Terms of Service
Effective date: February 8, 2023
Welcome to Castle Pay. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will notify you by electronic means, such as by placing a notice on our site located at www.castlepay.co or sending you an email.
The new Terms are effective upon notice to you. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit personally identifiable information from children under thirteen (13) without obtaining verifiable consent from that child’s parent or guardian (“Parental Consent”), except for the limited amount of personally identifiable information we need to collect in order to obtain Parental Consent (“Required Information”). Until we have received Parental Consent, we will only use Required Information for the purpose of obtaining Parental Consent. If you are a child under thirteen (13), please do not attempt to register for or otherwise use the Services or send any personal information about yourself to us before we obtain Parental Consent, except for the Required Information in the context of the Parental Consent process. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us with personal information (beyond the Required Information) without our obtaining Parental Consent, please contact us at: email@example.com
What are the basics of using Castle Pay?
You may be required to sign up for an account, select a password and user name (“Castle Pay User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Castle Pay User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Castle Pay User ID, account or password with anyone, and you must protect the security of your Castle Pay User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Castle Pay User ID and account.
How does the vendor payment service work?
You may access certain accounts payable services, features, and functionalities through our free mobile app that enables you to use a credit or debit card to fund check payments to certain vendors, including home services vendors and utilities through the Services.
Payment Cards. To use the vendor payment service, you must associate one or more valid credit or debit card(s) with your Billing Account. When you enter payment card information for purposes of the vendor payment service, you represent and warrant: (i) you have the authority to provide and disclose the payment card information to Castle Pay; (ii) you will provide complete and accurate information to Castle Pay about the payment card, including, but not limited to, information on the ownership of the account, and will notify us promptly if the payment card account information or ownership changes; and (iii) each payment that you request through the Services complies with these Terms and applicable laws. Upon the addition of a card to your Billing Account, you agree that Castle Pay may verify the validity of your card pursuant to any reasonable method in Castle Pay’s sole discretion, including validating your authority to use the card. For this purpose, a temporary, small authorization charge may appear on your card statement provided by your issuing bank. All cards you provide for use with the vendor payment service are subject to the existing terms for the card, including, but not limited to, any relevant credit or transaction limits, credit and interest terms, rewards programs, or other applicable terms set by your issuing bank.
Payment Instructions. When you select a vendor in the vendor payment service, you authorize us to follow the payment instructions that we receive from you to pay that vendor. When we receive a payment instruction from you, we will use commercially reasonable efforts to make and deliver the payment, subject to these Terms, and you authorize us to charge your payment card and remit funds on your behalf, all in accordance with the payment instruction. You agree to be bound by any payment instructions that you provide to us, to the fullest extent allowed by law.
Payment Procedure. To use the vendor payment service, you will be required to select your vendors, which are limited to the vendors in the Castle Pay network. When you choose to fund a payment to a vendor, Castle Pay will charge the card you have selected to fund the payment. Once Castle Pay charges your card successfully, Castle Pay will disburse the funds to your vendor, pursuant to the Terms herein. Funds will be drawn, and payments will be made, in U.S. dollars. Payment transactions made through the vendor payment service require sufficient time for the check to be issued (estimated 24 hours) and for the check to arrive at the vendor (estimated 7 business days). At certain times, eligible users may elect, through the Castle Pay app, for Castle Pay to view their monthly account balance with certain vendors and make a payment for that balance on their behalf, using the Castle Pay vendor payment service. To enroll in this additional feature, eligible users must provide Castle Pay with their account number with the vendor and consent to Castle Pay acting as their agent to view and make payments. This feature is not available to all users and is available only for vendors who have established a connection with Castle Pay through a platform used for this purpose by Castle Pay. Castle Pay will rely on the amount displayed by the vendor to make payments and will not be responsible for any additional amount not so displayed. In all cases, it is your sole responsibility to ensure that payment to a vendor is made as required by the applicable agreement, contract or law. Except as otherwise agreed or required by law, you will be solely responsible, and Castle Pay will not be responsible, for all penalties, interest charges, and other late payment fees associated with payments that are delivered after their due date.
Vendor Communications. You authorize us to send emails, text messages and to call your vendors as needed to facilitate the Services provided to you. You represent and warrant that your vendor has agreed to receive such communications from us. You further represent and warrant that when we send your vendor transactional communications regarding payments, such communications facilitate a previously agreed upon commercial transaction between you and your vendor.
