APPROVAL LLC

TERMS OF USE

 

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. 

 

  1. ACCEPTANCE OF TERMS

APPROVAL LLC, a New York limited liability company (hereinafter referred to as “Approval”, “we”, “our” or “us”), provides this website located at withapproval.com (the “Site”) and all related software, webpages, information, content and files available through the Site (collectively, the “Materials”) and all services operated by us and third parties through the Site, including the Approval platform, (collectively, the “Services”), for your use subject to the terms and conditions set forth in this document and any changes to this document that we may publish from time to time (collectively, the “Terms of Use” or “Agreement”).  

 

We reserve the right to change the Terms of Use and other guidelines or rules from time to time at our sole discretion. Your continued use of the Site, or any Materials or Services accessible through them, after such notice has been posted constitutes your acceptance of the changes. Your use of the Site will be subject to the most current version of the Terms of Use, rules and guidelines. If you breach any of the Terms of Use, your authorization to use the Site may automatically be terminated by Approval.

 

  1. THE APPROVAL PLATFORM; PROVIDERS & CLIENTS

(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

 

  1. To utilize the Services provided through the Site, a Provider will first register for an Approval user account, using the Provider’s name, email address and selected password. The Provider will then create a new project, name the project and establish a payment schedule in accordance with agreed upon milestones, payment terms and other details relating to the particular project agreement. The platform enables the Provider to create multiple milestones and to separate out payments in any number of ways to facilitate the payment arrangement agreed upon by the parties. Once the Provider has created the particular project and completed its details, the Provider is prompted to invite the Client by inputting the Client’s email address and initiating the invite. By inviting the Client to the project, the Client is granted full access to review the details of the project, including any milestones and attachments associated with the project. 

 

  1. Upon Provider’s invitation to the Client, the Client will receive an email with a link to register for a Client account on the Site. Once registered, the Client will have access to the project parameters (including milestones) set up by the Provider. The Client will be required to approve the project before the project is initiated on the Site. 

 

  1. In order to utilize the payment processing features through the Site, the Provider will be required to register as a merchant on the Site, by providing additional personal information and by entering its bank account information and other requested information. Payment processing services for Providers on the Site are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to operate as a merchant on the Site, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Approval enabling payment processing services through Stripe, you agree to provide Approval accurate and complete information about you and your business, and you authorize Approval to share it and transaction information related to your use of the payment processing services provided by Stripe. For purposes of this Agreement, Stripe may be referred to as “Stripe” or the “Payment Processor”).

 

  1. For the avoidance of doubt, Approval is not the payment processor. Instead, Stripe will serve as your payment processor. Accordingly, in order for a Provider to register as a merchant, the Provider will be required to review and agree to the Stripe Services Agreement. You understand and agree that although the Payment Processor will be providing the payment processing services through the Site, Approval does not process your payments nor hold your funds. Additionally, your bank account information and payment information is held by the Payment Processor.  Once the Provider sets up a merchant account, the Client will have the option of making payment by providing bank account information or credit/debit card information in response to the Provider’s invoices.

 

  1. Payment made through the Site are subject to the transaction fees provided on the Site (located at https://www.withapproval.com (the “Fees Page”)), which fees are incorporated by reference into this Agreement. By agreeing to this Agreement, you agree to all of the fees outlined on the Fees Page.

 

  1. It is anticipated that Providers may, in certain instances, require that milestone payments be held by the Payment Processor prior to the commencement of such milestones, pending completion and approval of the milestones, and release to the Provider only upon such completion or approval. In such cases, Clients understand and agree that the Payment Processor will be processing funds for services not yet rendered. Further, both Providers and Clients understand that Approval does not serve as an escrow agent and is not in possession of any funds held by the Payment Processor. Instead, any such payments to be held pending approval/completion of milestones will be processed and held solely by the “Payment Processor”. You understand that, in addition to credit/debit card processing fees (as outlined in the Fees Page), you will also be subject to the “FairPay” fee for utilizing the services described in this paragraph (the “Payment Pending Services” for purposes of this Agreement).

