PandaPay Terms of Service
(As of March 15, 2017)
Thank you for visiting www.pandapay.io (the "Website"), a property of Viral Philanthropy, Inc. ("PandaPay," "we" or "us"). The terms listed below (the "Terms") are intended to make you aware of your legal rights and responsibilities with respect to your access to and use of the Website and any related applications, including, but not limited to, PandaPay API and PandaPay ECOM, whether existing now or in the future (collectively, the "Properties").
By accessing or using the Properties, you agree to be bound by these Terms. These Terms constitute the complete agreement between you and PandaPay regarding the Properties. PandaPay reserves the right, in its sole discretion, to change, modify, or otherwise amend these Terms and any other documents incorporated by reference herein (the "Amended Terms") at any time. If the Amended Terms affect your rights, duties, and obligations under these Terms, we will provide reasonable advance notice before the Amended Terms become effective. You agree that we may notify you of the Amended Terms by posting them on the Properties, or communicating the Amended Terms through any method of written contact that PandaPay has established with you, and that your use of the Properties and/or the services after the effective date of the Amended Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Amended Terms. Therefore, you should review these Terms and any Amended Terms before using the Properties and/or the services. The Amended Terms will be effective as of the date specified in the Amended Terms, and will apply to your use of the Properties from that point forward. These Terms will govern any disputes arising before the effective date of the Amended Terms. Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms.
ANY DISPUTE BETWEEN YOU AND PANDAPAY MUST BE RESOLVED BY MEDIATION OR BINDING ARBITRATION AS DESCRIBED BELOW. PLEASE READ THE MEDIATION AND ARBITRATION PROVISIONS IN THESE TERMS AS IT AFFECTS YOUR RIGHTS UNDER THESE TERMS.
NOTHING IN THESE TERMS IS INTENDED TO AFFECT YOUR RIGHTS UNDER THE LAW IN YOUR USUAL PLACE OF RESIDENCE. IF THERE IS A CONFLICT BETWEEN THOSE RIGHTS AND THESE TERMS, YOUR RIGHTS UNDER APPLICABLE LOCAL LAW WILL PREVAIL.
1. Use of the Properties
You agree to use the Properties only in compliance with these Terms and applicable law, and in a manner that does not violate our legal rights or those of any third party.
You agree that you will only use the Properties for your own use. You must be at least eighteen (18) years of age to use the Properties. Use of the Properties is void where prohibited.
Certain portions of the Properties may be secured or otherwise protected from access except for authorized users with valid login and password information. Entities or individuals without authorization attempting to access these portions of the Properties may be subject to prosecution.
2. Account Creation
In order to use some of the features offered by the Properties, you may need to register as an individual (sole proprietor) or as a business organization. If you register as a business organization, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business, and must have the authority to bind the business to these Terms. Keep in mind that you are accepting the terms and conditions of these Terms on behalf of the business. If you are a sole proprietor, the term “you” will mean you, the natural person, as well as the business organization that you represent.
When you create an account, you agree to only provide true, accurate and correct information. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information.
We may (a) cancel or suspend your access to your account, or the Properties generally; (b) cancel, suspend, or remove your access to certain features associated with your account; and/or (c) change the pricing related to your account; all at our sole and exclusive discretion, with or without prior notice, for any or no reason, and with no liability to you or any third party.
3. Prohibited Businesses
There are certain categories of businesses and business practices for which the PandaPay services cannot be used (the “Prohibited Businesses”). Many of these Prohibited Business categories are imposed by Card Network rules or the requirements of our banking providers or processors. We maintain a list here: Prohibited Businesses. By registering a PandaPay account, you confirm that you will not use the PandaPay services in connection with any of the Prohibited Businesses. If you are uncertain as to whether a business is a Prohibited Business, or have questions about how these requirements apply to your business, please contact us.
4. Intellectual Property Rights
4.1 Intellectual Property Rights
The Properties are owned and operated by PandaPay and its licensors and the data, text, graphics, designs, logos, images, audio/visual materials, links, and references (as well as any intellectual property and other rights relating thereto) accessible through the Properties (collectively, the “IP Rights”) are and will remain the property of PandaPay and its licensors and suppliers. The IP Rights are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. Except as set forth in these Terms, you may not copy, reproduce, modify, adapt, translate, republish, upload, post, transmit, distribute, sublicense, sell, reverse engineer, decompile, or disassemble any part of the Properties or IP Rights without our prior written permission. The IP Rights and the Properties may be used solely (a) to the extent permitted in these Terms, or (b) as expressly authorized in writing by PandaPay or, if so indicated in writing by PandaPay, its licensors or suppliers. Use of the Properties or IP Rights for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Properties or IP Rights.
