BEFORE YOU CLICK ON THE “SUBMIT” OR “REGISTER” OR “CREATE ACCOUNT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “SUBMIT” OR “REGISTER” OR “CREATE ACCOUNT” BUTTON OR USING THIS WEBSITE IN ANY MANNER (INCLUDING BY CREATING A USER ACCOUNT WHETHER AS A PROVIDER OR AS A CLIENT), YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE OUR SERVICES. WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT IN THE FUTURE AND ANY CHANGES WILL APPLY TO YOUR USE OF THE WEBSITE AFTER THE DATE OF SUCH CHANGE.
(a) Generally. The Services provided via the Approval platform comprise of a complete payment platform for managing invoicing, payment and related milestones between Providers and Clients. As used in this Agreement, a “Provider” is an individual or company that offers services to clients and registers as a user on the Site to utilize the Approval platform to manage invoicing, payment and milestones between itself and the client. A “Client” is a party that has engaged a Provider to provide services pursuant to a separate agreement and has registered as a client on the Site. This Agreement applies to both Providers and Clients; however, there are provisions that may be applicable to only Providers or Clients, as the case may be. The term “you” refers to any user of the Site, including Providers and Clients.
(b) Approval Does Not Replace Proper Contract Between the Parties. Please note that while Approval provides a means by which to efficiently manage payment terms and facilitate payment, Approval is not a contract platform and is not meant to replace a proper legal contract between Providers and Clients. Each Provider and Client utilizing the Approval platform represents that it has executed a proper legal contract with the other party for the provision of services, and each understands and agrees that Approval is not a party to such agreement and that the platform is to be used only to facilitate the payment terms agreed to between the two parties.
(c) The Process, Generally.
(d) Fees. Clients are not charged a fee for using the Site or any of the Services provided through it, except to the extent that the Client is specifically notified otherwise. The Platform fees are applicable to the Providers. Like many e-commerce transactions, the Providers, operating through a merchant account with the Payment Processor, will be charged the payment processing and other related fees by the Payment Processor when Client payments are processed. The details of such fees, including the detailed rates for particular credit cards and for ACH payments and chargeback terms, are governed entirely by the merchant terms and conditions of the Payment Processor which are located on the Fees Page. The fees charged by the Payment Processor are collectively referred to as the “Processing Fees.”
In addition to the Processing Fees, Approval charges Providers the FairPay fee for use of the Payment Pending Services, which shall equal one percent (1%) of amounts deposited by Clients and not immediately released to Providers (referred to herein as “pending funds”). This fee will be deducted from the pending funds at the time that the Payment Processor processes the payment (i.e., at the same time that the Payment Processor charges the payment processing fee).
(e) Dispute Resolution Between Providers and Clients. By registering as a Provider or Client (as the case may be), you are agreeing to be bound by the Client/Provider dispute resolution provisions of this Section 2(e) notwithstanding any provision in this Agreement to the contrary. For avoidance of doubt, this Section 2(e) applies to disputes between Clients and Providers, and not between you and Approval, which would be governed by Section 13 of this Agreement.
In the event that Client initiates a Dispute pursuant to Section 2(c)(vii) of this Agreement, then each party agrees to use best efforts to resolve the dispute through direct discussions and negotiations. Under no circumstances will Approval be a party to such a dispute nor will either party hold Approval responsible for such dispute or seek to add Approval as a party to such dispute, but Approval reserves the right (but is not obligated to) work with the parties to mediate and to try to facilitate a resolution to the dispute. The parties agree to participate in such efforts in good faith for a period of 14 days, and the failure of a party to so participate may be considered by the Arbitrator (defined below) as a breach of contract in determining a proper resolution to the Dispute.
If the parties are unable to resolve the Dispute within 14 days, either party may submit the Dispute to binding arbitration conducted pursuant to the commercial arbitration rules of the American Arbitration Association (“AAA”) then in effect. The arbitration shall be conducted by a single arbitrator (the “Arbitrator”) and arbitration shall be conducted in in such location as prescribed by the AAA rules, and to the extent that the AAA rules do not provide for a venue, Client and Provider agree that the arbitration shall take place in the county in which the Provider is located. The arbitration shall be binding on the parties and the arbitration award may be confirmed by any court of competent jurisdiction. The parties agree that binding arbitration by the AAA shall be the sole and exclusive manner of resolving their Dispute, if they are unable to resolve the Dispute during the 14-day mediation/negotiation period. Client and Provider waive their right to litigate such a Dispute in court.
In any dispute between Clients and Providers, the parties agree that Approval will not be named by any of them as a party to such a dispute, and each party agrees that Approval and the Payment Processor may suspend any action and may suspend the release of funds to any party pending resolution of the Dispute or an arbitration award/order.
Providers and Clients understand and agree that Approval does not process payments, store payment information or hold pending funds. Instead, all such services are provided by the Payment Processor subject to the Stripe Services Agreement. Each Provider represents that it has carefully reviewed the Stripe Services Agreement and by utilizing the Services provided on this Site, such Provider is agreeing to the merchant terms and conditions as outlined in the Stripe Services Agreement. You understand that although the Stripe Services Agreement may be featured on or through this Site, Approval is not a party to that agreement, and that agreement is made solely between you and the Payment Processor and that Approval merely facilitates the relationship between Providers and the Payment Processor.
