FLEXCHARGE END-USER TERMS OF SERVICE
Last Updated: 19 January, 2024
These end-user terms of service (“Terms”) constitute a binding and enforceable agreement between FlexCharge Inc. (“FlexCharge”) and you (“User”, “You”) each time you use the FlexCharge Services. User and FlexCharge shall collectively be referred as the "parties" and each as a "party".
By accepting these Terms electronically or by using the Services, you agree to comply with these Terms, so please be sure to read these Terms carefully each time you use the Services. If you do not agree to these Terms, you cannot use any of the Services.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND FLEXCHARGE AGREE THAT DISPUTES BETWEEN YOU AND FLEXCHARGE WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND FLEXCHARGE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU HAVE THE RIGHT TO OPT OUT AS DETAILED IN THE ARBITRATION SECTION BELOW.
1. CONTACT US
For any inquiry you have regarding these Terms, the Services, your Data and the way FlexCharge handles it, or otherwise, please contact FlexCharge at: legal@flex-charge.com.
2. THE SERVICES
2.1. Subject to these Terms, and to the extent FlexCharge has accepted your Transaction, FlexCharge allows you to complete a failed transaction and purchase your desired goods or services (“Transaction”) from the third party supplier ("Merchant" and “Services” or "FlexCharge Services" respectively).
2.2. FlexCharge will process your Transaction and collect and process your payment related to the Transaction. Please be aware that the Transaction might appear in your billing statement as conducted by FlexCharge and not directly by the Merchant. In addition, once FlexCharge is able to complete the Transaction, and if technically possible, FlexCharge will send you an electronic message confirming the completion of the Transaction. To the extent applicable, FlexCharge will cooperate and support you with initiating a refund request for a Transaction, however it is hereby clarified that the Merchant is solely responsible for and liable to the goods and services purchased while using FlexCharge Services, including for any product warranty, shipment, etc., and FlexCharge explicitly disclaims nor assumes any responsibility or liability for the same and for any consequences resulting from your engagement with the Merchant including for any agreements concluded with the Merchants.
2.3. It is hereby clarified that FlexCharge is an independent, third-party service provider that is not affiliated with any Merchant. You acknowledge and agree that your use of the Services does not in any way constitute a tri-party agreement between you, FlexCharge and any Merchant.
3. RESTRICTIONS OF USE
3.1. By using the Services, you represent and warrant that you are at least 18 years of age and that you will not use the Services for any fraudulent, unlawful or abusive purpose. You hereby agree to comply with all applicable laws, rules and regulations, including those regarding data privacy, intellectual property rights and export control. You may not, directly or indirectly (i) access or attempt to access the Services by any means other than the interface provided or authorized by FlexCharge; (ii) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (iii) use the Services to store, share or transmit content which is unlawful, infringing, harmful or which violates any person’s rights, including privacy rights and intellectual property rights; (iv) attempt to disable, impair, or destroy the Services; or (v) reverse engineer or decompile the Services.
4. BACKGROUND CHECKS
4.1. FlexCharge uses proprietary analysis tools to evaluate your ability to successfully complete your payments with FlexCharge. You hereby acknowledge and agree that FlexCharge may perform an initial background check (and subsequent periodic follow-up checks) on you to determine whether FlexCharge is willing and allowed to approve the purchase of your invoices from Merchants (each a “Background Check”).
4.2. Each Background Check may, without limitation, include a review of the following information, which you hereby expressly authorizes and consents to: (i) your Data (as detailed and defined below); (ii) credit history, including a hard/soft pull of a personal or business credit score or credit report from one or more credit bureaus (FlexCharge's standard offering should not have a negative effect on your credit scores); (iii) data transmitted by Merchants; and (iv) information from public or private sources that we obtain directly or from third party service providers including banks and payment processors.
4.3. You acknowledge and agree to cooperate with FlexCharge with respect to Background Check and shall promptly, upon request, provide any information, documentation or consent that FlexCharge may require to perform a Background Check. Your further acknowledge that any failure to provide the foregoing information and said cooperation may preclude your ability to complete the Transaction with Merchant through the Services.
5. PAYMENTS
5.1. There are no finance charges or any interest payment which are associated with the Services provided to you by FlexCharge; you will be billed just the amount of the Transaction. Notwithstanding anything to the contrary, you acknowledge that: (i) the issuer of your preferred method of payment may charge interest or other charges in accordance with the issuers’ terms and conditions and FlexCharge will not be liable for these additional charges; and (ii) failure to comply with these Terms may incur additional fees and charges to you.
5.2. FlexCharge will convert any Transaction made in foreign currency into U.S dollars based on the conversion rate as of the end of the prior business day. The conversion rate is provided by a third party and may differ from other exchange rates.
5.3. FlexCharge reserves the right to conduct a pre-authorization transaction which is a temporary hold placed by FlexCharge reserved for future payment of the Transaction. This hold usually lasts up to 5 days, depending on the issuer, or until we settle the Transaction.
6. YOUR DATA
6.1. You hereby acknowledge that, FlexCharge may collect, use, store and transmit certain data including Personal Data that identifies you, including but not limited to your name, Internet Protocol Address, Transaction information, Background Check data, contact information and billing information, all as detailed in the FlexCharge Privacy Policy (“Data”).
