Terms of Service
Last Updated: October 4th, 2022
Welcome to the Terms of Service for Empower Finance, which we refer to simply as the "Terms."
Our Terms of Service
These Terms 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) and mobile app ("App"), apply to your use of our products and services, 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 the Arbitration Agreement carefully as it requires you to resolve disputes with us through binding arbitration.
Some of our Services may be subject to additional terms, conditions, agreements, and schedules, which are posted on our website or made available separately from these Terms ("Additional Terms"). Your use of our Services may also be subject to additional policies, guidelines, or rules we also post or make available. Additional Terms, policies, guidelines, and rules are incorporated into and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
Our Fee Schedule here includes the fees you will be charged for our Services We will notify you of any changes to our fees by making changes to the Fee Schedule, delivering notice to you electronically, or by any other method we may use. If you continue using our Services after notice of any fee change, you agree to the change.
Changes to These Terms; Modifications to Services
We may change provisions of these Terms and any other agreement you have with us or any of our bank partners or service providers concerning any Service we make available to you, at any time, including when there are changes in our Services, technology, laws, 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 when posted and will apply prospectively to your use of our Services. We will send you advance notice to you of such changes if required by law. 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.
Consent to Doing Business Electronically
Because our platform operates on the Internet, you consent to transact business with us electronically. 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 any email address that you have provided us, or sending it as a text message to any mobile phone number that you have provided us. We may also send notices to you by postal mail to any postal address 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 posted or 24 hours after sent, 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.
You consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any purposes, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including short message service ("SMS") messages (including text messages), multimedia messaging service ("MMS"), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing systems or automatic texting systems. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one by text.
You consent to receive SMS messages, calls, and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates, or anyone calling on our behalf at the specific numbers you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture, or other means), with information or questions relating to you, your account, or our Services. You acknowledge and agree that standard call, message, and data rates apply. Consent to receive SMS messages is not required as a condition of purchase.
To unsubscribe from text messages at any time, reply STOP to any text message you receive from us. If you unsubscribe, you will be unable to access your account. You consent that following such a request to unsubscribe, you may receive one final text message from us confirming your request and/or providing an alternative to access your account.
Accessing and Using Our Services
Overview. Our Services are designed to create the best place for you to manage your financial life. We think of ourselves as your digital banking platform, providing you access to an integrated set of financial products and services and helping you help yourself by providing opportunities and information targeted at improving your financial situation. Our Services may include access to a checking account, savings account, loan, crypto wallet, and other products and services. Banking products and services are provided by our bank partners.
Third-Party Compensation. We may receive compensation from third-party product and service providers.
We are a Platform, Not an Advisor. Our Services are generally 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 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 matter.
Products and services may be provided by us to you directly or by third parties. If you enter into a transaction with a third-party provider, you are contracting directly with that third party and not with us. We do not guarantee or ensure the availability or terms of any product or service offered by a third-party provider. We are not responsible in any way for any product or service you obtain from a third-party provider. We do not personally endorse any third-party provider, and we make no guarantee that any information provided through our Services by any third party is accurate or complete. We have no control over the conduct of, or over any pricing or other information provided by, a third party (including their compliance with applicable law), and we disclaim all liability in this regard.
Credit Report Consent. You authorize Empower to request and obtain a consumer report from a consumer reporting agency containing information about you, from time to time, for any purpose permitted by applicable law, including for use in connection with a credit transaction, to display your credit profile to you, to confirm your identity to avoid fraudulent transactions in your name, to review your account to determine whether you continue to meet the terms of your account, and for other legitimate business needs in connection with a transaction initiated by you. You further authorize Empower to send you updates to your consumer report and notifications related to your credit profile via push notifications, in-App messages, emails, and text messages.
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 App 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 App, you agree that we may communicate with you by SMS, MMS, or other electronic means to your mobile device, and, as a result, that certain information about your usage of our 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 law enforcement authorities. You agree to not use our Services to:
- email or otherwise upload any content that (a) infringes any intellectual property or other proprietary rights of any person; (b) you do not have a right to upload under any law or under contractual or fiduciary relationships; (c) 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; (d) poses or creates a privacy or security risk to any person; (e) 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 (f) 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;
- violate any applicable local, state, national, or international law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person;
- 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 (defined in the "Services Content, Software, and Trademarks" Section below) available in connection with our Services and the transmission of applicable data, if any, is subject to United States export controls. No Software (defined in the "Intellectual Property Rights" Section below) 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 domestic and foreign laws regarding your use of our Services, including laws concerning 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, upload, access, or use for any commercial purposes our Services or any part of our Services.
You have the option of using bill negotiation services offered by The Bill Reduction Company, LLC ("Billshark") from within the App. Billshark attempts to negotiate a lower price on your bills. Billshark's team of negotiators contact and negotiate with your bill providers directly to attempt to get you better pricing. In order to use Billshark's services, you will be required to confirm or provide certain personal, account, and payment information to us which we will submit to Billshark on your behalf. You acknowledge and agree that your use of Billshark's services is governed by and subject to Billshark's Customer Agreement. Please read Billshark's Customer Agreement carefully before deciding to use its services.
