Last Modified: November 16, 2022
Welcome to the website and/or online service of Binkey Inc. (“Binkey,” “we,” or “us”). This page explains the terms by which you may use our online services, website, and software provided on or in connection with the service (collectively, the “Service”). By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms of Service (this “Agreement”), whether or not you are a registered user of our Service. You also understand and acknowledge that your personal information will be collected, used, and otherwise processed in accordance with our Privacy Notice. Binkey reserves the right to modify the terms of this Agreement and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 12.2(THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 12.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 12.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND BINKEY, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR
1.1 Our Service
Subject to the terms of this Agreement, and as part of our Service, we may provide to you a Binkey account and payment services, including, without limitation, Health Benefit Account information and Health Benefit Account payment services, on Merchants’ websites. As part of such payment services, all funds transfer services are provided by our third party payment processor (“Processor”), as Binkey does not receive, hold,or transmit funds. Furthermore, Binkey does not provide medical advice,diagnosis, or treatment, nor are we an employee health or welfare benefit plan or insurance. A “Merchant” means a merchant that has been authorized by us to accept the Service as a payment method for purchases of goods and services, subject to the terms of this Agreement. “Health Benefit Account” means a tax advantaged account designed to help users cover a range of out-of-pocket health expenses.
This is a contract between you and Binkey governing your use of the Service. You must read and agree to the terms and conditions of this Agreement before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you are a resident of the United States or one of its territories, and have an active Health Benefit Account,and only in compliance with this Agreement and all applicable local, state,national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. Unless otherwise agreed in writing by Binkey, the Service is not available to any Users previously removed from the Service by Binkey.
1.3 User Verification
In determining whether you may use the Service with Merchants, we reserve the right to verify the required identifying information you provide to us (including, without limitation, your mobile phone number, insurance information, debit and credit card information, name, and email address). If we are not able to link your health benefit card at the time of your initial purchase on the Service, you may be offered the option to pay for such purchase using your credit card or debit card.
1.4 User Accounts
Your account on the Service (your “UserAccount”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. If you open a User Account on behalf of a company, organization, or other entity, then(i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
You may never use another User’s User Account without permission, nor create multiple User Accounts for illegitimate purposes, as determined by us, in our sole discretion. When creating your User Account, you must provide accurate and complete information, such as your mobile phone number, email and other contact information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account secure. You must notify Binkey immediately of any breach of security or unauthorized use of your User Account. Binkey will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your My Account page. By providing Binkey your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out of receiving such email messages by clicking on the “unsubscribe” link in the emailmessage. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You may link or unlink your health benefit cards, credit cards or debit cards (“Payment Method”) to your User Account. You authorize us (through our Processor) to make a payment to Merchant that is funded by your Payment Method. You are solely responsible for complying with any and all terms set by your bank and plan administrator with respect to your Payment Method, including without limitation any fee terms, such as in sufficient fund or overdraft fees or eligible expenses. You further acknowledge that normal card processing clearing times may apply to certain transactions processed through the Service, and Merchants may wait until they have received your funds before fulfilling your purchases.
In connection with all transactions through the Service, you are responsible for both (i) providing accurate, complete, and current information to us and (ii) maintaining sufficient funds in your Payment Method, and you acknowledge and agree that otherwise, we will not be able to provide the Service to you and Merchants will not be able to accept your payments through the Service. You agree to pay all charges incurred by all individuals who use your Payment Method in connection with transactions through the Service, at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such transaction.
We may review payments you make using the Service in our sole discretion. When we identify a potentially high-risk payment to a Merchant, we reserve the right to suspend and review the transaction more closely before determining whether to allow it to proceed.When this happens, we may place a hold on the transaction and notify the Merchant to delay or cancel shipping of the item or provision of the service.If, in our sole discretion, we clear the transaction, we will notify the Merchant and direct them to ship the item or provide the service, as applicable,if the item or service is still available. If we do not clear the transaction,we will cancel it and return the applicable funds to your Payment Method, unless we are legally required to take other action. We assume no responsibility, and disclaim any and all liability, for your inability to obtain the item or service originally transacted for as a direct or indirect consequence of the process described above, and you hereby release Binkey, each Merchant, and the affiliates, agents, licensors, managers, employees,contractors, agents, officers, and directors of Binkey and of each Merchant from any and all such liability.