6.2. Your Data, including any intellectual property rights thereto, shall remain your sole and exclusive property, and shall be subject to the confidentiality obligations set forth herein. You grant FlexCharge a limited, worldwide license to use, process and retain the Data as detailed in the Privacy Policy.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. FlexCharge owns all rights, title and interest (including intellectual property rights) in and to the Services, its website and technology. If you choose to give FlexCharge feedback or suggestions about any part of the Services, website or technology FlexCharge may use them without any limitations.
8. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY
8.1. EXCEPT AS PROVIDED IN THESE TERMS, FLEXCHARGE PROVIDES THE SERVICES “AS IS”, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND FLEXCHARGE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. FLEXCHARGE FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL FLEXCHARGE BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT FLEXCHARGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLEXCHARGE’S MAXIMUM AGGREGATE LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED 10 U.S. DOLLARS.
9. LIMITATION ON LIABILITY
9.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FLEXCHARGE OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF THE SERVICES, INCLUDING THE UNAVAILABILITY OF THE SERVICES FOR ANY REASON, OR ANY SYSTEM FAILURE OR MALFUNCTION ASSOCIATED WITH THE SERVICES, AND INCLUDING ANY THIRD PARTY CLAIMS, WHETHER BASED ON THEORIES OF BREACH OF CONTRACT, TORT, PRODUCT LIABILITY, OR BREACH OF WARRANTY. THESE LIMITATIONS OF LIABILITY WILL APPLY EVEN IF FLEXCHARGE HAVE BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
10. TERM AND TERMINATION
10.1. These Terms shall remain in effect until terminated by you or FlexCharge in accordance with the terms provided herein. FlexCharge may terminate these Terms or suspend your access to any part of the Services at any time, including if you have breached any of the terms provided herein or if FlexCharge believes it is required to do so by law. You may terminate these Terms at any time. Termination does not exempt you from the obligation to pay any payment due in connection with the use of the Services. FlexCharge may update these Terms at any time and the changes will be published on FlexCharge website. Any changes are effective immediately on posting.
11. GOVERNING LAW AND JURISDICTION
11.1. These Terms are governed by the laws of the State of New York, without regard to conflict of law principles. Subject to Section 12, which provides that disputes are to be resolved through binding arbitration or small claims court, to the extent that any lawsuit or court proceeding is permitted hereunder, you and FlexCharge agree to submit to the exclusive personal jurisdiction of the state courts and federal courts located within New York, for the purpose of litigating all such disputes.
12. ARBITRATION, CLASS ACTION WAIVER
12.1. If you have any concern regarding the Service or these Terms, please first contact FlexCharge directly and it will try to resolve it. In the interest of resolving disputes between you and FlexCharge in the most expedient and cost-effective manner, you and FlexCharge agree to resolve disputes through binding arbitration or small claims court instead of in courts of general jurisdiction (“Agreement to Arbitrate”). You and FlexCharge agree to arbitrate all disputes and claims between the parties. This agreement to arbitrate is intended to be broadly interpreted. Arbitrators can award the same damages and relief that a court can award. A party who intends to seek arbitration must first send to the other, by certified mail or email as detailed above, a written Notice of Dispute (“Notice”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If you and FlexCharge do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or FlexCharge may commence an arbitration proceeding. Any arbitration between you and FlexCharge will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
12.2. In the event that you commence arbitration in accordance with these Terms, FlexCharge will, at your request, reimburse you for your payment of the arbitration filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any request for payment of fees by FlexCharge should be submitted by mail to the AAA along with your Demand for Arbitration and FlexCharge will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), you agree to reimburse FlexCharge for all fees associated with the arbitration paid by FlexCharge on your behalf that you otherwise would be obligated to pay under the AAA’s rules. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. Any in-person arbitration hearings will take place at a location to be agreed upon in the State of New York. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
12.3. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. You acknowledge and agree that 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 individual party’s claim(s). Any relief awarded cannot affect other users. YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, YOU AND FLEXCHARGE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
12.4. Notwithstanding the above, you and FlexCharge agree that no statement herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in any competent court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
12.5. If you are a new FlexCharge user, you can choose to reject the arbitration agreement contained in this Section (“Opt-Out”) by mailing FlexCharge a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept these Terms for the first time. The Opt-Out Notice must contain your name, and the username(s) and email address(es) associated with the Transaction or the FlexCharge Services. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Terms will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with FlexCharge.
12.6. If an arbitrator or court decides that any part of this Section is invalid or unenforceable, the other parts of this Section shall still apply. If the entirety of this Section 13 is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 12 shall govern any action arising out of or related to these Terms, and that the remainder of the Terms will continue to apply.
13. GENERAL
13.1. These Terms set the entire agreement between you and FlexCharge in relation to the Services, and constitute a written assignment notice and disclosure of the assignment terms which apply to any debt you owe to the Merchant.
13.2. You may not transfer your rights under these Terms to any third party without FlexCharge written consent.
13.3. If there is any conflict between these Terms and terms that apply to additional services, these Terms will prevail in the conflict.
13.4. If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
13.5. A failure or delay by you or FlexCharge in exercising any right or remedy under these Terms or by law shall not be a waiver of that or any other right or remedy. A waiver of any right or remedy under these Terms or by law is only effective if it is in writing.
13.6. FlexCharge may transfer, assign or sell these Terms and any part thereof, including its rights under these Terms, to a third party without your consent.
13.7. You hereby waive demand, notice of non-payment, protest and all other notices or demands whatsoever, and hereby consent that without notice to and without releasing the liability of any party, the obligations evidenced by these Terms may from time to time, in whole or part, be renewed, extended, modified, accelerated, compromised, settled, canceled or released by us.