EFFECTIVE DATE: May 23, 2018.
LAST UPDATED: May 23, 2018.
Acceptance Of Terms
Esusu provides an online platform, process and service that allows users to connect directly with each other to share money amongst themselves (the “Service”).
PLEASE BE AWARE THAT THE ARBITRATION AGREEMENT SECTION OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ESUSU IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN USERS, AND THAT ESUSU IS NOT A BANK, A MONEY SERVICES BUSINESS, A MONEY TRANSMITTER, OR AN ISSUER OF STORED VALUE PRODUCTS. ESUSU AND THE SERVICE ENABLE USERS TO COMMUNICATE DIRECTLY AND TO SHARE FUNDS AMONGST THEMSELVES. ESUSU HAS NO CONTROL OVER THE CONDUCT OF USERS OF THE SERVICE, ANY INFORMATION EXCHANGED BETWEEN USERS, OR ANY SHARING DECISIONS BY OR AMONG USERS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
ESUSU DOES NOT REVIEW, ENDORSE, RECOMMEND, VERIFY OR EVALUATE, OR OTHERWISE PROVIDE ANY WARRANTY OR GUARANTEE WITH RESPECT TO ANY USER, USER CONTENT, OR USER GROUP. IT IS THE SOLE RESPONSIBILITY OF USERS TO INVESTIGATE THE INFORMATION AVAILABLE ABOUT ANOTHER USER OR A GROUP.
Your use of, and participation in, certain Services may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in the Terms or will be presented to you for your acceptance when you sign up to use the Supplemental Service. If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. Any applicable Supplemental Terms are also referred to herein as the "Terms."
“Group” means two or more Users who form a group to use the Service to share funds between and among all Users in the same group.
“Content” means text, graphics, images, music, software, audio, video, information or other materials.
“User” means a person who successfully completes Esusu’s registration process.
“Group Leader” means a user who forms and launches a group.
"Collective Content" means all Content on the Site, whether such Content is User Content or Esusu Content.
How To Join The Service
The Service consists of an online platform, process and service that allows Users to participate in one or more Groups within which they can share money with other Users in that Group. To become a User and access the Service, you must: (a) successfully complete the online registration process within our mobile application “Esusu” available in app stores, including the Apple iTunes Store and Google Play, (b) agree to the provision of personal identification information, and (c) connect your personal bank or other financial account to the Service.
How The Service Works
Money is shared by and between all Users who have joined a Group. Within a Group, every member contributes the same amount in installments over the life-time of the Group, and every member of a Group withdraws the same amount but at different times. All installment payments are distributed to one member of the Group at the same time that the installment payments are made less Esusu's fee.
Groups may be formed by any User who is then termed the “Group Leader”. A User forming a Group determines the four key characteristics of the Group: (1) the amount to be shared by each User who joins the Group; (2) how long the Group will go on (it’s life-time); (3) how many Users and Positions there are in the Group (one Position per User); (4) the frequency of payments into the group and payments out of the group.
Failure to contribute funds to a Group at the time and in the amounts that a User agreed to do will subject a User to limited or restricted access to the Service, including preclusion of joining more Groups or receiving shared funds distributions from any Groups that User has previously joined. A User’s failure to meet his or her Group contribution commitments for more than ten (10) days past the original due date will entitle the Service to withdraw the full amounts owed directly from the User’s connected bank account.
The purpose of these Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose.
You agree to pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You agree to immediately notify Esusu of any changes in your bank account used for payment hereunder. Esusu reserves the right at any time to change its prices and billing methods, either immediately upon posting on Esusu Properties or by email delivery to you.
The service fee for each User [for each Group the User is part of], will depend on the number of Users in each Group. For each pay-in cycle, Users will pay a fee of $10 divided by the number of Users in that Group. Example 1: if there are three (3) members in a Group, and they each make monthly contributions into their collective group fund, each User will pay a fee of $3.33 a month. Example 2: if there are ten (10) members in a Group, and they each make contributions into their collective group fund every two weeks, each User will pay a fee of $1 every two weeks.
Users will pay the service fee in addition to the User's contribution to their collective Group fund. For example, if a Group of three (3) Users have a shared fund of $300 per month, then each User will pay $103.33 per month [comprised of the underlying contribution of $100 per User, and the service fee of $3.33 per User].
The apportioned fee will be automatically deducted from each User's bank account. Service fees are not refundable, but from time to time, Esusu as part of a promotional campaign strategy may waive such fees.
Financial Terms Information
By entering into these Terms, you also agree to the terms and conditions of SynapseFI, our banking software and payment-processing provider that can be found here (https://synapsefi.com/legal) and are incorporated by this reference.
