Last Modified: July 23, 2024
These Terms of Use (the "Terms")govern the relationship between Binkey Inc. (“Binkey,” “we,” “us”,or "our") and visitors and users ("Users,""you," or "your") of our website atwww.binkey.com ("Site") and our online services, including Binkey Pay, Binkey Bursements, Binkey Rewind, and Binkey Vision (the "Service"and collectively, together with the Site, the “Services”).
By accessing or using any of ourServices, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms, whether or not you are a registered user of our Service. Where you have entered into a separate agreement with Binkey, such as an order form or services agreement, the separate agreement shall govern. You also understand and acknowledge that information that can be used to contact or identify you ("Personal Information") will be collected, used, and otherwise processed in accordance with our privacy notice and policy located at https://www.binkey.com/privacy-policy (the "Privacy Policy").
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 15.2 (THE “ARBITRATION AGREEMENT”)AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 15.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 15.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND BINKEY, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS,AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIN OR PROCEEDING.
1.1 Overview
Subject to the provisions of these Terms, and as part of ourService, we may provide to you a Binkey account, Health Benefit Account-related services, other restricted account-related services, and payment services. Such payment services include, without limitation, Health Benefit Account information and Health Benefit Account payment services on Partners’ websites (“Binkey Pay Service”). As part of such payment services, all funds transfer services are provided by our third-party payment processor (“PaymentProcessor”), as Binkey does not receive, hold, or transmit funds.Furthermore, Binkey does not provide medical advice, diagnosis, or treatment, nor are we an employee health or welfare benefit plan or insurance. A “Partner”means a merchant, business or other third party that has been authorized by us to use or incorporate certain of our Services, such as Binkey Pay, Binkey Bursements, Binkey Rewind and/or Binkey Vision, on such party’s website. Or a third-party entity that refers customers to Binkey or through which customers become aware of Binkey's services. “Health Benefit Account” means an individual-owned, or employer- or government-sponsored benefit account designed to help Users cover a range of out-of-pocket health expenses and other expenses, such as a health savings account and flexible spending account.
1.2 Binkey Pay
As part of our Binkey Pay Service, you may link or unlink your health benefit cards, credit cards or debit cards (“Payment Method”) to your Binkey Account. You authorize us (through our Payment Processors) to make a payment to a Partner that is funded by your Payment Method. You are solely responsible for complying with any and all terms set by your bank and plan administrator with respect to your Payment Method, including without limitation any fee terms, such as in sufficient fund or overdraft fees or eligible expenses. You further acknowledge that normal card processing clearing times may apply to certain transactions processed through the Binkey Pay Service, and Partners may wait until they have received your funds before fulfilling your purchases.
In connection with all transactions through the Binkey Pay Service, you are responsible for both (i) providing accurate, complete, and current information to us and (ii) maintaining sufficient funds in your Payment Method, and you acknowledge and agree that otherwise, we will not be able to provide the Binkey Pay Service to you and Partners will not be able to accept your payments through the Binkey Pay Service. You agree to pay all charges incurred by all individuals who use yourPayment Method in connection with transactions through the Binkey Pay Service, at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such transaction.
We may review and allow our Third-Parties to review payments you make using the Binkey Pay Service in our sole discretion. When we identify a potentially high-risk payment to a Partner, we reserve the right to suspend and review the transaction more closely before determining whether to allow it to proceed. When this happens, we may place ahold on the transaction and notify the Partner to delay or cancel shipping of the item or provision of the service. If, in our sole discretion, we clear the transaction, we will notify the Partner and direct them to ship the item or provide the service, as applicable, if the item or service is still available.If we do not clear the transaction, we will cancel it and return the applicable funds to your Payment Method, unless we are legally required to take other action. We assume no responsibility, and disclaim any and all liability, for your inability to obtain the item or service originally transacted for as a direct or indirect consequence of the process described above, and you hereby release Binkey, each Partner, and the affiliates, agents, licensors, managers, employees, contractors, agents, officers, and directors of Binkey and of each Partner from any and all such liability.
When you buy something from a Partner using the Binkey Pay Service and the transaction is ultimately cancelled or rescinded in whole or in part, the applicable funds will be refunded to thePayment Method that was linked to your Binkey Account at the time of the transaction. You hereby authorize us (through our Third-Parties where applicable) and your bank to credit that Payment Method to complete such refund transaction. If a different Payment Method is linked to your Binkey Account at the time at which the refund is expected, Binkey may require you to unlink such different Payment Method from your Binkey Account and to re-link the original Payment Method to your Binkey Account before processing your refund.
