Terms of Service

These Terms of Service (“Terms”) are an agreement between you and Kash Corp. (“Kash”) for the payment and other services offered by Kash through its website, mobile application or other means (collectively, the “Services”).  By using the Services, you agree to accept all of the terms and conditions contained in these Terms.  If you do not agree to these Terms, you are not permitted to use the Services.

Prior to your use of the Services, you agree to enter into an ACH Authorization Agreement, the terms of which are incorporated by reference herein and, in the event of a conflict between these Terms and the ACH Authorization Agreement, these Terms shall prevail.

THIS IS AN IMPORTANT DOCUMENT WHICH YOU MUST CONSIDER CAREFULLY WHEN CHOOSING WHETHER TO USE THE SERVICES. PLEASE BE ADVISED THAT THESE TERMS INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.

These Terms incorporate by reference our Privacy Policy and other applicable policies and terms referenced on the Kash website (our “Website”).  There may be additional terms and conditions associated with specific Services.  Those Service-specific terms and conditions, if any, are also incorporated into these Terms.

How These Terms May Change

We reserve the right to change these Terms in order to better protect our customers, Kash, and our third party service providers, and for other reasons that we believe are appropriate.  We may supplement or modify these Terms, in our sole discretion.  Any such alteration, amendment, or other change by Kash shall be effective upon Kash posting such new version of these Terms on our Website, or upon Kash providing any other form of notice to you, whichever occurs earlier.  We will endeavor to post a notice on our Website to let users that there will be a material change to these Terms before any such change becomes effective.  You are responsible for checking our Website for such notices and for possible changes to these Terms and for other important information about the Services.  By continuing to accept or use the Services after a change to these Terms, you are agreeing to that change and acknowledging your acceptance of the modified Terms.  If you do not agree with a change to these Terms, then you must cease using the Services.

Our Role

Kash is a provider of the Services.  Kash is not the seller of any goods or services paid for by you in a transaction processed through Kash.  Kash does not have control of, or liability for, the products or services that are paid for with the Services.

Kash will process all payment types allowed by these Terms issued by or to you that properly conform to the standards and format for interacting with Kash.  Kash is not a bank and it neither offers nor provides banking services.  Kash accepts and makes payments in transactions.  Kash is a not a partner in your business operations nor a guarantor of any dealing.

These Terms are in addition to any terms and conditions required by a third party through which you access the Services (e.g., a merchant or bank).  Your use of services provided by such third parties may signify acceptance of such terms and conditions, as made available to you by such third parties.

Authorization and Access

Each time you initiate a payment using the Services, you are requesting that we initiate on your behalf an electronic transfer from your bank account.  For these transactions, Kash will make electronic transfers via the Automated Clearing House (“ACH”) of NACHA – The Electronic Payment Association (“NACHA”) from your bank account in the amount you specify, either once or on a recurring basis based on the transaction presented to you.  You may withdraw this authorization by emailing support@withkash.com.  You acknowledge that once you have initiated a payment, we may not be able to cancel the electronic transfer if the transaction has already begun to be processed.  All transfers will be governed by NACHA’s ACH rules (the “ACH Rules”).

Where we receive an indication of non-sufficient funds for an attempted payment, you authorize us to attempt to debit your account up to two (2) more times, except as otherwise provided by the ACH rules or applicable law.  In the event that any payment or attempted payment fails, Kash will not be responsible for any fees assessed by your bank, any other financial institution, or by the entity or individual to whom payment was intended.

