This Terms of Service Agreement (this “Agreement”) governs Your access and use of the Clockout website located at https://www.joinclockout.com/ (the “Website”) and the mobile application (“Clockout App”), operated by Clockout Financial, Inc., a Delaware corporation (“Clockout”, “our”, “us”, or “we”) or any of its affiliates, as well as the products and services offered and made available through the Website or Clockout App (the “Services”). “You” and “Your” refer to anybody who accesses or uses the Services, Clock App or Website.PLEASE READ THIS AGREEMENT CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND CLOCKOUT. PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND CLOCKOUT CAN BE BROUGHT, INCLUDING THE ARBITRATION AGREEMENT (SEE BELOW). PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH CLOCKOUT ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED BELOW). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. TO USE THE WEBSITE, CLOCKOUT APP OR THE SERVICES AND TO ACCEPT THIS AGREEMENT, YOU MUST BE: A CITIZEN OR PERMANENT RESIDENT OF THE UNITED STATES; OF LEGAL AGE UNDER THE LAWS OF THE STATE OF FLORIDA TO FORM A BINDING CONTRACT; AND NOT PROHIBITED BY LAW FROM USING THE WEBSITE, CLOCKOUT APP OR THE SERVICESBy accessing or using the Website, Services or Clockout App, or by clicking to accept or agree to this Agreement when this option is made available to You, You accept and agree to be bound and abide by this Agreement and Clockout’s Privacy Policy, found at https://www.joinclockout.com/privacy-policy, incorporated herein by reference. If You do not want to agree to this Agreement or the Privacy Policy, You must not access or use the Website, You must not access or use the Services and You must not access or use the Clockout App. Clockout may make changes to this Agreement from time to time. If Clockout makes changes, it will provide You with notice of such changes, such as by sending an email, providing a notice through the Services, or updating the date at the top of this Agreement. Unless Clockout says otherwise in its notice, the amended Agreement will be effective immediately and Your continued access to and use of the Services after Clockout provides such notice will confirm Your acceptance of the changes. If You do not agree to the amended Agreement, You must stop accessing and using the Services.
1. Account Information. Clockout will create an account for You to utilize the Services, access Your transaction history, and contact information, (the “Clockout Account”). In order to access Services, You will be required to create a Clockout Account. When You create a Clockout Account, You will obtain a Login ID and password. After You create a Clockout Account, You will prompt to provide us with certain information, including Your name, mailing address, phone number, and email address (collectively “Account Information”). You agree that any Account Information You provide will be accurate, current, and complete. Should any of Your Account Information change, You agree to update the information as soon as possible. To update Your Account Information, You may go to the Profile section of the Website, click on “Settings,” and update Your Account Information accordingly. You may only open one (1) Clockout Account. You may not maintain a joint account with another person, and You cannot add an authorized user to Your Clockout Account. You agree that You will not allow another person to use or access Your Clockout Account and not share Your Login ID or password with other persons. You represent that You are a legal owner and that You are authorized to provide us with all Account Information and additional information necessary to facilitate Your use of the Services. To use certain Services, Clockout may be required to verify Your identity. You authorize us to make any inquiries we consider necessary to validate Your identity. If You do not respond to such inquiries or we cannot verify Your identity, we can refuse to allow You to use the Services or revoke any previously granted access.
2. Third-Party Account Information. To use the Services, You consent to Clockout retrieving Your account transaction history, balance information, or other information maintained by third parties with which You have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). By using the Services, You authorize Clockout as well as third-party service providers acting on Clockout’s behalf, to access Your Third-Party Account Information, on Your behalf as Your agent, and You expressly authorize the third parties to disclose Third-Party Account Information to us. You agree that You are responsible for maintaining the security of the passwords and usernames You use to access any third-party sites and will keep those passwords and usernames up to date on the Website. Clockout does not review Third-Party Account Information for accuracy, legality, or non-infringement. Additionally, Clockout is not responsible for Your Third-Party Account Information or products and services offered by or on third-party sites. You understand that any Third-Party Account Information displayed through the Services will be the information we most recently accessed, and that this information may not reflect pending transactions or other recent activity.