Your funds are held at a bank account in your name at SynapseFI's partner Evolve Bank & Trust and are FDIC insured up to $250,000. By using our services, you authorize Esusu to hold your deposits for your benefit at Evolve Bank & Trust, Member FDIC, in an account ("FBO Account").
Fund transfers are done electronically and may occur immediately after being authorized (or when a User is in default of a contribution that is due). In order to become a User and participate in Groups, you understand and agree that Esusu reserves the right, in its sole discretion, to obtain a pre-authorization of your banking account in order to verify your account and relevant account balance. Please note that Esusu cannot control any fees that may be charged to a User by his or her bank related to transfers or otherwise, and Esusu disclaims all liability in this regard. Currently, all bank communications and transfers are stored at https://synapsefi.com/ using application level Advanced Encryption Standard (AES) 128-bit encryption over secure HTTPS connections.
Electronic Funds Transfers ("EFTs") And Account Balances
When you open a SynapseFI User Account, you will link a checking or savings account to perform EFT and, if applicable, deposit funds into your SynapseFI User Account. Deposits into your User Account are held at SynapseFI's financial institution partners as detailed in the Synapse TOS. DEPOSITS HELD IN A USER ACCOUNT MAY BE ELIGIBLE FOR INSURANCE BY THE FEDERAL DEPOSIT INSURANCE CORPORATION (“FDIC”) ON A PER USER BASIS DEPENDING ON THE RULES AND LIMITATIONS SET FORTH BY THE FDIC. FOR PURPOSES OF APPLICABLE FDIC DEPOSIT INSURANCE LIMITATIONS, DEPOSITS IN ACCOUNTS AT THE FINANCIAL INSTITUTIONAL PARTNER(S) OPENED THROUGH THE FINANCIAL INSTITUTIONAL PARTNER(S) WITH SYNAPSEFI MAY NOT BE SEPARATELY INSURED FROM ANY OTHER ACCOUNTS YOU MAY HAVE OPENED WITH THE FINANCIAL INSTITUTIONAL PARTNER(S), DEPENDING ON THE NAMED ACCOUNT OWNERS.
All EFT transactions are performed by and deposits are held by SynapseFI's financial institution partner, Evolve Bank & Trust. Esusu and SynapseFI only transmit transaction instructions to SynapseFI's financial institution partner. Esusu will provide you with all transactions notifications and User Account balances in addition to providing customer support relating to your SynapseFI User Account.
Transactions History And Disputes
All questions regarding EFT transactions or your SynapseFI User Account must be directed to email@example.com and not to SynapseFI or its financial institution partners. Esusu is responsible for resolving issues and errors relating to transactions and account balances.
You understand and agree that you are solely responsible for determining your applicable tax reporting requirements in consultation with your tax advisors. Esusu cannot and does not offer Tax-related advice to any User. “Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and Service taxes (GST) and other similar municipal, provincial, state and federal indirect or other withholding and personal or corporate income taxes.
Eligibility; Account Information
The Service is intended solely for persons who are 18 or older and who are legally able to enter into a contract. By accessing or using the Service you represent and warrant that (i) you agree to be bound by these Terms and (ii) that you are not legally prohibited from receiving or using the Service under the laws of the country in which you access or use the Service.
You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Esusu reserves the right to suspend or terminate your account and your access to the Service if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party. You will immediately notify Esusu of any unauthorized use of your User Account. Esusu assumes no responsibility for User Content, User account information, or for any User’s compliance with any applicable laws, rules and regulations.
Esusu’s role is solely to facilitate the availability of the Service and to provide support related thereto. Esusu does not provide and is not responsible for User Content or Groups. Esusu does not verify Users’ information, review or approve Groups, participate in Groups, or provide any promises, warranties or guarantees regarding Groups. You acknowledge that Esusu will not be liable for any loss or damage related to your participation in any Group. Esusu does not refer or endorse or recommend particular Users or Groups. You acknowledge and agree that you are responsible for your own acts and omissions.
User Affirmations, Conduct And Use
By submitting the User registration form, you represent, warrant and agree to the following:
- You are at least 18 years of age, are authorized to submit a User registration, and are authorized to sign your User registration form.
- You are solely and fully liable for all Content, conduct, postings and transmissions that are made under your user name and password.
- You either are the sole and exclusive owner of all User Content that you make available through the Service or you have all rights, licenses, consents and releases that are necessary to grant to Esusu the rights in such User Content, as contemplated under these Terms.
- You are solely responsible for reviewing, evaluating, and participation in any Group.
- Esusu is not involved in any transactions between Users or Groups.
