timely payment of Fees to Interchecks, no party shall be responsible for any failure to perform its obligations if performance is prevented or delayed by unforeseen circumstances including, but not limited to, any act of God, war, fire, natural disaster, accident, riots, acts of terrorism, acts of government, shortage of materials, supplies, or resources, failure of any transportation, communication system, internet service, or hosting service provider, or non-performance of a party’s agent or third party provider, or any other cause beyond its reasonable control.
17. Compatibility of Solution with Devices or Mediums. The Solution is designed to enable access and processing of payments through certain Platform ready devices and certain mediums currently operating or planned in the future (i.e. computer operating systems, web browsers, mobile access devices). The Solution may vary by device and medium and functionalities may also differ between devices. Interchecks does not warrant the performance or compatibility of the Solution on a specific device or platform. Interchecks further does not warrant that the Solution or the Platform will be compatible with third party software and/or devices, that the operation of the Solution will not damage or disrupt Account Holder’s software, hardware, or any other technology. By accessing the Platform and using the Solution, Account Holder agrees to resort solely to the manufacturer for any issues or liability related to manufacturer’s device and its compatibility with the Solution.
18.WARRANTY DISCLAIMER. THE SOLUTION, INCLUDING THE INTERCHECK’S WEBSITE, PLATFORM, INTERCHECK’S SOFTWARE, THIRD PARTY SOFTWARE OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SOLUTION AND THE PLATFORM, ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. INTERCHECKS, ITS THIRD PARTY PROVIDERS AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES, WHATSOEVER, WITH RESPECT TO THE SOLUTION, THE PLATFORM, THE WEBSITE, TELECOMMUNICATION SERVICES AND ANY RELATED SOFTWARE AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY, PAYMENT GENERATION, SATISFACTORY QUALITY, SPECIFIC RESULTS, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. INTERCHECKS, ITS THIRD PARTY PROVIDERS AND AFFILIATES FURTHER DO NOT WARRANT OR REPRESENT THAT: 1. ACCOUNT HOLDER’S USE OF THE SOLUTION, INCLUDING USE OF THE SOFTWARE OR FUNCTIONALITIES, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF ANY VIRUSES, ATTACKS, MALWARE, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSIONS, OR; 2. THE SOLUTION WILL ACHIEVE ANY RESULTS EXPECTED BY ACCOUNT HOLDER OR MEET ACCOUNT HOLDER’S REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INTERCHECKS SHALL CREATE A WARRANTY OR OTHERWISE CONSTITUTE A REPRESENTATION BINDING UPON INTERCHECKS, IT’S THIRD PARTY PROVIDERS OR AFFILIATES.
19. Limitations of Liability. Account Holder acknowledges and agrees that Interchecks and/or its third party providers will conduct routine maintenance on the Platform, from time to time, and, as such, the Solution may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance, or other causes beyond Intercheck’s reasonable control. Account Holder also further acknowledges and agrees that Interchecks shall have the right to modify, replace, or eliminate a function or feature of the Solution or Services, at its sole discretion, with or without notice, and if so, Account Holder shall not expect any refund or hold Interchecks otherwise liable, in any manner whatsoever, for any change it shall make to the Solution or Services. IN CONNECTION THEREWITH, INTERCHECK’S LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY, TO ACCOUNT HOLDER, ITS EMPLOYEES, CLIENTS, AGENTS OR ANY THIRD PARTY, SHALL BE LIMITED TO INTERCHECK’S AGREEMENT TO REPAIR OR REPLACE THE DEFECT, AT ITS SOLE DISCRETION. IN NO EVENT SHALL INTERCHECKS, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, REPRESENTATIVES, CONTRACTORS, LICENSORS, OR ANY THIRD PARTIES BE RESPONSIBLE OR LIABLE, JOINTLY OR SEVERALLY, IN REGARDS TO CLAIMS, DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH ACCOUNT HOLDER’S USE OR PERFORMANCE OF THE SOLUTION, INCLUDING WITHOUT LIMITATION, a) LOSS OF USE, PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSS, b) LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; C) CLAIMS OR LOSSES BETWEEN PAYMENT ORIGINATOR AND PAYEE; C) CLAIMS IN CONNECTION WITH NEGLIGENT AUTHORIZATION OF ADMIN USERS AND OTHER USERS OF THE SERVICES; OR D) ANY MATTER BEYOND INTERCHECK’S REASONABLE AND SOLE CONTROL. THIS LIMITATION OF LIABILITY SHALL EXTEND TO ACCOUNT HOLDER, ITS EMPLOYEES, AGENTS, AFFILIATES, AND ANY THIRD PARTIES, REGARDLESS OF WHETHER ANY PARTY WAS ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. IN CONNECTION THEREWITH, ACCOUNT HOLDER ASSUMES TOTAL RESPONSIBILITY AND LIABILITY FOR ITS USE OF THE SOLUTION AND PLATFORM.
