Terms & Conditions

Updated as of July 1, 2022

Kappa Pay Inc. (“Kappa Pay,” “we,” “our,” or “us”) makes this website and all software, services, content, and materials related to this website or made accessible to you in connection with our platform, products, or services (collectively, our “Service”) available for your use subject to the terms and conditions in this Terms & Conditions Agreement (the “Agreement”). By accessing or using our Service in any way, you agree to be bound by this Agreement. If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not use our Service.

IMPORTANT NOTICE: YOUR USE OF OUR SERVICE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 8 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 8 OF THIS AGREEMENT FOR MORE INFORMATION.

1.

Service

1.1

Grant of License

On the condition that you comply with all of your obligations under this Agreement, and subject to any additional terms or in any third-party licenses applicable to our Service, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use our Service. We reserve all rights not otherwise expressly granted by this Agreement. If you do not comply with this Agreement, we reserve the right to revoke any license granted in this Agreement and limit your access to our Service. Any use of our Service that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use our Service. Any third-party software included in our Service is licensed subject to the additional terms of the applicable third-party license.

1.2

Additional Terms

The disclaimers, terms, and conditions in this Agreement may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we or our third-party service providers disclose (“Additional Terms”). Such Additional Terms shall include, but may not be limited to, the terms set forth in Exhibit A to this Agreement (if in existence). In the event of a conflict between the Additional Terms and this Agreement, the Additional Terms shall prevail.

1.3

Modification

We may discontinue or alter any aspect of our Service, restrict the time our Service is available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to our Service without prior notice or liability to you. Your only remedy is to discontinue using our Service if you do not want a modification we make to our Service.

1.4

Removal of Access

Your access to our Service is provided on a temporary basis with no guarantee of future availability or continued right to access. You agree that we may immediately suspend or terminate your access to our Service or any part thereof for any reason, in our reasonable discretion. Cause for such measures include, without limitation: (1) breach or violation of this Agreement, the Additional Terms, or other incorporated agreements or guidelines; (2) discontinuance or material modification to our Service; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.

1.5

Defects and Availability

We use commercially reasonable efforts to maintain our Service, but we are not responsible for any defects or failures associated with our Service, any part thereof, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. Our Service may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that our Service is provided over the Internet, so the quality and availability of our Service may be affected by factors outside of our control. Our Service is not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of our Service. We do not represent, warrant, or guarantee that our Service will always be available or are completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to our Service being unavailable.

1.6

Restrictions

You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of our Service in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which our Service is based; (3) use our Service or Kappa Pay Materials to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of our Service, servers, or networks connected to our Service or take any other action that interferes with any other person’s use of our Service; (5) decrypt, transfer, create Internet links to our Service, or “frame” or “mirror” our Service on any other server or wireless or Internet-based device; (6) use or merge our Service or any component thereof with other software, databases, or services not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to our Service; (8) use our Service for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with our Service; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on our Service for any reason; (11) access or attempt to access any other user’s account; (12) use any Kappa Pay Materials made available through our Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into our Service any virus, rogue program, Trojan horse, worm, or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm our Service, or perform any such actions; (14) introduce into our Service any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter our Service, Kappa Pay Materials, or notices on our Service; (16) connect to or access any Kappa Pay computer system or network other than our Service; or (17) impersonate any other person or entity to use or gain access to our Service.

1.7

Prosecution

We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.

2.

MATERIALS AND DATA ON OUR SERVICE

2.1

Kappa Pay Materials

Our Service may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties, and may allow you to access data, documents, works, methods, processes, assessments, surveys, or reports that are provided or used by Kappa Pay in connection with our Service, or otherwise comprise or relate to our Service (collectively, the “Kappa Pay Materials”) that are protected by intellectual property laws. You are not acquiring any rights in or to the Kappa Pay Materials other than a non-exclusive right to access and use the Kappa Pay Materials solely in accordance with the terms of this Agreement and solely in connection with your use of our Service. You understand and agree that Kappa Pay’s rights in any Kappa Pay Materials are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the Kappa Pay Materials.

