WIRECARD TERMS OF SERVICE
Last Updated: February 1, 2017
These Terms of Service (“Terms”) apply to your access to and use of the websites, applications and other online products and services (collectively, our “Services”) provided by Wirecard North America, Inc. (“Wirecard” or “we”). By using the Services, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 13, do not access or use our Services.
If you have any questions about these Terms or our Services, please contact us at:
|Address:||Wirecard North America|
|P.O. Box 284|
|Conshohocken, PA 19428|
You must be at least 18 years of age to access or use our Services. If you are accessing or using our Services on behalf of another person or entity, (a) you represent that you are authorized to accept these Terms on that person or entity’s behalf, (b) that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms, and (c) references to “you” in these Terms will refer jointly to you and the other person or entity.
You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You are responsible for all activities that occur in connection with your account and accept all risks of unauthorized access.
Additional terms may apply to specific features, products, or services associated with our Services (“Additional Terms”), including without limitation a cardholder bank agreement that you may have with a sponsor bank and a customer program agreement that you may have with Wirecard. These Terms are not intended to cover subject matter addressed in such Additional Terms, and to the extent any Additional Terms conflict with these Terms, the Additional Terms govern with respect to your access to or use of the applicable feature, product, or service.
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:
Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Wirecard Content”) are owned by or licensed to Wirecard and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Wirecard and our licensors reserve all rights in and to our Services and the Wirecard Content. We hereby grant you a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Wirecard Content for your internal business purposes; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Wirecard Content; (b) copy, reproduce, distribute, publicly perform or publicly display Wirecard Content, except as expressly permitted by us or our licensors; (c) modify the Wirecard Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Wirecard Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Wirecard Content other than for their intended purposes. Any use of our Services or Wirecard Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Wirecard or our products or Services (collectively, “Feedback”), is non-confidential and will become the sole property of Wirecard. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Wirecard’s Designated Agent as follows:
|Designated Agent:||Director of Compliance|
|Address:||Wirecard North America|
|P.O. Box 284|
|Conshohocken, PA 19428|
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Wirecard for certain costs and damages.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Wirecard, our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Wirecard Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify Wirecard of any third party Claims, cooperate with Wirecard Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that Wirecard will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Wirecard or the other Wirecard Parties.
(a) We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services.
(b) Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Wirecard does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Wirecard attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
(a) Wirecard and the other Wirecard Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Wirecard or the other Wirecard Parties have been advised of the possibility of such damages.
(b) The total liability of Wirecard and the other Wirecard Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Services.
(c) The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Wirecard or the other Wirecard Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Wirecard and the other Wirecard Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
(a) Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Wirecard and limits the manner in which you can seek relief from us.
(b) Except for small claims disputes in which you or Wirecard seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Wirecard seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Wirecard waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Manhattan, New York, New York in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
(c) You and Wirecard agree that any dispute arising out of or related to these Terms or our Services is personal to you and Wirecard and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
(d) You and Wirecard agree that these Terms affect interstate commerce and that the enforceability of this Section 12 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Wirecard agree that for any arbitration you initiate, you will pay the filing fee and Wirecard will pay the remaining JAMS fees and costs. For any arbitration initiated by Wirecard, Wirecard will pay all JAMS fees and costs. You and Wirecard agree that the state or federal courts of the State of New York and the United States sitting in Manhattan, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
(e) Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and WIRECARD will not have the right to assert the claim.
These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of Delaware, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Delaware and the United States, respectively, sitting in Wilmington, DE.
We may make changes to these Terms from time to time by providing notice to you. We will provide notice to you by posting the amended Terms to our Services and updating the “Last Updated” date above. We may also provide additional notice, such as by sending an email notification to the email address associated with your account or providing supplemental notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately upon posting to our Services, and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
In no event will Wirecard or the Wirecard Parties be responsible for any delay or failure to perform due to an event or circumstances outside the reasonable control of Wirecard. These Terms constitute the entire agreement between you and Wirecard relating to your access to and use of our Services. The failure of Wirecard to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.