The trademarks, logos, and service marks displayed on the Properties (collectively, the “Trademarks”) are the registered and unregistered trademarks of PandaPay, our licensors and suppliers, and/or others. Nothing contained in these Terms or the Properties should be construed as granting, by implication, estoppel, or otherwise, any license, right to use or any other rights in the Trademarks without the express written permission of PandaPay, its licensors or suppliers, or the third party owner of the Trademarks, except as set forth in these Terms. You agree that the Trademarks are protected by U.S. and international trademark laws, and various other intellectual property and unfair competition laws.
4.3 PandaPay Marks
We may periodically make available to you certain PandaPay logos, trademarks, or other identifiers as part of a media kit. (the “PandaPay Marks”). If we do so, we will grant you a limited, revocable, non-transferable, non-sublicensable, and unassignable, license to use the PandaPay Marks on your website and/or mobile application (the “Limited License”). PandaPay may limit or revoke your ability to use the PandaPay Marks at any point. All rights not provided herein are expressly reserved by PandaPay. We may change the PandaPay Marks and the terms of the Limited License from time to time. In the event that the PandaPay Marks or the terms of the Limited License are changed, you will (a) use the updated version of the PandaPay Marks and (b) use the PandaPay Marks consistent with the updated terms of the Limited License.
5. Copyright Infringement
If you believe that your copyright has been or is being infringed upon by material found in the Properties, you are required to follow the below procedure to file a notification pursuant to the U.S. Digital Millennium Copyright Act (the "DMCA"). You may be subject to liability under Section 512(f) of the DMCA if you knowingly make any misrepresentations on a take-down notice:
a. Identify in writing the copyrighted material that you claim has been infringed upon;
b. Identify in writing the material on the Properties that you allege is infringing upon copyrighted material, and provide sufficient information that reasonably identifies the location of the alleged infringing material (for example, the user name of the alleged infringer and the business listing it is posted under);
c. Include the following statement: "I have a good faith belief that the use of the content on the Properties as described above is not authorized by the copyright owner, its agent, or law.";
d. Include the following statement: "I swear under penalty of perjury that the information in my notice is accurate and I am the copyright owner or I am authorized to act on the copyright owner's behalf."
e. Provide your contact information including your address, telephone number, and e-mail address (if available);
f. Provide your physical or electronic signature; and
g. Send written communication to:
Viral Philanthropy, Inc.
c/o Encore Law Group PC
8383 Wilshire Boulevard, Suite 660
Beverly Hills, California 90211
6. Restrictions on Use
Without limiting the generality of these Terms, you specifically agree not to, nor permit a third party to, do the following while using the Properties:
a. Use the Properties for illegal or unauthorized uses;
b. Impersonate any person or entity;
c. 'Stalk' or harass other users or persons;
d. Harm minors in any way;
e. Falsely state or misrepresent your affiliation with another person or entity;
f. Infringe any patent, trademark, trade secret, service mark, copyright, or other intellectual property right of another person;
g. Access or use the account of another user without permission;
h. Solicit, spam or otherwise advertise to users using the Properties or our content made available through the Properties;
i. Distribute unsolicited or unauthorized advertising, surveys, contests, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or other messages for any purposes;
j. Distribute computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
k. Interfere with, disrupt, or destroy the functionality or use of any features of the Properties;
l. Interfere with, disrupt, or destroy the servers or networks connected to the Properties, or disobey any rules or regulations applicable to such servers or networks;
m. 'Hack' or access without permission our proprietary or confidential records, those of another user, or those of anyone else;
n. Violate any contract or fiduciary relationship (for example, by disclosing proprietary or confidential information of your employer or client in breach of any employment, consulting, or non-disclosure agreement);
o. Violate any applicable law, rule, or regulation (for example, by disclosing or trading on inside information in violation of securities law);
p. Utilize the credit available on any Card to provide cash advances to cardholders;
q. Submit any transaction for processing that does not arise from the sale of products or services to a buyer customer, or acceptance of a bona fide charitable donation;
r. Act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party;
s. Send what you believe to be fraudulent authorizations or fraudulent transactions;
t. Use the Properties in a manner that Visa, MasterCard, American Express, Discover, or any other Card Network (as defined herein) or payment network might reasonably believe to be an abuse of such network or a violation of its applicable rules;
u. Decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Properties;
v. Remove, circumvent, disable, damage or otherwise interfere with security-related features, or features that enforce limitations on use of, the Properties; and/or
w. Modify, copy, publish, license, sell, rent, lease, lend, transfer or otherwise commercialize any rights to the Properties or our content; each as determined in our sole discretion.