3. Fraudulent Consumers Warning: Be aware of Scams and Fraud. The Services provide a safe and simple method to access earned wages ahead of scheduled payroll day. However, scammers and fraudsters abound, so be wary of unusual and/or suspicious activity. Use the Website and Services solely for legal purposes and keep Your login credentials and personal or sensitive information private. Do not send or request information to others. If You suspect You are being scammed or defrauded, or if Your login or password have been lost or stolen, please contact us immediately. You can contact Customer Support, by accessing the “Support” Tab in our Website.
4. Security. Our main priorities are Your security and the integrity of Your Clockout Account, and we work diligently to protect Your data. If You are aware of anyone or any entity that is using the Services inappropriately, please e-mail us at support@joinclockout.com. Please be aware that Clockout will never ask for Your Clockout Account password. If You receive any fake (i.e., phishing) e-mails claiming to be from Clockout, please forward them to us at support@joinclockout.com
5. Privacy. Your visit to our Website is also governed by our Privacy Policy. Please review our Privacy Policy at joinclockout.com.
6. Ownership. All content included on the Website is and shall continue to be the property of Clockout or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. Any copying, redistribution, use or publication by You of any such content or any part of the Website is prohibited, except as expressly permitted in this Agreement. Under no circumstances will You acquire any ownership rights or other interest in any content by or through Your use of the Website.
7. Intended Audience. The Website is intended for adults only. The Website is not intended for any person under the age of 18.
8. Website Use. Clockout grants You a limited, revocable, nonexclusive right to access and use the Website solely for Your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the Website, reverse engineer or break into the Website, or use materials, products or Services in violation of any law. The use of the Website is at the discretion of Clockout and Clockout may terminate Your use of the Website at any time.
9. Compliance with Laws. You agree to comply with all applicable laws regarding Your use of the Website. You further agreed that information provided by You is truthful and accurate to the best of Your knowledge.
10. Prohibited Uses. You may use the Website, Services and Clockout App only for lawful purposes and in accordance with This Agreement. You agree not to use the Website, Services or Clockout App: (a) in any way that violates any applicable federal, state, local, or international law or regulation (including any laws regarding the export of data or software to and from the US or other countries); (b) for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise; (c) to send, knowingly receive, upload, download, use, or re-use any material that does not comply with Clockout’s content standards; (d) to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation; (e) to impersonate or attempt to impersonate Clockout, a Clockout employee, another user, or any other person or entity (including by using email addresses or screen names associated with any of the foregoing); and (f) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by us, may harm Clockout or users of the Website, or expose them to liability. Additionally, You agree not to: (i) use the Website in any manner that could disable, overburden, damage, or impair the Website or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website; (ii) use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website; (iii) use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in this Agreement, without our prior written consent; (iv) use any device, software, or routine that interferes with the proper working of the Website; (v) introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful; (vi) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website; (vii) attack the Website via a denial-of-service attack or a distributed denial-of-service attack; or (viii) otherwise attempt to interfere with the proper working of the Website.11. Financial Management Services. Clockout offers users custom financial management services (“Personal Financial Management Services”) as part of Services through the Website. These Services include Financial Wellness Tools, where we track Your income and expenses and let You know about estimated upcoming bills and other expenses. The “Budget” feature of the Personal Financial Management Services monitors Your employer's payroll system that You link to Your Clockout Account (an “Employers’ Payroll System”). If You subscribe to the Personal Financial Management Services, You will have access to “Budget Tools” and Clockout Rewards Program. With Budget, we track Your income and expenses and let You know about estimated upcoming bills and other costs. Budget will monitor Your linked bank account held at a US financial institution (a “Linked Account”) and let You know when You're in danger of having insufficient funds in Your Linked Account, helping You avoid overdrafts, returned transactions, and bank fees.