We or our Third-Parties may invalidate and reverse payments through the Binkey Pay Service if, among other reasons: (i) we sent the payment in error; (ii) the funding transaction is declined or reversed by you, your bank, or the applicable Partner; (iii) the payment was unauthorized or insufficiently funded; (iv) we decided a dispute against you, in our sole discretion; or (v) if the payment was for Restricted Goods orServices (as defined below). In the event of such invalidation or reversal, you may be liable to us for the full amount of the payment, and we may recover the amount of the payment plus any fees from you, subject to applicable law. You hereby authorize us to recover any such amounts due by initiating an electronic transfer from your Payment Method or engaging in collection efforts. If you dispute a payment through the Binkey Pay Service, you must notify us in writing at info@joinbinkey.com immediately, and if you fail to do so, we may recover the amount of the reversed payment from you. Upon our receipt of the foregoing notice, we will initiate an investigation into the applicable transaction and, in our sole discretion and subject to your cooperation, we may provide you with a full refund. Notwithstanding anything to the contrary herein, your eligibility for refunds and reversals are subject to the InternalRevenue Services’ (“IRS”) guidelines, and each Partner’s terms and conditions in place between you and the Partner ("Partner Terms") and the Partner's policies.
1.3 Binkey Rewind
As part of our Service, we make available to you a tool to help you determine eligible expenses, and then file the claim(s) for reimbursement(s) from your Health Benefit Accounts (suchService, “Binkey Rewind” or “Binkey Rewind Service” or “Binkey Bursements”). In connection with Binkey Rewind, you may direct us to retrieve your account information from third parties (e.g., email accounts, accounts you maintain with financial institutions, Health Benefit Accounts ,etc.) (“Account Information”). In addition, you may provide us with a copy of your receipts relating to your transactions and expenses that may be eligible for reimbursement from your Health Benefit Accounts (“Receipts”). You agree that we may use Account Information and Receipts in order to locate and retrieve expenses and other information about past expenses that may be eligible for reimbursement from your Health Benefit Accounts, to assist you in filing for reimbursement from your Health Benefit Accounts, and to provide and improve our Services. We do not review Account Information and Receipts for accuracy and we are not responsible for any issues resulting from such information, including any inaccuracy, error, delay or non-delivery. We may work with one or more third party providers to access and retrieve such Account Information.
Based on the Account Information andReceipts, our Binkey Rewind Service may assist you in identifying transactions that could be eligible for reimbursement from your Health Benefit Accounts. You are solely responsible for determining whether your transactions are eligible for reimbursement from your Health Benefit Accounts. We make no representation and will not be liable or responsible for identifying transactions that do not end up being eligible for reimbursement, in whole or in part, or for not identifying transactions that are eligible for reimbursement.
Binkey Rewind may require you to log into your merchant account to access your purchase history and identify eligible transactions for reimbursement. To streamline this process, Binkey may securely store your merchant account credentials for future logins.
The Binkey Rewind Service also provides a tool to assist you in filing a claim for reimbursement from yourHealth Benefit Accounts for transactions you identify as eligible for reimbursement. In connection with such claim, you will need to provide additional information about your Health Benefit Account and other information related to such claim. You are responsible for the overall accuracy and completeness of all information in your claim, including the amounts you designate as eligible for reimbursement.
Depending on whether you are accessing Binkey directly or through a Binkey Partner, and the agreed-upon method for reimbursement, funds may be directed to a designated account or directly to your bank account. To redirect future reimbursements to a different account, you must update your direct deposit information with your third-party administrator directly. Binkey is not responsible for any errors or delays in updating direct deposit information with your third-party administrator
Binkey is not a bank, banking Services provided by Avidia Bank ("Bank"). We may partner with one or more third party financial institutions to process and custody funds paid to you by your Health Benefit Account provider in connection with such claims you submit using the Binkey Rewind Service. All funds will be held in an account in the name of Bank for the benefit of you and other customers, and you hereby authorize Binkey, Bank and your applicable bank to complete any and all bank transactions requested by you or required to provide you the Binkey Rewind Service, as further described in these Terms. We have no interest in such funds, and you may only access funds in accordance with these Terms. You authorize Bank to act as your agent for purposes of processing payments and receiving and holding such funds. You may request via the Services to remit payments of such funds to your designated U.S. bank account, and, in connection with such request, you authorize us to require the Bank to remit payments of such funds via bank transfer to such bank account. We may place a micro-deposit in your bank account in order to confirm the bank account is valid, and once-confirmed, the micro-deposit will be removed from such bank account. We may also make available to you financial products or services provided by third parties (“Third Party Financial Products”) which you may obtain using the funds paid to you in connection with such claims. Your access and use of such Third PartyFinancial Products will be subject to the terms and conditions of the applicable provider of such Third Party Financial Products. If the services ofPlaid are used to process payments, you agree to abide by the End User ServicesAgreement of Plaid, available at https://plaid.com/legal/#end-user-services-agreement-us, and agree to the privacy policy of Plaid, available at https://plaid.com/legal/#end-user-privacy-policy. You agree to your personal and financial information being transferred, stored, and processed by Finicity in accordance with the Finicity’s Privacy Notice, available at https://www.finicity.com/privacy/.
