Welcome to the Terms of Service for Empower Finance, which we refer to simply as the “Terms.”
These Terms by and between Empower Finance, Inc., its subsidiaries, affiliates, agents and assigns (“Empower,” “us,” “we,” “our”) and our end users (“you,” “your”) of our website (www.empower.me), apply to your use of our products and services, and our mobile app, which we refer to collectively as our “Services”. You can use our Services only if you can lawfully enter into and form contracts under applicable law. If you use our Services, you must do so in compliance with these Terms and with applicable law. If you do not want these Terms to apply, please do not use our Services. Please note that these Terms contain an Arbitration Agreement at the end under “Dispute Resolution by Binding Arbitration.” Please read this carefully as it requires you to resolve disputes with us through binding arbitration
We may change portions of these Terms at any time, including when there are changes in our Services, technology, regulatory environment, or for other reasons. If we do, we will provide notice by posting the updated Terms on our website and by updating the “Last Updated” date above. Any changed Terms will become effective no earlier than 14 days after they are posted and will apply prospectively to your use of our Services after the changes become effective, except that changes addressing modifications to our Services or new functions or changes made for legal reasons may be effective immediately. Your continued use following the effective date of any changes will constitute your acceptance of them. If you do not agree to any changed Terms, you must discontinue using our Services. We may discontinue, temporarily or permanently, our Services, or any part of our Services, with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of our Services.
Overview. Our Services are designed to create the best place for managing your financial life in a mobile environment. Our Services enable you to connect and view various online or app-based financial and finance-related accounts in one place. Our Services also permit you to analyze these accounts, set up automated savings and debt payments, view and monitor your credit information, transfer funds between accounts, as well as receive offers relating to various financial products and services, including loans, payments, money transmission, and passive investment and savings vehicles from third parties.
Third Party Compensation. We may receive compensation from third party product providers in exchange for the services we provide to users.
We are a Platform, Not an Agent, Broker, Insurer, or Advisor. Our Services are designed to serve as an administrative platform only, providing you facilities and information for you to manage and make decisions about your finances. We are not a broker, an agent of a third party product provider, an insurer, or otherwise a party to any transaction you enter into with any third party product provider. We are not a financial advisor, and our Services are not designed or intended to offer financial advice of any kind. You acknowledge and agree that you are not relying on us to provide advice regarding any financial transaction. You acknowledge and agree that we are not a party to any transactions or agreements entered into between you and any third party product providers. If you enter into a transaction with a third party, you are contracting directly with that third party provider and not with us. Lastly, the agreements governing the terms and conditions of any transaction with a third party are separate from our Services.
Additionally, we do not guarantee or ensure any loan or credit amount, transaction fees, or the availability or terms of any offer. We are not responsible in any way for any product or service you obtain from a third party. We do not accept funds from you or transmit them to a third party. We do not collect or process payments on behalf of you or any third party product provider. We do not personally endorse any third party product provider, and we make no guarantee, explicit or implied, that any information provided through our Services by any third party product provider or other third party is accurate. We have no control over the conduct of, or over any pricing or other information provided by, a third party product provider (including their compliance with applicable law), or other third party, and we disclaim all liability in this regard.
Account Security. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to exit from your account at the end of each session. You also agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. We will not be liable for any loss or damage arising from your failure to comply with this section.
Usage and Storage. You acknowledge that we may establish general practices and limits concerning use of our Services, including the maximum period of time that a user may retain data or other content using our Services and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by our Services. You acknowledge that we reserve the right to terminate accounts that are inactive for a period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
Mobile App. Our Services include certain services that are available via a mobile device, including the ability to upload content to our Services using a mobile device, browse our Services from a mobile device, and access certain features through an application downloaded and installed on a mobile device. To the extent you access our Services through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain mobile services may be prohibited or restricted by your carrier, and not all mobile services may work with all carriers or devices. By using our mobile app, you agree that we may communicate with you by SMS, MMS, text message, or other electronic means to your mobile device and as a result, that certain information about your usage of our mobile app may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to a person who acquires your old number.
Prohibited Activities. You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, or other materials that you upload, post, publish, display, email, or otherwise use via our Services. The following are examples of the kind of content and/or use that is illegal or prohibited. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this section, including suspending or terminating your account and reporting you to the law enforcement authorities. You agree to not use our Services to:
email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically, or otherwise objectionable; or (vi) in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying our Services, or which may expose us or our users to any harm or liability of any type;
interfere with or disrupt our Services, servers, or networks connected to our Services, or disobey any requirements, procedures, policies, or regulations of networks connected to our Services;
violate any applicable local, state, national, or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
harvest or collect email addresses or other contact information of other users from our Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
obtain, or otherwise attempt to access or obtain, any materials or information through any means not intentionally made available or provided for through our Services.
