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These Terms of Service (“Terms”) are applicable to all persons or companies who use our Ontop Card Services (“Ontop Card Services” or simply the “Services”).
By using Ontop Card Services, you agree to comply with and be bound by these Terms. Please review these Terms carefully. If you do not agree to these Terms, you should not contract this Service.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 13.2 - DISPUTE RESOLUTION) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. Ontop Card Overview
1.1 Ontop has a partnership with the Ontop Card Provider (as defined below) in order to offer its Users (as defined below) an electronic card that can carry out transactions through the creation of an electronic money account with the Ontop Card Provider.
1.2 With the Ontop Card, the User can make transactions in United States Dollars. The Ontop Card is prepaid, so its use will be conditional upon the available Account (as defined below) balance. Different fees may apply if transactions are made in foreign currencies other than United States Dollars.
“Account” is an Electronic Money account automatically created by the Ontop Card Provider to carry out transactions in relation to the Ontop Card (all as defined below).
“Card Not Present Transaction” means an Internet transaction using the Ontop Card.
“Electronic Money” is monetary value stored on electronic media (such as the Ontop Card: a prepaid electronic card) designed for general use purposes.
“Ontop Card” or simply “Card” is an Electronic Money card with Ontop's brand that will be offered both physically and electronically by the Ontop Card Provider to the User so that Contractor can carry out transactions and access the services offered by Contractor, charged to the balance of the Account, which will make use of the Password (as defined below) that will be provided together with the Card. The Card may be used internationally.
“Ontop Card Provider” is Servitebca Perú, Servicio de Transferencia Electrónica de Beneficios y Pagos S.A., a company established in Peru, registered under the tax ID No. RUC: 20517372294 with headquarters at Av. El Derby 250, piso 15, oficina 1501 Santiago de Surco, Lima, Peru. Servitebca is a financial institution regulated by the Superintendency of Banks and Corporations (SBS) in Peru.
“Ontop Platform” or the “Platform” means the software as a service (SaaS) platform available via login through the Ontop website located at www.getontop.com, as well as through mobile apps available on Apple iOS, Android, among others.
“Ontop Wallet” is an e-wallet platform available on the Ontop Platform to Contractors who have access to information on amounts receivable under the terms of their contract(s) with Client(s). Through the Ontop Wallet, Contractors may request that funds in their Ontop Wallet be transferred to their personal bank accounts via wire transfers, ACH payment processing environment and/or other available payment methods, including credit to the Ontop Card balance.
“Physical Card” means the physical version of the Ontop Card, that may be available to some Users. This version of the Ontop Card may be delivered to the User by Ontop or the Ontop Card Provider. Certain conditions may only apply to the Physical Card.
“Password” is a secret password that will be provided to the User with the Ontop Card, in the form of a PIN Code or otherwise. Said Password will be the only one that can be used by the User to make purchases in affiliated Visa network establishments, as applicable to the Card, as well as to make cash withdrawals at ATMs. The User assumes responsibility for safeguarding and not disclosing the passwords, since all transactions made through the use of the passwords will be considered as validly made by the User.
“Users” are the independent contractors (the “Contractors”) that use Ontop's worldwide remote working alternative solution that connects them with clients (the “Clients”), and who can apply to be eligible for an Ontop Card.
3. Requesting an Ontop Card
3.1 Users will have access to the Ontop Wallet in the Platform, where they can request an Ontop Card. The first step for a User to request the Ontop Card is by accessing their online Ontop Wallet, in the section "Ontop Card".
3.2 Contractor must be of legal age and have filled out the identification information required by Ontop. You represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent).
3.3 If the Contractor is registered on the Ontop Platform under the name of their legal entity and requests an Ontop Card, Ontop will perform checks to confirm the identity of the individual Contractor as the sole proprietor and/or legal representative of that legal entity. The Ontop Card will be issued in the name of the Contractor as a natural person, in their capacity as the sole proprietor and/or legal representative of said legal entity.
3.4 Upon application for the Ontop Card, Ontop and/or the Ontop Card Provider will review the Contractor's application at their sole discretion. This will include carrying out background checks, which must comply with Ontop and Ontop Card Provider requirements for issuing the Ontop Card. The criteria that we apply when determining the approval of applicants of the Ontop Card makes use of risk-based assessments in our compliance processes and internal procedures. We reserve the right to update, modify and otherwise alter, at our sole discretion, the criteria we adopt in approving Ontop Card applications.