20. Dispute Resolution Procedure. The parties agree to use all reasonable efforts in good faith to amicably resolve any disputes arising out of or in connection with the terms herein or use of the Service. If agreement cannot be reached, the parties agree to enter into non-binding mediation at their joint and equal expense. Any dispute which cannot be settled by mutual agreement or mediation shall be finally and exclusively settled by arbitration held in Palm Beach County, Florida and conducted by the American Arbitration Association (the "AAA") under the AAA’s Commercial Arbitration Rules. Arbitration shall be in front of one (1) arbitrator mutually selected by Account Holder or appointed by the AAA if a mutual arbitrator cannot be agreed upon. Once appointed, the arbitrator may order provisional or conservatory measures (including injunctive relief) at the request of one party and may embody such order in any final award. Nothing in the foregoing precludes, restricts or is intended to preclude or restrict the right of either party to seek injunctive or other equitable relief in an appropriate court of competent jurisdiction. Judgment upon the award rendered under arbitration may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to receive its attorneys; fees and costs incurred in connection with any arbitration or other legal proceeding, through and including appellate litigation.
22. Miscellaneous. 1. This Agreement supersedes all oral and written communications regarding the parties; 2. Should a conflict exist between the Order Form and other portions of this Agreement, the terms of the Order Form shall control. 3. Account Holder may not assign, sublicense, or transfer its rights, duties, and obligations under this Agreement without the written consent of Interchecks; 4. The following terms shall survive termination of Account Holder’s Account: Privacy of Data, Communications, Terminations, Licenses and Restrictions, Ownership and Distribution of Data, Proprietary Ownership, Confidentiality, Disclaimers of Warranties and Limitations on Liability, Indemnification, Dispute Resolution, and Arbitration; 5. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Account Holder does not have any authority, of any kind, to bind Interchecks in any respect, whatsoever. In connection therewith, Interchecks shall not be deemed a party or be liable in any manner, whatsoever, to any verbal or written agreement separately entered into between Payment Originator and Payee; 6. The failure of Interchecks to enforce any right or provision hereunder shall not constitute a waiver of such right or provision; 7. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder hereafter existing at law or in equity or by statute or otherwise; 8. Account Holder hereby represents and warrants that it has adequate power and authority to enter into this Agreement, individually or as an authorized representative, and authority to access and use the Solution and commit and be bound by the terms herein; 9. All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective legal representatives, successors and permitted assigns; 10. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be impaired thereby; 11. If any legal action or proceeding is brought in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees, costs and expenses, through and including appellate litigation incurred in that action or proceeding; all transactions and actions arising under this Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws, shall be brought in the federal or state courts in Palm Beach County with the understanding that any action brought under this Agreement by Account Holder shall be commenced within one year after the cause of action has accrued; 12. All notices shall be sent by overnight delivery, facsimile, or email with written confirmation of receipt by the applicable party to the following: Notice to Account Holder: Account Holder’s email or postal address as recorded in Account Holder’s Account Information; Notice to Interchecks: Interchecks, Attn: Legal Department, 901 NW 35th Street, Boca Raton, FL 33431