You agree to indemnify and hold Approval, and its subsidiaries, affiliates, officers, directors, shareholders, members, agents, attorneys, partners and employees, harmless from any direct or third-party claims relating to the processing of payment, release of payment or privacy breaches relating to your bank or payment information. You specifically understand that Approval serves merely as a management platform and not as a payment processor or escrow agent.
In order to access even the general features on the Site you, as a Provider or Client, will need to register and create a user account (an “Account”). In creating your Account you will be prompted to provide your name and email address. To make full use of the payment management features on the Site you will be required to provide banking and/or payment information. Such banking and/or payment information is provided directly to the Payment Processor and is not stored by Approval.
By using the Site or setting up an Account you agree:
We reserve the right to (a) take appropriate legal action against anyone who violates this Agreement or applicable law; (b) in our sole discretion without notice and without limitation or liability, refuse, restrict access to or availability of, or terminate any user’s Account for violation of this Agreement or applicable law.
You agree that it is solely your obligation and duty to ensure that your use of the Site, Services (including the Approval platform) and Materials are and will remain compliant with all applicable laws and regulations.
In addition to the Materials and Services offered by us, the Site may make available products and services provided by third parties (collectively, the “Third Party Products and Services”), including, for example, the Payment Processor services. We offer no guarantees and assume no responsibility or liability of any type with respect to the Third Party Products and Services. You agree that you will not hold us responsible or liable with respect to the Third Party Products and Services or seek to do so, even if we happen to recommend a particular provider. In all such cases, you are subject to the terms and conditions of such third party, including the Processor Terms, and your remedy and recourse relating to such Third Party Products and Services is solely against such third party.
The trademarks, logos, and service marks, including the “APPROVAL” and “WITH APPROVAL” trademarks (the “Marks”) displayed on the Site belong to us. You are not permitted to use the Marks without our prior written consent.
You may not access or use the Site for any other purpose other than that for which we make them available. In using the Site, including all Services and Materials available through it, you agree to not engage in any prohibited activities. Prohibited activity includes, but is not limited to:
(a) criminal or tortious activity;
(b) activities relating to the use of the Approval platform in violation of applicable law; and
(c) disrupting or interfering with the security of, or otherwise causing harm to, the Site, the platform or any Services, Materials, system resources, accounts, passwords, servers, or networks connected to or accessible through the Site.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND APPROVAL, THE SITE, THE PLATFORM AND ALL MATERIALS AND SERVICES ACCESSIBLE THROUGH THEM ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS; (II) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, UPDATED OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; AND (IV) ANY ERRORS IN THE SERVICES OR MATERIALS, OR ANY DEFECTS IN THE SITE, ITS SERVICES OR MATERIALS, WILL BE CORRECTED.
IN NO EVENT SHALL APPROVAL OR ITS MEMBERS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR ATTORNEYS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR UNDER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SITE, PLATFORM OR ANY OF THE MATERIALS OR SERVICES AVAILABLE ON OR THROUGH THEM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT THAT APPROVAL ACTUALLY GENERATED IN FEES FROM YOUR USE OF THE PLATFORM DURING THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
This Agreement is governed in all respects by the laws of the State of New York without regard to conflict of laws provisions. SUBJECT TO THE REQUIREMENT TO SUBMIT TO ARBITRATION, BY ACCEPTING THIS AGREEMENT AND USING THE SITE YOU ACCEPT AND CONSENT TO THE PERSONAL JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS IN NEW YORK COUNTY, NEW YORK. THE PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES ARISING OUT OF THIS AGREEMENT OR THE USER’S USE OF THE SITE OR THE SERVICES/MATERIALS PROVIDED BY OR THROUGH APPROVAL. IN ADDITION, ANY CONTROVERSY OR CLAIM SHALL BE LITIGATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY (INCLUDING, BUT NOT LIMITED TO, BY MEANS OF CLASS ACTION LAW SUITS).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU AGREE THAT ANY DISPUTE OR CLAIM YOU MAY HAVE AGAINST APPROVAL ARISING OUT OF OR RELATING TO YOUR USE OF THE SITE (INCLUDING THE MATERIALS OR SERVICES), THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF (COLLECTIVELY, “DISPUTES”) WILL BE SETTLED EXCLUSIVELY BY BINDING ARBITRATION BETWEEN YOU AND APPROVAL, EXCEPT THAT EACH PARTY RETAINS THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF A PARTY’S COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS. AS NOTED ABOVE, YOU ACKNOWLEDGE AND AGREE THAT YOU AND APPROVAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND APPROVAL OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. THIS “DISPUTE RESOLUTION” SECTION WILL SURVIVE ANY TERMINATION OF THESE TERMS. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES (THE “AAA RULES”) THEN IN EFFECT. THE ARBITRATION PROCEEDINGS SHALL TAKE PLACE IN NEW YORK COUNTY, NEW YORK.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST APPROVAL ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Last Updated: 7/2/2020