Vendor and User Information. Vendors in the Castle Pay network are responsible for maintaining the accuracy of their information. Castle Pay will have no liability for losses or damages resulting from inaccuracy of your vendor’s information, or any actions or inactions by you or your vendor. You acknowledge and agree that you are solely responsible for selecting and paying the correct vendor within the Castle Pay network. Castle Pay will have no liability or responsibility if you select or pay an incorrect vendor. In order to process payments more efficiently and effectively, we may submit check payments to the vendor address best known to us or alter data formats for a vendor, in our sole discretion and without notice to you.
Limits on Payments. Castle Pay reserves the right to limit, cap, or refuse to make any payment transaction requested or initiated through the vendor payment service, for any reason, in Castle Pay’s sole discretion, without Castle Pay incurring any liability to you. By using the vendor payment service, you grant us the right to suspend or cancel any payments you have requested or initiated, including if your Castle Pay account is not in good standing.
Risk Mitigation. If: (i) you initiate excessive card payment disputes seeking to reverse, chargeback, or dispute payments you have funded through use of your card, or have a material number of such disputes unresolved for longer than 60 days; (ii) you materially breach these Terms; (iii) Castle Pay forms a reasonable belief that you may be unable to cover future liabilities under these Terms (including if there is a material risk of your insolvency, or if you are the subject of a large number of vendor complaints); (iv) you have committed compliance violations, including being placed on any watchlist maintained by a regulator; or (v) you violate any Castle Pay policies, each as reasonably determined by Castle Pay, Castle Pay, upon notice to You, may do any or all of the following in order to mitigate the risk to Castle Pay: (a) delay the payment of funds to your vendors; (b) suspend your ability to submit card payments. If we believe that you: breach the Terms or any of our policies; violate any law, statute, ordinance, or regulation; send or receive what we in our discretion believe to be fraudulent funds; are using the Service for what we in our discretion believe is a fraud or crime; refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us; or conduct business in a manner the results in complaints, fees, fines, penalties or other financial, legal, regulatory or reputational risk, liability or losses to us, other Castle Pay customers, third parties, or you, then we may take a number of actions to protect Castle Pay, our customers, and others in our sole discretion. These actions include, but are not limited to: limiting your use of the Services; closing or suspending your user account immediately, without any penalty to us; limiting your ability to send money or make withdrawals from your Billing Account; holding your Billing Account funds for up to 180 days if reasonably needed to protect us against the risk of liability. If we terminate your use of the Services for any reason, we will provide you with notice of our actions and make any of your unrestricted funds held by us available for withdrawal to the extent permitted by law.
User Termination. If you terminate your relationship with us, you will remain liable for all obligations related to your account, even after that account is closed. In certain circumstances, such as the following, you may not turn off the vendor payment feature or close your user account: to evade investigation; if you have a pending transaction using the Services or an open dispute or claim related to your Billing Account; if your Billing Account has a negative balance; or if your Billing Account is subject to a hold or limitation.
How does CastlePay Savings work?
Castle Pay Savings is a services program, available to eligible users for any of the following services, which may be restricted in the discretion of Castle Pay: (i) a tax benefit tracking function in which the enrolled user may apply virtual tags to transactions in the Castle Pay mobile app to track the potential tax benefits associated with each, and (ii) a services and analytics platform in the Castle Pay mobile app, and associated Castle Pay personnel, that the enrolled user may access for assistance in identifying, reviewing, and applying for tax credits and rebate programs. Castle Pay Savings is for personal use only and should not be used for business purposes.
To enroll in Castle Pay Savings, eligible users will be assessed an annual fee. The initial fee structure will be communicated to the user at enrollment. Any material changes to the fee structure will be communicated to affected users prior to taking effect.
Overview of User Experience. To use Castle Pay Savings, you must opt into this functionality in the Castle Pay app. Castle Pay Savings will guide you through an intake questionnaire that collects certain information from you about your home, its renovation history, and your future renovation plans. Based on the information you provide, Castle Pay Savings will estimate your eligibility for certain tax credits and rebates, if any, such as the New York State Historic Homeownership Rehabilitation Credit, New York STAR Credit, and Federal Residential Energy Credits. You acknowledge and agree that it is your decision, in your sole discretion, whether to apply for, and/or participate in, any such programs, and you are solely responsible for any impact your application for, or participation in, such programs may have on you and your household. Your applicable tax authorities make the final determination of your eligibility for any tax credit or rebate. Castle Pay is not responsible for any adverse decision, even if you followed the recommendations of Castle Pay Savings. Your payment obligations to Castle Pay are not a guarantee of any particular tax result.