Empower does not own or control Billshark or any other third party whose products or services are available from the App. Empower is not responsible or liable for products and services provided by third parties. If you have a support question or other inquiry related to a third party's products or services, you should send your support question or other inquiry to the third party using the contact information provided in its terms of service or other customer agreement.
This Section applies if you opt into Empower AutoSave in the App.
Your Empower AutoSave Account is provided by nbkc bank, Member FDIC (“nbkc bank”). If you have not opened an Empower Checking Account, then your Empower AutoSave is governed by the Empower AutoSave Account Agreement (“nbkc AutoSave Agreement”) that you can access here. By opening your Empower AutoSave Account or conducting any transaction involving Empower AutoSave, you agree to the terms in the nbkc AutoSave Agreement. If there is a conflict between the provisions in this Section and the provisions in the nbkcAutoSave Agreement, the provisions in this Section will control to the extent of the conflict.
If you have an Empower Checking Account with nbkc bank or opened an account before 5/4/2020, then your Empower AutoSave is governed by the Interest-Bearing Deposit Account Agreement (“Checking Account Agreement”) you can access here. By opening your Checking Account or conducting any transaction involving Empower AutoSave, you agree to the terms in the Checking Account Agreement. The Checking Account Agreement also includes the Truth in Savings Act disclosure. If you are subject to backup withholding, then you are not eligible for an Empower AutoSave Account. If there is a conflict between the provisions in this Section and the provisions in the AutoSave Agreement, the provisions in this Section will control to the extent of the conflict.
Empower AutoSave Rules
Our terms surrounding Empower AutoSave Rules are located here.
This Section applies if you open Empower Checking in the App and have been issued an Empower debit card (“Card”) to make transfers from your Empower Checking Account.
Your Empower Checking Account and Card are provided by nbkc bank. Your Empower Checking and Card are governed by the Interest-Bearing Deposit Account Agreement (“nbkc Deposit Agreement”), which you can access here, and the Consumer Debit Cardholder Agreement (“nbkc Card Agreement”), which you can access here. By opening your Empower Checking or conducting any transaction involving either Empower Checking or your Card issued by nbkc bank, you agree to the terms in the Deposit Agreement and Card Agreement. The Deposit Agreement also includes the Truth in Savings Act disclosure. If you are subject to backup withholding, then you are not eligible for an Empower Checking Account. If there is a conflict between the provisions in this Section and the provisions in the nbkc Deposit Agreement or nbkc Card Agreement, the provisions of this Section will control to the extent of the conflict.
If made available to you in the app, you may be eligible for Empower Perks. Empower Perks rules can be found here.
Illegal Transactions and Internet Gambling
You must not use your Empower Checking or Card for any illegal purpose or internet gambling. You must not use your Empower Savings, Empower Checking, or Card to fund any account that is set up to facilitate internet gambling. We, Evolve Bank, or any of our service providers may deny transactions or authorizations from merchants that are apparently engaged in, or are identified as engaged in, the internet gambling business.
Empower offers qualified users the ability to access “Empower Advance,” a service that provides a Cash Advance at no additional charge. If we detect that you are likely to overdraft your primary checking account (either Empower Checking or your External Bank Account) (“Primary Checking Account”) based on your previous checking account activity, we will alert you to the possibility of overdrawing your Primary Checking Account. Eligible users will then be offered the opportunity to receive a free Empower Advance of an amount specified in the App to their Primary Checking Account. You may also log into your Empower App and request an Empower Advance up to an amount disclosed to you in the App at any time. Although we endeavor to detect when you may overdraw your Primary Checking Account, you should keep up to date on your account balances and make these determinations yourself. You may not rely on us to accurately detect when you may overdraft your accounts.
To be eligible for an Empower Advance, you must meet certain minimum qualifications, which are identified when you request access to Empower Advance. When you request access to use Empower Advance, you give Empower permission to review your Primary Checking Account transactions to ensure you meet these minimum requirements and any other requirements Empower may deem necessary for you to qualify for Empower Advance.
When you use Empower Advance, you also give Empower permission to initiate a withdrawal from your Primary Checking Account for the amount of the Empower Advance plus any applicable tip amount or delivery fee when we forecast that you will receive your next paycheck. If our forecasted pay date is incorrect, or if you would like to change the date of the debit, please contact us at email@example.com. Empower may initiate the withdrawal via ACH or by charging the debit card associated with your Empower Advance profile. If you have insufficient funds to repay Empower, you agree that Empower may, in its sole discretion, withdraw small amounts from your Primary Checking Account, until the balance is repaid in full, or withdraw the full amount of the Empower Advance when sufficient funds are in your Primary Checking Account. You can find the terms here.
We offer you the option to add a tip to each Empower Advance. A tip is not required to receive an Empower Advance. The tip is an additional payment to Empower which will be debited on the repayment date along with the amount of the Empower Advance. The amount of the tip can be edited up to one day prior to the repayment date. A tip is optional and has no impact on your eligibility for future Empower Advances or the amount offered for future Empower Advances. You can only tip up to 20% of the value of the Empower Advance, and the total amount you can Tip in a calendar year is capped at the amount of your Individual Empower Advance limit (e.g., if you are eligible for a $50 Advance, you cannot cumulatively tip more than $50 in a calendar year).