7. Payments and Contributions
7.1 Payment Processing
PandaPay helps you accept and process credit card, debit card and other types of payments from your customers who want to pay you for products or services or give donations. PandaPay's card processing service supports US-issued cards and most non-US issued cards with a Visa, MasterCard, Discover, JCB, or American Express logo (collectively the “Card Networks”) including credit, debit, pre-paid, or gift cards. PandaPay is not a bank or a money services business (the “MSB”) and PandaPay does not offer banking or MSB services as defined by the United States Department of Treasury. In addition, we do not assume any liability for the products or services purchased using PandaPay. You will be required to register for a PandaPay account to take advantage of PandaPay's charitable infrastructure (see Account Creation in Section 2 above). The Card Networks have established guidelines, bylaws, rules, and regulations (the “Network Rules”). You are required to comply with all applicable Network Rules that are applicable to merchants. You can review portions of the Network Rules at Visa, MasterCard, and American Express. The Card Networks reserve the right to amend the Network Rules. PandaPay reserves the right to amend the Terms at any time with notice to you as necessary to comply with Network Rules or otherwise address changes to the PandaPay services.
You may only process payments when authorized to do so by your customer. PandaPay will only process transactions that have been authorized by the applicable Card Network or card issuer.
7.2 Customer Verification
You are solely responsible for verifying identities of your customers, ensuring that they have authorized the transaction, and determining their eligibility to purchase your products and services. PandaPay does not guarantee or assume any liability for transactions authorized and completed that are later reversed or charged back (see Chargebacks below). You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. PandaPay may add or remove one or more payment types or networks at any time. If we do so we will use reasonable efforts to give you prior notice of the removal.
You agree to pay all fees assessed by us to you for providing the Properties described in these Terms (the “Fees”).
Except as otherwise stated in writing by us, these fees will be calculated pursuant to the Fee Schedule and incorporated into these Terms by reference. We reserve the right to revise our Fees with 30 days’ notice to you.
You acknowledge that you are also responsible for any penalties or fines imposed on PandaPay or you by any Card Network or financial institution as a result of your use of PandaPay.
As used in these Terms, a “Chargeback” is a request that your customer files directly with an issuing bank to reverse or invalidate a processed payment, in whole or in part, that you initiate. “Claim” means a challenge to a payment that you or a buyer customer files directly with PandaPay. “Reversal” means PandaPay reverses the settlement of funds from a processed card transaction that you received because (a) the card transaction is invalidated by the card issuer for any reason, (b) the settlement funds were sent to you in error for any reason, (c) the sender of the payment did not have authorization to send the payment (for example, the purchaser used a card that did not belong to him or her), (d) you received the payment for activities that violated these Terms or any other agreement you have with PandaPay, or (e) we decided a Claim against you. You may incur additional fees for Chargebacks, Claims and/or Reversals, either by us and/or third party vendors we have contracted with (such as payment processors).
You agree that you will honor all eligible cards presented for payment by your customers for your products and services in accordance with the Network Rules, these Terms and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization for each card transaction, as required under the Network Rules, and will not submit a card transaction for settlement where you know there is a negative authorization or the card is otherwise expired or invalid. You acknowledge that the existence of an affirmative authorization from us or the Card Networks does not mean that a particular card transaction won’t result in a Chargeback, Reversal or Claim at some later date.
While you may charge fees for your products or services, you may not impose any fee or surcharge for payment processing on a customer that seeks to use an eligible payment card or misrepresent fees charged for payment processing. You will provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Card Network rules and applicable law.
You will submit all card transactions for processing no later than three (3) days from the date of authorization. You will maintain appropriate records of all payment transactions for a period of at least two (2) years from the date of the transaction.
You will display all Card Network marks in accordance with the rules and procedures of the Card Networks, and will use such marks only to indicate that you accept their cards for payment.