You acknowledge and agree that your Health Benefit Account provider may reject any claim, in whole or in part, you submit using the Binkey Rewind Service. We do not control the decisions of anyHealth Benefit Account provider and make no promises or guarantees of any kind regarding their decisions. If you have a dispute related to such claim or decision by your Health Benefit Account provider, such dispute will be between you and the applicable Health Benefit Account provider, and not with us. You release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages(actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise)that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You agree that all information you provide to us in connection with the Binkey Rewind Service, including AccountInformation, Receipts, Health Benefit Account information and other information, is accurate and complete.
1.4 Binkey Vision
As part of our Service, we may make available to you on certain third party e-commerce websites that integrate ourServices (“Vision Partners”) a tool to facilitate your filing of insurance claims with your vision insurance provider (“Insurance Provider”) for eligible purchases under your vision insurance (“Vision Insurance”) on such Vision Partner’s website (such Service, “Binkey Vision” or “Binkey Vision Service”). In connection with Binkey Vision, you may direct us to retrieve certain Account Information from third parties (e.g., accounts you maintain with Insurance Providers or Vision Partners. You agree that we may use such Account Information in order to facilitate your filing of your insurance claim, and to provide and improve our Services. We do not review Account Information for accuracy and we are not responsible for any issues resulting from such information, including any inaccuracy, error, delay or non-delivery.We may work with one or more third party providers to access and retrieve such Account Information.
The Binkey Vision Service provide a tool to assist you in filing a claim for reimbursement from your InsuranceProvider for certain eligible transactions you purchase on a Vision Partner’s website. In connection with such claim, you will need to provide additional information about your Vision Insurance and other information related to such claim. You are responsible for the overall accuracy and completeness of all information in your claim, including the amounts you designate as eligible for reimbursement.
Your Insurance Provider may pay you directly the applicable amount related to your approved claims submitted using the Binkey Vision Service. We are not responsible for the payment of any claims you submit using the Binkey Vision Service. The Insurance Provider may You acknowledge and agree that your Insurance Provider may reject any claim, in whole or in part, you submit using the Binkey Vision Service. We do not control the decisions of any Insurance Provider and make no promises or guarantees of any kind regarding their decisions. If you have a dispute related to such claim or decision by yourInsurance Provider, such dispute will be between you and the applicableInsurance Provider, and not with us. You release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You agree that all information you provide to us in connection with the Binkey Vision Service, including AccountInformation, Vision Insurance information and other information, is accurate and complete.
2.1 Eligibility
This is a contract between you and Binkey governing your use of the Services. You must read and agree to these Terms before using our Services. If you do not agree, you may not use the Services. You may use the Services only if you are a resident of the United States or one of its territories and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of this Agreement. Unless otherwise agreed in writing by Binkey, the Services are not available to any Users previously removed from the Services by Binkey.
2.2 User Verification
In determining whether you may use the Service with Partners, we reserve the right to verify or have our Payment Processor or other third-party we partner with ("Third-Parties") verify the required identifying information you provide to us (including, without limitation, your mobile phone number, insurance information, debit and credit card information, name, and email address). If we are not able to verify your health benefit card at the time of your initial purchase on the Service, you may be offered the option to pay for such purchase using your credit card or debit card.
2.3 User Accounts
Your account on the Service (your "Binkey Account") gives you access to the features and functionality that we may establish and maintain from time to time and in our sole discretion. If you open a Binkey Account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on such entity’s behalf.
You may never use another User’s account on our Service without permission, nor create multiple Binkey Accounts for illegitimate purposes, as determined by us, in our sole discretion. When creating your Binkey Account, you must provide accurate and complete information, such as your mobile phone number, email and other contact information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Binkey Account, and you must keep your Binkey Account secure. You must notify Binkey immediately of any breach of security or unauthorized use of your Binkey Account. Binkey will not be liable for any losses caused by any unauthorized use of your Binkey Account.