By using Kash, you authorize us to access your bank accounts and data on your behalf, to retrieve account information and process payments into your bank account, and to retrieve funds as authorized in these Terms.  By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content to Kash through the Services, you are licensing that content to Kash solely for the purpose of providing the Services.  Kash may use and store such content, but only to provide the Services to you.  By submitting this content to Kash, you represent that you are entitled to submit it to Kash for use for this purpose, without any obligation by Kash to pay any fees or other limitations.  You hereby authorize and permit us to use information you submit (such as bank identifications, user IDs, passwords, and PINs) for these purposes.  For these and related purposes, you grant us a limited power of attorney, and you hereby appoint us as your true and lawful attorney-in-fact and agent, with full power and authority, including power of substitution and re-substitution, for you and in your name, place and stead, to access third party sites, retrieve data, and use such data, as fully as you could do for yourself, in person.  YOU AGREE THAT WHEN WE RETRIEVE DATA FROM YOUR ACCOUNTS ON THIRD PARTY SITES, WE ARE ACTING AS YOUR AGENT.  You agree that parties that receive payments and/or data as a result of your use of Kash, parties that send payments and/or data as a result of your use of Kash, and banks and financial institutions that provide such payments and/or data will be entitled to rely on your authorization provided herein, and on the agency and power of attorney rights and authority granted by you through your agreement to these Terms.

You agree that we may, for the protection of those attempting payment via Kash, for the protection of Kash and its third-party service providers, or for your protection, decline certain requests for payment from your account if it appears to us that someone other than the account owner is requesting payment funds from an account, or if it appears to us that there are not sufficient funds (or there will not be sufficient funds in light of other pending transactions) to make the payment that is being requested.  You acknowledge that these payment integrity systems will not be perfect, and on occasion they may decline transactions that should be allowed to proceed.

Payment Schedule

The term “Payment Schedule” refers to the time it takes for Kash to initiate a transfer from your designated bank account of settlement funds arising from transactions processed through the Services.  Once your bank account information has been reviewed, Kash will initiate transfer of settlement funds (net of fees, cancellations, reversals, and other funds owed to us for any reason) in accordance with the Payment Schedule.  The settlement funds should normally be debited from your bank account within 1 to 5 days of Kash initiating the transfer.  We are not responsible for any action taken by the institution holding your bank account that may result in some or all of the funds not being timely debited or credited to your bank account or not being made available to you.  We reserve the right to change the Payment Schedule at any time.

Restrictions on Your Use of the Services

In order to use the Services, (a) as an individual you must be at least 18 years old, a United States resident and legally capable of entering into a binding contract, and (b) if on behalf of a business entity, you must be, and hereby represent and warrant that you are, permitted and capable of binding that entity.  You may use the Services only as expressly permitted in these Terms.  Your use of the Services must comply with all applicable federal, state and local laws and regulations.  You are responsible for knowing what those laws and regulations are.  The Services are intended for your use only.  You may not use the Services as a service bureau, aggregator, reseller, or payment intermediary.  You may not use the Services to process or receive a cash advance.  If you are using the Services on behalf of an entity, no transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor, or owner of such entity, except in the ordinary course of business.  You will not use the Services, directly or indirectly, for any fraudulent undertaking or in a way that interferes with the Services.

Rights of Kash

Unauthorized Use

We may cancel any transaction or other action made or authorized by you through use of the Services if we believe the transaction or other action violates these Terms or applicable law or exposes you, us, a third party service providers or any other person or entity to harm.  

Information Sharing

You agree that we may share information with our third party service providers and your bank or financial institution, and that they may share information with us, as needed or appropriate to (i) provide you the Services, (ii) verify your information and/or documentation, (iii) comply with these Terms, (iv) limit risks including account overdraft and potential fraud or mistaken payments, or (v) as we otherwise believe is necessary or appropriate.  You agree that we may otherwise collect, use, retain, and share information relating to you in accordance with our Privacy Policy that is incorporated herein by reference.

Electronic Notices and Disclosures

You agree that we may provide our notices and other disclosures to you electronically on our Website or by emailing it to you.  You will be deemed to have received those messages 24 hours after we have posted them on our Website or after the email has been sent to you.  You agree that all notices and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  If you wish to withdraw your consent for us to communicate with you electronically, you must terminate Your Account and you may not continue to use the Services.