3.5 Nevertheless, Ontop and Ontop Card Provider represent and warrant that they will not apply any discriminating criteria based on race, color, religion (creed), gender, gender expression, age, national origin (ancestry), disability, marital status, sexual orientation, or military status, in any of their decisions to issue an Ontop Card.
3.6 Upon delivery of the Ontop Card, Contractors may request the transfer of funds in their Ontop Wallet to their Ontop Card balance. The conversion of the amount received into its equivalent in electronic money, through storage in any electronic medium; which includes the issuance itself, conversion into cash (withdrawals), transfers, payments, and any other movement or transaction linked to the monetary value stored on the electronic medium. Users can also make reverse transactions from their Ontop Card balance back to their Ontop Wallet balance at any time through the Platform.
3.7 By accepting these Terms, the Users also agree to the Ontop Card Provider contractual agreement, the "Electronic Money General Account Agreement for Natural Persons", which is set forth in Exhibit A below (“Ontop Card Provider Contract”).
4. Ontop Card Usage, Conditions, Limits and Restrictions
a) Top-ups (or conversions): The Card allows for Users to make top-ups.
b) Cash withdrawals or reconversions (applies to Physical Card only): The User may make local and international cash withdrawals at all ATMs. Withdrawals may be made in any currency, in which case they will be subject to the exchange rate. A fee may be charged for cash withdrawals at ATMs and at counters (the fee may vary between ATMs and counters and is normally available on demand or when using the ATMs).
c) Purchases: The User may make purchases for the payment of goods and/or services in establishments affiliated with Visa brands, as applicable to the Ontop Card. The sum of the purchase will be debited from the Account and indicated on the payment voucher. In addition, the User may make purchases on local and international websites. In any case, purchases may be made in any currency, in which case they will be subject to the exchange rate.
d) Account balance and transaction inquiries: The User may make Account balance and transaction inquiries by means of (i) the Ontop Platform and (ii) the Ontop contact/support center (hereinafter the “Ontop Contact Center"), (iii) ATMs (applies to Physical Card only).
e) When using the Ontop Card in foreign currencies i.e. non USD (transactions related to b) and c) above), the cardholder acknowledges that a processing surcharge on the total amount converted into USD may apply. The User as well agrees to the conversion rate used by the Ontop Card Provider on the date of international transaction processing.
f) When using the Physical Card and signing the manually or electronically generated purchase or subscription receipt, the signature must match that on the card. The acceptance point may require the presentation of an official identification document. The receipt must always be retained and kept by the User.
g) Reverse transactions from the Ontop Card balance back to their Ontop Wallet balance, subject to a positive Ontop Card balance.
4.2 Mobile Payment Systems. It may be possible to use the Ontop Card on mobile payment systems via tokenization processes on the Ontop mobile app or through third-party providers (such as Apple Pay or Google Pay, among others) that allow for Users of the Ontop Card to carry out transactions in point-of-sale (POS) terminals via contactless payment technologies such as NFC (near field communication) (“Mobile Payment Systems”). In order to use Mobile Payment Systems, the User must have an account with the Mobile Payment System provider; a device that meets the system and compatibility requirements, which may change from time to time; working Internet access; and compatible software. Your ability to use Mobile Payment Systems with the Ontop Card may be affected by these factors. Such system requirements are the User’s responsibility. Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms and conditions when using Mobile Payment System applications.
4.3 Limits/Restrictions on Card Usage. The Ontop Card usage, its Password and withdrawal limits may be extended, restricted or canceled at any time. Special daily and aggregate limits may apply to cash withdrawals and transactions. The transactions carried out by the User with the Ontop Card will be subject to the transactional limits whose details are given to the User on the Ontop Platform. Such limits are established by the Superintendence of Banks, Insurance and Pension Fund Managers (SBS) in Peru.
4.4 Card Use and Authorization. The Ontop Card entitles the User to pay for goods and services at the relevant Visa acceptance points (hereinafter “Acceptance Point(s)”) within the limit set by Ontop and Ontop Card Provider as follows:
a) with its Password;
b) with its provided signature (Physical Card);
c) over the telephone, Internet, correspondence, and all other purchases or service withdrawals in which the Cardholder waives personal authorization and initiates the transaction solely by providing his/her name, card number, expiration date, and - if requested - the card verification code (CVC) affixed to the signature strip; in the case of Internet transactions, the User may be required to enter a password, authorize the transaction via an app, or in another manner specified by Ontop and Ontop Service Provider;
d) with the Physical Card use without a Password, signature, or other personal authorization (e.g. at automated payment points in parking garages, on highways, or with contactless readers).