- You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Service and Content.
- Neither your User Content, nor your posting, uploading, publication, submission or transmittal of the User Content or Esusu’s use of the User Content (or any portion thereof) on, through or by means of the Service, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
By using the Service, you represent, warrant and agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations.
- use manual or automated software, devices, scripts robots, other means or processes to access, “scrape”, “crawl” or “spider” any web pages or other Service contained in the Service or Content.
- use the Service for any commercial or other purposes that are not expressly permitted by these Terms.
- copy, store or otherwise access any information contained on the Service or Content for purposes not expressly permitted by these Terms.
- interfere with or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology.
- use the Service to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information, or credit, debit, calling card or bank account numbers.
- use the Service in connection with the distribution of unsolicited commercial email ("spam") or advertisements.
- "stalk" or harass any other User of the Service or collect or store any personally identifiable information about any other User other than for purposes of using the Service at intended.
- recruit or otherwise solicit any other User to join third party services or websites that are competitive to Esusu, without Esusu’s prior written approval.
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.
- use automated scripts to collect information or otherwise interact with the Service.
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
- systematically retrieve data or other content from our Service to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.
- use, display, mirror or frame the Service, Esusu’s name, any Esusu trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page, without Esusu’s express written consent.
- access, tamper with, or use non-public areas of the Service, Esusu’s computer systems, or the technical delivery systems of the Service or any third-party provider system.
- attempt to probe, scan, or test the vulnerability of any Esusu system or network or breach any security or authentication measures.
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Esusu or any of Esusu’s providers or any other third party (including another user) to protect the Service or Collective Content.
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Collective Content to send altered, deceptive or false source-identifying information.
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Collective Content.
- advocate, encourage, or assist any third party in doing any of the foregoing.
Esusu has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Esusu may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms. You acknowledge that Esusu has no obligation to monitor your access to or use of the Service or Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. In the event that Esusu pre-screens, refuses or removes any Content, you acknowledge that Esusu will do so for Esusu's benefit, not yours. Without limiting the foregoing, Esusu shall have the right to remove any Content that violates the Terms or is otherwise objectionable. You acknowledge and agree that you have no expectation of privacy concerning the transmission of your Content.
Unless expressly agreed to by Esusu in writing elsewhere, Esusu has no obligation to store any of your Content that you submit or make available on Esusu Properties. Esusu has no responsibility or liability for the deletion or accuracy of any Content, including your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Esusu Properties. You agree that Esusu retains the right to create reasonable limits on Esusu's use and storage of the Content, including your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Site and as otherwise determined by Esusu in its sole discretion.
The Service is licensed and not sold. The Service, the App, the Site, Collective Content and the information and content available on the Site, in the App and Services (collectively "Esusu Properties") are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Esusu Properties, including all associated intellectual property rights, are the exclusive property of Esusu and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Esusu Properties. All trademarks, service marks, logos, trade names and any other proprietary designations of Esusu used herein are trademarks or registered trademarks of Esusu. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
You understand that Esusu Properties are evolving. As a result, Esusu may require you to accept updates to Esusu Properties that you have installed on your computer or mobile device. You acknowledge and agree that Esusu may update Esusu Properties with or without notifying you. You may need to update third-party software from time to time in order to use Esusu Properties.
As a part of Esusu Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Esusu to monitor such materials and that you access these materials at your own risk.
License To The Service
Subject to your compliance with these Terms, Esusu grants you a limited, personal, non-exclusive, revocable, non-transferable license, to (i) reproduce portions of Esusu Properties and electronically access and use the Service solely for your personal and non-commercial purposes, and (ii) access and view any User Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
Subject to your compliance with the Terms, Esusu grants you a limited non-exclusive, non-transferrable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Service or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Esusu or its licensors, except for the licenses and rights expressly granted in these Terms.
License Grant To Esusu
By making available any User Content on or through the Service, you hereby grant to Esusu a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to create derivative works, sublicense, use, edit, view, copy, adapt, modify, distribute, license, sell, host, market, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, and otherwise fully exploit such User Content on, through, or by means of the Service as currently exist or may be developed in the future. Esusu does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
The Service may contain links to third-party websites or resources. When you click on a link to a third party website or resource, we will not warn you that you have left Esusu Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such third party websites and resources are not under the control of Esusu. Esusu provides these third party websites and resources only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party websites or resources, or their products or services. You use the links in third party websites or resources at your own risk. When you leave our Site, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any third party websites and resources, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You acknowledge and agree that Esusu is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or Service on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Esusu of such websites or resources or the content, products, or Service available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or Service on or available from such websites or resources.