You may update your information for notice purposes by logging in to Your Account.  You must make sure that your correct email address, for an email account to which you will maintain ongoing access and will check on a daily basis, has been provided to Kash.  You agree that your failure to provide a current and working email address, or to check the messages at such an address on a regular basis, will not void or affect the validity or the effective timing of any notices to you from Kash under these Terms.  Kash will send you an email as a receipt and record of each payment transaction using Kash.  

Your Obligations

Monitoring Use of the Services

You are responsible for monitoring your use of the Services, including any transactions you engage in using the Services.  For example, you will monitor (i) the accuracy of amounts owed and/or transferred to or by you, and (ii) the accuracy of any information transmitted to or by you.

Record Retention

You are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Services, including as required by all applicable laws, restrictions, and regulations.

Kash will maintain reasonable backup measures of limited data related to your use of the Services, as a safeguard in the event of a failure of Kash’s system.  Kash will not maintain bank login credentials for you or for your users.

Data Security

You are solely responsible for the security of data that is yours or in your control.  You agree to comply with all applicable laws, rules, and regulations with regard to your collection, use, security, distribution, and dissemination of any personal, payment, transaction or other data.

Security

Kash will endeavor to take commercially reasonable measures to secure the data you provide to us or authorize us to obtain in connection with the Services.  You acknowledge, however, that there is no such thing as perfect online security, and that our liability to you for any data or transactional security breach is limited per the limitations of liability provisions of these Terms.

Accounts and Passwords

In connection with particular features of the Services, you may be required to establish a user account with your name and password or PIN (“Your Account”).  By establishing Your Account, you represent and warrant that the information you provide is accurate and complete in all respects, and you agree to keep such information at all times complete, accurate, and up-to-date.  You are responsible for maintaining the confidentiality of your password for any of our Services, and you are solely responsible for all activities and purchases that occur under Your Account.  We reserve the right to require you to alter your password if we believe that Your Account is no longer secure.

Authentication of Information

Kash and our third party service providers may require you to furnish certain information and/or documentation (i) while using the Services and any time thereafter, or (ii) otherwise relating to your use of the Services.  You agree that all information you provide will be accurate and complete, and you agree to keep all such information updated.  You authorize us and our third party service providers, directly or indirectly, to make inquiries that we believe are appropriate to verify your identity and any information or documentation you provide to us.  The requested information and/or documentation may include, without limitation, your taxpayer identification number, date of birth, credit reports, a copy of your driver’s license and/or passport, and any other possibly identifying information or documentation.  Additionally, in accordance with the Fair Credit Reporting Act, you may be required to authorize us and/or our third party service providers to obtain your business and/or personal credit report from one or more credit bureaus.

Accuracy and Authority

You represent and warrant that all personal, banking, account, username, password, and other information that you provide to Kash or its third party service providers through the Services or otherwise for payment purposes is your own information regarding your own accounts, that it is accurate, and that you have full rights and authority to present this information and to authorize the processing of all payments that you request.

License

The Services are licensed to you under these Terms.  They are not sold.  We grant you a license to use certain software, applications and technology solely as authorized by us, and solely in connection with the Services.  You may not resell, convey, sublicense, delegate, assign or otherwise transfer the Services, the license granted to you hereunder, or any of your obligations hereunder in any way.  You may not engage in the decompiling, reverse engineering, disassembling, modification, copying, distribution, reproduction, republication, licensing, display, sale, transfer or creation of derivative products or other works of or from any product, service, information, content, software, or any other work found at, aggregated at, contained on, distributed through, linked to or from, downloaded to or from or in any other manner accessed from the Services.  Any action in violation of this paragraph will result in harm to Kash that is not reparable with monetary damages, and therefore Kash shall be entitled to injunctive relief, for which no bond from Kash shall be required.