4.4.1 A transaction initiated in accordance with subparagraphs a) to d) above and the use of the Card for cash withdrawals by entering the Password or signing the withdrawal slip shall be deemed to have been authorized by the User, even if the person initiating the transaction is not the User. Consequently, the User acknowledges the stated claim of the acceptance point. At the same time, the User expressly and irrevocably requests Ontop to reimburse the amounts to the relevant Acceptance Point. Ontop is entitled to debit the amount of the electronically registered transaction made in this way to the Ontop Card balance. The risks arising from misuse of the Card shall be borne by the User.
4.4.2 A transaction triggered in accordance with subparagraphs a) to d) above may be for one-time payments, recurring payments or future payments of an unspecified amount (the latter two referred to as “Recurring Payment(s)”). If the User provides Card data for Recurring Payments with Acceptance Points, the new Card data will automatically be forwarded to these Acceptance Points via Visa as part of card renewals. The User may at any time delete the Card data provided to the Acceptance Points or contact Ontop to request interruption of the automated forwarding of the Card data. The cancellation of a Recurring Payment does not necessarily lead to the interruption of any subscription, which is why the latter must be canceled by the User directly with the Acceptance Point.
4.5 Duties of care of the Physical Card User. The holder of the Physical Card has the following duties of care:
4.5.1 Signature. Immediately upon receipt, the Physical Card must be signed on the reverse side using writing material that is suitable for documents (e.g. ballpoint pen).
4.5.2 Safekeeping. The Physical Card must be stored carefully at all times. In particular, the Physical Card may not be handed over to third parties or otherwise made accessible, except for its intended use as a means of payment. If the storage system is defective or otherwise limited in its function, the User is obliged to immediately ask Ontop for a replacement.
4.5.3 Loss, Theft, and Card Misuse. If the Card is lost, stolen or if there is any other possibility of misuse, this must be reported to Ontop immediately.
4.5.4 Confidentiality of Password. The Cardholder is obliged to keep the Password secret at all times. The Password may not be disclosed to third parties and may not be recorded, even in encrypted form. The personally changed Password must not consist of easily ascertainable combinations, such as telephone numbers, dates of birth, car license plates, among others.
4.5.5 Notification of changes to information initially provided by the User. Ontop must be notified immediately in writing of any changes to the information provided in the application (in particular, name, address, and account changes, as well as changes in the beneficial owner(s) or nationality), as well as any significant deterioration in income or financial circumstances. In addition, Ontop must be notified immediately if changed facts give rise to a new tax liability, in particular in the USA. Until a new address is received, notices from Ontop to the last address provided shall be deemed to have been validly delivered.
4.6 Responsibility and Liability.
4.6.1 Failure or Delay in Transactions. Ontop is not responsible for any failure or delay in the transmission of any transaction by any third party, including acquiring merchants, merchant establishments or any telecommunication provider. Ontop is not an agent of any merchant or service provider or vice-versa.
4.6.2 Reimbursement for Damages in Events of No Fault. If the User has complied with the duty of care requirements set out in Section 4.4 above and is not otherwise at fault, Ontop and/or Ontop Card Provider may assume any losses incurred by the User as a result of misuse of the card by third parties or as a result of counterfeiting or falsification of the Card by third parties. Third parties do not include persons close to, related to, or otherwise connected with the User, such as spouses, authorized representatives, or persons living in the same household as the User. Ontop and/or the Ontop Card Provider are not liable for damages relating to insurance coverage or possible consequential damages of any kind. If Ontop and/or the Ontop Card Provider assumes liability for any damages, the User must assign any and all claims arising from the damages to Ontop and/or the Ontop Card Provider.
4.6.3 In the Event of a Breach of the Duty of Care. Users who fail to comply with the duty of care shall be liable, without limitation, for all losses resulting from misuse of the Card until any blocking becomes effective.
