Secure Terms of Service Agreement (Employer)
This Terms of Service Agreement (Employer) (the “Agreement”) is between Secure, Inc. (“Secure”, “we”, “us” or “our”) and any person or entity (“User”, “you” or “your”) that accesses or uses the Secure website located at securesave.com or any successor site (the “Site”) or the products and services made available by Secure through or in connection with the Site (the Site and such products and services are referred to collectively as the “Services”) to receive certain Services from us. These Terms apply specifically to those entities that have created an account with Secure as an employer and that has purchased a subscription for Services (“Employers”). If you are an individual who is simply browsing the Site and are not using the Services that we provide to Employees or to Employers (a “Visitor”), or if you are an employee who is using features of the Services made available through a subscription purchased by your employers (“Employee”), these Terms of Service do not apply to you, and other terms and conditions govern your relationship with Secure and your use of the Services.
THIS AGREEMENT INCLUDES A BINDING ARBITRATION PROVISION THAT REQUIRES INDIVIDUAL ARBITRATION OF DISPUTES BETWEEN YOU AND SECURE AND CONTAINS A CLASS ACTION WAIVER. PLEASE REVIEW SECTION 16 BELOW FOR MORE INFORMATION.
1. Acceptance of Agreement Terms. By signing an agreement or clicking a box indicating you agree to the terms of this Agreement, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement. If you are agreeing to this Agreement on behalf of a business entity, you represent to Secure that you have authority to bind that business entity to this Agreement, and your agreement to this Agreement shall constitute the agreement of the business entity (and the terms “you” and “your” shall include the business entity). Additionally, you represent that you have reached the age of majority in the state or jurisdiction in which you reside. The Services are not intended for use by anyone under the age of 18.
- ~2.1 Services Descriptions. Secure provides a variety of Services. A description of the Services to which you have subscribed or enrolled will be provided, displayed, or otherwise made accessible to you at or before the time you subscribe or enroll, which may occur via a written ordering document or an electronic order or enrollment mechanism (an “Order”).
- ~2.2 Secure Payroll Savings Account. The Secure Payroll Savings Account is offered and provided by one or more banks that Secure partners with from time to time (“Bank”), which will be an FDIC-insured depository institution, through Secure.
- ~2.3 Secure Payroll Savings Program. The Secure Payroll Savings Program is designed to help Employees save money from their paycheck automatically. An Employer that wishes to offer the Secure Payroll Savings Program to its Employees must first subscribe to Secure’s Services, configure the Employer’s savings program options (as further described in Section 2, below), and invite eligible Employees. Eligible Employees wishing to participate may accept an invitation, create a User Account, and make savings elections (such as specifying the rate of savings). Employers may make changes to the configuration of their savings program, and Employees may increase or decrease the rate of savings, stop savings or request a transfer of funds, in each case through the Employer’s Secure Payroll Savings application (the “Employer Application”).
3. Employer Set-Up and Responsibilities.
- ~3.1 After an Employer subscribes to the Secure Payroll Savings Program, the Employer will be required to provide Secure with, update and maintain (through the Employer Application) during the term of the subscription, certain information, including the following: (a) Employer’s company and contact information; (b) Employer’s bank account information; (c) Employer payroll software/service information; (d) participation, matching (if applicable) and other applicable Employer rules and policies; (e) eligible Employee information; (f) authorized administrative user information; and (g) such other information as Secure may reasonably require from time to time to provide the Secure Payroll Savings Program to Employer (collectively, “Employer Information”).
- ~3.2 Employer is solely responsible for the accuracy of all Employer Information it provides or approves (whether provided directly or through the Employer Application), and Employer is solely responsible for any claims and liabilities, including but not limited to IRS penalties and/or interest, other penalties and/or interest, and or claims by Employees, arising from the failure to timely provide and maintain accurate and complete Employer Information at all times. Employer waives and releases any claim against Secure arising out of any errors or omissions in the Employer Information which Employer has not corrected or has not requested Secure to correct. Secure is not responsible for verifying the accuracy of any Employer Information that Employer provides to Secure.
- ~3.3 By entering into the Agreement and electing to set up and use the Secure Payroll Savings Program for your employees, you represent and warrant that you have completed and retained a Form I-9 to verify the identity and employment authorization of each Employee that you elect to make eligible for participation in the Secure Payroll Savings Program.