You may request that Empower expedite disbursement of your Advance into your paycheck account by paying an optional fee (the “Instant Delivery Fee”). Alternatively, there are two fee-free delivery options: accept your Advance onto your Empower debit card and receive your funds generally within 1 minute or via ACH into your paycheck account generally within one (1) business day. If you choose to pay the Instant Delivery Fee, we will use a delivery method that will deliver the Advance to you generally within 1 hour. "Instant Delivery” into your external paycheck account is powered by Stripe, Inc. Availability of “Instant Delivery” is subject to user fulfillment of Stripe’s services agreement found at https://stripe.com/legal. The amount of the Instant Delivery Fee is dependent upon your offer amount as outlined below and will be debited on the repayment date along with the amount of the Empower Advance:
Offer amount, $
Instant Delivery Fee, $
$50.00 - $74.99
$75.00 - $99.99
$100.00 - $149.99
$150.00 - $199.99
$200.00 - $249.99
$250.00 or more
We offer Empower Advances on a nonrecourse basis. This means you have no unconditional obligation to repay any Empower Advance. Consequently, we warrant to you that we have no contractual or legal claim against you for an Empower Advance, and we will not engage in debt collection activities, place the amount advanced with or sell to a third party, or make any reports to credit reporting agencies regarding your Empower Advance. However, we reserve the right to deny you access to Empower Advance if you (i) do not meet the qualification requirements, (ii) request an excessive number of Empower Advances in succession, or (iii) do not repay the full balance of an Empower Advance. Empower does not waive any rights regarding fraudulent activity, and Empower will pursue instances of fraud.
If, in providing Empower Advance, Empower causes an overdraft related to attempting to withdraw funds from your External Bank Account or Empower Checking, then we will reimburse any fee arising from the overdraft. To receive the refund, please contact us at firstname.lastname@example.org.
You may access Empower Advance (as well as the Empower Checking Account) without subscribing to the Empower subscription service. To do so, please email email@example.com and state that you would like an Empower Advance without subscribing to the Empower subscription service.
Empower Subscription Fees
Our terms surrounding Empower Subscription Fees are located here.
Empower occasionally offers referral incentives to its customers. The terms and conditions of any ongoing referral programs can be found here.
Intellectual Property Rights
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 (for example, 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 with our Services are the property of Empower, our affiliates, and our partners (collectively, 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 in these Terms 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. We and our designees 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 our 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 User Content, including all copyrights and rights of publicity. By uploading any User Content you 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 User Content 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 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, products, 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.
Indemnity and Release
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, liabilities, damages, costs, expenses, fees (including reasonable attorneys' fees), claims, proceedings and 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. This Indemnity and Release will survive termination of these Terms.
Disclaimer of Warranties
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 make 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.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EMPOWER AND ANY THIRD-PARTY 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: (1) THE USE OR THE INABILITY TO USE OUR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICES; (3) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; OR (5) 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 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. THIS SECTION WILL SURVIVE TERMINATION OF THESE TERMS .
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 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. You agree that we will not be liable to you or any third party for any termination of your access to our Services.
Disputes with Other Users
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 for your interactions. 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.
If you owe a debt to us, our bank partner, service providers, or any of our respective affiliates (either now or in the future), you grant us a right of setoff to, and a security interest in, all of your accounts with us to secure the debt. Debts include any overdrafts or fees you owe, as well as amounts owed us by another person or entity if you have guaranteed that you will pay their debts. Our security interest will be governed by Uniform Commercial Code Article 9 (as adopted by the applicable state law) whether Article 9 applies by its terms or not. We do not have to give you any prior notice to apply the funds. The right of setoff does not apply if the debt is created under a personal credit card plan.
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 may also 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, or any of its affiliates or service providers, to exercise or enforce any right or provision of these Terms or any other agreement you enter into in connection with the Services, will not constitute a waiver of such right or provision. If any provision of these Terms or any other agreement you enter into in connection with the Services is found by a court of competent jurisdiction to be invalid, 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 agreements 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 1 year 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.
Notice for California Users
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.
Special Terms Regarding Apple-Enabled Software Applications
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 these Terms 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: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) 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 (a) 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 (b) 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 firstname.lastname@example.org.
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 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.
Dispute Resolution by Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate
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. 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.
Prohibition of Class and Representative Actions and Non-Individualized Relief
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 CLAIMS.
Pre-Arbitration Dispute Resolution
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 email@example.com. 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 660 York St, Ste 102, San Francisco, CA 94110 ("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 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 will 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, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, https://www.adr.org/Consumer.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 Terms 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.
Costs of Arbitration
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 Section 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 Section 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.
Future Changes to Arbitration Agreement
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 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 the effective date of any subsequent changes to these Terms).
You may contact us in-app or by email at firstname.lastname@example.org.