Buyer Terms and Conditions of Payment Last Modified: July 2019
As a current or prospective customer of the merchant(s) with whom You (“You”, “Your” or Customer”) have conducted or plan to conduct business (the “Merchant” or, if more than one, the “Merchants”) and that directed You to this website, You have the option to use certain Kala Group LLC services, which include any mobile device application created by Kala Group LLC (“KALA”), and any other payment service that links hereto (the “Payment Services”). The Payment Services, together with the Site are referred to as our “Services”. As a condition of Your use of any of these Services, you must agree to these Buyer Terms and Conditions of Payment, (the “Buyer Terms”)
1. DESCRIPTION OF SERVICE The Services may include online invoicing, payments, scheduling, and related services to assist the Merchant in its business. The Services may allow You to electronically receive invoices via email from the Merchant and allow You to make electronic check payment on such invoicesusing the electronic check payment method made available to You by the Merchant through our online portal. Your payment authorization will cause the Merchant to create a paper checkdrawn against Your bank account for which You provide account information and will be deposited into the bank account selected by and belonging to the Merchant. From time to time, KALA may develop and incorporate other features into the Services offered through SimpleChex.com. Your use of such additional features, if any, is governed by these Buyer Terms.
You may use this site to make payment to Merchant without Merchant issuing you an invoice or other demand for payment. By entering your personal and bank account information, you authorize Merchant or create a one-time check drawn against your account. If you elect to have recurring payments, you must check the RECURRING PAYMENT box before submission. Any errors in processing payments is between YOU and the Merchant. KALA has no responsibility or liability for payment processing errors.
2. REPRESENTATIONS AND WARRANTIES; ACKNOWLEDGEMENTS You represent and warrant to KALA and the Merchant, and You covenant, that: (a) the person who has applied to use the Services on Your behalf or on behalf of any company, organization or entity for whom You are using the Services to pay an invoice or process a payment, as applicable, has the power and authority to accept and enter into these Buyer Terms on Your behalf or on behalf of any company, organization or entity for whom You are using the Services to pay an invoice or process a payment, as applicable; (b) the Services or content contained on or available through the Services are not an endorsement of the Merchant by KALA; and (c) KALA is not responsible for any repercussions arising from Your use of the Services and You shall seek remedies arising from disputes in connection with invoices delivered to You, the amounts you are charged, and Your payment thereof, solely from the Merchant.
If You access the Sites to use the Services, You further represent and warrant to KALA, and covenant, that: (i) You are willing and capable of electronically receiving, reviewing, printing and saving all invoices, bills, receipts, materials, disclosures, terms or other content delivered to You through the Services and consent to the disclosure by the Merchant of the information and invoice details required to create and distribute invoices to, and receive payment from, You; (ii) You will provide Your complete and accurate information regarding payment information; (iii) Your liability for any payment You make through the Payment Services using your bank account will be governed by the agreement for the check drawn against the bank You use.
3. CHANGES TO TERMS OF SERVICE KALA reserves the right to revise these Buyer Terms and the documents referenced herein at any time in its sole discretion and will notify the Merchant that changes to such documents have been made by sending an e-mail message to that effect and positing such changes on this website. Unless you are using our Site, it is the Merchant’s responsibility, and not that of KALA, to notify You of such changes. You may view the current version of the terms governing Your use of the Services by clicking on the appropriate link included in the footer of our Site. Any changes shall be effective immediately after the time at which such changes are posted on the Site. Your continued use of the Services after the terms have been changed constitutes Your affirmative acknowledgment of, and agreement to abide and be bound by, the modified terms and conditions.
4. PROPERTY RIGHTS KALA and other third parties other than You, as applicable, own all rights, title and interest in and to Services and the Sites, and all portions thereof, including, without limitation, all intellectual property rights in connection therewith.
5. NO WARRANTIES YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE AND ALL CONTENT MADE AVAILABLE ON OR THROUGH THE SITE OR VIA THE SERVICE ARE PROVIDED TO YOU BY KALA, AT THE REQUEST OF THE MERCHANT, ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. THE MERCHANT AND KALA MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE THE MERCHANT AND KALA ARE NOT RESPONSIBLE FOR (A) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY INVOICE, OR OTHER BILL, APPOINTMENT, STATEMENT OR OTHER ITEM GENERATED THROUGH THE SERVICE OR (B) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY PAYMENT MADE THROUGH THE SERVICE. OTHER THAN AS REQUIRED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL THE MERCHANT OR KALA, OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SERVICE OR ON INFORMATION OBTAINED THROUGH THE SERVICE OR THE SITE, OR BY YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. THE MERCHANT AND KALA DO NOT WARRANT THAT THE SITE IS COMPATIBLE WITH YOUR EQUIPMENT OR THAT THE SITE IS FREE OF VIRUSES, WORMS, BOTS OR ANY OTHER HARMFUL, INVASIVE OR CORRUPTED FILES.