Our Intellectual Property Rights

Kash and its third party service providers own all intellectual property rights associated with the Services.  Intellectual property includes but is not limited to, trademarks, copyright-protectable images, content, software code, trade secrets, and patented or patent-pending technology or designs.  By using the Services, you agree to respect Kash’s and its third party service providers’ intellectual property rights in the Services.  We may suspend or terminate your right to use the Services if you use the Services to infringe the intellectual property rights of any person or entity.

The “Kash” name and logo as well as certain other of the names, logos, and materials displayed in or through our Website constitute trademarks, trade names, service marks, or logos (collectively, the “Marks”) of us or our third party service providers.  Ownership of the Marks and the goodwill associated with them remains with us or our third party service providers.  You are not authorized to use any of the Marks other than as expressly provided in these Terms.  You must abide by all rights notices, information, or restrictions presented to you in connection with the Services and you must not remove any trademark, copyright, or other notice from our Website or from any content displayed in connection with the Services.

Feedback

You may submit comments or ideas about the Services, including, without limitation, suggestions for improvement.  By submitting any idea or suggestion, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Kash 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 or the fact of your submission of it on a non-confidential basis or otherwise to anyone.  You further acknowledge that, by acceptance of your submission, Kash does not waive any rights to use similar or related ideas previously known to Kash, developed by its employees, or obtained from sources other than you.

Mobile Use

Kash may be used on mobile devices, such as smart phones or tablets.  Your use of the  Services may be subject to separate agreements you may enter into with your mobile device operating system provider, your mobile device manufacturer, your mobile service carrier, and other parties involved in providing your mobile device service.  You agree to comply with all applicable third party terms of agreement when using the Services.

We disclaim, to the maximum extent allowed by law, statutory or other warranties or representations and liabilities related to your wireless service, access from your mobile device, uninterrupted access to the Services, or transmission of data or communications in connection with the Services, and any loss, unauthorized access by third parties, or other security breach related to your wireless network provider or your mobile device.

We are not responsible for the payment of any charges by you or your purchasers’ wireless network service or any other party.

Indemnity

You agree to indemnify, defend, and hold us and our third party service providers (and each of our and their respective directors, officers, managers, employees, agents, representatives, successors and assigns) (collectively, the “Kash Parties”) harmless from any investigation, proceeding, claim, demand, lawsuit, judgment, damage, penalty, loss, cost, liability or expense (including court costs and attorneys’ fees) arising out of: (a) any negligence or willful misconduct by you or your affiliated entities (or any of your or their respective directors, officers, managers, employees, agents, representatives, successors and assigns); (b) any actual or alleged breach of your representations, warranties or obligations in these Terms or any other contract with a Kash Party; (c) your wrongful, improper, unlawful or unauthorized use of the Services; (d) any transaction performed in any part by or on behalf of you through use of the Services; (e) any other party’s access and/or use of the Services through your account(s) or using your account credentials; (f) your violation of any local, state or federal law, rule or regulation; or (g) your violation, or alleged violation, of any right of a third party, including, without limitation, any publicity rights, rights of privacy or intellectual property rights.

Disclaimer of Warranties

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS, KASH MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND/OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SERVICES OR ANY OTHER MATTERS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KASH DOES NOT WARRANT THAT ANY INFORMATION OR DOCUMENTATION PROVIDED IN CONNECTION WITH THE SERVICES IS ACCURATE, COMPLETE, OR RELIABLE.  NO COMMUNICATIONS BETWEEN YOU AND KASH OR ANY OTHER PERSON OR ENTITY ASSOCIATED WITH KASH WILL CREATE ANY WARRANTY ON BEHALF OF KASH.  KASH DOES NOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICES.  KASH WILL IN NO WAY BE LIABLE OR RESPONSIBLE FOR ANY TRANSACTIONS OR OTHER DEALINGS BETWEEN YOU AND THIRD PARTY SERVICE PROVIDERS OR OTHER THIRD PARTIES.