Territorial Restrictions. Software (as defined below under “Services Content, Software, and Trademarks”) available in connection with our Services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from our Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using our Services is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of our Services, including as it concerns online conduct and acceptable content.
Commercial Use. Unless otherwise expressly authorized in these Terms or in our Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of our Services, including use of or access to our Services, or those of third party product providers.
Overview. You can use our Services to help you automate transfers to your checking, savings and investment accounts or to make payments on your bills, credit card and other loan accounts with funds from your bank account. You can make a one-time payment or you can sign up for automatic recurring payments or transfers. We have partnered with an unaffiliated third party financial institution (“Bank Partner”) to provide this feature of the Service (this “Feature”). To use this Feature, you must link, successfully verify, and maintain a U.S. bank account from which your transfers and payments may be debited (“Funding Account”). A Funding Account may include a checking or savings account. You must also designate an account or recipient to which funds may be sent (“Recipient”).
You may send money from your Funding Account to a Recipient by entering payment instructions on our mobile app authorizing (1) a one-time transfer from your Funding Account to a designated Recipient, or (2) a recurring series of preauthorized ACH transfers to a designated Recipient based on “Rules” that you set within the App.
When you authorize a transfer or payment, funds will be withdrawn from your Funding Account. Funds withdrawn from your Funding Account are held in a pooled account established by, and held at, the Bank Partner. These funds are later transferred from the pooled account to your designated Recipient. It is important you understand that you do not have access to, or control over, the pooled account. The pooled account does not pay you interest. Funds held in the pooled account are not eligible for Federal Deposit Insurance Corporation insurance.
We may offer you our Services, including this Feature, through our Bank Partner and one or more service providers we engage to render some or all of our Services to you. You agree that we have the right under these Terms to delegate to our Bank Partner and service providers some or all of the rights and performance obligations we have under these Terms, and that our Bank Partner and service providers will be entitled to all the rights and protections that these Terms provide to us. You authorize us to share any information you provide or we obtain relating to this Feature with our Bank Partner or any other party we use to provide this Feature. We may change bank partners or other parties we use to provide our Services.
Authorization. When you initiate a transfer or payment using this Feature, you authorize us and our Bank Partner to debit your Funding Account for the amount of your transfer request, plus any applicable fees. You also authorize us and our Bank Partner to initiate credits to you or your designated Recipient.
Fees. We reserve the right to charge fees in connection with the use of our Services. For a list of fees that may apply, please see our Fee Schedule. We will notify you of any changes to our fees by making changes to the linked Fee Schedule, delivering notice to you electronically, or by any other method we may use. If you continue using the Services after such notice, you must pay all applicable fees for the Services.
Limits. We may set a maximum dollar amount or frequency limitations on payments and transfers or other restrictions if we reasonably believe restrictions are necessary or advisable for security reasons or to prevent misuse, fraud or an illegal act. You may not use our Services to transfer funds outside of the U.S. The financial institution that holds your Funding Account or Recipient’s account may impose dollar amount, frequency or velocity limitations on your ability to withdraw, transfer, or deposit funds. We are not liable for our inability to complete a transaction due to any such limitation.
Timing. To help ensure that there is enough time for funds to be delivered to the Recipient per your instructions, we may impose a “cutoff time” by which time you must authorize the payment.
Stopping Payments. Your authorization to transfer funds or make a payment will remain in effect unless you timely notify us that you wish to revoke your authorization. Once you have authorized a transaction, we cannot guarantee that you may cancel the transaction, that we can reverse the transaction, or that we can provide you a refund, except as required by law. If you wish to revoke your authorization for a preauthorized, recurring transfer, you must notify us at least three (3) business days in advance of the scheduled transaction by contacting us at email@example.com or by cancelling the transaction within the mobile app.
Questions, Errors, Lost Credentials. ALL QUESTIONS ABOUT TRANSACTIONS MADE THROUGH THIS FEATURE MUST BE DIRECTED TO US, AND NOT TO THE BANK OR OTHER FINANCIAL INSTITUTION WHERE YOU HAVE YOUR FUNDING ACCOUNT. We are responsible for this Feature and for resolving any errors we caused.
You acknowledge and agree that if your payment instructions identify an account by name and account number, those payment instructions may be executed by reference to the account number only, even if the account number does not correspond to the account name. You further acknowledge and agree that financial institutions holding the account may choose to not investigate discrepancies between account names and account numbers and that we have no responsibility to investigate discrepancies between account names and account numbers.