12. Early Advance Earned Wages Service(s).
(a) Overview. Clockout offers a service that provides advances based on Your already earned salary (“EWA”) ahead of Your scheduled payroll with Your employer. The EWA is a non-recourse sale of future wages to Clockout . In order to access this Service, You will be required to open a Clockout Account and to link a Plaid Account (as defined in Section 30) to Your Clockout Account so that You may receive advances on Your earned by not yet paid wages (“Advance”). If You are an eligible user, You may request to receive an Advance of up to 75% of earned wages for the pay period into Your Bank Account at any time between Your payroll cycles by logging into Your Clockout Account. We may deny Your request for an Advance for any reason at any time.
(b) Fees. There will be no fees for the use of the Services or to open and maintain a Clockout Account. However, any transaction(s) fees associated with an Advance will be offset through a deduction. We require a “”Plaid Account to pay the fees. For each Advance, You hereby agree to a transaction fee contingent upon the amount requested for an Advance, as set forth below. The Transaction fee will be collected by Clockout at repayment date together with the repayment of the Advance through a deduction from Your Plaid Account. Clockout warrants that Clockout will not charge the transaction fee directly to You. Each Advance is subject to the following transaction fees:
$0 – 100: $1.99
$101 – 350: $2.99
$350+: $3.99
(c) Advance Charges. We reserve the right to charge You an Advance fee, including fees, any time after we connect to Your Plaid Account to cover the Advance received and any transactional fee associated with the Advance. However, Clockout warrants You that it has no legal or contractual claim against You based on our inability to charge You or repay Advance fees, but Clockout may suspend Your access to the Services until we can charge You in full. Concerning a failure to receive the amount for an Advance fee in full, Clockout warrants it will not engage in any debt collection activities, place any amount we are unable to charge with or sell it to a third party, or report You to a consumer reporting agency. Clockout does not waive any rights regarding fraudulent activity and will pursue instances of fraud.
(d) Credit/Debit Authorization(s). You authorize Clockout to credit Advance fees to Your Plaid Account. We will separately obtain a “Payment Authorization” from You to debit Your Plaid Account for any transaction fees and Advance repayment. The terms of the Payment Authorization constitute a part of this Agreement and are incorporated by reference. As applicable, You also authorize Clockout to electronically debit or credit Your Plaid Account to correct erroneous debits and credits.
(e) ACH. You acknowledge that, as applicable, the electronic authorization contained in this Agreement represents Your written authorization for automated clearing house (“ACH”) as provided herein and will remain in full force and effect until You notify us that You wish to revoke this authorization by emailing support@joinclockout.com. You must notify us at least three (3) business days before a scheduled transaction date to cancel this authorization. Please include the name and telephone number associated with Your Clockout Account when You email. Failure to provide correct and complete information may prevent us from timely cancel the transaction(s). You agree to indemnify and hold Clockout harmless from and against any loss incurred due to its withdrawal of a preauthorized debit transaction from Your account if any of the information relied upon in Your request to stop payment is incorrect or incomplete. If we do not receive notice at least three (3) business days before the scheduled debit date, we may attempt to cancel the transaction at our sole discretion. However, we assume no responsibility for our failure to do so. You warrant and represent to Clockout that You have the right to authorize us to charge and credit Your Bank Account for transaction(s) under this Agreement.
(f) Linked Accounts. If You have a joint Linked Account, You represent and warrant that You have the authority to (a) bind the absent accountholder; and (b) enter into this Agreement independently. You agree to indemnify and hold Clockout harmless from any claims by any other owner of the Linked Account. You represent that You can save or otherwise store a copy of this electronic authorization for Your records, and the credit and debit transactions You request comply with applicable law.
13. Clockout App
(a) License Grant. Subject to the terms of this Agreement, Clockout grants You a revocable, limited, non-exclusive, and nontransferable license to: (i) download, install, and use the Clockout App for Your personal, non-commercial use on a single mobile device owned or otherwise controlled by You (“Mobile Device”) strictly in accordance with the Clockout App's documentation; and (ii) access, and use on such Mobile Device the Content and Services made available in or otherwise accessible through the Clockout App, strictly in accordance with this Agreement.
