July 17, 2015
This Member Agreement (“Agreement”) is entered into by and between you, the person using the WingCash® Service (“you”) and WingCash, LLC (“WingCash”, “we” or “us”). Capitalized terms used in this Agreement without definition have the meanings set forth under Definitions in section 23 of this Agreement.
This Agreement is a contract between you and WingCash and applies to your use of the WingCash Service. Please read the terms and conditions contained in this agreement carefully. By registering for or using the WingCash Service, you agree to be bound by the terms and conditions of this Agreement. Your use of the WingCash Service indicates your acceptance of these terms and conditions.
This Agreement may be modified by us at any time. Revised versions of this Agreement will be posted on the WingCash Site and will be effective upon posting. You will be deemed to accept any changes upon your use of the WingCash Service after the posting of the revised Agreement.
2. Your Wallet.
To use the WingCash Service, you must first establish a personal wallet (“Wallet”) on the WingCash Site. After it has been established, you can access your Wallet from any Internet-enabled computer or device. You agree that all the information you provide us when you establish a Wallet is accurate. Regardless of the number of email addresses, email address aliases, or cell phone numbers you have, you agree to establish only one Wallet for yourself.
To be eligible to use the WingCash Service, you must:
You agree to update your Wallet promptly if any of your registration information changes.
4. The WingCash Service and WingCash Pages.
WingCash is not a Financial Institution and does not offer deposit or other banking services. WingCash is a developer of the freely available open source software operatated by WingCash and provided as a service on the wingcash.com website (the “WingCash Service”).
The WingCash Service enables you to transfer value using WingCash Pages. WingCash Pages provided by WingCash Business Members (the “Provider”) are also called “Brand Cash.” WingCash Pages are only redeemable for goods and services at Business Members that agree to accept the WingCash Page as a form of payment. WingCash Pages provided by Business Members are not backed by funds held on deposit at a Financial Institution, are not FDIC-insured, and are not redeemable for cash.
The face of each WingCash Page that you hold shows the name of the Business Member providing the WingCash Page. The face of the WingCash Page also shows the names of the other Business Members and Merchant locations that have agreed with the Provider to accept the WingCash Page in exchange for goods or services. The Businesses Members or Merchant locations accepting the WingCash Page in exchange for goods and services are subject to change at any time. WingCash Pages have certain limitations and restrictions as shown on the face of the WingCash Page. WingCash Page limitations include any or all of the following as determined by the Provider:
WingCash Pages are denominated in a supported national or sovereign currency as determined by the Provider and as shown on the face of the WingCash Page. WingCash will use commercially reasonable efforts to conduct any transfer of WingCash Pages that you request through your use of the WingCash Service in accordance with this Agreement.
WingCash Pages may only be used in the Approved Jurisdictions by Members (a) to pay for the purchase of personal, family and household goods and services, or (b) to transfer WingCash Pages to another Member or Business Member.
WingCash Pages are purchased from Business Members by direct money transfer from your bank account with your financial institution or, where available, with a Payment Card linked to your Wallet. Read the following pages for additional information regarding use of the WingCash Service:wingcash.com/about and wingcash.com/faq, or email email@example.com for further information.
5. WingCash’s Role.
The WingCash Service allows both the Member and Business Member (the “Parties”) to maintain privacy when transferring value; however, the Service allows both Parties to verify payments within a Network by seeing when WingCash Pages have been transferred within that Network. WingCash is not an identity service and does not guarantee the identity of any Member or Business Member, nor does WingCash have control of, or liability for, the products or services that are paid for with the WingCash Service. The WingCash Service does not include assisting you with disputes with Business Members from which you purchase products or services or any other dispute resolution involving third parties and your use of the WingCash Service. For this reason, payments made using WingCash Pages are not reversible or refundable or otherwise subject to refunds, chargebacks, reversals or other claims. EXCEPT WITH RESPECT TO PROCESSING ERRORS CAUSED BY US, YOU ARE SOLELY RESPONSIBLE FOR RESOLVING AND SETTLING DISPUTES DIRECTLY WITH OTHER MEMBERS, BUSINESS MEMBERS AND ANY OTHER THIRD PARTIES.
