Effective date: 7/1/2020
(f) Your Authorization to Access Third-Party Online Sites. By using the PayWithMyBank Services, as made available to you by a Merchant, you authorize Trustly 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 PayWithMyBank Services to such Merchant, and you by extension. You hereby authorize and permit Trustly to process and use information submitted by you to the PayWithMyBank Services (such as Bank login ID, password and other authentication information) to accomplish the foregoing and to configure the PayWithMyBank Services so that the PayWithMyBank Services are compatible with the third party sites for which you submit your information.
(i) LIMITED POWER OF ATTORNEY. For all purposes described in these Terms, you hereby grant Trustly a limited power of attorney, and you hereby appoint Trustly 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 Trustly is accessing, retrieving, and/or verifying information on or from third party sites, Trustly 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 and services to you shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you in favor of Trustly. You also understand and agree that any payment to a Merchant which you authorize via the PayWithMyBank 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 PayWithMyBank Services (please see Section 5 regarding Collection of Payment).
13. Prohibited Conduct. By using the PayWithMyBank Services, you agree you will not:
(a) Use the PayWithMyBank Services for any illegal purpose, or in violation any local, provinicial, 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 PayWithMyBank 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 PayWithMyBank Services or any part thereof except to the extent that such activity is expressly permitted by applicable law; or (iii) circumvent our geolocation or geoblocking technology;
(e) If the PayWithMyBank Services are limited for use within a certain Province , access the PayWithMyBank Services from outside that Province;
(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 Trustly’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 PayWithMyBank Services or any Merchant’s or user’s enjoyment of the PayWithMyBank 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 PayWithMyBank 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 PayWithMyBank 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 PayWithMyBank Services. If you violate any provision of these Terms, your permission to use the PayWithMyBank Services will terminate automatically. Trustly, in its sole discretion, may suspend or terminate your access to the PayWithMyBank Services at any time, with or without notice. We also reserve the right to modify or discontinue the PayWithMyBank Services at any time (including, without limitation, by limiting or discontinuing certain features of the PayWithMyBank Services) without notice to you. We have no liability whatsoever on account of any change to the PayWithMyBank Services or any suspension or termination of your access to or use of the PayWithMyBank Services. You may terminate your use (and any future use) of the PayWithMyBank Services at any time by contacting customer service at firstname.lastname@example.org. If you terminate your use of the PayWithMyBank Services, you will remain obligated to pay all outstanding payments authorized, if any, relating to your use of the PayWithMyBank Services which have been incurred prior to termination.
16. Additional Terms. Your use of the PayWithMyBank Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the PayWithMyBank Services or certain features of the PayWithMyBank Services that we may post on or link to the PayWithMyBank 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 PayWithMyBank 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 PayWithMyBank Services. 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. We may provide notice of changes to these Terms through a pop-up or banner on our website(s) located at www.paywithmybank.com or www.trustly.com/us. Any modification of these Terms will be effective upon posting of the updated Terms, and your access to and/or use of any of the PayWithMyBank Services thereafter will constitute your acceptance of such modified Terms. If you do not accept the revised Terms, please do not use the PayWithMyBank Services and be aware that we may immediately terminate your access to and use of the PayWithMyBank 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 PayWithMyBank 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 PayWithMyBank 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. Trustly 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 PayWithMyBank Services are owned and operated by Trustly. 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 PayWithMyBank Services (the “Materials”) which are a part of the PayWithMyBank Services or which are created, developed, obtained, compiled, or provided by Trustly, including the trademarks and logos of Trustly, such as the PayWithMyBank and Trustly trademarks and logos, are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the PayWithMyBank Services are the property of Trustly or our third-party licensors. Except as expressly authorized by Trustly in writing, you may not make use of the Materials. Trustly 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 PayWithMyBank Services, and you agree to defend, indemnify, and hold harmless Trustly and its officers, directors, employees, consultants, affiliates, subsidiaries and agents, the Merchants, the Merchant service providers, and other third parties who offer the PayWithMyBank Services to you or make the PayWithMyBank Services available to or accessible by you, and your Bank (collectively, the “Trustly 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 PayWithMyBank Services; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, 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. Disclaimers; No Warranties. The PayWithMyBank Services and all materials and content available through the PayWithMyBank Services are provided “as is” and on an “as available” basis, without warranty or condition of any kind, either express or implied. Trustly, and its subsidiaries and affiliates (the “Trustly Entities”) specifically (but without limitation) disclaim all warranties of any kind, whether express or implied, relating to the PayWithMyBank Services and all materials and content available through the PayWithMyBank 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 PayWithMyBank Services are made available or accessible, including but not limited to (i) any implied warranties of merchantability, 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 Trustly Entities do not warrant that the PayWithMyBank Services or any part thereof, or any materials or content offered through the PayWithMyBank 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 PayWithMyBank 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 PayWithMyBank Services or any materials or content available on or through the PayWithMyBank 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 PayWithMyBank Services are made available or accessible, will create any warranty regarding any of the Trustly entities or the PayWithMyBank 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 PayWithMyBank Services, your dealings with any merchants or other service users, and any materials or content available through the PayWithMyBank 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 PayWithMyBank Services are made available or accessible. You understand and agree that you use the PayWithMyBank Services, and use, access, download, or otherwise obtain materials or content through the PayWithMyBank 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 PayWithMyBank 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 PayWithMyBank 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 Trustly 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 PayWithMyBank 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 Trustly Entities have been informed of the possibility of such damage.
You agree that the aggregate liability of the Trustly 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 PayWithMyBank Services (including any materials or content available through the PayWithMyBank 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 PayWithMyBank 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 Trustly for access to and use of the PayWithMyBank 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 Trustly. This allocation is an essential element of the basis of the bargain between you and Trustly. 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 California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Trustly agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County or San Mateo County, California 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 PayWithMyBank Services, or otherwise in connection with the PayWithMyBank Services, is directly and solely between you and such third party, and you irrevocably release Trustly (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 Trustly aims to provide a neutral, expedient, and cost-effective means of resolving disputes between you and us via arbitration.
(a) Arbitration. You and Trustly each agree that any and all disputes that have risen or may arise between you and Trustly, including without limitation federal and provincial 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 Trustly both agree that nothing in this arbitration provision will be deemed to waive, preclude, or otherwise limit your and Trustly’s right to (i) bring an individual action in small claims court, (ii) pursue equitable relief through applicable federal, provincial, 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 Trustly 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 Trustly 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 Trustly. 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.
(e) Fees; Process. In the event that you commence arbitration in accordance with these Terms, Trustly 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 Trustly 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 Santa Clara County or San Mateo County, California; provided that if the claim is for $10,000 or less, you or Trustly may choose to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Trustly subject to the discretion of the arbitrators to require an in-person hearing. If an in-person hearing is held, you and/or Trustly 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 Trustly for all monies previously disbursed by Trustly 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 Trustly 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 Trustly 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.
(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.
28. Contact Information. You may contact us at the address below or e-mailing us at email@example.com. If you are a Canadian 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.
555 El Camino Real, Suite 200
San Carlos, CA 94070