4. Secure Custodial Accounts.
- ~4.1 In accordance with Employee’s elections, and in coordination with Employee’s Employer, we will facilitate the transfer of the amount of funds designated by Employee from Employee’s paycheck to one or more pooled accounts maintained by Bank for the benefit of Secure Payroll Savings Program participants at Bank (each a “Custodial Account”). All funds transferred on behalf of an Employee are referred to as “Employee’s Savings.” Employee’s Savings are never held or accessed by Secure.
- ~4.2 Employee Savings may be transferred from Employer to the Custodial Account using a payment method supported by Secure from time to time, which may include: (i) via ACH from an eligible bank account located in the United States, or ii) any other fund transfer method supported by Secure from time to time. Secure may add or remove payment methods available for transferring Employee Savings to the Custodial Account at any time in its sole discretion.
- ~4.3 Secure reserves the right to reject, delay, suspend or modify any fund transfer at any time to prevent anticipated loss or harm to Employee, Employer, Secure or any third party. You agree to promptly provide any additional information with respect to any fund transfer, including the destination account, that we may request. Except as otherwise expressly provided herein or as required by applicable law or payment network rules, transactions authorized in the Site or otherwise through the Service are irreversible and non-refundable. Secure relies on the fund transfer instructions that you or your Employee provides to us, and we have no obligation to verify the accuracy of any payment instruction. We are not responsible for any lost funds or other liability that may result from following Employer or any Employee’s payment instructions.
- ~4.4 Secure will serve as the recordkeeper for the Custodial Accounts and will provide certain administrative services including: (a) tracking Employee eligibility based on Employer’s instructions; (b) providing Employees with online access to their Employee’s Savings balances and transaction history; (c) processing transactions, including deposits and transfers; (d) generating statements and reports; and (e) providing customer support.
- ~4.5 Termination of Employment with Employer; Employer Termination of Subscription. If an Employee participating in the Secure Payroll Savings Program is terminated by or discontinues employment with their Employer, or an Employer terminates its subscription to the Secure Payroll Savings Program, Employee will continue to have access to the Secure Payroll Savings Program. Any Employer-provided benefits that are provided through our Secure Payroll Savings Program, such as but not limited to Employer matching, will terminate following termination of employment or termination of Employer’s subscription.
5. Fees and Payment.
- ~5.1 Fees. Certain Services require the payment of fees and/or other charges. Where applicable, you agree to pay the fees and other charges for the Services to which you have subscribed as disclosed to you at the time you subscribe to the Services. Except as expressly set forth in this Agreement or an Order, payment obligations are non-cancelable and fees paid are non-refundable.
- ~5.2 Payment. Secure will invoice you for Service fees each month or otherwise in accordance with the relevant Order. Unless otherwise stated in an applicable Order, invoiced fees are due within 30 days following your receipt of the invoice. You are responsible for providing complete and accurate billing and contact information to Secure and notifying Secure of any changes to such information.
- ~5.3 Fee Changes. Unless otherwise set forth in an Order, Secure reserves the right to change the fees for Services from time to time. Secure will notify you of any change to existing fees for Services to which you have subscribed at least thirty (30) days prior to the effective date of the fee change. If a fee change is not acceptable to you, you may cancel the applicable Services prior to the effective date of the fee change. Your continued use of the Services following the cancellation deadline constitutes your agreement to the fee change.
- ~5.4 Overdue Amounts. If any invoiced amount is not received by Secure by the due date, then without limiting Secure’s rights or remedies, such amount may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any amount owing by you under this or any other agreement for Services is 30 days or more overdue (or 10 or more days overdue in the case of amounts you have authorized Secure to charge to your credit card), Secure may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the applicable Services until such amounts are paid in full, provided that, other than for payment by credit card or direct debit where payment has been declined, Secure will provide you at least 10 days’ prior notice of the overdue amount before suspending the applicable Services.
- ~5.5 Payment Disputes. Secure will not exercise its rights under the “Overdue Amounts” section above if you have provided Secure with written notice disputing charges reasonably and in good faith and you are cooperating diligently to resolve the dispute.
- ~5.6 Taxes. All fees charged to you are exclusive of taxes. Except for those taxes based on Secure’s net income, you shall be responsible for all applicable taxes in connection with the subscribed Services, including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Services be subject to withholding tax by any government, you agree to reimburse Secure for such withholding tax.