You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play ("App Store"). You acknowledge that the Terms are between you and Esusu and not with the App Store. Esusu, not the App Store, is solely responsible for Esusu Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Esusu Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store's terms and policies) when using Esusu Properties, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
Esusu may include advertisements on its own behalf or paid advertisements on behalf of interested companies and/or individuals on the Service. By clicking on the advertisements, the User may be transferred to a website of the advertiser or receive other messages, information, or offers from the advertiser. Users acknowledge and agree that Esusu is not liable for the privacy practices of advertisers or the content of their websites, information, messages or offers. Users are wholly liable for all communications with advertisers and for all transactions subsequently executed.
When you click on an advertisement, we will not warn you that you have left Esusu Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such advertisements and associated websites are not under the control of Esusu. Esusu is not responsible for any advertisement or its associated website. Esusu provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to the advertisements, or their products or services. You use all advertisement links at your own risk. When you leave our Site or App, our Terms and policies no longer govern.
Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Esusu's designated Copyright Agent to receive notifications of claimed infringement is: Esusu Financial, Inc., CUNY i-Hub - 215 West 125th Street, Room 410, New York, NY 10027, USA.
You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the User Submission that has been removed or to which access has been disabled and the location at which the User Submission appeared before it was removed or disabled;
- A statement that you have a good faith belief that the User Submission was removed or disabled as a result of mistake or a misidentification of the User Submission; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in New York City, New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If the Copyright Agent receives a counter-notice, Esusu may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Esusu's sole discretion.
Termination And User Account Deactivation
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Esusu Properties, unless terminated earlier in accordance with the Terms.
We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time: (a) terminate these Terms or your access to our Service, and (b) deactivate or cancel your User account. Upon termination, we will promptly pay you any amounts we reasonably determine we owe you in our discretion, which we are legally obligated to pay you. In the event Esusu terminates these Terms or your access to our Service, or deactivates or cancels your User account, you will remain liable for all amounts due hereunder.
You may cancel your User account at any time by contacting Esusu and closing your account for all of the Services that you use. Please note that if your User account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Service, including, but not limited to, any reviews or feedback.
IF YOU CHOOSE TO USE THE SERVICE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ESUSU DOES NOT REVIEW, ENDORSE, RECOMMEND, VERIFY, EVALUATE, WARRANT OR GUARANTEE ANY STATEMENT, OPINION, RESPONSE, ADVICE, PREDICTION, RECOMMENDATION, INFORMATION OR CONTENT (I) PROVIDED BY ANY USER, (II) DOWNLOADED FROM THE SITE OR APP, OR (III) CONTAINED IN ANY THIRD PARTY WEBSITE OR ADVERTISEMENT. NOTHING CONTAINED IN THESE TERMS SHALL BE CONSIDERED AS A REFERRAL, ENDORSEMENT, RECOMMENDATION, VERIFICATION, WARRANTY OR GUARANTEE WITH RESPECT TO (A) ANY USER; (B) ANY GROUP; OR (C) THE VALIDITY, ACCURACY, AVAILABILITY, COMPLETENESS, SAFETY, LEGALITY, QUALITY OR APPLICABILITY OF ANY GROUP, CONTENT OR ANYTHING OTHERWISE CONTAINED IN OR MADE AVAILABLE ON THE SERVICE OR ANY OTHER FORUM.
YOUR EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT THE ESUSU PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ESUSU EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ESUSU MAKES NO WARRANTY THAT THE SERVICE OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ESUSU MAKES NO WARRANTY REGARDING THE QUALITY OF THE SERVICE OR COLLECTIVE CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SERVICE.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU INTERACT OR COMMUNICATE WITH AS A RESULT OF YOUR USE OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. YOU ACKNOWLEDGE AND AGREE TO INDEMNIFY AND HOLD ESUSU HARMLESS IN CONNECTION WITH ANY CLAIM AND ANY DAMAGES OR EXPENSES ARISING FROM YOUR USE OF THE SERVICE.
YOU ACKNOWLEDGE AND AGREE THAT ESUSU IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ESUSU LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL WEBSITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
YOU ARE SOLELY RESPONSIBLE FOR (I) ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF ESUSU PROPERTIES, OR (II) THE ACTIONS OF OTHER USERS OR THE GROUP. YOU UNDERSTAND THAT ESUSU DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF ESUSU PROPERTIES.
ESUSU WILL NOT BE LIABLE FOR ENFORCING ANY AGREEMENT THAT WAS MADE BETWEEN USERS PARTICIPATING IN A GROUP. USERS WILL BE SOLELY RESPONSIBLE FOR ANY GROUPS JOINED OR AGREEMENTS MADE WITH ANOTHER USER.