 

  1. As milestones are satisfied, the Provider will note the completion of such milestones and the Client will be provided with an email notice stating that the Provider has closed the particular milestone(s) and has marked them as complete. If the payment in question is being held per the preceding paragraph, the Client may either approve the milestone which will effectuate a release of the milestone funds to the Provider, or Client may note that the milestone is incomplete and requires additional attention, in which case the release of funds will be suspended pending resolution. If the Client notes that additional attention is required, the Client must provide to the Provider sufficient information about the alleged deficiencies to enable Provider to address them. Once Provider believes that it has adequately addressed the deficiencies, it may resubmit the milestone for final approval from Client. Client may then approve the milestone, thereby effectuating a release of the payment, or it may “dispute” the milestone and initiate the dispute resolution provisions provided in Section 2(e) (a “Dispute”). If Client fails to respond to a milestone completion notice or a resubmission of such notice within 7 days (whether through initiating a Dispute, approving the milestone or requiring additional attention), such milestone is deemed complete and the corresponding payment shall be made or will be released to the Provider, as the case may be.

 

  1. If the completed milestone(s) did not require a deposit to be made prior to the milestone completion, the Client agrees that the Payment Processor may process payment in accordance with the completed milestone payment terms and remit such payments to the Provider.    

 

(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.  

  1. BINDING TERMS AND CONDITIONS OF THE PAYMENT PROCESSOR 

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.  

 

  1. USER ACCOUNTS 

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:

  1. that you will not use an Account that is created by another user; 
  2. that you will supply only complete and accurate information in registering for an Account;
  3. that you are responsible for the activity that occurs on and through your Account, that you will keep your Account password secure at all times, and that we will not be liable for your losses caused by any unauthorized use of your Account; 
  4. that Approval does not replace the need for a proper contract with the other party and that Approval merely serves to facilitate the financial arrangement reached by the two parties; and
  5. that if your Account has been compromised for any reason, you will immediately notify us of the security breach or unauthorized use of your Account.

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.


  1. COMPLIANCE WITH THE 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. 

 

  1. INTELLECTUAL PROPERTY; LIMITED LICENSE

The Materials and Services on the Site, as well as their selection and arrangement, are protected by copyright, trademark, patent, and/or other intellectual property laws, and any unauthorized use of the Materials or Services on the Site may violate such laws and these Terms of Use. Except as expressly provided herein, we do not grant any express or implied rights to use the Materials and Services. You agree not to copy, share, distribute, republish, frame, download, transmit, modify, assign, or create derivative works based on the Materials, except as authorized herein. In addition, you agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with the Site. You understand and agree that the copyrights in all of the transcripts and recordings remain the property of Approval. 

 

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.  

 

  1. TRADEMARK INFORMATION

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. 

 

  1. USER CONDUCT & PROHIBITED ACTIVITIES 

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.

 

  1. WARRANTIES AND DISCLAIMERS

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.

 

  1. PERSONAL INFORMATION AND PRIVACY

You understand and agree that we may disclose information about you if we have a good faith belief that we are required to do so by law or legal process, to respond to claims, or to protect the rights, property, or safety of APPROVAL or others. Please refer to our Privacy Policy for more information about the manner in which we protect and use your information. Please note that your banking and payment information is not stored by us, and is instead provided to and stored by the Payment Processor. Please refer to the Payment Processor’s privacy policy for more information.   

 

  1. LIMITATION OF LIABILITY

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.

 

  1. INDEMNITY AND LIABILITY

You agree to indemnify and hold Approval, and its subsidiaries, affiliates, officers, directors, shareholders, members, agents, attorneys, partners and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of: (a) your violation of these Terms of Use or any representations you make in this Agreement, (b) your violation of any rights of another person or entity, and (c) your violation of any applicable law, rule or regulation. In addition, you will hold us harmless with respect to any losses or damages resulting from Payment Processor’s negligence, breach of contract or privacy breaches.

 

  1. GOVERNING LAW, JURISDICTION 

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.

 

  1. GENERAL

The Terms of Use and the other rules, guidelines, licenses and disclaimers accessible through the Site constitute the entire agreement between Approval and you with respect to your use of the Site or the Services or Materials made available on or through it. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Terms of Use shall continue in full force and effect. Any failure by Approval to enforce or exercise any provision of these Terms of Use or related right shall not constitute a waiver of that right or provision.

 

Last Updated: 7/2/2020