4.6.4 For the Transactions Concluded with the Card. Ontop and/or the Ontop Card Provider disclaim all warranties and liability for transactions concluded using the Card; in particular, any complaints regarding goods or services received, as well as disputes and claims arising from such transactions, must be settled directly with the Acceptance Point in question.
4.6.5 In the Event of Non-Acceptance of the Card. Ontop and/or Ontop Card Provider assume no responsibility in the event that an Acceptance Point refuses to accept the Card for any reason whatsoever, or that a payment cannot be made with the Card for technical reasons or otherwise. The same applies to cases in which it proves impossible to use the Card at a machine or if the Card is damaged or rendered unusable by the machine.
4.6.6 After Termination of the Contractual Relationship. The right to use the Card, in particular for telephone, correspondence or Internet orders, shall expire in any event upon termination of the contractual relationship or after reclaiming or returning the Card. Even after termination of the contract or reclaiming the card, the User shall be liable for any damages caused by User. Unlawful use of the Card may be subject to civil and/or criminal prosecution.
4.6.7 Mobile Payment System Liability. Notwithstanding Section 4.2 above, Ontop shall not be held liable for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Ontop and/or a third-party Mobile Payment System provider have been advised of the possibility of such damages.
4.7 Disputed Amounts. If you wish to dispute an amount deducted from your Ontop Card, you must contact our Ontop Contact Center. If an amount is not disputed within ninety (90) days after the transaction date, we may (at our sole discretion) not be able to provide you with a refund. A written complaint must also be submitted within forty-five (45) days of the date of the disputed transaction at the latest, otherwise the Wallet balance shall be deemed to have been approved by the User. In the event that Ontop and/or Ontop Card Provider requests the User to complete a claim form, the User must complete and sign it within ten (10) days of receipt and send it to Ontop and/or the Ontop Card Provider. In the event of damages, the User is obliged to file a criminal complaint with the competent police authority and to request a copy of the complaint.
4.8 Customer Service. If you have a problem or complaint about your Ontop Card or these Terms, please contact our Ontop Contact Center.
5. Blocking your Ontop Card
A. DUE TO THEFT, ROBBERY, LOSS OF CARD OR LOSS OF PASSWORD (Applies to Physical Card only)
5.1 Blocking the Ontop Card. The User must block the Account immediately in the event of theft, robbery or loss of the Ontop Card or Password, or in the event that an unauthorized third party becomes aware of any of the Passwords. The User may block the Account by calling the Customer Service or through other channels that are made available and duly informed by Ontop. The User will be responsible for transactions made with the Card as long as Ontop has not received the respective blocking request.
5.2 Remaining Ontop Card Balance. In the event that there is a remaining balance in the blocked Account:
(i) The User must request the replacement of the Ontop Card. The balance will be transferred to the new Ontop Card.
(ii) In the event that the User does not want to have the Card replaced, User may request a refund of the balance available on the blocked Card, in which case the User must contact the Customer Service to provide information on the options for refund. Said options for refunding the remaining balance include the delivery of cash or transfer, as determined by Ontop.
B. FOR OTHER REASONS
5.3 Temporary Block of Ontop Card. The User may temporarily block the Account directly through the Ontop Platform or through the Ontop Contact Center. In order to activate the Account once again, the User can do so through the Ontop Platform or the Contact Center, which shall be subject to a verification process.
5.4 Permanent Block of Ontop Card. The User can permanently block the Account, directly through the Ontop Platform or through the Ontop Contact Center. If there is an available Account balance and the User does not request the replacement of the Ontop Card, the User must request a refund from the Ontop Contact Center. Ontop will inform the refund option (delivery in cash or transfer).
C. BY ONTOP OR ONTOP CARD PROVIDER
5.5 Temporary Block for Legal Reasons. Ontop or the Ontop Card Provider may temporarily block the Account by order of a competent authority or when there is reason to believe that a fraudulent, unusual, irregular, illicit or suspicious transaction is taking place, in violation of the Ontop anti-money laundering policy or the applicable law(s) and/or when the User has provided inaccurate, incomplete or false information. In these cases, Ontop and/or the Ontop Card Provider shall inform the User of the measures they have taken by email, telephone or written communication sent to their home address.
6. Other Terms Applicable to Ontop Card Services
6.1 Ontop Platform Terms of Service. By using the Ontop Card Services, you agree to use the Ontop Wallet and to be bound by the Ontop Platform Terms of Service, available at www.getontop.com/legal/terms-of-service (“Platform Terms of Service”). Section 6.5 - Prohibited Uses and Section 7.5 - Prohibited Activities of the Platform Terms of Service also apply to Users of Ontop Card Services.