Application Service. For certain credits or rebates, you may elect to have Castle Pay to prepare your application. Upon preparation, you may opt for Castle Pay to submit the credit or rebate application to your tax authority on your behalf or forward it to the address of your choice. After the application process, you may continue to access your application and associated documentation in electronic format on a Castle Pay digital property.
User Responsibilities. The login credentials for each authorized user are for a single individual only and cannot be shared or used by more than one person. You are responsible for all actions taken under your user account, whether such action was taken or authorized by you. You are responsible for providing Castle Pay Savings with accurate and complete information. You must cooperate with Castle Pay Savings and follow the instructions provided to participate in Castle Pay Savings, and exercise good faith in the carrying out the processes necessary to secure the credits, savings, and other benefits that are identified to you. Castle Pay retains sole discretion in determining whether you have participated in good faith in any of the aforementioned processes. You must also file your complete, independently reviewed tax returns and forms on or prior to the filing deadlines applicable to you. Castle Pay is not responsible for your failure to receive a deduction, credit, discount, promotional rate, or refund due to your non-compliance with the above requirements, or late or incomplete tax filings, and any such failure does not relieve you of your payment obligations to Castle Pay.
Informational Purposes Only. Any advice or guidance given by or on behalf of Castle Pay in connection with Castle Pay Savings or a particular tax program is given solely for informational purposes and no materials provided by Castle Pay Savings should be construed as investment, legal, accounting, or tax advice. You should consult your lawyer, accountant, or tax professional should you need such advice.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages related to two factor authentication or that Castle Pay sends you (for example, via email or SMS). By signing up for the Services and providing us with your wireless number, you confirm that you want Castle Pay to send you information regarding your account or transactions with us, which may include Castle Pay using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Castle Pay, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Castle Pay. You agree to indemnify and hold Castle Pay harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Castle Pay);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Castle Pay;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of your Castle Pay User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) copies or stores any significant portion of the Content; or
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Castle Pay's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Castle Pay owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. If you contribute or otherwise use or submit any Content through the Services that contains personal information of a child under the age of 13, you represent and warrant that you are the parent or legal guardian of such child and you hereby consent to our use of such personal information in connection with providing the Services.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Castle Pay. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Castle Pay is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Castle Pay shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Castle Pay is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Castle Pay, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will Castle Pay ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
a. Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
b. Billing. We may use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use Paid Services, you will agree to pay us, through the Payment Processor or any other billing service we authorize, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you will authorize us, through the Payment Processor or other authorized billing service, to charge your chosen payment provider (your “Payment Method”). You will agree to make payment to us by using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes, even if it has already requested or received payment.
c. Payment Method. The terms of your payment will be based on your Payment Method and may further be determined by agreements between you and the financial institution, payment card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not timely receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
d. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
e. Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges to your Billing Account for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
f. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at: firstname.lastname@example.org
What if I want to stop using the Services?
Castle Pay is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. Castle Pay has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at: email@example.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What about Mobile Applications?
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service apply.
I use the Castle Pay App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
(a) Both you and Castle Pay acknowledge that the Terms are concluded between you and Castle Pay only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Castle Pay, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Castle Pay, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and Castle Pay acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
(j) Both you and Castle Pay acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
What else do I need to know?
Warranty Disclaimer. Castle Pay and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Castle Pay and all such parties together, the “Castle Pay Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Castle Pay Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Castle Pay Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY CASTLE PAY (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE CASTLE PAY PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO CASTLE PAY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Castle Pay Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Castle Pay's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Castle Pay and limits the manner in which you can seek relief from Castle Pay. Both you and Castle Pay acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Castle Pay's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Castle Pay will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Castle Pay will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Castle Pay may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any 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.
(d) Waiver of Jury Trial. YOU AND CASTLE PAY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Castle Pay are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Castle Pay over whether to vacate or enforce an arbitration award, YOU AND CASTLE PAY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Castle Pay is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: firstname.lastname@example.org. postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Castle Pay to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Castle Pay agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Castle Pay.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Castle Pay may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Castle Pay agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Castle Pay, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Castle Pay, and you do not have any authority of any kind to bind Castle Pay in any respect whatsoever.
Except as expressly set forth above in section (j) regarding Apple and its subsidiaries and the “Arbitration Agreement” section regarding Personnel, you and Castle Pay agree there are no third-party beneficiaries intended under these Terms.