6. WingCash Pages You Hold.
You may, but are not required to, hold any WingCash Pages in your Wallet. When you hold WingCash Pages in your Wallet, we will group the WingCash Pages by Provider and/or type and sum the face value of WingCash Pages you hold, so you know how much you have available for redemption within a particular Network. WingCash does not guarantee that the amounts you hold are redeemable with the Provider or any other Merchant agreeing with the Provider to accept the WingCash Pages issued by the Provider. WingCash does not reimburse you for amounts held by you that are not redeemable within the Network or with the Provider. You agree that your Profile will be shown as the holder on the WingCash Page for any WingCash Page that you hold in your Wallet. You also agree that your Profile may be shown in the possession history on a WingCash Page for any WingCash Page that you have held.
7. Termination, Closing Your Wallet, or Limited Wallet Access.
You may terminate this Agreement by closing your Wallet at any time. YOU MUST EITHER TRANSFER WINGCASH PAGES YOU HOLD IN YOUR WALLET OR REDEEM WINGCASH PAGES WITH THE PROVIDER OR THE BUSINESSES PARTICIPATING IN THE PROVIDER'S NETWORK PRIOR TO CLOSING YOUR WALLET.
We may terminate this Agreement and close your Wallet for any reason at any time upon notice to you. We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the WingCash Service. If we close your Wallet or terminate your use of the WingCash Service for any reason, we will provide you with notice of our actions.
8. Your Privacy.
9. Prohibited Activities.
In connection with your use of the WingCash Service or the WingCash Site, you agree to avoid the following “Prohibited Activities”:
If we have reason to believe that you have engaged in any Prohibited Activities set forth above or otherwise breached this Agreement, we may take various actions to protect WingCash, other Members, or other third parties from any damages. The actions we may take include but are not limited to the following:
In addition, WingCash reserves the right to take any of the actions set forth above, to the extent necessary to complete any pending investigation, including but not limited to an investigation regarding potential Prohibited Activities, or as required by law or court order or if otherwise requested by law enforcement or any governmental entity.
You agree that WingCash may provide notice to you by posting such notice on the WingCash Site or emailing it to the email address listed in your Profile. By registering for the WingCash Service and accepting the terms of this Agreement, you represent that you can download or print a copy of this Agreement and any related notices or disclosures that you receive by email or on the WingCash Site and affirmatively consent to receive notices electronically from us, including any disclosures or notices that are required by applicable law. Unless required otherwise by applicable law, any such notice will be deemed received by you at the time it is posted to the WingCash Site or emailed to you unless we receive notice that the email was not delivered.
You may request a paper copy of any legally required disclosures from us at any time, and you may terminate your consent to receive required disclosures through electronic communications by contacting WingCash. WingCash reserves the right to terminate this Agreement and cancel your Wallet if you withdraw your consent to receive disclosures or other notices electronically.
All notices to WingCash should be sent to:WingCash, LLC
11. Retracted Transfers.
If you attempt transfer WingCash Pages to a person or business (the “Recipient”) that does not participate in the WingCash Services, you may retract the transfer before it is accepted by the Recipient. No other transfers may be retracted using the WingCash Service. WingCash is not liable to you or any other person for any damages associated with a retracted transfer.
12. Dormant Wallets.
If you do not log in to your Wallet for two or more years, we may, at our sole discretion, expire or return any WingCash Pages you hold to the Provider and close your Wallet.
13. Intellectual Property.
“WingCash” and all logos related to the WingCash Service and other trademarks and logos on the WingCash Site are either trademarks or registered trademarks of WingCash or its licensors. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, trade dress, or the copyrighted works of WingCash or its licensors. You may not copy, imitate or use any such items without WingCash’s prior written consent. All rights, title and interest in and to the WingCash Site, any content thereon, the WingCash Service, the technology related to the WingCash Site or WingCash Service, and any and all technology and any content created or derived from any of the foregoing is the property of WingCash or its licensors.