- ~5.7 Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue the Services, in whole or in part, as we deem appropriate and in our discretion. We will not materially reduce the core features or functionality of, or discontinue, any Services to which you have subscribed during the term of your subscription unless we provide you with prior notice. If we discontinue the Services or materially reduce the core features or functionality of the Services to which you have subscribed, you may terminate your subscription to such Services and Secure will provide you with a pro rata refund of any prepaid, unused fees applicable to the period following the date on which the Services were discontinued or the core features or functionality were reduced.
- ~5.8 Limitations and Restrictions.
- ~~5.8.1 The Services are intended for business entities legally formed in the United States. Secure does not intend to offer any products or services outside the United States and does not represent or warrant that any aspect of the Services complies with any law or regulation of any jurisdiction outside the United States. You represent and warrant that you are a lawful resident of and located in the United States and that you have been lawfully issued by the government of the United States the tax identification number provided to Secure.
- ~~5.8.2 You agree to not: (a) make any Services or Secure Content (as defined below) available to any third parties, or use any Services or Secure Content for the benefit of anyone other than you, unless expressly stated otherwise in an Order; (b) sell, resell, license, sublicense, distribute, rent or lease any Services or Secure Content, or include any Services or Secure Content in a service bureau or outsourcing offering; (c) use Services to store or transmit material in violation of the rights of a third-party; (d) use the Services to store or transmit viruses, worms, spyware, malware, malicious code or any similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, system or hardware device; (e) interfere with or disrupt the integrity or performance of any Services or data contained therein; (f) attempt to gain unauthorized access to the Services or its related systems or networks; (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (h) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof; (i) copy Secure Content except as permitted herein or in an Order; (j) frame or mirror any part of any Services or Secure Content, other than framing on your own intranets or otherwise for its own internal business purposes; (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile any part of the Services or Secure Content; (l) violate any law, rule or regulation applicable to your use of the Services; (m) impersonate another person or entity or otherwise misrepresent your identity; or (n) use any spider, bot, scraper, robot, or other automated means to access or monitor the Services for any purpose, or to copy, access, collect, download, or otherwise obtain data, content or other information from the Services.
6. Additional Electronic Funds Transfers Disclosures
- ~6.1 If you believe that the secure credentials to access your User Account (“Access Credentials”) have been lost or stolen, or if you believe a transfer has been made for you or for any of your Employees using information from your access credentials without your permission, you must notify us at email@example.com immediately.
- ~6.2 For purposes of this Agreement, our business days are Monday through Friday, excluding federal holidays.
7. Additional Terms. Please note that additional or different terms may apply to your access and use of certain Services (“Additional Terms”). Where applicable, other Additional Terms will be provided, displayed, or otherwise made accessible to you at or before the time you subscribe to or enroll for Services to which the Additional Terms apply. Any such Additional Terms are incorporated into and supplement this Agreement. In the event of a conflict between the terms of this Agreement and any Additional Terms, the Additional Terms will govern to the extent of the conflict.
8. Privacy Statement. Our Privacy Statement https://www.securesave.com/legal/privacy describes how Secure collects and processes the information you provide to us when you use the Services. You agree that by accessing or using the Services you consent to the collection and processing of such information by Secure as described in the Privacy Statement.
9. Changes to this Agreement. Secure reserves the right to change this Agreement from time to time. If Secure changes this Agreement, we will notify you of any such changes by posting the revised Agreement on the Services and/or by sending you a communication to an email address associated with an account you have with Secure. You should review this Agreement periodically for any changes. All changes shall be effective upon posting, and we will revise the “Last Updated” date above on the date any revised version of this Agreement becomes effective. Your continued access or use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes.
10. User Accounts. In order to access or use certain features of the Services, you must be provided with or register for an account with Secure (a “User Account”) and provide certain information as required by Secure or Bank from time to time. You agree to provide accurate, current and complete information (such as, but not limited to, your or your principals’ or beneficial owners’ name, mailing address, date of birth, social security number, tax identification number and email address) as may be prompted by any User Account registration form available through the Services or otherwise requested by Secure (any such information, “Account Information”). For any individual User who is using the Services, Secure may also ask for a copy of User’s driver’s license or other government-issued identifying documents. User authorizes Secure to obtain, verify, and store information that identifies an individual who creates an Account, is the intended user of an Account, or who accesses the Services. You represent that you are the legal owner of, and that you are authorized to provide Secure with, all Account Information. If any of your Account Information changes, you agree that you will update this information as soon as possible. Secure may, in its discretion, decline to offer the Services for any reason, including User’s failure to provide requested Account Information, if Secure is unable to verify any Account Information, and/or for other lawful business reasons. You are responsible for maintaining the confidentiality of your User Account login information and are responsible for all activities that occur under your User Account. If you believe or have reason to believe that any of your Account Information, including your user identification and/or password, has been compromised, or that another person is accessing your User Account without your authorization, you agree to notify Secure as soon as possible at firstname.lastname@example.org. Secure will not be liable for any loss or damage arising from your failure to comply with the above requirements.