(b) Restrictions. You shall not: (i) copy the Clockout App, except as expressly permitted by this license; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Clockout App; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Clockout App or any part thereof; (iii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Clockout App, including any copy thereof; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Clockout App, or any features or functionality of the Clockout App, to any third party for any reason, including by making the Clockout App available on a network where it is capable of being accessed by more than one device at any time; or (v) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Clockout App.
(c) Reservation of Rights. You acknowledge and agree that the Clockout App and Services provided therein are provided under license, and not sold, to You. You do not acquire any ownership interest in the Clockout App under this Agreement, or any other rights thereto other than to use the Clockout App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Clockout and its licensors and service providers reserve and shall retain its and their entire right, title, and interest in and to the Clockout App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to You in this Agreement.
(d) Collection and Use of Information. You acknowledge that when You download, install, or use the Clockout App, Clockout may use automatic means (including, for example, cookies and web beacons) to collect and analyze information about Your Mobile Device and about Your use of the Clockout App. You also may be required to provide certain information about Yourself as a condition to downloading, installing, or using the Clockout App or certain of its features or functionality, and the Clockout App may provide You with opportunities to share information about Yourself with others. All information we collect through or in connection with this Clockout App is subject to our Privacy Policy.
(e) Disclaimer. THE CLOCKOUT APP IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CLOCKOUT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CLOCKOUT APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, CLOCKOUT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE CLOCKOUT APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
14. Third Party Materials. The Website, Services and Clockout App may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Clockout is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Clockout does not assume and will not have any liability or responsibility to You or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to You, and You access and use them entirely at Your own risk and subject to such third parties' terms and conditions.
15. Indemnification. YOU AGREE TO INDEMNIFY AND HOLD CLOCKOUT AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, DEMANDS, LOSSES, LIABILITIES, COSTS, DAMAGES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES), ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR USE OF THE WEBSITE, SERVICES OR SERVICES OR GOODS OBTAINED THROUGH YOUR USE OF THE SERVICES; (B) YOUR ACTUAL OR ALLEGED BREACH OR VIOLATION OF THIS AGREEMENT; (C) CLOCKOUT'S USE OF YOUR DATA, INFORMATION OR CONTENT; (D) YOUR ACTUAL OR ALLEGED VIOLATION OF ANY RIGHT OF ANY THIRD PARTY; (E) YOUR ACTUAL OR ALLEGED VIOLATION OF ANY LAW, RULE OR REGULATION; OR (F) YOUR USE OF ANY THIRD-PARTY PRODUCT, SERVICE, WEBSITE, SOFTWARE OR APPLICATION OR YOUR ACTUAL OR ALLEGED BREACH OF ANY AGREEMENT GOVERNING YOUR ACCESS TO OR USE OF THE FOREGOING.
16. Disclaimer. THE INFORMATION ON THE WEBSITE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. YOU AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. CLOCKOUT DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE WEBSITE SHALL BE TO DISCONTINUE USING THE WEBSITE.
17. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL CLOCKOUT BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE WEBSITE, YOUR WEBSITE USE, OR THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE AND/OR CONTENT IS TO CEASE ALL OF YOUR WEBSITE USE. CLOCKOUT SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (A) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (B) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, EVEN IF CLOCKOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOCKOUT SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND CLOCKOUT'S REASONABLE CONTROL. IN ANY EVENT, THE TOTAL CUMULATIVE LIABILITY OF CLOCKOUT AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, THE WEBSITE, OR THE CLOCKOUT APP, REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT IN THE AGGREGATE EXCEED $1,000. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF YOU UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE. You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to You, the exclusions or limitations in this Agreement that directly conflict with such laws may not apply to You.
18. Use of Information. Clockout reserves the right, and You authorize us, to use and assign all information regarding Website uses by You and all information provided by You in any manner consistent with our Privacy Policy.