14. Governing Law; Arbitration.
This Agreement will be governed in all respects by the laws of the State of Utah, without regard to conflict of law provisions. You and WingCash agree that any claim, dispute or controversy (“Claim”) by you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement, the WingCash Service or WingCash Pages, including Claims regarding the applicability of this arbitration provision or the enforceability of any part of the Agreement, will be resolved by binding arbitration by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The Claim will be heard before a single arbitrator upon whom we agree, or if we do not agree, an arbitrator who is selected by the AAA. For a copy of AAA’s Commercial Arbitration Rules, or to file a Claim or for other information, contact AAA at any AAA office, which are in most major cities in the United States, or online at www.adr.org, by mail at 335 Madison Avenue, 10th floor, New York, New York 10019, or by telephone at 1-800-778-7879. We will not invoke our right to arbitrate any individual Claim you choose to bring in small claims court or your state’s equivalent court, if any, so long as the Claim is pending only in that court and does not exceed $5,000. If you so request in writing, we will advance you the filing, administrative and hearing fees of the arbitration and allow the arbitrator to rule on which of us will ultimately be required to pay those costs.
The WingCash Service and WingCash Pages may involve interstate commerce, in which case this arbitration agreement will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”). Any arbitration hearing at which you appear will take place in the federal judicial district where you reside. The arbitrator will follow applicable substantive law to the extent consistent with the FAA, will honor applicable statutes of limitations, and will honor claims of privilege recognized at law. If requested by any party, the arbitrator will write an opinion containing the reasons for the award. The arbitrator’s decision will be final and binding except for any appeal rights under the FAA and except that if the amount awarded exceeds $100,000, any party may appeal the award within 30 days to a three-arbitrator panel, which will review the award de novo. The costs of such an appeal will be borne by the appealing party regardless of the outcome. Judgment upon any award by the arbitrator may be enforced in any court having jurisdiction.
Nothing in this Agreement will be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.
This arbitration provision applies to all Claims now in existence or that may arise in the future. This arbitration provision will survive the closure of your Profile and termination of this Agreement as well as voluntary payment in full by you, any legal proceedings by us to collect a debt owed by you or any bankruptcy by you.
IN THE ABSENCE OF THIS ARBITRATION PROVISION, YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT AND TO HAVE A JURY TRIAL, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS. HOWEVER, EXCEPT AS OTHERWISE PROVIDED ABOVE, THIS ARBITRATION PROVISION REQUIRES THAT ALL CLAIMS BE RESOLVED THROUGH ARBITRATION. APPLICABLE ARBITRATION RULES MAY LIMIT PRE-HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS. NEITHER YOU NOR WE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER MEMBERS WITH RESPECT TO OTHER MEMBER OR BUSINESS MEMBERS, OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
If for any reason the above arbitration provision is deemed to be invalid or unenforceable, then you agree that any claim or dispute you may have against WingCash must be resolved by a court located in Salt Lake County, Utah. You agree to submit to the personal jurisdiction of the courts located within Salt Lake County, Utah, for the purpose of litigating all such claims or disputes.
You agree to defend, indemnify and hold harmless WingCash and its affiliates, agents, contractors, owners, officers, directors, employees and representatives from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that relates to or arises out of your breach of this Agreement and/or your use of the WingCash Service or the WingCash Site.
16. Warranty Disclaimers; Damages Exclusions; Limitations of Liability.
A. WARRANTY DISCLAIMERS.
WINGCASH AND ITS AFFILIATES, AGENTS, CONTRACTORS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES PROVIDE THE WINGCASH SERVICE, THE WINGCASH SITE, AND ANY GOODS OR SERVICES PURCHASED USING THE WINGCASH SERVICE “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND HEREBY SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT THERETO. IF WE DISCOVER AN ERROR IN OUR PROCESSING OF ANY TRANSFER, YOUR SOLE REMEDY AND OUR SOLE LIABILITY WILL BE TO REPROCESS THE TRANSFER FROM THE APPLICABLE WALLET(S) SOLELY AS NECESSARY TO CORRECT THE ERROR.