2.2

User Content License

Our Service includes features that allow you to upload, submit, store, or send data, information, or content through our Service (collectively, “User Content”). By submitting User Content to our Service, you grant Kappa Pay a transferable, nonexclusive, worldwide, perpetual, irrevocable, royalty-free right and license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sublicense through multiple tiers, dispose of, assign, create derivative works of, and compilations incorporating User Content for the purposes of: (i) providing our Service, and (ii) carrying out other lawful business purposes. We reserve the right to remove User Content from our Service at any time and for any reason without notification to you. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER CONTENT THAT YOU POST OR PROVIDE THROUGH OUR SERVICE. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER CONTENT, KAPPA PAY MATERIALS, OR OTHER CONTENT YOU FIND ON OUR SERVICE ARE SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR USER CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY USER CONTENT PROCESSED THROUGH OUR SERVICE.

2.3

User Content Restrictions

You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of Kappa Pay or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, Kappa Pay or our Service; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; or (e) illicit drugs and drug paraphernalia. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Content from the Service. You understand and expressly acknowledge that by using our Service you may be exposed to content that you find offensive, indecent, or objectionable and that we will not be liable to you or any other person or entity for your consumption of any content on our Service.

2.4

Feedback

We welcome your comments, feedback, information, or materials regarding our Service or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish, and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.

2.5

Links: Third Party Materials

Our Service may include links to other websites or resources on the Internet, or utilize our Service or content of other third parties (collectively, “Third Party Materials”). Because we have no control over Third Party Materials or the administration of Third Party Materials by the third parties that provide them, you acknowledge and agree that we are not responsible for the availability of such materials, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Materials or for any privacy or other practices of the third parties operating those websites or providing such materials. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third Party Materials available on or through any such website or resource. We strongly encourage you to review any separate terms of use and privacy policies governing use of these third party websites and Third Party Materials.

2.6

Ownership of Intellectual Property

Kappa Pay or its licensors exclusively own all right, title, and interest in and to our Service, the Kappa Pay Materials, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos, and icons displayed or related therein or thereto (collectively, “Kappa Pay IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the Kappa Pay IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the Kappa Pay IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Kappa Pay’s right, title, and interest in the Kappa Pay IP. Kappa Pay is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any Kappa Pay IP. The sole exception of the foregoing reservation of rights are the limited rights granted to you to use our Service, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any Kappa Pay IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws, and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.

3.

Ownership of Intellectual Property

3.1

Eligibility

YOU MUST BE AT LEAST AGE EIGHTEEN (18) TO USE OUR SERVICE. BY ACCESSING, USING, AND/OR SUBMITTING INFORMATION TO OR THROUGH OUR SERVICE, YOU REPRESENT THAT YOU ARE NOT YOUNGER THAN THE AGE OF 18. IF YOU ARE THE PARENT OR LEGAL GUARDIAN AND CONSENT TO YOUR MINOR CHILD’S ACCESS TO AND USE OF OUR SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT ON BEHALF OF YOURSELF AND YOUR MINOR CHILD. WE ENCOURAGE YOU TO INVESTIGATE COMMERCIALLY-AVAILABLE PARENTAL CONTROL PROTECTIONS (SUCH AS COMPUTER HARDWARE, SOFTWARE, OR FILTERING SERVICES) THAT MAY ASSIST YOU IN LIMITING ACCESS TO MATERIAL CONSIDERED HARMFUL TO MINORS.

3.2

Registration

Access to our Service requires you to be registered with us via a Kappa Pay-generated registration form. This form will require you to provide certain requested information (including personal information) that may constitute User Content hereunder. At such time, you will be provided with an account and login information including a username and password to successfully complete the registration process. You are the only person authorized to access and use your account. For more information about our collection of personal data about you in connection with account registration on our Service, please review our Privacy Policy.

3.3

Identity Verification

When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver’s license or other identifying documents. For a person other than an individual (such as a corporation, partnership, or trust), you must provide information to evidence the existence of the entity, such as an employer identification number and registered business address. We may also ask to see supporting documentation such as certified articles of incorporation, a government-issued business license, a partnership agreement, or trust instrument. You will be screened against all Federal government agency sanctions lists designated as such by the US Department of the Treasury in consultation with the Federal functional regulators.

3.4

Unauthorized Use and Information Changes

You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.

3.5

Storing Credentials

Our Service may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access our Service. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to Kappa Pay or our Service resulting from unauthorized access to our Service from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.

3.6

Mobile Use

Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using our Service on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using our Service, for data downloading, email, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.

3.7

Mobile Applications

Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using our Service on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using our Service, for data downloading, email, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.