7.5 Custodian and Disbursement of Funds
By accepting these Terms, you authorize us, through our sponsoring 501(c)(3) public charity, the SocialGood Fund (“SocialGood”), to hold, receive, and disburse funds on your behalf when such funds from your card transactions settle from the Card Networks. You further authorize PandaPay to determine how your card transaction settlement funds should be disbursed and the timing of such disbursements. Please see our documentation for further information. Settlement funds will be held in a deposit account at Wells Fargo, controlled by SocialGood, pending disbursement of the funds to the 501(c)(3) public charity to whom you have advised us to grant funds in accordance with these Terms. As SocialGood has legal control over the funds, it has the right to decline acceptance and disbursements of any and all funds without reason and/or prior notice to you. You agree that (a) you are not entitled to any interest or other compensation associated with the funds held by Wells Fargo, (b) you have no right to direct that deposit account, and (c) you may not assign any interest in the deposit account at Wells Fargo. We may periodically make available to you information in the PandaPay management dashboard regarding anticipated settlement amounts received on your behalf from the Card Networks and are being held pending settlement. This settlement information does not constitute a deposit or other obligation of PandaPay, SocialGood, or any of our service providers to you. This settlement information reflected in the PandaPay management dashboard is for reporting and informational purposes only, and you are not entitled to, and have no ownership or other rights in settlement funds, until such funds are credited to your designated bank settlement account. Your authorizations set forth herein will remain in full force and effect until your PandaPay account is closed or terminated.
We provide an API and other software to enable you to use PandaPay. We reserve the right to require you install or update any and all software updates to continue using PandaPay. In the event that you use PandaPay to manage recurring and subscription billing charges for your products and services, it is your responsibility to obtain your customers’ consent to be billed on a recurring basis in compliance with applicable legal requirements and Card Network payment rules.
7.7 Charity Verification
PandaPay automatically confirms the charity’s tax-exempt status by verifying its good standing with public and government sources, including the IRS. Please see our documentation for further information.
7.8 PandaPay Documentation
Please see the PandaPay Documentation for further information on our structure, our relationship with SocialGood, and answers to many commonly asked questions.
8. Term and Termination
The Terms is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use PandaPay or until terminated by you, PandaPay, or SocialGood.
You may terminate these Terms by closing your PandaPay account at any time by following the instructions on our Website in your PandaPay account profile. We may suspend or terminate these Terms and close your PandaPay account at any time for any or no reason, with or without notice.
8.3 Effect of Termination
Upon termination and closing of your PandaPay account, we will immediately discontinue your access to PandaPay. You agree to complete all pending transactions, stop accepting new transactions through PandaPay and, where using PandaPay, immediately remove all PandaPay and Card Network logos from your site or in your app (unless otherwise permitted to do so under a separate license from the Card Networks). Termination does not relieve you of your obligations as defined in these Terms.
Upon termination you agree to (i) immediately cease your use of PandaPay, (ii) discontinue your use of any PandaPay Marks or IP Rights licensed under these Terms, and (iii) immediately remove any PandaPay references and logos from your site or in your app. In addition, upon termination you understand and agree that (iv) the license granted under these Terms will end, (v) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, (vi) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of PandaPay, or any termination or suspension of PandaPay or deletion of your information or account data, and (vii) you are still liable to us for any Chargebacks, Fees, or other amounts incurred by you or through your use of PandaPay prior to termination.
Where you use PandaPay, at any time within thirty (30) days after terminating your PandaPay account you may request in writing that we transfer payment data associated with your transaction history that you are entitled to receive to an alternative PCI-DSS Level 1 certified payment processor that you identify to us. We will use commercially reasonable efforts to transfer permitted payment data within ten (10) business days from receipt of your written request.
9. Privacy and Security
9.2 Our Security
We make efforts to maintain the security of our Properties. For example, we arrange for encryption, firewall, antivirus, and spyware protection to the extent that we deem advisable to protect your personal information and conduct our business. However, we do not guarantee the security of the Properties, our records, your submissions, or anything else. We disclaim all liability for any computer virus or technological problems that we do not intentionally cause. You are encouraged to install and maintain up-to-date security software on your computer.
