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These Terms of Service (“Terms”) are applicable to all Ontopers (as defined below) who use our Wallet Toper services (the “Wallet Toper Services” or simply the “Services”).
By using the Ontop Wallet Toper 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 use the Ontop Wallet Toper Services.
You will be informed if these Terms are updated pursuant to Section 8.1 - Changes.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 8.2 - 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 Wallet Toper Overview
Ontop has built the coolest Platform and wants its Users (both as defined below) to have the best experience while using it. Clients and Contractors have access to the Ontop Wallet (as defined below) from within the Ontop Platform.
Wallet Toper Services are offered to Users of the Ontop Wallet, which allows Users to enjoy additional features of the Ontop Wallet and become eligible to obtain benefits, by acquiring certain Subscription Packages, as detailed in Section 4 - Wallet Toper Subscription Packages below.
“Ontop Account” or the “Account” is the account that all Users need to create in order to use the Ontop Platform (as defined below).
“Ontop Card” is a service offered by Ontopn through the Ontop Platform. Ontop Card is an Electronic Money card with Ontop's brand.
“Ontop Platform” or the “Platform” means the software as a service (SaaS) platform available on the Ontop website located at www.getontop.com, as well as through mobile apps available on Apple iOS, Android, among others.
“Ontop Wallet” or the “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) (as defined below). 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 Marketplace balance.
“Ontop Wallet Toper” or simply “Wallet Toper'' means the premium subscription services and applicable features available to Users as a supplementary service to the Ontop Wallet.
“Ontop Services” are all the services offered by Ontop through the Ontop Platform, whether by use of the Ontop Card, Ontop Wallet or otherwise.
“Subscription Packages” are the set of benefits offered through the Wallet Toper Services in the User's Wallet, as detailed further in Section 4 - Wallet Toper Subscription Packages below.
“Users”, “Ontopers”or “Independent Contractors” are the independent contractors (the “Contractors”) that work for Ontop, and who can subscribe to the Wallet Toper Services.
3. Access to Ontop Wallet Toper Services
3.1 All Users with an Ontop Account on the Ontop Platform will have access to Ontop Wallet Toper Services as a premium feature of the Ontop Wallet from within the Platform.
3.2 All prices relating to Wallet Toper Service fees are stipulated in US Dollars (“Subscription Fee(s)” or simply “Fee(s)”).
4. Wallet Toper Subscription Packages
Users will be able to subscribe to Ontop Wallet Toper package offering premium subscriptions that supplement the Ontop Wallet (“Subscription Package(s)”), whose features are detailed in the table below:
4.1 Wallet Toper Services Offer. Users of the Ontop Wallet will be able to subscribe to any of the Wallet Toper Subscription Packages above, but subscription to Wallet Toper Services is not required in order to have access to or use the Ontop Wallet. If the User subscribes to Wallet Toper Services, the applicable Fee will be deducted from the User’s Ontop Wallet balance. Upon acquiring a specific Subscription Package, Users will always start to enjoy the benefits in the month following subscription, unless specified otherwise in an Ontop subscription offer.
4.2 Credit to Ontop Card or Wallet. All benefits and bonuses listed below will be credited to the User’s Ontop Wallet and/or Card balance (as applicable) in the month subsequent to the previous subscription month.
4.3 Wallet Bonus Benefits. “Wallet Bonus Benefits” are bonus incentives for the User to keep funds in their Ontop Wallet balance. Wallet Bonus Benefits will be credited to Users’ Ontop Wallet balance and will work as follows:
4.3.1 Wallet Bonus Calculation. By subscribing to Wallet Toper Services, Users will be eligible to receive a bonus for amounts saved within the Ontop Wallet balance (“Wallet Bonus”). For the purposes of determining the Wallet Bonus, Ontop will consider the sum of the daily balance in the Contractor’s account over the given calendar month divided by the number of days in that month (“Average Daily Balance”). Ontop will credit the User’s Ontop Wallet balance in the amount corresponding to the relevant subscription package for every USD 1,000.00 (One Thousand United States Dollars) increase in Average Daily Balance in the User’s Ontop Wallet, when compared to the previous calendar month.
4.3.2 Wallet Bonus Cap. Wallet Bonus limits are established under the terms of each Subscription Package. When Users change their Subscription Package, the new cap on the Wallet Bonus will be applied during the next accrual month calculated by Ontop.
4.4 Cashback Benefits. “Cashback Benefits” are bonuses that can be credited to Users’ Ontop Card balance, depending on the specific types of purchases made by Users through their Ontop Card.
4.4.1 Purchases made with Ontop Card Cashback. “Ontop Card Cashback” means cashback bonuses for carrying out transactions, purchasing items and spending or accessing services with the Ontop Card. Ontop will credit the User’s Ontop Card balance in an amount corresponding to the percentage of Ontop Card Cashback under the relevant Subscription Package.
4.4.2 Cashback Bonus Cap. Cashback Benefit payment limits are established in the subscription terms of each Subscription Package.
4.4.3 Cashback Bonus Taxation. Cashback Benefits are usually seen as non-taxable because of their nature as a rebate. However, please consult with your tax advisor or accountant about the benefits received and if these are considered income in your jurisdiction and subject to reporting.