Limitation of Liability

YOU UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PERSONAL INJURY/WRONGFUL DEATH, PUNITIVE, OR EXEMPLARY DAMAGES, (EVEN IF WE WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO AS A RESULT OF: (A) YOUR USE OF OR INABILITY TO USE THE SERVICES OR (B) ANY OF OUR CONTENT, ANY THIRD PARTY CONTENT, OR ANY THIRD PARTY SERVICES AVAILABLE THROUGH THE SERVICES.  THE EXTENT OF OUR LIABILITY TO ANY ENTITY OR INDIVIDUAL, OR TO THE SUCCESSORS OR ASSIGNS OF ANY OF THEM, FOR ANY CLAIM OR MATTER, WHETHER BROUGHT IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE LESSER OF THE AMOUNT OF THE CLAIMING PARTY’S SINGLE MOST RECENT KASH-PROCESSED TRANSACTION OR $100.00.  IF ANY CLAIM OR MATTER RELATES TO MORE THAN ONE PARTY, OUR MAXIMUM LIABILITY WILL BE THE LARGEST SUCH AMOUNT, AS DETERMINED PURSUANT TO THE PRECEDING SENTENCE, APPLICABLE TO ANY ONE SUCH PARTY.  WHERE MORE THAN ONE ENTITY OR INDIVIDUAL RELATED TO US IS SUBJECT TO ANY CLAIM OR MATTER, THE RECOVERY OF THE CLAIMANT OR CLAIMANTS WILL BE LIMITED AS A GROUP AS PROVIDED BY THIS PARAGRAPH, AS IF ALL SUBJECTED PARTIES WERE A SINGLE ENTITY.

Exclusions And Limitations

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages.  Accordingly, some of the above limitations and disclaimers may not apply to you.  To the extent that we may not, as a matter of law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of liability of Kash will be the minimum permitted under such applicable law.

Termination and Suspension

Your Right to Terminate

You may terminate these Terms by terminating your use of the Services (and any related account) and/or promptly notifying us in writing of your termination, for which signed written correspondence or an unambiguous email that is actually received and acknowledged by Kash will suffice.

Kash’s Right to Terminate and/or Suspend the Services

We may terminate these Terms and your use of the Services at any time without notice for any reason or no reason if we believe, in our sole discretion, that it is necessary or appropriate to do so.  We also have the right to suspend your use of the Services and/or your access to any related account if we believe, in our sole discretion, that (i) you have breached these Terms or any other contract between you and us or one of our third party service providers; (ii) you present a risk to our business; (iii) have provided false, fraudulent, inaccurate, misleading, or incomplete information, documentation or other materials; or (iv) have engaged in unlawful or fraudulent activity.

Effect of Termination

If these Terms and/or the Services are terminated or suspended, you acknowledge and agree that you will continue to be bound by your obligations under these Terms for any such obligations that do not expressly end upon the termination or suspension of the Services.  Termination or suspension of your Services does not relieve you from your obligation to pay us any amounts owed.  Once your Services are terminated or suspended, you must immediately stop using the Services and any license granted to you under these Terms will immediately terminate.  Kash reserves the right to implement such termination, without notice to you, by ending your access to the Services.  Any transactions that are pending shall be cancelled upon termination or suspension.  We will not be liable to you or any third party as a result of the termination of these Terms and/or termination or suspension of the Services.

Reconciliations and Errors

If there is an error, whether it originates with you, us, your bank, or the entity to whom you expect to send payment, you understand and agree that it is your sole responsibility to monitor your bank account transactions and inform Kash, via email to support@withkash.com, within ten (10) calendar days of the transaction, so that we can help you correct the error.  All transactions processed by Kash should be indicated by reference to our name in your bank account’s transaction listings.

Your failure to notify us of an error or discrepancy in your transaction history within sixty (60) calendar days of when it first appears on your transaction history will waive any right to amounts that may be owed to you in connection with any error or discrepancy in processing your payments.

If you submit or cause us to process transactions erroneously, you agree to contact us immediately.  We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your bank account as appropriate.