By providing Binkey your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail.We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out of receiving such email messages by clicking on the “unsubscribe” link in the email message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
3.1 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Binkey servers than a human can reasonably produce in the same period of time by using a conventional online web browser (except that Binkey grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load in our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any Personal Information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person, misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
3.2 Restricted Goods and Services
You will not, without Binkey’s prior written consent, use the Service to purchase Restricted Goods or Services, and Binkey reserves the right to prohibit the use of the Service to purchase such goods or services. “Restricted Goods or Services” means goods or services which Binkey considers, in its sole discretion, to be dangerous, inappropriate for the Service, or high risk, for example, but not in limitation, (i) goods or services that are illegal under applicable law (i.e., goods or services that infringe third- party intellectual property, including without limitation counterfeit goods and pirated content); (ii) inherently dangerous goods, including without limitation illegal drugs or derivatives thereof, cannabidiol products and nutraceuticals, psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions for making explosives or harmful products, or tobacco products; (iii) pornographic materials; (iv) products that enable dishonest behavior, including without limitation hacking software or instructions, fake documents, and academic cheating products; (v) without limiting the foregoing, any goods or services which are prohibited by law to be sold to customers under 18 years of age; and (vi) gift cards.
Binkey does not sell products; Partners do. All products that may be purchased on a Partner's ecommerce platform ("Partner Platform") using our Service are transported and delivered to you by a Partner or independent third party of thePartner not affiliated with, or controlled by, Binkey. Title to and risk of loss for such products passes to you in accordance with the applicable Partner's Partner Terms. If you have any issue with a product, please reach out to the applicable Partner directly.
The Services may contain, display, include or make available content, data, information, applications, services or materials from third parties, including links to third-party materials (“Third-Party Materials”), including, without limitation, links to various Payment Methods through our Payment Processors, and Third Party Financial Products. By using our Service, you agree to be bound by the applicable third-party's terms of service. Binkey does not endorse or assume any responsibility for any such Third-Party Materials, including the content, accuracy, completeness, timeliness, validity, quality or any other aspect of such Third-Party Materials. If you access Third-Party Materials from or through the Services, you do so at your own risk, and you understand that your access and use of any Third-Party Materials will be governed solely by the terms and conditions of such Third-Party Materials. You expressly release Binkey from any and all liability arising from your use of any Third-Party Materials. Additionally, your dealings and interactions with third parties found on or through theService, including without limitation payment and delivery of goods or services, return and refund of goods or services, customer service, receipt of marketing emails and other communications, and any other terms (such as warranties), are solely between you and such third parties. You agree that Binkey shall not be responsible for any loss or damage of any sort relating to your dealings with such third parties. You are responsible for resolving any and all disputes that you may have with such third-parties, including Partners.
5.1 Limited License
Subject to the provisions of these Terms, you are hereby granted a non-exclusive, limited, non-transferrable, non-sub licensable, freely revocable license to use the Service within the United States for your personal, non-commercial use only and as permitted by the features of the Service. Binkey reserves all rights not expressly granted herein in the Service and the Binkey Content (as defined below). Binkey may terminate this license at any time for any reason or no reason.
5.2 Our Ownership
The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, and copyrights (the “Binkey Content”), all derivatives thereof, and all intellectual property rights related thereto, are the exclusive property ofBinkey and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Binkey Content.
Use of the Binkey Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Binkey under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on anon-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Binkey does not waive any rights to use similar or related feedback or ideas previously known to Binkey, or developed by its employees, or obtained from sources other than you.
By submitting or otherwise making available any data (“User Data”), including Account Information and Receipts, through the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Binkey a royalty-free, sublicensable, transferable, perpetual, irrevocable, non- exclusive, worldwide license to use, reproduce, modify, distribute, syndicate, and make derivative works of all such User Data, in whole or in part, and in any form, media or technology, whether now known or hereinafter developed, for use in connection with operating, providing and improving the Services and for Binkey's (and its successors' and affiliates') business, provided any use of Personal Information will be subject to the terms of Binkey's Privacy Policy. You agree that your User Data will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
Please note that by creating a BinkeyAccount and providing your phone number, you consent to receive autodialed or prerecorded calls and text messages from Binkey at the telephone number(s)provided by you to Binkey. We may place such calls or texts to (i) help keep your Binkey Account secure through the use of two-factor authentication; (ii)help you access your Binkey Account when you’ve forgotten your password; or(iii) as otherwise necessary to service your Binkey Account or enforce thisAgreement, our policies, applicable law, or any other agreement we may have with you.