1.7 Refunds and Reversals
When you buy something from a Merchant using the Service and the transaction is ultimately cancelled or rescinded in whole or in part, the applicable funds will be refunded to the Payment Method that was linked to your User Account at the time of the transaction. You hereby authorize us and your bank to credit that Payment Method to complete such refund transaction. If a different Payment Method is linked to your User Account at the time at which the refund is expected, Binkey may require you to unlink such different Payment Method from your User Account and to re-link the original Payment Method to your User Account before processing your refund.
We may invalidate and reverse payments through the Service if, among other reasons: (i) we sent the payment in error; (ii) the funding transaction is declined or reversed by you, your bank, or the applicable Merchant; (iii) the payment was unauthorized or insufficiently funded; (iv) we decided a dispute against you, in our sole discretion; or (v) if the payment was for Restricted Goods or Services. In the event of such invalidation or reversal, you may be liable to us for the full amount of the payment, and we may recover the amount of the payment plus any fees from you,subject to applicable law. You hereby authorize us to recover any such amounts due by initiating an electronic transfer from your Payment Method or engaging in collection efforts. If you dispute a payment through the Service, you must notify us in writing at email@example.com immediately, and if you fail to doso, we may recover the amount of the reversed payment from you. Upon our receipt of the foregoing notice, we will initiate an investigation into the applicable transaction and, in our sole discretion and subject to your cooperation, we may provide you with a full refund. Notwithstanding anything to the contrary herein, your eligibility for refunds and reversals are subject to the Internal Revenue Services’ (“IRS”) guidelines, and each Merchant’s terms and conditions.
1.8 Risk of Loss
Binkey does not sell products; Merchants do.All products that may be purchased via the Service are transported and delivered to you by a Merchant or independent third party not affiliated with,or controlled by, Binkey. Title to and risk of loss for such products passes to you in accordance with your separate agreements with the applicable Merchant. If you have any issue with a product, please reach out to the applicable Merchant directly.
1.9 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system,including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Binkey servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Binkey grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes,or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms,or other software agents through the Service; (vii) collecting or harvesting any personal information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person, misrepresenting your affiliation with a person or entity,conducting fraud, or hiding or attempting to hide your identity; (x)interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
1.10 Restricted Goods and Services
You will not, without Binkey’s prior written consent, use the Service to purchase Restricted Goods or Services, and Binkey reserves the right to prohibit the use of the Service to purchase such goods or services. “Restricted Goods or Services” means goods or services which Binkeyconsiders, in its sole discretion, to be dangerous, inappropriate for the Service, or high risk, for example, but not in limitation, (i) goods or services that are illegal under applicable law (i.e., goods or services that infringe third-party intellectual property, including without limitation counterfeit goods and pirated content); (ii) inherently dangerous goods,including without limitation illegal drugs or derivatives thereof, cannabidiol products and nutraceuticals, psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions for making explosives or harmful products, or tobacco products; (iii) pornographic materials; (iv) products that enable dishonest behavior, including without limitation hacking software or instructions, fake documents, and academic cheating products; (v) without limiting the foregoing, any goods or services which are prohibited by law to be sold to customers under 18 years of age; and (vi) gift cards.
1.11 Changes to the Service
We may, without prior notice and in our sole discretion, add new services; change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, if we believe, in our sole discretion, that you may not be able to pay for transactions initiated through the Service, if you have not timely made any payments, or for no reason. Upon termination for any reason or no reason, youcontinue to be bound by this Agreement.
1.12 Service Location
The Service is controlled and operated from facilities in the United States. Binkey makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies,or other entities located in the United States.
The Service may contain links to third-party materials that are not owned or controlled by Binkey, including, without limitation, links to various payment methods through payment process. By using our Service, you agree to be bound by any other payment processor’s terms of service. Binkey does not endorse or assume any responsibility for any such third-party sites, information,materials, products, or services. If you access a third-party website or service from the Service, you do so at your own risk, and you understand that this Agreement and Binkey’s Privacy Notice do not apply to your use of such sites. You expressly relieve Binkey from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings and interactions with third parties found on the Service, including without limitation payment and delivery of goods or services, return and refund of goods or services, customer service, receipt of marketing emails and other communications, and any other terms (such as warranties), are solely between you and such third parties. You agree that Binkey shall not be responsible for any loss or damage of any sort relating to your dealings with such third parties. You are responsible for resolving any and all disputes that you may have with a Merchant.