B. DAMAGES EXCLUSIONS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WINGCASH AND ITS AFFILIATES, AGENTS, CONTRACTORS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES HEREBY EXCLUDE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WINGCASH SERVICE, THE WINGCASH SITE, OR ANY SERVICES OR GOODS PURCHASED OR TRANSFERS CONDUCTED WITH WINGCASH SERVICE.
C. LIMITATIONS OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF WINGCASH AND ITS AFFILIATES, AGENTS, CONTRACTORS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSFERS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY, OR OTHERWISE, EXCEED THE LESSER OF $50 OR THE AMOUNT OF THE PAYMENT INVOLVED.
The laws of certain states or other jurisdictions do not allow disclaimers of implied warranties or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have rights in addition to those contained in this Agreement.
All rights and obligations of the parties under this Agreement, which by their nature are continuing, will survive the expiration or termination of this Agreement for any reason, including without limitation Sections 7 through 9, 11 through 16 and 22.
18. Force Majeure.
In no event will we be liable to you for any failure or delay by us (or our agents, contractors, owners, officers, directors, employees, representatives and other applicable third parties) in performing our obligations under this Agreement, regardless of whether the failure or delay is caused by an event or condition beyond our control.
You may not assign or transfer any rights or obligations that you have under this Agreement without our prior written consent. Any assignment or transfer in violation of this section will be deemed null and void. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
20. Severability; No Waiver.
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and, upon our request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement remains in full force and effect.
We will not be deemed to have waived any of rights, power, or remedies hereunder except in writing signed by our authorized agents or representatives. The waiver by us of a breach of any term or provision of this Agreement by you will not be construed as a waiver of any subsequent breach.
21. Entire Agreement.
This Agreement, along with the documents incorporated by reference in this Agreement, constitute the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of you and us in connection with the subject matter of this Agreement.
22. Transfer Records and Submissions.
All information, documents, photographs and other materials (collectively “Materials”) submitted to WingCash through the WingCash Site will be deemed and remain the property of WingCash and WingCash will be free to use, for any purpose, any such ideas, concepts, know-how, techniques or other information. You hereby assign all right, title and interest, in and to any such Materials to WingCash, including, but not limited to, any intellectual property rights therein. A Member may download copies of transfer records associated that Member’s Wallet. Notwithstanding the foregoing, WingCash agrees not to use the Materials except in connection with your use of the WingCash Service and to cease any such use when you close your Wallet.
“Agreement” means this Member Agreement, as amended from time to time.
“Approved Jurisdictions” means geographical areas where a natural person is domiciled and also may have a Wallet on the WingCash Site.
“Member” means any natural person using the WingCash Service residing in one of the Approved Jurisdictions.
“Brand Cash” means WingCash Page provided by a Business Member.
“Business Member” means a Merchant that has established a Business Wallet and Business Profile on the WingCash Site and has agreed to accept WingCash Pages as payment for the purchase offers goods and/or services through the WingCash Service.
“Network” means a group of Merchants that have entered into a common agreement with a Provider to accept the WingCash Pages issued by that Provider.
“Profile” means a Member’s personal information maintained on the WingCash Site and associated with the Member’s globally unique payment address.
“Provider” means the Business Member issuing WingCash Pages to be held by Members and redeemed by Members for the purchase of goods and services.
“Recipient” means the person or business that is not a Member or Business Member of the WingCash Service to whom you attempted a transfer.
“Wallet” means the globally unique web address associated with your Profile and the WingCash Pages that you hold.
“WingCash Page” means the globally unique web page assigned an immutable monetary value, denominated in a national currency, redeemable within a Network, and created, distributed and managed on the WingCash Service by the Business Member providing the WingCash Page.
“WingCash Service” means the value transfer service and any related products and/or services offered on the WingCash Site.
“WingCash Site” means the website located at wingcash.com that hosts the WingCash Service.COPYRIGHT © 2015 WingCash, LLC