4.5 Card Spending Bonus. “Card Spending Bonus” means a once-off bonus to Wallet Toper Users for reaching the limit established in the respective Subscription Package for cumulative spending on the Ontop Card (“Card Spending Limit”). Ontop will credit the User’s Ontop Card balance in the amount of the Card Spending Bonus established in the relevant Subscription Package. The Card Spending Limit is calculated on transactions made with the Ontop Card from the time that the User subscribes to the Wallet Toper Subscription Package. Eligibility to receive the Card Spending Bonus is subject to continuous subscription and limited to a single Card Spending Bonus per User. Furthermore, interruption of a User’s subscription to Wallet Toper Services will result in a reset of the User’s spending on the Ontop Card used to calculate the Card Spending Limit.
4.6 Charging for Subscription Fees. Once subscribed to Wallet Toper Services, Users will be automatically charged the Fees for the respective Subscription Package on a monthly basis, which will be deducted from their Ontop Wallet balance. The Subscription Fee will be charged on the last business day of the month; if the first charge is unsuccessful, Ontop will attempt to charge the Subscription Fee on the fifth day of the subsequent month.
4.7 Automatic Cancellation for Lack of Funds. If the payment of the Subscription Fee is unsuccessful after the two attempts to charge the Subscription Fee as per Section 4.6 above, Ontop will automatically cancel the Wallet Toper Services. Automatic cancellation for lack of funds in the User’s Ontop Wallet balance will result in ineligibility to receive benefits, bonuses and/or special services for the month(s) where the Subscription Fee to Wallet Toper Services has not been paid.
4.8 Unsubscribing from Wallet Toper Services or Changing Subscription Package. In order to unsubscribe or change any Wallet Toper Subscription Packages, Users may click on the "Unsubscribe" button on the first communication sent by Ontop or write to email@example.com before the 25th day of the corresponding month, in order to ensure cancellation of Wallet Toper Services at the end of that month or the application of the conditions of a new Subscription Package on the following month. Users can also unsubscribe from Wallet Toper Services from within the Ontop Platform, by reaching out to live chat with customer service.
4.9 Migration from Discontinued to New Subscription Packages. Users of Wallet Toper Services may have signed up for different Subscription Packages when they first subscribed to Wallet Toper Services in our testing of different plans and packages prior to the public launch of Wallet Toper Services. The Ontopers Subscription Package (“Discontinued Subscription Package”), will no longer accept new Users from August 31, 2022 (“Discontinuation Date”). After the Discontinuation Date, Users of Discontinued Subscription Package will be migrated to either the Freedom Toper or the Infinite Toper Subscription Package, pending contact from customer service on the User's preferred plan. Users can choose to unsubscribe at any time, as per Section 4.8 above.
5. Other Terms Applicable to Wallet Toper Services
5.1 Ontop Platform Terms of Service. By using the Wallet Toper Services through access to your Ontop Account, you agree to be bound by the Ontop Platform Terms of Service, available at www.getontop.com/legal/terms-of-service. Specific provisions of the Ontop Platform Terms of Service relating to the Wallet will also apply to Wallet Toper Services.
5.2 Ontop Card Terms of Service. If you use your Ontop Card to acquire Wallet Toper Services, the Ontop Card Terms of Service available at www.getontop.com/legal/card-terms-of-service will apply.
5.3 Ontop Marketplace. If Users make use of their Wallet Toper Subscription Package receive perks or benefits, the Ontop Marketplace Terms of Service, available at www.getontop.com/legal/marketplace-terms-of-service (“Ontop Marketplace Terms of Service”), will apply.
5.5 AML Policy. Your access to Wallet Toper 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.
5.6 Taxes. Please consult with your tax advisor or accountant for the taxation of the benefits received and/or discounts provided through Wallet Toper Services. It is possible that these are considered non-taxable income, due to their nature of being incentives or rebates. Such services rendered are a convenience to you, but in no way will Ontop include such purchases of services or products as expenses and thus non-taxable to you.
6.1 You agree to indemnify and hold Ontop (and its officers employees and agents) harmless, including costs and attorneys’ fees, from any and all claims, losses, liabilities, expenses 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.
6.2 Release. You hereby release and forever discharge Ontop (and its officers, directors, shareholders, employees, agents, subsidiaries, affiliates, 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.
7. 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 TEN THOUSAND US DOLLARS (U.S. $10,000.00). 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.
8.1 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 and/or Platform 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.
8.2 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: 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808. 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 CONTROVERSIES.
(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.
8.3 Governing Law; Jurisdiction. These Terms will be interpreted, governed and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of law provisions.
8.4 Export Controls and Sanctions. You acknowledge that the Ontop Wallet Topper, Website, Platform, and/or any Ontop Services offered by Ontop may be subject to restrictions of the U.S. Government, including but not limited to export controls administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) (including the U.S. Export Administration Regulations (“EAR”) and trade and economic sanctions maintained by OFAC (collectively, “U.S. Export Controls and Sanctions”), and the E.U Regulation (EC) No 428/2009 (as amended) (“Regulation 428/2009”) and may be subject to other U.S., U.K. and foreign export or import regulations in other countries (“Other Applicable Export Laws”). 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 U.S Export Controls and Sanctions, Regulation 428/2009 and Other Applicable Export Laws.
8.5 Disclosures. Ontop is located at the address in Section 8.6 - Contact Information. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
8.6 Contact Information:
Mailing Address: 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808