9.3 Your Security Obligations
You are fully responsible for the security of data on your site, through your app, or otherwise in your possession. You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, Card, or transaction information (defined as “Payment Data”) on your site or through your app. While PandaPay helps to make compliance easier with services like Panda.js, you are solely responsible for compliance with any laws, regulations, or rules applicable to your business. You specifically agree that at all times you will be compliant with the Payment Card Industry Data Security Standards (PCI-DSS) and the Payment Application Data Security Standards (PA-DSS), as applicable. The steps you will need to take to comply with PCI-DSS and PA-DSS when using PandaPay will vary based on your implementation. For more information about implementing PandaPay, please refer to our documentation. If we believe it is necessary based on your implementation and request it of you, you will promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI compliant service providers in connection with the storage, or transmission of Payment Data defined as a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time. Information on the PCI DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
If we believe that a security breach or compromise of data has occurred, we may require you to have a third-party auditor that is approved by us conduct a security audit of your systems and facilities and issue a report to be provided to us, our payment processing and banking partners, and the Card Networks.
10. United States of America Only
By registering for the Properties, you confirm that you are either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state in which you operate. PandaPay may only be used to process payment for businesses in the fifty states of the United States of America and the District of Columbia.
PandaPay makes no representation that the Properties operate (or are legally permitted to operate) in all geographic areas or that the IP Rights or the Properties are appropriate or available for use in all locations. Accessing the Properties from territories where the Properties or any portion thereof, is illegal is expressly prohibited. If you choose to access the Properties, you agree and acknowledge that you do so upon your own initiative and at your own risk and that you are solely responsible for compliance with all applicable laws.
11. Disclaimer of Warranties and Limitation of Liability
11.1 Disclaimer of Warranties
YOU AGREE THAT YOUR USE OF THE PROPERTIES, THE PRODUCTS AND THE SERVICES SHALL BE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PANDAPAY AND ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THE PROPERTIES, PRODUCTS, AND/OR SERVICES OFFERED ON OR THROUGH THE PROPERTIES OR BY PANDAPAY, ANY DATA, INFORMATION AND/OR MATERIALS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PROPERTIES, THE PRODUCTS AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, DATA, INFORMATION AND IP RIGHTS OF THIRD PARTIES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROPERTIES, PRODUCTS AND/OR SERVICES OFFERED ON OR THROUGH THE PROPERTIES, DATA, MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PROPERTIES IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WHERE IS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. PANDAPAY DOES NOT PROVIDE ANY WARRANTIES AGAINST ERRORS, MISTAKES, OR INACCURACIES OF DATA, CONTENT, INFORMATION, MATERIALS, SUBSTANCE OF THE PROPERTIES OR CONTENT, ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PROPERTIES BY ANY THIRD PARTY (INCLUDING USERS), ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PROPERTIES, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE PROPERTIES. PANDAPAY DOES NOT ENDORSE, WARRANT, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY US AND/OR A THIRD PARTY THROUGH THE PROPERTIES OR ANY THIRD-PARTY SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISEMENT. PANDAPAY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY. AS WITH THE USE OF ANY PRODUCT OR SERVICE, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
11.2 Limitation of Liability
IN NO EVENT SHALL PANDAPAY, OR ITS RESPECTIVE OFFICERS, MANAGERS, USERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, ATTORNEYS OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS OR LOSS OF DATA OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OR WHATSOEVER RESULTING FROM ANY (I) ACCESS TO OR USE OF THE PROPERTIES OR ANY PRODUCTS AND/OR SERVICES OFFERED BY ANY THIRD PARTY VIA THE PROPERTIES, INCLUDING PRODUCTS OR SERVICES PROVIDED PURSUANT TO AN AGREEMENT FORMED INDEPENDENTLY OF THE PROPERTIES, WHETHER OR NOT AN AGREEMENT FOR PRODUCTS OR SERVICES FORMED VIA THE PROPERTIES IS IN EFFECT; (II) ERRORS, MISTAKES, OR INACCURACIES OF DATA, TRADEMARKS, CONTENT, INFORMATION, IP RIGHTS, MATERIALS OR SUBSTANCE OF THE PROPERTIES; (III) ANY PRODUCTS AND/OR SERVICES PROVIDED BY THE PROPERTIES OR FROM PANDAPAY; (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN OR TRANSFERRED THROUGH THEM; (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PROPERTIES BY ANY THIRD PARTY; (VI) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PROPERTIES; (VII) ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE PROPERTIES; (VIII) ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND/OR (X) ANY USE OF ANY DATA, TRADEMARKS, CONTENT, INFORMATION, IP RIGHTS, MATERIALS OR SUBSTANCE OF THE PROPERTIES, AND THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON US, THEN OUR AGGREGATE LIABILITY FOR ANY AND ALL LOSSES OR INJURIES ARISING OUT OF ANY ACT OR OMISSION OF OURS WILL NEVER EXCEED ONE HUNDRED U.S. DOLLARS AND NO CENTS ($100.00). REMEDIES UNDER THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE PROVIDED FOR HEREIN.
12. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS DO NOT APPLY TO YOU ONLY TO THE EXTENT SUCH EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY IS NOT ALLOWED IN THAT JURISDICTION.
IF YOU HAVE A DISPUTE WITH ONE OR MORE THIRD PARTY, YOU FOREVER RELEASE PANDAPAY, AND ITS LICENSORS, SUPPLIERS, AGENTS, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND AGENTS, FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE PROPERTIES, IP RIGHTS, AND CONTENT, OR YOUR PURCHASE OR USE OF ANY PRODUCT OR SERVICE MARKETED OR PROVIDED ON OR THROUGH THE PROPERTIES OR BY PANDAPAY.
13.2 California Residents
If you are a California resident, you waive California Civil Code Section 1542, which states the following: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” If you are not a California resident, you waive your rights under any statute similar to California Civil Code Section 1542 that governs your rights in the jurisdiction of your residence.
13.3 Data Fees
Data Fees Data, messaging, or other ISP and carrier fees may apply in your use of the Properties through a mobile device.
The section and subject headings in these Terms are included for reference only and shall not be used to interpret any provisions of these Terms. These Terms shall not be construed against us on the grounds that we conducted or arranged for the drafting of the Terms. Nothing contained in these Terms will be deemed to constitute PandaPay or you as the agent or representative of the other or as joint venturers or partners
13.5 Governing Law/Dispute Resolution
These Terms will be governed by and construed in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties agree that any dispute, claim, or controversy arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation, or validity thereof, will be settled, first, by mediation to take place within 30 days of the written notice of such dispute and, second, if the parties are unable to settle such dispute by mediation in such 30-day period, then by binding arbitration by a single arbitrator in accordance with California Code of Civil Procedure Section 1280 et seq., and the then current rules and procedures of JAMS. The arbitration will be a confidential proceeding, closed to the general public. The arbitration will take place in Los Angeles, California, and be conducted in the English language. The decision rendered by the arbitrator will be binding upon the parties hereto, and any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure with respect to any final award in an arbitration arising out of or related to these Terms. For the sake of clarity, nothing in this paragraph will affect our ability to seek from a court injunctive or equitable relief at any time. In no event will the arbitrator have the authority to award punitive damages or any other damages expressly limited by these Terms. Neither PandaPay nor you are entitled to arbitrate any Covered Dispute as a class, representative or private-attorney action and the arbitrator will have no authority to proceed on a class, representative or private attorney general basis. WHERE PERMITTED BY LAW, YOU HEREBY WAIVE YOUR RIGHTS TO A JURY TRIAL.
13.6 Entire Agreement
13.7 Third-Party Beneficiaries
These Terms does not confer any third-party beneficiary rights.
13.8 Force Majeure
Neither PandaPay nor you shall be liable to the other for any delay or failure in performance under these Terms, other than payment obligations, arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.
13.9 No Assignment
Neither these Terms nor any right, obligation, or remedy hereunder is assignable, transferable, delegable or sub-licensable by you except with our prior written consent, and any attempted assignment, transfer, delegation, or sublicense will be null and void. PandaPay may assign, transfer, or delegate these Terms or any right, obligation or remedy hereunder in its sole discretion.
If any provision of these Terms is deemed unlawful, invalid, or unenforceable by a judicial court for any reason, then that provision shall be deemed severed from these Terms, and the remainder of the Terms shall continue in full force and effect.
Our failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any term or condition of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. Nothing in these Terms waives or limits extra-contractual rights or remedies available to us to protect our rights or property, including, but not limited to, those available under U.S. copyright law, international treaties or copyright or intellectual property laws of the countries in which the Properties is used.
You agree that PandaPay may provide you with notices, including those regarding changes to this Agreement, by email, regular or expedited mail, text communication, website postings or other means of communication