11. Ownership and Intellectual Property Rights.
- ~11.1 User Content. “User Content” means any information, data, text, content, photos, images, graphics, music, and other materials that you provide or cause to be provided to or through the Services by any means (including, without limitation, by posting, uploading, emailing, or submission through the Site). Secure does not obtain any ownership rights in User Content. However, by providing or causing the provision of User Content to or through the Services, you grant (and you warrant that you have all rights necessary to grant) to Secure a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content for use in connection with the Services. You understand and agree that you are solely responsible for your User Content. You represent and warrant to Secure that your User Content and Secure’s use of your User Content as contemplated under this Agreement will not misappropriate or infringe the copyright, trademark rights, moral rights, right of publicity, intellectual property or proprietary rights or other rights of any third party. Although Secure has no obligation to screen, edit or monitor User Content, Secure may restrict, delete or remove User Content at any time and for any reason, in its sole discretion. THE SERVICES ARE NOT AN INFORMATION STORAGE OR BACKUP SERVICE AND YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR THE PURPOSES OF USER CONTENT STORAGE OR BACKUP. SECURE WILL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO USER CONTENT.
- ~11.2 Secure Content. “Secure Content” means any information, data, text, content, photos, images, graphics, music, and other materials made accessible on or provided through the Services, excluding User Content. Subject to the terms of this Agreement, Secure grants you, for the duration of the Term, a non-exclusive, non-transferable, non-sublicensable license to download and display locally Secure Content solely for the purpose of using the Services. Any modification, copying, reproduction, distribution, storage, or use of Secure Content for other purposes is prohibited without Secure’s prior written authorization. Without limiting the foregoing, you may not license, sublicense, rent, sell, transfer to, or provide access to Secure Content to a third party or use or exploit any Secure Content for commercial use.
- ~11.3 Feedback. Secure shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, exploit and incorporate into the Services any suggestions, enhancement requests, recommendations, comments, or other feedback provided by you to Secure.
- ~11.4 Rights in Services. Secure and its licensors own all right, title and interest, including all intellectual property rights, in and to the Services, including without limitation the Site, Secure Content, and Secure trademarks and service marks. The Services are protected under the laws of the United States and foreign countries. Except as explicitly stated in this Agreement, Secure and its licensors reserve all rights in and to the Services. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notice incorporated in or accompanying the Services.
12. Term; Termination; Suspension.
- ~12.1 Agreement Term. This Agreement commences on the earlier of (a) the date you access or use the Services and (b) the date indicated on an applicable Order (“Effective Date”), and will remain in effect until the effective date of a termination of this Agreement made in accordance with the terms of this Agreement.
- ~12.2 Subscription Term. A subscription for Services will be valid for the term specified in the Order applicable to the Services unless the Order is terminated earlier in accordance with the terms of this Agreement and the applicable Order.
- ~12.3 Termination; Suspension. Unless otherwise set forth in an Order: (a) you may terminate this Agreement and/or a subscription via your User Account; (a) Secure may terminate a subscription and/or this Agreement by giving you at least 30 days’ prior notice; and (c) Secure may immediately suspend or restrict your User Account, suspend or restrict your access to all or part of the Services, or terminate your subscription and/or this Agreement, in each case with or without notice to you, in the event that: (i) Secure reasonably determines that your actions are likely to cause legal liability for, or material negative impact to, Secure or other users of Secure’s services; (ii) Secure reasonably believes that you have provided false information to Secure, or have engaged in fraudulent or deceptive practices or violations of applicable law in connection with your use of the Services; (iii) you have failed to pay any amount owing to Secure when due and within 5 days of Secure providing your with notice of non-payment; or (iv) upon written notice if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- ~12.4 Effect of Termination.