3.1 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, non commercial use only and as permitted by the features of the Service. Binkey reserves all rights not expressly granted herein in the Service and the Binkey Content (as defined below). Binkey may terminate this license at any time for any reason orno reason.
3.2 Our Ownership
The Service and all materials therein or transferred thereby, including, without limitation, software, images, text,graphics, illustrations, logos, patents, trademarks, service marks, and copyrights (the “Binkey Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Binkey and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Binkey Content. Use of the Binkey Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Binkey under any fiduciary or other obligation,and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Binkey does not waive any rights to use similar or related ideas previously known to Binkey,or developed by its employees, or obtained from sources other than you.
By submitting or otherwise making available any data (“User Data”) through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Binkey a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, distribute, syndicate, and make derivative works of all such User Data, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Binkey’s (and its successors’ and affiliates’) busines
Please note that by creating a User Account and providing your phone number, you consent to receive autodialed or prerecorded calls and text messages from Binkey at the telephone number(s)provided by you to Binkey. We may place such calls or texts to (i) help keep your User Account secure through the use of two-factor authentication; (ii) help you access your User Account when you’ve forgotten your password; or (iii) as otherwise necessary to service your User Account or enforce this Agreement,our policies, applicable law, or any other agreement we may have with you.
We care about the privacy of our Users. You understand and acknowledge that Binkey will collect use, share, and otherwise process your personal information as set forth in our Privacy Notice, and that your personal information will be collected, used,transferred to, and processed in the United States.
Binkey cares about the integrity and security of your personal information. Binkey uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes.You acknowledge that you provide your personal information at your own risk.
You may close your User Account and terminate your relationship with us without cost, but you will remain liable for all obligations related to your User Account even after your User Account is closed. You may not close your User Account to evade an investigation or if you have a pending transaction or an open dispute or claim.
You agree to defend, indemnify and hold harmless Binkey and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your mobile phone, authentication pin code, or other appropriate security code.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ORNON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BINKEY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BINKEY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT FOUND ON OR THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, BINKEY DOES NOT WARRANT, ENDORSE,GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE ORSERVICE, AND BINKEY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BINKEY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES,SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL,SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL BINKEY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BINKEY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS,MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE,OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, ORTHE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL BINKEY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO BINKEY HEREUNDER OR$100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BINKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12.1 Governing Law.
You agree that: (i) the Service shall be deemed solely based in Delaware; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware. This Agreement shall be governed by the internal substantive laws of the State of Delaware,without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce.Notwithstanding the preceding sentences with respect to the substantive law,the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement and preempts allstate laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement,then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights,trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BINKEY.
This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and Binkey that arises out of or relates to, directly or indirectly: (a) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Service, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Service; or (d) any other aspect of your relationship or transactions with Binkey,directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). This Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to this Agreement.
If you are a new Binkey user, you can rejectand opt-out of this Arbitration Agreement within 30 days of accepting this Agreement by emailing Binkey at firstname.lastname@example.org with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact usat email@example.com and attempt to resolve the dispute with us informally.In the unlikely event that Binkey has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. Thearbitration will be conducted in the U.S. county where you live or Delaware,unless you and Binkey agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing,administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Binkey agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement, any provision of the Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as:preventing Binkey from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement,misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains insuch court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable,or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement.Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction.All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
12.3 Class Action/Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING.THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND BINKEY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER BINKEY USERS. YOU AND BINKEY FURTHER AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BINKEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION,COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Binkey without restriction. Any attempted transfer or assignment inviolation hereof shall be null and void.
13.2 Notification Procedures and Changes to the Agreement.
Binkey may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Binkey in our sole discretion. Binkey reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Binkey is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Binkey may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of the terms of this Agreement or any future Terms of Service, do not use or access (or continue to access) the Service.
13.3 Entire Agreement/Severability.
This Agreement, together with any amendments and any additional agreements you may enter into with Binkey in connection with the Service, shall constitute the entire agreement between you and Binkey concerning the Service. Except as otherwise stated in Section 12.2, if any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
13.4 No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Binkey’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.