We will not send you a periodic statement listing transactions that you make through this Feature. The transactions will appear on the Funding Account statement issued by your bank or other financial institution. SAVE ANY RECEIPTS OR INFORMATION WE MAKE AVAILABLE TO YOU WHEN YOU USE THIS FEATURE AND CHECK THEM AND YOUR EMPOWER ACCOUNT HISTORY IN THE MOBILE APP AGAINST THE FUNDING ACCOUNT STATEMENT YOU RECEIVE FROM YOUR BANK OR OTHER FINANCIAL INSTITUTION. If you have any questions about one of these transactions, contact us using the chat feature within the mobile app or write us at firstname.lastname@example.org.
IF YOUR CREDENTIALS TO ACCESS THIS FEATURE ARE LOST OR STOLEN, NOTIFY US AT ONCE by writing to us at email@example.com.
You could lose all the money in your Funding Account (plus your maximum overdraft line of credit). If you tell us within 4 business days after you learn of the loss or theft of your credentials, you can lose no more than $50 if someone used your credentials without your permission.
If you do NOT tell us within 4 business days after you learn of the loss or theft of your credentials, and we can prove we could have stopped someone from using your credentials without your permission if you had told us, you could lose as much as $500.
Business Days. For purposes of this section of these Terms, our business days are Monday through Friday. Holidays are not included.
Unauthorized Transactions. You must notify us immediately if you suspect or believe that a transaction has occurred through this Feature that you did not authorize or if you believe an incorrect amount was authorized. You may contact us at firstname.lastname@example.org or via the in-app chat feature. If your Funding Account statement provided by your financial institution shows payments you did not make, tell us at once. If you do not tell us within 90 days after the statement or history was transmitted or made available to you, you may not get back any money you lost after the 90 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time period. If you initially provide information to us by telephone, we may require that you send your complaint or question in writing within 10 business days. You will be asked and are required to provide us with the following information: your name; the email address registered for this Feature; a description (including dollar amount) of the transfer you are unsure about; an explanation of why you believe it is an error or why you need more information; a reference/transaction ID; an explanation why you believe there was an unauthorized transaction or error; and any other information we reasonably request. We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we provisionally credit your account and we determine that no error occurred, we may reverse the credit. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.
For errors involving new accounts, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.
We will tell you the results within 3 business days after completing our investigation. If we decide that there was no error, we will send you an explanation. You may ask for copies of the documents that we used in our investigation.
Incomplete Transfers. Except to the extent required by law, we will not be liable for any losses, such as penalty interest, late fees, overdraft fees, and other damages resulting from our failure to complete a transfer. We may not complete a transfer, for instance:
a. if you do not have enough money in your Funding Account;
b. if the payment is rejected or returned by the Recipient or financial institution holding the Recipient’s account;
c. if you have provided incorrect information;
d. if the Funding Account is closed or the funds otherwise cannot be accessed by us;
e. if the payment would go over the credit limit on your overdraft line;
f. if we provided notice that this Feature is unavailable;
h. due to circumstances beyond our control (for example, fire, flood, interference from an outside source or any failure by your computer, software, or Internet connection); or
i. based on other exceptions stated in these Terms
If we cannot complete a transfer, you agree that we may reverse any credit we advanced to your Recipient on your behalf, and you agree to indemnify us against any claims arising out of such reversals. If we are unable to reverse an advance made on your behalf, you agree that we may seek repayment from you, as permitted by law, for example by re-initiating a debit from your Funding Account, or offsetting the advance by debiting another account you linked to our your Empower account.
Confidentiality. We will disclose information to third parties about payments you initiate or make:
a. as necessary to complete payments or provide this Feature;
b. in order to verify the existence and condition of your Funding Account for a third party, such as a credit bureau or merchant;
c. in order to comply with government agency or court orders;
d. if you give us your written permission;
e. with our Bank Partner or any other third party we use to provide this Feature; or
f. as provided elsewhere in these Terms.
You agree that we may provide notices to you by electronic means, for example, by posting it on our website, sending you an in-app message, emailing it to an email address that you have provided us, mailing it to any postal address that you have provided us, or by sending it as a text message to any mobile phone number that you have provided us. All notices by any of these methods will be deemed received by you no later than the earlier of when received or 24 hours after sent or posted, except for notice by postal mail, which will be deemed received by you no later than the earlier of when received or 3 business days after it is mailed.