Transaction Disputes

You understand and agree that Kash is not responsible for the merchandise or services that are paid for using the Services.  We strongly recommend that you read and inquire about all policies of a merchant prior to completing a transaction.  You are responsible for attempting to resolve all issues that may arise with a merchant upon completion of a transaction.  You reserve the right to dispute a transaction with Kash, as outlined below.  You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any dispute.  You also grant us permission to share records or other information of the merchant at which the transaction originated to help resolve any disputes.

Kash will accept disputes regarding the service or merchandise being provided including but not limited to: cancellation or return of service or merchandise, not recognizing a transaction, authorization of the transaction, or receipt of merchandise or service that differed from that of which was ordered.  Disputes may not involve the quality of merchandise or services being provided or any circumstances beyond the merchandise or service being provided.

Upon initiation of a dispute, Kash will be in contact with you to ensure all information about your claim is recorded.  Your dispute will be forwarded to the merchant to be addressed and they will have seven days from which the email is sent to respond to your claim.  If the merchant fails to respond within this time, the claim will be resolved in your favor.  If the merchant’s response is deemed valid and addresses the claims of your dispute, their response to your claim will be provided to you by email for you to address within seven days of it being delivered.  However, if their response is deemed invalid and does not address your claim, no further information will be requested of either party and a decision will be made regarding the dispute in question.  If your response to the response of the merchant changes the nature of the dispute, the merchant will be contacted once more for a final response addressing the change of the nature of the dispute (e.g., you dispute a transaction for not receiving merchandise, then receive merchandise that is different from which was ordered).  Once a final decision is made, Kash will communicate via email how a resolution is reached with both parties involved and credit the party who the dispute is resolved in favor of.

Release of Kash

Upon the filing of a dispute, you understand and agree that Kash’s responsibility is only to assist in resolving the dispute in its sole discretion and that such assistance or Kash’s decision may not be satisfactory to you.  Kash will attempt to provide a fair and unbiased review of any dispute brought forth, and no business relationship with either party involved will influence any decision reached and carried out.  Kash’s assistance in resolving the dispute does not guarantee any particular outcome or any action on Kash’s part.  You release Kash and our directors, officers, managers, employees, agents, representatives, successors and assigns from all claims, demands and damages of any kind arising out of your dispute and Kash’s review of your dispute.

Disputes with Kash

The exclusive means for resolution of any claims or disputes between us and you or any other person or entity claiming through you shall be private arbitration to be held with a single arbitrator in San Francisco, California, according to the rules and procedures of the American Arbitration Association (the “AAA”).  Notwithstanding the foregoing, if you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will be held in the city closest to your residence having a federal district courthouse.

YOU AGREE THAT ANY CLAIM, DISPUTE, OR OTHER CONTROVERSY BROUGHT AGAINST A KASH PARTY MAY ONLY BE BROUGHT ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.  NEITHER YOU NOR THE ARBITRATOR MAY CONSOLIDATE OR JOIN YOUR CLAIM WITH ANY OTHER PERSON OR ENTITY’S CLAIM.  THE ARBITRATOR MAY ONLY AWARD RELIEF TO YOU TO THE EXTENT NECESSARY TO PROVIDE RELIEF BASED ON YOUR INDIVIDUAL CLAIMS AND NOT THOSE OF ANY OTHER KASH USER.

If the amount sought is $10,000 or less, Kash may require that the arbitration be conducted by telephone or based solely on written submissions.  The arbitrator’s decision and award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.  Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules.  If either party prevails on any claim for which such party is legally entitled to attorneys’ fees, such party may recover those fees from the other party.

The arbitrator will decide the substance of all claims in accordance with the laws of the State of California.  The arbitrator shall not be bound by prior rulings in arbitration relating to other users of the Services.  With the exception of the prohibition on class or representative actions, if any of the terms or provisions of this section regarding arbitration are deemed unenforceable, the unenforceable provision(s) shall be severed, and the remaining terms shall remain in full force and effect.  If a court determines the prohibition on class or representative action is unenforceable, then this entire section regarding arbitration will be null and void.