6. LIMITATION OF LIABILITY THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES, SITE, CONTENT ON THE SITES, AND DESCRIPTIONS OF THE SERVICES PUBLISHED ON THE SITE OR LINKED SITES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND THE MERCHANT AND KALA SPECIFICALLY DISCLAIM ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. THE MERCHANT AND KALA DO NOT WARRANT OR REPRESENT THAT THE CONTENT ON THE SITE IS COMPLETE OR UP-TO-DATE. THE MERCHANT AND KALA ARE UNDER NO OBLIGATION TO UPDATE THE SITE, THE SERVICES OR THE CONTENT ON THE SITE. KALA MAY CHANGE THE SITE, THE SERVICES AND THE CONTENT CONTAINED ON THE SITE, AND MAY MAKE IMPROVEMENTS OR CHANGES THERETO, AT ANY TIME WITHOUT NOTICE. YOU AGREE THAT THE NEITHER THE MERCHANT NOR KALA, NOR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICES OR LOST OPPORTUNITY) ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF THE SITES, THE SERVICES, THE CONTENT ON THE SITES OR LINKED SITES, OR ARISING OUT OF, OR IN CONNECTION WITH, THE DELAY OR INABILITY TO USE THE SITES OR LINKED SITES, EVEN IF THE MERCHANT OR KALA, OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WERE MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, WITHOUT LIMITATION, THE TRANSMISSION OF ANY VIRUSES THAT MAY INFECT A USER'S EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICES PROVIDER), UNAUTHORIZED ACCESS, THEFT, DATA LOSS, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE EVENT. THE MERCHANT AND KALA CANNOT, AND DO NOT, GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITES, THE SERVICES OR THE CONTENT RELATED THERETO.
7. VIOLATIONS OF SERVICE TERMS The Merchant or KALA may, each in their respective sole discretions, immediately terminate Your use of the Services if it believes that You are violating or have violated these Buyer Terms or the terms and conditions of the other documents referenced herein. Any such termination will be without prejudice to any other rights that KALA may have against You arising from a violation of these Buyer Terms or of the other documents referenced herein.
8.GOVERNING LAW The laws applicable to the use of the Sites and the interpretation of these Buyer Terms shall be the laws of the State of Texas, United States, and applicable federal law, without regard to any conflict of law provisions.
9.ARBITRATION You, the Merchant and KALA agree that any and all disputes, claims or controversies arising out of or related to the use of the Sites, the provision of the Services or these Buyer Terms, including any claims under any statute or regulation (“Disputes”), shall be submitted for binding arbitration. Unless the parties agree otherwise, any arbitration shall take place in the State of Texas, City of The Woodlands,and County of Montgomery, and shall be administered by, and pursuant to the commercial arbitration rules of, the American Arbitration Association.
Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve Disputes and to make awards is limited to Disputes between You, the Merchant and KALA alone, and is subject to the limitations of liability set forth in these Buyer Terms. Disputes brought by either You, the Merchant or KALA against the other party(ies) may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by You, the Merchant and KALA. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this paragraph be stricken from these Buyer Terms or deemed otherwise unenforceable, then the entire section of these Buyer Terms labeled “Arbitration” shall be stricken from these Buyer Terms. The provisions of the section of these Buyer Terms labeled “Arbitration” and all arbitration awards duly made in connection therewith may be enforced, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party(ies) against whom enforcement is ordered. All arbitration awards duly made under these Buyer Terms shall not be subject to review or appeal except as permitted by applicable law. Any provision of these Buyer Terms to the contrary notwithstanding (a) You, the Merchant or KALA may seek interim relief from a court located in the State of Texas, City of The Woodlands,and County of Montgomery to protect such party’s rights or property while arbitration is pending, and (b) KALA may bypass the aforementioned arbitration process in cases of fraud or other crimes against KALA, interference with KALA’s technical operations or violations of KALA’s rights or property.
10. PRIVACY You are solely responsible for maintaining the confidentiality and security of the username(s) and password(s) for Your account(s) with the Merchants who use the Services, and You assume all liability for sharing or disclosing such username(s) and password(s). You agree to immediately contact the applicable Merchant if You become aware that the security of the username(s) and password(s) for Your account(s) with such Merchant may have been compromised or if there has been unauthorized access to the username(s) and password(s) for Your account(s) with such Merchant. You are solely responsible for all activity occurring under the username(s) and password(s) for Your account(s) with the Merchants who use the Services. Access to and use of password-protected and/or secure areas of the Sites and Services is restricted to authorized users only.
11. GENERAL You acknowledge that this is an online service. A printed version of these electronically presented Buyer Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Buyer Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Your acceptance of these Buyer Terms and use of the Services do not create a joint venture, partnership, employment or agency relationship between You and KALA. You shall not represent in any way that You are in partnership with, are a joint venturer of, or have any employment of agency relationship with KALA. You may not assign, delegate or transfer Your rights or obligations under these Buyer Terms and any such prohibited assignment, delegation or transfer shall be null and void.
The section titles in these Buyer Terms are solely used for the convenience of the parties and have no legal or contractual significance.