Limitation Of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT, OR GROUP REMAINS WITH YOU. NEITHER ESUSU NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SERVICE OR COLLECTIVE CONTENT, FROM PARTICIPATION IN ANY GROUP, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ESUSU HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL ESUSU’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, FROM A GROUP, ANY CONTENT, OR ANY INTERACTIONS WITH ANY OTHER USERS, EXCEED THE AMOUNTS YOU HAVE PAID TO ESUSU AS SERVICE FEES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100) IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ESUSU AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE FOREGOING DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL DAMAGES SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.
You agree to release, defend, indemnify, and hold Esusu and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your access to or use of the Service, Group, or Content; (b) your violation of these Terms; (c) your User Content; (d) your (i) interaction with any User, (ii) reliance on any information exchanged via the Service, or (iii) creation of an account; (e) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (f) any claim that you or your Content caused damage to a third party. Esusu shall have the right to control all defense and settlement activities. This provision does not require you to imdemnify any of the Esusu Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your account, the Terms or your access to Esusu Properties.
You may not assign or transfer these Terms, by operation of law or otherwise, without Esusu’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Esusu may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Esusu (i) via email (in each case to the email address that you provide) or (ii) by posting to the Site or via the App. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law And Jurisdiction
You agree that (i) the Service shall be deemed solely based in New York, and (ii) the Service shall be deemed a passive smartphone application that does not give rise to personal jurisdiction over Esusu, either specific or general, in jurisdictions other than New York. These Terms shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. You and we agree to submit to the personal jurisdiction of a state court located in New York for any actions for which the parties 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 party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution Provision below.
YOU AND ESUSU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE OR COLLECTIVE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.
Accessing And Downloading The App From iTunes
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms are concluded between you and Esusu only, and not Apple, and (ii) Esusu, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Esusu and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Esusu.
- You and Esusu acknowledge that, as between Esusu and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Esusu acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Esusu and Apple, Esusu, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and Esusu acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
These Terms are intended to govern the agreement between Esusu and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
Dispute Resolution Provision
Please read the following arbitration agreement in this Section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Esusu and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement
This Arbitration Agreement is applicable to U.S. residents. You agree that any dispute or claim relating in any way to your access or use of the Site, to any products sold or distributed through the Site, or to any aspect of your relationship with Esusu, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, and (2) you or Esusu may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Sophia Senyo (PO Box 2946, Merrifield, VA 22116, USA). The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and Procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location in New York City. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator
The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of the Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Esusu. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial
YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Esusu are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief
ALL CLAIMS ANAD DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precluded enforcement of any of this subsection's limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
Except as provided in the Waiver of Class or Other Non-Individualized Relief section, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part of parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement
This Arbitration Agreement will survive the termination of your relationship with Esusu.
Esusu makes no claim that the Service, Groups, or Content are appropriate or may be accessed, used or downloaded outside the United States. If you access the Service, Groups or Content from a location outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction regarding online conduct and acceptable content.
Feedback And Reporting Misconduct
We welcome and encourage you to provide feedback, comments and suggestions (collectively “Feedback”) for improvements to the Site, App and Service. You may submit feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that all Feedback is at your own risk and that Esusu has no obligations (including without limitation obligations to confidentiality) with respect to such Feedback. You hereby grant to Esusu a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially and non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Esusu Properties.
If you feel any User is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of fraud, or (iii) engages in any other disturbing conduct, you agree to immediately report such person to the appropriate authorities and to Esusu.
The failure of Esusu to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Esusu. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Certain parts of the Service may have different or additional terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific part of the Service, the latter terms and conditions will take precedence.
Notice To California Residents
If you are a California resident, under California Civil Code § 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
Esusu reserves the right, at its sole discretion, to modify or discontinue, temporarily or permanently, the Service or to modify these Terms, including any Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the App; however, we reserve the right to make any such changes effective immediately to maintain the security of our Service or to comply with any laws or regulations. We will update the “Last Updated" date at the top of these Terms.
Modifications to these Terms shall automatically be effective upon posting; provided, however, that material changes to the Terms will be effective as to an existing User thirty (30) days after notice to the User is provided on Esusu's website. You agree to keep your email address on file with Esusu up-to-date. By continuing to access or use the Service after we have posted a modification or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Service.
These Terms constitute the entire and exclusive understanding and agreement between Esusu and you regarding the Esusu Properties, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Esusu and you regarding the same.
The original, legally binding version of this document is written in English. If this document is translated into other languages, there may be discrepancies between the English version and a translated version. If so, the English version supersedes the translated version.