6.2.1 Data Processing in the Context of Fraud Prevention. For all instances of card transactions, the card number, transaction date and time, transaction amount, merchant information (name, ID, URL) and, if applicable, the IP address from which the card transaction was initiated will be stored. This data will also be processed and evaluated for the creation of a User profile for the purpose of fraud prevention by service providers specializing in this area on behalf of Ontop and/or Ontop Card Provider. The User authorizes Ontop and/or Ontop Card Provider to exchange his/her personal data with each other or third-party services providers for the purposes of fraud prevention and/or related data processing.
6.3 Ontop Marketplace. If Users make use of their Ontop Card to carry out purchases in the Ontop Perks & Benefits Marketplace or receive cashback benefits or otherwise to their Ontop Card balance, the Ontop Marketplace Terms of Service, available at www.getontop.com/legal/marketplace-terms-of-service (“Ontop Marketplace Terms of Service”), shall apply.
6.4 AML Policy. Your access to Ontop Card Services is also subject to our anti-money laundering policy (“AML Policy”). You can access our AML Policy manual at www.getontop.com/legal/anti-money-laundering-aml-policy-manual.
7. Access to the Services
7.1 Certain Restrictions. The rights granted to you under these Terms are subject to the following restrictions: (a) you shall not license, sublicense, sell, resell, rent, lease, transmit, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive product or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future releases, updates, or other added features of the Services shall be subject to these Terms.
7.2 Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets relating to the Services and its content are owned by Ontop, its affiliates and/or suppliers. These Terms do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights.
7.3 Prohibited Uses and Activities. Clients may not use the Ontop Card to solicit or provide services for the benefit of: (a) an individual, organization, or country that is blocked or sanctioned by the United States, including those identified on the United States Office of Foreign Asset Control (OFAC); (b) any unaffiliated third parties; or (c) any other services not for the benefit of a User. Further, Clients may not use the Ontop Card to solicit or provide services involving or related to any of the items in the lists of Prohibited Uses and Prohibited Activities contained in the Platform Terms of Service. If Ontop suspects or determines that Clients are using the Services in any way related to activities listed under Prohibited Uses or Prohibited Activities of the Platform Terms of Service, Ontop reserves the right to disable Client’s account, freeze any funds in Client’s account, and report Client’s activity to Ontop’s financial services providers and/or other regulatory authorities with jurisdiction over Ontop and/or Client.
7.4 Usage. Use of your Ontop Card means that you agree to these Terms. You will use the Ontop Card in accordance with these Terms, or as we may otherwise communicate to you from time to time. You will not use the Ontop Card for illegal, fraudulent or defamatory purposes or take any steps which could undermine the security or integrity of our services, or cause harm to or threaten to harm any other user of Ontop.
8. Term and Termination
8.1 Term. These Terms will remain in full force and effect for as long as you use the Ontop Card Services.
8.2 Termination by Ontop and/or Ontop Card Provider. Ontop and/or Ontop Card Provider may terminate the relationship with a User in any of the following cases:
a) If the Account is inactive (no transactions) for a period equal to or greater than six (6) months;
b) Acts of God or force majeure event (as defined below);
c) In the event of the application of prudential regulations issued by the Peruvian Supervisory Organization for Banking, Insurance and Pension Fund Administrators, such as those linked to anti-money laundering and counter-terrorism financing;
d) If the User provides false, incomplete or insufficient information; and/or
e) If the continued existence of the usage of the Services violates these Terms, Ontop and/or Ontop Card Provider internal and/or acceptable use policies, or any applicable law(s).
8.2.1 In the cases described in subparagraphs c) and d) above, the notification for termination of the Services or blocking the Account will become effective within seven (7) calendar days following notification. In all other cases, Ontop will inform the User of the decision to terminate the Services with three (3) business days’ prior notice.
8.2.2 Once the Services have been definitively terminated, the User can only obtain a refund of the funds available on the Ontop Card after notifying the Ontop Contact Center to inform them of the instructions for the return.
8.3 Termination by User. The User can refrain using the Services and terminate the Ontop Card Services at any time by making a request through the Ontop Platform. Users can obtain a refund of the funds available on the Ontop Card after notifying the Ontop Contact Center to inform them of the instructions for their reimbursement.
8.4 Death or Incapacity of a User. Following notice of death or incapacity of a User, Ontop and/or the Ontop Card Provider may freeze the Ontop Card balance, refuse to accept transactions, and reverse or return deposits. Neither Ontop nor the Ontop Card Provider are required to release the funds until Ontop or the Ontop Card Provider receives any documents reasonably requested to verify such death or incapacity, as well as who is entitled to the funds in the Ontop Card balance. If a User dies while residing outside of the United States, we may require a personal representative to be appointed by a court in a United States jurisdiction. If Ontop or the Ontop Card Provider has any tax liability when making payment of the balance to the User’s estate, the estate will be responsible for repaying Ontop and/or the Ontop Card Provider the amount of that tax.
8.5 Abandoned Property. If your Ontop Card Account is terminated, Ontop and/or Ontop Card Provider shall return any Account balance funds, less any fees, claims, set-offs or other amounts deductible. Ontop and/or the Ontop Card Provider may transfer the balance from the closed Account by check or wire transfer to the User’s last known ACH Account. Funds that cannot be returned or transferred will be considered abandoned pursuant to the laws of the State of Delaware.
8.6 Survival. Any of the provisions hereunder which by their nature are meant to survive expiration or early termination of these Terms for any reason will remain in effect, including but not limited to the following: Sections 3 - Requesting an Ontop Card, 4 - Ontop Card Usage, Conditions, Limits and Restrictions, 5 - Blocking your Ontop Card, 6 - Other Terms Applicable to Ontop Card Services, 7 - Access to the Services, 9 - Indemnification, 11 - Force Majeure, 12 - Waiver Set-Off, 13 - Limitation of Liability, 14 - Tax Matters and 15 - General.
9.1 You agree to indemnify and hold Ontop (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all claims or demands made by any third party due to or arising from (a) your use of the Services provided by Ontop, (b) your violation of these Terms, (c) your violation of applicable laws or regulations, including any applicable tax laws or similar legislation in your jurisdiction. We reserve the right, at your expense, to take on the sole defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claims, actions and/or proceedings when we become aware of them.
9.2 Release. You hereby release and forever discharge Ontop (and its officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly from, or that relates directly or indirectly to, the Services.
ONTOP (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT IT WILL BE ACCURATE, COMPLETE, OR RELIABLE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ANY AND ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. Force Majeure
You may not hold Ontop liable for failure or delay in the performance of its obligation under these Terms or any agreement entered by and between Ontop and you if such performance has been made impracticable by the occurence of a contingency not reasonably within the control and without the fault of Ontop, including compliance with any applicable foreign or domestic governmental regulation or order, any interruption of the Services due to any act of God; blockage, accidents, disturbance or encumbrance of the telecommunications, transport or procurement networks of whatever reason; strike, equipment or transmission failure blockage, shortage of materials, riots, disturbance or encumbrance of the telecommunications, internet or other service disruptions involving hardware, software or power system not within Ontop’s possession or reasonable control, transport or procurement networks for whatever reason; poor quality or interruptions of electrical current; epidemics, pandemics or outbreak of communicable disease; quarantines; national or regional emergencies; poor quality or interruptions of electrical current; virus or computer pirate attacks, insurrections or acts of a similar nature; state of war or embargo; acts of terrorism, total or partial strikes within or outside of the company; lock-out, social conflicts, sabotage or acts of vandalism; foul weather, epidemics, earthquakes, explosion, fires, storms, flooding, other natural disasters; water damage, incapacity to obtain raw materials or supplies; legal or regulatory modifications applicable to supplying the Services, and any other case reasonably beyond our control preventing the normal provision of the Services to you.
12. Waiver of Set-Off
The User waives the right to settle his obligations to Ontop and/or the Ontop Card Provider by offsetting them against any claims he may have against Ontop.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ONTOP (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY AND ALL DAMAGES ARISING FROM OR RELATED TO THESE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
14. Tax Matters
The Ontop Card is an Electronic Money card that is able to carry out financial transactions and hold monetary value. The funds deposited in the Ontop Card balance may be considered income under the applicable laws, rules and regulations in your jurisdiction, and once deposited, such income may be considered realized for tax purposes. It is also possible that under the applicable laws, rules and regulations in your jurisdiction, you are required to pay taxes on a monthly, quarterly, or annual basis over the amounts transferred to your Ontop Card balance but not spent on transactions, due to the income realization principle in your jurisdiction. In the event that there is non-compliance or insufficient compliance on tax matters, the User agrees to indemnify and to hold Ontop harmless to the fullest extent, from any and all claims which may be asserted against Ontop by any tax and/or government authority because Ontop has not withheld sums from the User or because such User has not complied with the tax obligations in their jurisdiction in a timely manner.