Services Content, Software and Trademarks. You acknowledge and agree that our services may contain content or features ("Services Content") that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on our Services or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below under “User Content Transmitted Through our Services”) that you legally upload to our Services. In connection with your use of our Services you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by us from accessing our Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of our Services or the Services Content other than as specifically authorized in these Terms is strictly prohibited. The technology and software underlying our Services or distributed in connection therewith are the property of Empower, our affiliates, and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by us.
The Empower name and logos are our trademarks and service marks (collectively the "Empower Trademarks"). Other product and service names and logos used and displayed via our Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in these Terms or our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Empower Trademarks displayed on our Services, without our prior written permission in each instance. All goodwill generated from the use of Empower Trademarks will inure to our exclusive benefit.
Third Party Material. Under no circumstances will we be liable in any way for any content or materials of any third parties (including users), including for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content. You acknowledge that we do not pre-screen content, but that we and our designees will have the right (but not the obligation) in our and their sole discretion to refuse or remove any content that is available via our Services. Without limiting the foregoing, we and our designees will have the right to remove any content that violates these Terms or is deemed by us, in our sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Services. With respect to the content or other materials you upload through our services or share with other users or recipients (collectively, "User Content"), you represent and warrant that you own all right, title, and interest in and to such User Content, including all copyrights and rights of publicity. By uploading any User Content you hereby grant and will grant us and our affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content solely in connection with the operation of our Services in any form, medium, or technology now known or later developed. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about our Services, submitted by you to us are non-confidential, and we will be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You understand that the technical processing and transmission of our Services, including your content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
Our Services may provide, or third parties may provide, links or other access to other sites and resources on the Internet. We have no control over such sites and resources, and we are not responsible for and do not endorse such sites and resources. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods, or services available on or through any such site or resource. Any dealings you have with third parties found while using our Services are between you and the third party, and you agree that we are not liable for any loss or claim that you may have against any such third party.
You agree to release, indemnify, and hold us, our third party product providers, our and their affiliates, officers, employees, directors, and agents harmless from any and all losses, damages, and expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of our Services, any content, your connection to our Services, your violation of these Terms, or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We makes no warranty that our Services will meet your requirements, that our Services will be uninterrupted, timely, secure, or error-free, that the results that may be obtained from the use of our Services will be accurate or reliable, or that the quality of any products, services, information, or other material obtained by you through our Services will meet your expectations.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EMPOWER AND ANY THIRD PARTY PRODUCT PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF EMPOWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE OUR SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICES; (III) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; OR (V) ANY OTHER MATTER RELATING TO OUR SERVICES. IN NO EVENT WILL EMPOWER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID EMPOWER IN THE LAST 6 MONTHS OR IF GREATER, $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SERVICES.
You agree that we, in our sole discretion, may suspend or terminate your account (or any part of your account) or use of our Services and remove and discard any content within our Services, for any reason, including for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of our Services may be referred to appropriate law enforcement authorities. You agree that any termination of your access to our Services under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or our Services. Further, you agree that we will not be liable to you or any third party for any termination of your access to the our Services.
You agree that you are solely responsible for your interactions with any other user in connection with our Services, and Empower will have no liability or responsibility with respect thereto. Empower reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of our Services.
These Terms constitute the entire agreement between you and Empower and govern your use of our Services, superseding any prior agreements between you and Empower with respect to our Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content, or third party software. These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth below, you and Empower agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of Empower to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Services or these Terms must be filed within 1year after such claim or cause of action arose or be forever barred. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without our prior written consent, but we may assign or transfer these Terms, in whole or in part, without restriction.
Under California Civil Code Section 1789.3, users from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
We offer software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to software that is made available for your use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:
Empower and you acknowledge that the Empower Terms of Service are concluded between Empower and you only, and not with Apple, and that as between Empower and Apple, Empower, not Apple, is solely responsible for the Apple-Enabled Software and its content.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Empower’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Empower and you acknowledge that Empower, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Empower and Apple, Empower, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Empower by email at email@example.com.
Empower and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third party beneficiary.
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Empower, whether arising out of or relating to these Terms (including any alleged breach), our Services, any advertising, any aspect of the relationship, or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Empower are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND EMPOWER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EMPOWER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Empower is always interested in resolving disputes amicably and efficiently, and most user concerns can be resolved quickly and to the user’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Empower should be sent to 25 Taylor Street, San Francisco, CA 94102 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Empower and you do not resolve the claim within 60 calendar days after the Notice is received, you or Empower may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Empower or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you are or Empower is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Term and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Empower and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of each’s ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Empower agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Empower will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Empower will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Empower will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void. The remainder of these Terms will continue to apply.
Notwithstanding any provision in these Terms to the contrary, Empower agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of our Services, you may reject any such change by sending Empower written notice within 30 calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms)