Effective starting: September 1, 2019
For the avoidance of doubt, use and provisioning of Check My Pay Products are subject to separate terms, such as our Terms of Service, and these Terms do not apply to use of or access to the Check My Pay Products.
From time to time, we may modify these Terms. Unless we specify otherwise, changes become effective upon our posting of the updated Terms, and the updated Terms will apply to all use of the Platform after they are posted. We will use reasonable efforts to notify you of the changes through communications via the Platform, email or other means.
BY INDICATING YOUR ACCEPTANCE OF THESE TERMS OR ACCESSING OR USING THE PLATFORM, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE PLATFORM. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THESE TERMS ARE LEGALLY BINDING UPON IT.
1. USE OF THE PLATFORM. You are free to use the Platform, but only for your non-commercial purposes (except to the extent permitted by Check My Pay). You may be required to set up an account in order to access and post on the Platform. If so, you have complete responsibility for your account and everything that happens on your account, including if somebody accesses your account without your permission. You have the right to delete your account and any Submissions, as defined below. You understand and agree that if you choose to exercise such right, it will not apply retroactively. To change your account information, you can go to “Manage settings” in the drop-down of your avatar on the Platform. We reserve the right to change, add to, or disable the Platform or any part thereof at any time, and Check My Pay and its suppliers will not be responsible for any changes to or lack of availability of the Platform.
2. You are solely responsible for any Content or Contributions you Submit through the Platform (in each case, as defined below) (“Submissions”):
- “Content” shall mean any text, information, data, graphics, messages, sounds, videos, content, or other materials you post to the Platform, excluding Contributions.
- “Contribution” shall mean the documentation or other original works of authorship submitted by you (including any modifications or additions) for inclusion in an existing Work.
- “Submit” or “Submitted” means any form of electronic, verbal or written communication sent to Check My Pay or its representatives, including but not limited to communication on electronic mailing lists and issue tracking systems that are managed by, or on behalf of, Check My Pay, but excluding communications that are conspicuously marked or otherwise designated in writing by you as “Not a Contribution.”
- “Work” shall mean any of the products, projects or documentation owned or managed by Check My Pay.
By posting a Submission, you do not lose any ownership rights you may have to it. However, you do grant us certain licenses, as set forth below.
3. SUBMISSION LICENSE GRANTS.
- Content License. By posting any Content, you grant us a worldwide, non-exclusive, royalty-free, fully-paid, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, and publicly display and perform your Content in connection with the Platform and our business (including without limitation for our marketing and publicity purposes). You also agree to sharing and use of your Content by us and other users as set forth in these Terms. You understand that once you post your Content, your Content becomes public and can be seen by Check My Pay and any users of the forum, and we are not responsible for keeping it confidential.
- Contribution Copyright License. You hereby grant to Check My Pay and to recipients of software distributed by Check My Pay a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute your Contributions and such derivative works.
- Contribution Patent License. You hereby grant to Check My Pay and to recipients of software distributed by Check My Pay a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by you that are necessarily infringed by your Contribution(s) alone or by combination of your Contribution(s) with the Work to which such Contribution(s) was Submitted. If any entity institutes patent litigation against you or any other entity (including a cross-claim or counterclaim in a lawsuit) alleging that your Contribution, or the Work to which you have contributed, constitutes direct or contributory patent infringement, then any patent licenses granted to that entity under these Terms for that Contribution or Work shall terminate as of the date such litigation is filed.
4. PLATFORM USE AND RESTRICTIONS.
- Sharing Submissions on Social Platforms. The Platform supports sharing Submissions on social media platforms such as Facebook, Twitter and LinkedIn (“Social Platforms“). You understand and agree that other users (or Check My Pay) may share your Submissions on Social Platforms. You may share other users’ Submissions on Social Platforms, as long as you include a link to the Platform in your post.
- We Can Moderate the Platform. We generally do not monitor or review any Submissions on the Platform, but we reserve the right to do so, in our discretion, and may designate Check My Pay employees to act as moderators/administrators for the Platform (“Moderators“). In the event a Moderator believes you are using the Platform in violation of the Terms, we have the right to request information from the Platform’s service providers. You understand and agree that if there is an investigation of such use in violation of the Terms, you waive any confidentiality rights. We Are Not Responsible for Submissions. We do not endorse any Submissions or make any promises about the reliability of any source or the accuracy, usefulness, safety, or intellectual property rights of any Submissions. You may find Submissions on the Platform to be inaccurate, offensive, indecent, or objectionable. However, you agree not to hold us responsible in any way for your use of the Platform, including your exposure to Submissions.
- We May Remove Submissions at Any Time. We reserve the right to remove any Submissions at any time, for any or no reason, with or without notice to you. We do not promise to store or make available on the Platform any Submissions that you post, or any other content, for any length of time. You are solely responsible for keeping back-ups of everything you post on the Platform.
5. USER REPRESENTATIONS AND WARRANTIES.
- You represent that (a) you are legally entitled to grant the above licenses as set forth herein; (b) if you are Submitting as an individual, and if your employer(s) has rights to intellectual property that you create that includes your Submissions, you represent that you have received permission to make Submissions on behalf of that employer, that your employer has waived such rights for your Submissions to Check My Pay, or that your employer has executed a separate agreement with Check My Pay granting such rights and/or waivers; (c) each of your Contributions is your original creation (see Section 5.3 (Third-Party Works) for submissions on behalf of others); and (d) your Contribution includes complete details of any third-party license or other restriction (including, but not limited to, related patents and trademarks) of which you are aware and which are associated with any part of your Contributions.
- Contribution Warranty Disclaimer. You are not expected to provide support for your Contributions, except to the extent you desire to provide support. You may provide support for free, for a fee, or not at all. Unless required by applicable law or agreed to in writing, you provide your Contributions on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE.
- Third-Party Works.Should you wish to Submit work that is not your original creation, you may Submit it to Check My Pay separately from any Contribution by identifying the complete details of its source and of any license or other restriction (including, but not limited to, related patents, trademarks, and license agreements) of which you are personally aware, and conspicuously marking the work as “Submitted on behalf of a third-party: [named here]”.
6. PLATFORM GUIDELINES. In addition to the Content-related restrictions in our Acceptable Use Policy, you agree that you will not do any of the following:
- post “rants,” “slams” or legal threats against another user or another company or competitor;
- post political or religious statements or commentary;
- post off-topic comments not related to enterprise communities or Check My Pay Products;
- post duplicate posts, spam messages, or posts repeated excessively on the Platform;
- post Submissions designed to evade profanity or other filters;
- post hyperlinks that lead to sites that violate any of these Terms;
- interfere in any way with the operations in the Platform or with a fellow Platform user’s message box, including but not limited to mail or post bombing, news bombing, other flooding techniques, deliberate attempts to overload a system and broadcast attacks, or attempts to avoid messaging blocking; or
- evade bans or suspensions or otherwise disregard directions from Platform moderators or administrators.
7. PROPRIETARY RIGHTS. The Platform contains proprietary and confidential information that is protected by applicable intellectual property and other laws and Check My Pay and its suppliers retain all right, title and interest in and to the Platform and content that is included in the Platform (other than Submissions). If you give feedback on the Platform, we have the right to use the feedback in any way. We reserve all rights in and to the Platform unless we expressly state otherwise. We will own any changes or updates (excluding Submissions). In addition to the use restrictions in our Acceptable Use Policy, and any other Terms contained herein, you may not copy, frameset, enclose or otherwise sell, distribute, transmit or broadcast any part of the Platform (including Submissions posted by other users of the Platform, except as permitted in Section 4.1 (Sharing Submissions on Social Platforms)). All brand, product and service images, logos and names used in the Platform that identify Check My Pay or our suppliers and our or their proprietary products and services are the trademarks or service marks of Check My Pay or our suppliers. Nothing in these Terms shall be deemed to confer on any person any license or right on the part of Check My Pay or such supplier with respect to any such image, logo or name.
8. SUPPORT. If you have any support inquiries or wish to provide any feedback on the Platform, please do so directly in the “Feedback Forum” within the Platform.
9. TERMINATION. We may terminate or suspend these Terms or your access to the Platform at any time, without or without cause, and with or without notice to you. Upon any suspension or termination of these Terms, we may delete your account, passwords and Submissions and we may bar you from further use of the Platform. You understand that we may also continue to make your Submissions available on the Platform, or elsewhere as permitted under this Terms, even if your use of the Platform is terminated or suspended. You agree that we will have no liability to you or any third party for termination of your account, Submissions or access to the Platform. Except where an exclusive remedy is specified, the exercise of either party of any remedy under these Terms, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise. The following Sections will survive any termination of these Terms: 2 (Submissions), 3 (Submission License Grants), 5 (User Representations and Warranties), 7 (Proprietary Rights), 9 (Termination), 10 (Platform Warranty Disclaimer), 11 (Limitation of Remedies and Damages), 12 (Indemnity), 13 (Dispute Resolution) and 14 (General Terms).
10. PLATFORM WARRANTY DISCLAIMER. THE PLATFORM IS PROVIDED “AS IS”. WE AND OUR SUPPLIERS DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WE DO not warrant that YOUR use of THE PLATFORM will be uninterrupted or error-free. WE MAKE NO WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT ON THE PLATFORM (INCLUDING SUBMISSIONS PROVIDED BY OTHER USERS). THE PLATFORM IS ACCESSED AND USED AT YOUR OWN DISCRETION AND RISK AND WE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOUR COMPUTER OR DATA OR FOR ANY BUGS, VIRUSES, TROJAN HORSES OR OTHER DESTRUCTIVE CODE RESULTING FROM ACCESS TO OR USE OF THE PLATFORM. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
11. LIMITATION OF REMEDIES AND DAMAGES.
- Consequential Damages Waiver. CHECK MY PAY AND its suppliers SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST or INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- Liability Cap. CHECK MY PAY’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE PLATFORM SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100).
- Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 11 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
12. INDEMNITY. You will defend, indemnify, and hold harmless us from and against any claim by a third party arising from or related to: (a) your use or attempted use of the Platform in violation of these Terms, (b) your violation of any law or rights of any third party, or (c) any Submissions you post to the Platform, including without limitation any claim of infringement, misappropriation, or violation of any intellectual property, privacy, or other rights.
13. DISPUTE RESOLUTION.
- Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to these Terms, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, any unresolved controversy or claim arising out of or relating to these Terms shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Dallas, TX. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
- Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Texas, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 13.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Dallas, TX, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Dallas, TX, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Check My Pay may bring a claim for equitable relief in any court with proper jurisdiction.
- Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 13.1 (Dispute Resolution; Arbitration), nothing in these Terms shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
- Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms regardless of when or where adopted.
14. GENERAL TERMS. We may provide you with notices via email or the Platform, as determined by us in our discretion. Any notices you give to us under these Terms will be deemed given only when personally delivered, delivered by reputable international courier requiring signature for receipt, or three (3) business days after being deposited in the mail, first class, postage prepaid, in each case to: Check My Pay Pty Ltd, c/o Check My Pay, Inc., 2140 S. Dupont Highway, Camden, DE USA 19934, Attn: General Counsel. The parties are independent contractors, and there is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. If a court having proper authority decides that any portion of these Terms is invalid, only the part that is invalid will not apply, and the rest of these Terms will still be in effect. If we waive any of our rights under these Terms in any particular instance, it does not mean that we are waiving our rights generally or in the future. Furthermore, just because we may not enforce all our rights all of the time, it does not mean that we are waiving our rights, as we may decide to enforce them at a later date. Except as set forth herein, all amendments to these Terms must be in writing and signed by both parties. These Terms are the entire agreement between the parties with respect to their subject matter and supersede any prior agreements relating to such subject matter. These Terms, and any rights and licenses granted under these Terms, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without restriction. We won’t be liable to you for any delay or failure to perform any obligation we have under these Terms if the delay or failure is due to events which are beyond our reasonable control, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency. We may use the services of subcontractors and permit them to exercise the rights granted to us in order to provide the Platform under these Terms.