15.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an email to the last email address you provided to us (if any), and/or by prominently posting notice of the changes on our website. You are responsible for providing us with your most current email address. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective immediately. Continued use of our Website following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
15.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Ontop and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Ontop that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Ontop, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Ontop should be sent to: 1321 Upland Dr., PMB 15685, Houston, Texas 77043. After the Notice is received, you and Ontop may attempt to resolve the claim or dispute informally. If you and Ontop do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Ontop made to you prior to the initiation of arbitration, Ontop will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or Ontop pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Ontop, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Ontop.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Ontop in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO SUCH DISPUTES.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT, CONTRACTOR AND/OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT, CONTRACTOR AND/OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Ontop.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Ontop may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court and/or if the dispute is deemed as non-arbitrable by the arbitrator(s) or a court of law, the parties hereby agree to submit to the personal jurisdiction of the courts located within the Southern District of Miami-Dade County, Florida, for such purpose.
15.3 Governing Law; Jurisdiction. These Terms will be governed and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of law provisions.
15.4 Legal Authority Orders. “Legal Authority Order” means any instruction, subpoena, court or administrative order, request for information and/or document that appears to have the force of law from an administrative body, court authority and/or arbitration tribunal, that requires Ontop or the Ontop Card Provider to provide information, hold or pay out funds from the Ontop Card account, including, but not limited to a garnishment, attachment, execution, levy or any other similar order. Neither Ontop nor the Ontop Card Provider has the obligation to determine whether the Legal Authority Order was validly issued or enforceable. If a hold is in effect, Ontop or the Ontop Card Provider may continue to charge any applicable fees, if any, even though the Ontop Card Account cannot be closed or terminated. If any action, including administrative proceedings, garnishment, tax levies, restraining orders or any another legal action (“Legal Action”) is brought against the User or the User’s Ontop Card Account, the User will be liable to Ontop for any loss, cost or expense (including attorney’s fees) resulting from compliance with any Legal Action and/or Legal Authority Order. If Ontop or the Ontop Card Provider receives a Legal Authority Order in relation to the User’s Ontop Card Account, Ontop or the Ontop Card Provider are hereby authorized to comply with it to the fullest.
15.5 Assignment of Agreement and Successors. This Agreement will be binding on the User’s personal representative(s), executor(s), administrator(s), and/or successor(s), as well as on the successors and assigns of Ontop or the Ontop Card Provider. Users may not assign, transfer or grant a security interest in the Ontop Card and respective Account to anyone other than Ontop without Ontop’s prior consent. No assignment will be valid or binding on Ontop, and Ontop will not be considered to have knowledge thereof, until Ontop consents to and makes record of the assignment or causes the Ontop Card Provider to make record of such assignment.
15.6 Export. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Ontop, or any products utilizing such data, in violation of the United States export laws or regulations.
15.7 Electronic Communications. The communications between you and Ontop use electronic means, whether you use our website or send us emails. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy as if it were a hardcopy. The foregoing does not affect your non-waivable rights.
15.8 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not be constituted as a waiver of such right or provision. The section titles used in these Terms are for convenience only and have no legal or binding effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Ontop is that of an independent contractor, and neither party is an agent or partner of the other. These Terms and your rights and obligations hereunder may not be assigned, subcontracted, delegated or otherwise transferred by you without Ontop’s prior written consent, and any attempted assignment, subcontracting, delegation or transfer in violation of the foregoing will be null and void. Ontop may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
15.9 Copyright/Trademark Information. All trademarks, logos and service marks (“Marks”) displayed on the Ontop Card are our property, the property of the Ontop Card Provider or other third parties. You are not permitted to use these Marks without our prior written consent or the consent of the third party that owns the Marks.
15.10 Contact Information:
Address: 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808
EXHIBIT A - ONTOP CARD PROVIDER CONTRACT