3.7.1

Application License Grant

Subject to your compliance with this Agreement, Kappa Pay grants you a limited, non-exclusive, non-transferable, revocable license to download, install, and/or use a copy of the Service, as applicable to the nature of such Service, on a single mobile device that you own or control. Furthermore, with respect to any Service accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace, the Samsung Apps marketplace, Amazon Skills Store, or any similar store or marketplace authorized by Kappa Pay (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g., Apple App Store’s “Usage Rules”) (the “App Store Terms of Service”) when using the Software.

3.7.2

App Stores

If you downloaded the Service from an App Store, you acknowledge and agree that the availability of the Service is dependent on the App Store from which you received the Service. You acknowledge that this Agreement is between you and Kappa Pay and not with the App Store. The App Store is not responsible for the Service (including Service-related content, maintenance, support, and warranty) or addressing any claims relating to the Service (e.g., product liability, consumer protection laws, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Store in connection with the Software (if any). You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.

3.7.3

Warranty Claim

In the event of any failure of the Service to conform to any applicable warranty, you may notify the applicable App Store and obtain a refund of fees charged for the Service (if any) by the App Store. To the maximum extent permitted by applicable law, the App Store will not have any warranty obligation whatsoever with respect to the Service. As between Kappa Pay and the App Store, any claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Kappa Pay.

4.

REPRESENTATIONS

4.1

Representations

You hereby represent and warrant that: (1) you (a) are at least the age of 18; and (b) have the power and authority to enter into and perform your obligations under this Agreement; (2) all information provided by you to us is truthful, accurate, and complete; (3) you will comply with the terms and conditions of this Agreement and any other agreement to which you are subject that is related to your use of our Service, your Feedback, or any part thereof; (4) if applicable, you have provided and will maintain accurate and complete information with us, including, without limitation, your legal name, email address, and any other information we may reasonably require; (5) your access to and use of our Service or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use, or any law or regulation to which you are subject; (6) you will immediately notify us in the event that you learn or suspect that the contact information you provided to us has been disclosed or otherwise made known to any other person; (7) you will not use our Service in order to gain competitive intelligence about us, our Service, or any product or service offered via our Service or to otherwise compete with us; and (8) your User Content does not violate the rights of any third party, including, without limitation, the intellectual property, privacy, or publicity rights of any third party, and constitutes an original work of authorship by you.

4.2

Systems Representations

You represent that you shall, at all times during the term, procure, set up, maintain, and operate in good repair, at your sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third-party software, and telecommunications service, necessary for you to access and use our Service (collectively, the “User Systems”). You further represent that in connection with your User Systems, you shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to securely administer the distribution and use of our Service and Kappa Pay Materials, and protect against any unauthorized access to or use of our Service.

4.3

Feedback Representations

In the event you provide any Feedback via our Service, you hereby make the following additional representations and warranties to us: (1) you are the owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy, or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.

5.

MONEY TRANSFERS MADE ON OUR SERVICE

5.1

Transfers

Our Service permits you to send or receive funds to or from other individuals or businesses. We may, at our discretion, impose limits on the amount of money you can send or receive, including money you send for purchases. You can view any sending limit by logging into your Kappa Pay account.

5.2

Refunds and Disputes

BY USING THE SERVICE, YOU AGREE THAT KAPPA PAY HAS NO OBLIGATION TO REFUND ANY TRANSFER OR OTHER PAYMENT EXCEPT TO THE EXTENT REQUIRED BY LAW. You must notify Kappa Pay of any disputed transfers or payments or any requests for refunds within thirty (30) days of the date such transfer was processed by Kappa Pay. Please contact us via the methods described in Section 9.10 of this Agreement to raise any dispute or complaint, which we will resolve in accordance with our Complaint Management Policy.

5.3

Taxes

As applicable, you are responsible for, and agree to pay, all taxes, fees, and surcharges set by any governmental agency or taxing authority. You agree to indemnify and hold us harmless for any liability for tax in connection with your use of the Service.

6.

DISCLAIMERS OF WARRANTY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.

WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT OUR SERVICE (INCLUDING THE KAPPA PAY MATERIALS) WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON OUR SERVICE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF OUR SERVICE WILL BE CORRECTED, THAT OUR SERVICE AND ANY CONTENT OR INFORMATION FOUND ON OUR SERVICE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS. KAPPA PAY WILL HAVE NO LIABILITY REGARDING ANY LOSS OF DATA. KAPPA PAY IS NOT RESPONSIBLE FOR OR LIABLE FOR ANY EMPLOYMENT, RECRUITING, OR PROMOTION DECISIONS, FOR ANY REASON, MADE BY YOU UTILIZING OUR SERVICE.

ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

7.

INDEMNITY: LIMITATION OF LIABILITY

7.1

Indemnity

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS KAPPA PAY, OUR AFFILIATES, AND ALL OF THEIR OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM AND AGAINST ANY AND ALL FIRST-PARTY AND THIRD-PARTY CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OF OUR SERVICE, (B) YOUR VIOLATION OF THIS AGREEMENT, (C) ANY USER CONTENT YOU PROVIDE THROUGH OUR SERVICE, (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (E) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.

7.2

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, LOSS OF DATA, WORK STOPPAGE, PERSONAL INJURY, DEATH, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH OUR SERVICE, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR SERVICE. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF OUR SERVICE IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00 USD).

7.3

For California Residents

IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE 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.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST RELEASED PARTIES.

8.

DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS

8.1

Governing Law

This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of New York without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in New York City, New York, and you hereby consent to the exclusive jurisdiction and venue of the state or Federal courts in New York City, New York. You irrevocably submit and consent to the personal jurisdiction of such courts.

8.2

Dispute Resolution

You and Kappa Pay agree that any and all disputes, claims, or controversies arising out of or relating to your use of or access to our Service or Kappa Pay Materials, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (each, a “Dispute”), except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST KAPPA PAY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).

8.3

Informal Resolution

To the extent feasible, the parties desire to resolve any Disputes through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). To provide this opportunity to resolve any Dispute, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Kappa Pay should be sent by mail to Kappa Pay Inc., Attn: Arbitration Provision, 75 State Street, Ste 100, MA 02109 USA. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (i) include your name and account number; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. If we are not able to resolve any Dispute ourselves, you and Kappa Pay agree to resolve such Dispute through confidential binding arbitration as set forth below.

8.4

Binding Arbitration

If you and Kappa Pay are unable to resolve a Dispute through informal negotiations or in small claims court (as set forth below), either you or Kappa Pay may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website ( https://adr.org). The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, and determined by a court rather than an arbitrator. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable, or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. While an arbitrator may award declaratory or injunctive relief, the arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Kappa Pay may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

8.5

Confidentiality of Proceedings

Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law.

8.6

Small-Claims Court

Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court rather than through arbitration so long as the matter remains in small-claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small-claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small-claims court, with no fees due from the arbitration respondent.

8.7

Opt-Out

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 8 by emailing us at legal@kappapay.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing that only a court may be used to resolve any Dispute. Opting out will not affect any other aspect of the Agreement, Additional Terms, or the Services, and will have no effect on any other or future agreements you may reach to arbitrate with us.

8.8

Waiver of Rights

You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the California State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available.

9.

MISCELLANEOUS

9.1

Term

This Agreement is effective upon your acceptance and will continue in full force until terminated by you or us. You may terminate this Agreement at any time by immediately discontinuing all access to our Service. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third party for any termination or suspension of your access to our Service or any part thereof.

9.2

Independent Contractors

You understand and expressly agree that you and Kappa Pay are independent contractors and not agents or employees of the other party. Neither you nor Kappa Pay has any right, power, or authority to act or create any obligation, expressed or implied, on behalf of the other party.

9.3

Consent to Do Business Electronically

We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures, or other documents, communications, or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Kappa Pay will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.

9.4

Equitable Relief

You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.

9.5

Privacy

We collect, store, and use data collected from you in accordance with our Privacy Policy. The terms and conditions of our Privacy Policy are hereby expressly incorporated into this Agreement.

9.6

Entire Agreement

This Agreement, the Additional Terms (including but not limited to the Partner Terms), and any hyperlinked policies and procedures constitute the entire agreement between you and Kappa Pay with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update this Agreement from time to time, and will post the updated Agreement to our Service. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of our Service will constitute your agreement to any new provisions within the revised Agreement.

9.7

Waiver; Severability

Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.

9.8

Waiver of Rights

You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.

9.9

Survival

The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.

9.10

Contact Us

Submit your question via email at info@kappapay.com.

Boston, USA | Douala, Cameroon | hello@kappapay.com


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