We care about the privacy of our Users. You understand and acknowledge that Binkey will collect use, share, and otherwise process your personal information as set forth in our Privacy Notice, and that your personal information will be collected, used, transferred to, and processed in the United States.
You may close your Binkey Account and terminate your relationship with us without cost, but you will remain liable for all obligations related to your Binkey Account even after your Binkey Account is closed. You may not close your Binkey Account to evade an investigation or if you have a pending transaction or an open dispute or claim.
You agree to defend, indemnify and hold harmless Binkey and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any content that is submitted via your Binkey Account including without limitation misleading, false, or inaccurate information; (vi)your willful misconduct; or (vii) any other party’s access and use of the Services with your mobile phone, authentication pin code, or other appropriate security code.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ORNON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BINKEY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BINKEY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR: WHETHER THE SERVICES OR THE CONTENT FOUND ON OR THROUGH THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; WHETHER THE SERVICES WILL MEET YOUR REQUIREMENTS; WHETHER THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; WHETHER ANY DEFECTS OR ERRORS WILL BE CORRECTED; ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES; OR WHETHER THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
ALTHOUGH BINKEY'S INFORMATION ON PRODUCT AND REIMBURSEMENT ELIGIBILITY ARE REASONABLY BASED ON IRS GUIDANCE,BINKEY DOES NOT GUARANTEE PRODUCT OR REIMBURSEMENT ELIGIBILITY. BY ACCEPTING THESE TERMS OF USE, YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR PLAN ULTIMATELY MAY STILL DENY FOR A NUMBER OF REASONS, INCLUDING FACTORS OUTSIDE OF BINKEY'S CONTROL. THE SERVICES DO NOT INCLUDE, AND ARE NOT A SUBSTITUTE FOR, LEGAL OR TAX ADVICE.
FURTHER, BINKEY DOES NOT WARRANT,ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BINKEY WILL NOT BE A PARTY TO ORIN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BINKEY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE,INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL BINKEY BE RESPONSIBLE FOR ANY DAMAGE,LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESSOR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BINKEY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I)ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/ORANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES,TROJAN HORSES, ORTHE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BYANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL BINKEY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS,DAMAGES, LOSSES OR COSTS IN ANY AMOUNT EXCEEDING THE AMOUNT YOU PAID TO BINKEY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE,STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BINKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
14.1 Governing Law.
You agree that: (i) the Services shall be deemed solely based in Delaware; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware. These Terms shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper and exclusive forum for any appeals of arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
14.2 Arbitration.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BINKEY. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and Binkey that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Services, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Services; or (d) any other aspect of your relationship or transactions with Binkey, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). This Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to these Terms.
If you are a new Binkey user, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting these Terms by emailing Binkey at info@joinbinkey.com with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at info@joinbinkey.com and attempt to resolve the dispute with us informally. In the unlikely event that Binkey has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware, unless you and Binkey agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney's fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Binkey agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms or any provision of these Terms, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing Binkey from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
14.3 Class Action/Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND BINKEY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER BINKEY USERS. YOU AND BINKEY FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BINKEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
15.1 Changes to the Service
We may, without prior notice and in our sole discretion, add new offerings as part of our Services; change theServices; stop providing the Services or features of the Services, to you or toUsers generally; or create usage limits for our Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, if we believe, in our sole discretion, that you may not be able to pay for transactions initiated through the Services, if you have not timely made any payments, or for no reason.
15.2 Service Location
The Services are controlled and operated from facilities in the United States. Binkey makes no representations that the Services are appropriate or available for use in other locations.Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicableUnited States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
15.3 Assignment
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but maybe assigned by Binkey without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
15.4 Notification Procedures and Changes to the Agreement
Binkey may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Binkey in our sole discretion. Binkey reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. Binkey is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
15.5 Amendments
Binkey may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change the Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Terms. Your continued use of theServices after any such change constitutes your acceptance of the new Terms. If you do not agree to any of the new Terms, do not use or access (or continue to access) the Services.
15.6 Entire Agreement / Severability
These Terms shall constitute the entire agreement between you and Binkey concerning the Services. Except as otherwise stated in Section 15.2, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
15.7 No Waiver
No waiver of any provision of theseTerms shall be deemed a further or continuing waiver of such provision or any other term, and Binkey’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
15.8 Contact
Please contact us at info@joinbinkey.com with any questions regarding this Agreement, or through postal mail at Binkey, Inc., 712 H St. NE Suite 1382, Washington, DC 20002.
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