- ~~12.4.1 The termination of any of a subscription or this Agreement will not affect either party’s rights with respect to transactions occurring prior to termination. Except as expressly set forth in this Agreement, Secure will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Secure’s termination of any subscription or this Agreement.
- ~~12.4.2 Upon termination of your subscription or termination of this Agreement, all rights and licenses granted to you to access and use the terminated Services will automatically terminate; provided, however, that unless you are in material breach of this Agreement, Secure will, for up to thirty (30) days following termination, provide you with the ability to access, view and download information that was available in your User Account at the time of termination. Secure may permanently erase information in your User Account after such 30-day period unless prohibited by applicable law.
- ~~12.4.3 Sections 2.2, 2.4, 4 and 6-14 will survive any expiration or termination of this Agreement.
13. Indemnification. You agree to defend, indemnify, and hold Secure, its officer, directors, employees, shareholders, agents, successors and assigns (the “Secure Parties”) harmless from and against all liabilities, claims, damages, costs and expenses, including without limitation, reasonable attorneys’ fees (collectively, “Claims”), that arise from or relate to (i) your violation of any term of this Agreement; (ii) your breach of any representation or warranty in this Agreement; or (iii) your violation of any applicable law, rule or regulation or the rights of a third party in connection with your use of the Services. Secure shall have the right to participate in the defense of any such Claims, at its own cost. You may not settle or negotiate any Claims that result in liability to, or impose any obligation upon, Secure Parties, financial or otherwise, without the written consent of Secure.
14. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR OTHERWISE, SHALL THE SECURE PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OR THEFT OF DATA, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF THE SECURE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR (B) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT YOU HAVE PAID SECURE FOR USE OF THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF A LIMITED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.
15. Warranty Disclaimers.
- ~15.1 EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE DISCLAIMED BY SECURE. WITHOUT LIMITING THE FOREGOING, THE SECURE PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED: (A) REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF THE SERVICES OR ANY OF THE SECURE CONTENT; (B) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; (C) ARE FREE OF VIRUSES, BUGS, DEFECTS, OR ERRORS; OR (D) THAT ERRORS IN THE SERVICES WILL BE CORRECTED.
- ~ 15.2 SECURE DOES NOT PROVIDE, AND THE SERVICES ARE NOT INTENDED AS A SUBSTITUTE FOR, LEGAL, TAX, FINANCIAL, ACCOUNTING OR OTHER PROFESSIONAL ADVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. BEFORE YOU MAKE ANY DECISIONS OR IMPLEMENT ANY FINANCIAL STRATEGY, YOU SHOULD OBTAIN ADVICE FROM YOUR ACCOUNTANT OR OTHER FINANCIAL ADVISERS WHO ARE AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES
- ~ 15.3 WE MAINTAIN PHYSICAL, ELECTRONIC, AND PROCEDURAL SAFEGUARDS REASONABLY DESIGNED TO PROTECT THE SERVICES. BECAUSE NO DATA TRANSMISSION IS COMPLETELY SECURE, AND NO SYSTEM OF PHYSICAL OR ELECTRONIC SECURITY MECHANISM IS FOOLPROOF, WE CANNOT GUARANTEE THE SECURITY OF THE INFORMATION YOU SEND TO US OR THE SECURITY OF OUR SERVERS, NETWORKS, SYSTEMS OR DATABASES.
16. Agreement to Arbitrate; Dispute Resolution.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
- ~16.1 Agreement to Arbitrate. Unless otherwise set forth in a separate agreement between you and Secure which expressly indicates that this Section 12 does not apply, any dispute or claim arising out of or relating in any way to this Agreement or the Services that cannot be resolved directly between you and Secure shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA” ) in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (collectively, the “AAA Rules“) then in effect, except as modified by this Agreement to Arbitrate. The AAA Rules are available at https://www.adr.org. YOU UNDERSTAND THAT WITHOUT THIS AGREEMENT TO ARBITRATE, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
- ~16.2 Pre-Arbitration Dispute Resolution. Except as set forth herein, prior to initiating an arbitration, you and Secure each agree to notify the other party of any dispute and to engage in good faith negotiations to reach an informal resolution of the dispute. A notification by you shall be made by emailing Secure at email@example.com. A notification by Secure will be made by emailing you at the email address you have provided to Secure. If after a good faith effort to negotiate for a minimum of thirty (30) days, either party believes the dispute cannot be resolved informally, it will notify the other party via email (at the email addresses indicated above) prior to initiating arbitration. To initiate arbitration, the initiating party must file a claim with the AAA and provide the other party with the written Demand for Arbitration available at https://www.adr.org/, as specified in the AAA Rules.