Notwithstanding the foregoing, for injunctive relief or for any non-arbitrable claim, you agree that the sole and exclusive venue will be the state or federal courts in the City of San Francisco, California.  We and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose and waive any objection to such courts on any basis, including without limitation improper venue or inconvenience of the forum.  Additionally, you may assert claims in small claims court only in the City of San Francisco, California if your claims qualify.

Responding to Legal Process

Kash may respond to and comply with any writ, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid.  We may deliver or hold any funds or any information as required under such Legal Process, even if such information relates to third parties.  Where permitted, we will use reasonable efforts to provide you notice of such Legal Process by sending a copy to the email address we have on file for you.  Kash is not responsible for any losses, whether direct or indirect, that you may incur as a result of our complying with Legal Process, or as a result of your non-receipt of notice of such legal process.

Screening of Users

Kash will screen all users of the Services to confirm that they are not on the United States Specially Designated Nationals List as well as any other government Issued watch lists, or lists that Kash deems appropriate for compliance and risk management purposes.  Kash will reject transactions attempted by any user appearing in Kash’s review of these lists.  In addition, you may not use the Services if you, or any of your affiliates, are an individual or business entity resident of a country embargoed by the United States or for the purchase of products or services that are blocked or denied, in any way, by the United States.

Territory

The territory in which the Services are provided is the United States.  You acknowledge and agree that Kash does not at this time process payments with banks outside the United States.

Prohibited Uses of Our Services

Due to banking regulations, legal concerns, and other industry-specific risks that may outweigh the benefits of serving certain types of merchants, Kash does not permit, and with knowledge will discontinue, use of the Services to process transactions with certain types of merchants.  In addition, Kash will not process payments to foreign governments or their agents or agencies.  Types of merchants that are not permitted or supported by Kash include, but are not limited to, those selling:

Debit cards, or other stored value services or products

Digital currencies such as bitcoins

Traveler’s checks or money orders

Counterfeit products

Stand-alone extended warranties

Psychic services

Gambling in any form

Sports book-making or predictions

Multi-level marketing, pyramid or Ponzi schemes

Timeshares

Lifetime memberships

Get-rich-quick schemes

Weapons and munitions

Telemarketing services

Marijuana

Illegal drugs or substances designed to mimic them

Drug paraphernalia

Tobacco products and e-cigarettes

Prescription drugs or controlled substances online

Pharmacy referral services

Brokerage services, including for securities, shipping, businesses, or real property

Business or investment opportunities

Escort services or prostitution

Mailing lists/personal information

Payday loans

Credit counseling, debt consolidation, bankruptcy or credit repair services

Debt collection services

Dating services

Racist materials

Government grants

Any product or service that infringes upon the copyright, trademark, or trade secrets of any third party

Any product or service that is deceptive, predatory, or prohibited by law or regulation

 

This list is subject to change at any time.  If you do not know whether a merchant fits into one of the categories listed above, please ask us via email at support@withkash.com.  

We also maintain a list of specific merchants and users for which we do not process payments.  That list is available to you upon request by emailing us at support@withkash.com.

Force Majeure

We will not be liable for delays in processing or other nonperformance caused by events such as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attacks, nonperformance of our vendors or suppliers, acts of God, or other causes over which we have no reasonable control.

Miscellaneous

Kash’s failure to enforce any of the terms in these Terms or to assert any of its rights under these Terms will not constitute a waiver of such terms or rights.  Waivers must be express and written.  If Kash does waive any term or right under these Terms in any instance, that waiver will not be deemed to be a continuing or further waiver of that term or right, or any other term or right.  If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to our intentions as reflected in the provision, and that the other provisions of these Terms remain in full force and effect.  The section titles in these Terms are for convenience only and have no legal or contractual effect.

Kash – Customer-Side Terms of Service, as September 21, 2016