- ~16.3 Exceptions. You and Secure agree that the following disputes are not subject to the above provisions concerning informal dispute resolution and binding arbitration and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) any claim which may be brought as an individual action in a small claims court having applicable jurisdiction.
- ~16.4 Arbitration Procedures.
- ~~16.4.1 The Federal Arbitration Act and federal arbitration law govern the interpretation and enforcement of the agreement to arbitrate in this Agreement. There is no judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court and must apply and follow the terms of this Agreement to Arbitrate as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope of enforceability of this agreement to arbitrate or the interpretation of the Prohibition of Class and Representative Actions and Non-Individualized Relief section below, shall be for a court of competent jurisdiction to decide.
- ~~16.4.2 The arbitration will be conducted by a single arbitrator. If you and Secure cannot agree on who the single arbitrator should be, then the AAA shall appoint an arbitrator. Secure agrees that any required arbitration hearing may be conducted, at your option: (a) in the county where you reside; (b) in King County, Washington; (c) in any other location to which you and Secure both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $10,000, solely through the submission of documents to the arbitrator. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The award of the arbitrator shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- ~~16.4.3 Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $10,000 or less, at your request, Secure will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Secure should be submitted by mail to the AAA along with your Demand for Arbitration and Secure will make arrangements to pay all necessary fees directly to the AAA. If the arbitrator determines that the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Secure for all fees associated with the arbitration paid by Secure on your behalf that you otherwise would be obligated to pay under the AAA Rules.
- ~16.5 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND SECURE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. UNLESS BOTH YOU AND SECURE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND SECURE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE TO PROCEED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
- ~16.6 Right to Opt Out. You have the right to opt out of the provisions of the agreement to arbitrate set forth in this Section 12 by sending written notice of your decision to opt out within 30 days after first becoming subject to this agreement to arbitrate. Your notice must include an unequivocal statement that you wish to opt out of this agreement to arbitrate, your name and address, the email address you have provided to Secure, or if you have not previously provided an email address to Secure, an email address at which you can be reached. The notice must be sent to Secure at firstname.lastname@example.org. If you opt out of this agreement to arbitrate, all other parts of this Agreement will continue to apply to you. You acknowledge and agree that your decision to opt out of arbitration with Secure will not affect the opt-out rights of any other Users, including any Employees who enter into agreements to receive Secure’s Services through your subscription.
17. Electronic Communications; SMS Messages
- Consent to Electronic Communications. Secure’s Services are internet-based and provided electronically. Therefore, you understand and agree that that the following categories of information (“Communications”) may be provided by electronic means either by e-mail or posted on or through the Services as described below:
- This Agreement and any amendments, modifications or supplements to it;
- Your records of any payment and other transactions made through the Services;
- Any disclosures or notices provided in connection with the Services, including without limitation those required by applicable law;
- Any customer service communications; and
- Any other communication related to the Services.
All electronic Communications will be deemed to have been received by you no later than five (5) business days after we send them to you by e-mail or post them on or through the Services, whether or not you have received the email or retrieved the Communication. An electronic Communication by e-mail is considered to be sent at the time that it is directed by our e-mail server to the appropriate e-mail address. You agree that these are reasonable procedures for sending and receiving electronic Communications. You agree to promptly update your User Account if your e-mail address or other information changes. Although we reserve the right to provide Communications in paper format at any time, you agree that we are under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy of any electronic Communication that is important to you and retain the copy for your records. If you do not wish to receive this Agreement or the Communications electronically, you may not use the Services. In order to access and retain Communications from us, you must have: (a) an internet browser that supports 128-bit encryption, such as Microsoft Internet Explorer® version 11 or above, Apple Safari®, Mozilla Firefox®, or Google Chrome®; (b) an e-mail account with an internet services provider and any software required to send and receive emails; (c) a personal computer, tablet or mobile phone, operating system and telecommunications connections to the internet capable of supporting the foregoing; (d) sufficient electronic storage capacity on your computer’s, mobile phone’s or tablet’s hard drive or other data storage unit; and (e) a printer that is capable of printing from your browser and e-mail software.
- Withdrawal of Consent to Electronic Communications. If you have opened a User Account with us and you wish to withdraw your consent to have Communications provided in electronic form, you must close your User Account as described in this Agreement and stop using the Services.
- Consent to SMS Messages; Telephone Calls. You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone communicating on our behalf at the specific telephone number(s) you have provided to us, with service-related information, questions about your use of the Services and/or User Account and marketing information. You represent and warrant to Secure that each telephone number you have provided to us is your telephone number and not someone else’s, and that you are permitted to receive calls and text messages at the telephone number. You agree to promptly notify Secure when and if you stop using a telephone number previously provided to us. Secure and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages or text messages. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
- Withdrawal of Consent to SMS Communications. If you wish to withdraw your consent to receive SMS messages, you may opt-out of receiving SMS from us by replying ‘STOP’ to any message you receive from us. Upon receipt of your ‘STOP’ message, we will send you a SMS message to confirm that you have been unsubscribed. Following the confirmation message, you will no longer receive any further SMS messages from Secure unless you subsequently elect to begin receiving SMS messages again. If you need any assistance, you can always text “HELP” to any message you receive from us or email us at email@example.com.
18. General Terms
- ~18.1 Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without reference to its conflict of law provisions. Subject to and without waiver of the arbitration provisions of Section 12 above, any judicial proceedings arising out of or relating to this Agreement or the Services must be brought in, and you and Secure hereby consent to the exclusive jurisdiction and venue in, a state or federal court of competent jurisdiction located in King County, Washington. You and Secure waive any right to object to venue in such courts.
- ~18.2 Third-Party Sites and Services. In using our Services, you may view content provided by third parties, including links to websites of third parties (“Third-Party Content”). Secure does not control, endorse or adopt any Third-Party Content and has no responsibility for Third-Party Content. Any business dealings or correspondence you have with such third parties are solely between you and the third parties. Secure is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and you understand that your use of Third-Party Content, and your interactions with third parties, is at your own risk. If you provide any information to a third party, the third party’s use of your information will be governed by the third-party’s privacy statement, not Secure’s Privacy Statement.
- ~18.3 Force Majeure. Notwithstanding anything to the contrary contained in this Agreement, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including without limitation, acts of God, pandemics or epidemics, acts of war or terrorism, acts or orders of government, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Provided, however, that in the event of any such occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.
- ~18.4 Severability. In the event any of the terms or provisions of this Agreement shall be held to be invalid or unenforceable, the remaining terms and provisions shall be unimpaired and the unenforceable term or provision shall be replaced by such enforceable term or provision as comes closest to the intention underlying the unenforceable term or provision.
- ~18.5 Waiver. Any waiver by a party of any provision of this Agreement, whether in writing or by course of conduct or otherwise, shall be valid only in the instance in which it is given, and shall not be deemed a continuing waiver of any provision, nor shall it be considered a waiver of any other provision.
- ~18.6 Assignment. Secure may assign or transfer this Agreement and Secure’s rights and obligations hereunder without restriction. You may not assign or transfer this Agreement or your rights or obligations hereunder, by operation of law or otherwise, without Secure’s written consent, and any attempt to do so without such consent will be null and void and of no effect. Subject to the preceding, this Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the parties hereto and their permitted successors and assigns.
- ~18.7 Entire Agreement. This Agreement, including all agreements referred to and incorporated herein, sets forth the entire understanding and agreement between you and Secure, and supersedes any and all other oral or written agreements or understandings between the parties.
19. Additional Terms Applicable to California Residents
The following Additional Terms apply to Users that are residents of California:
- ~19.1 To the maximum extent permitted by law, Users who are California residents expressly agree to waive California Civil Code Section 1542, which states: “A general release does not extend to claims that 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.”
- ~19.2 Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:
The provider of the Services is Secure, Inc., 5400 Carillon Point, Kirkland, WA 98033. To file a complaint regarding the Services or to receive further information regarding use of the Services, please send a letter to the above address or contact us via email at firstname.lastname@example.org (with “California Resident Request” as the Subject Line). You may also contact the Division of Consumer Affairs, Consumer Information Division in writing at 1625 North Market Blvd., Suite N-112, Sacramento, California 95814, by telephone at 800.952.5210 / 916.445.1254 or via the Internet at www.dca.ca.gov.