19. Clockout Account Revocation & Termination. Clockout may suspend, cancel, limit, or revoke Your access to and use of the Website or the Services and/or terminate this Agreement and the agreement between You and us or Your Clockout Account at any time without notice, without cause, in our absolute discretion, and to the extent permitted by applicable laws. Clockout further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Website or Services at any time with or without notice, as permitted by applicable laws.
20. Applicable Law. You agree that the laws of the State of Florida, without regard to conflicts of law provisions will govern this Agreement and any dispute that may arise between You and Clockout or its affiliates.
21. BINDING ARBITRATION. PLEASE READ THIS ARBITRATION AGREEMENT CAREFULLY AND UNDERSTANDS THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT BY NOT CONDUCTING ANY TRANSACTIONS OR OPENING AN ACCOUNT WITH US. THIS ARBITRATION AGREEMENT WILL APPLY TO YOU UNLESS (A) YOU ARE ELIGIBLE TO RECEIVE BENEFITS UNDER THE MILITARY LENDING ACT BY BEING A COVERED MEMBER OF THE MILITARY PERSONNEL OR YOU ARE A SPOUSE OR LEGAL DEPENDENT OF A COVERED MEMBER OF MILITARY PERSONNEL AT THE TIME YOU OPEN YOUR ACCOUNT. By agreeing to the this Agreement, You agree that You are required to resolve any claim that You may have against Clockout on an individual basis in arbitration as set forth in this Arbitration Agreement, and not as a class, collective, coordinated, consolidated, mass and/or representative action. This Arbitration Agreement will preclude You from bringing any class, collective, coordinated, consolidated, mass and/or representative action against Clockout, and also preclude You from participating in or recovering relief in any current or future class, collective, coordinated, consolidated, mass and/or representative action brought against Clockout by someone else. Thus, the parties agree that the arbitrator shall not conduct any form of class, collective, coordinated, consolidated, mass and/or representative arbitration, nor join, coordinate, or consolidate claims of multiple individuals against Clockout in a single proceeding. This Arbitration Agreement precludes You from bringing or participating in any kind of class, collective, coordinated, consolidated, mass and/or representative or other kind of group, multi-plaintiff or joint action against Clockout, other than participating in a classwide, collective, coordinated, consolidated, mass and/or representative settlement of claims.
(a) Election to Arbitrate. Any and all matters of dispute between the parties to this Agreement, whether arising from or related to this Agreement itself or arising from alleged extra-contractual facts prior to, during, or subsequent to this Agreement, including, fraud, misrepresentation, negligence, or any other alleged tort, shall be decided by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association currently in effect and in accordance with Title 9 of the United States Code, unless the You and us expressly agree otherwise in writing.
(b) Notice. Notice of the demand for arbitration must be provided, in writing, to the other party and must be made within 30 calendar days after the dispute has arisen, time is of the essence. All statutes of limitation, which would otherwise be applicable in a judicial action brought by a party, will apply to any arbitration or reference proceeding hereunder.
(c) Procedural Considerations. The arbitration will be decided by a panel of one (1) arbitrator for claims under $500,000 and three (3) arbitrators, selected under the Commercial Arbitration Rules of the American Arbitration Association.
(d) Place. Arbitration shall take place in Miami-Dade County, Florida. Said arbitration shall occur within thirty (30) consecutive days after the party demanding arbitration delivers the written demand on the other party unless the parties mutually agree otherwise in writing.
(e) Language. The language of the arbitration shall be English.
(f) Choice of Law. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Florida.
(g) Award. The award rendered by the arbitrators will be in writing with written findings of fact and shall be final and binding on all parties, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
(h) Arbitration Cost and Fees. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement.
(i) Joinder of Parties. Except by written consent of the parties, no arbitration arising out of or relating to this Agreement or the parties' dealings may include, by consolidation, joinder or in any other manner, any person or entity not a party to this Agreement under which such arbitration arises.
(j) Enforceability. The Arbitration Agreement herein among the parties will be specifically enforceable under applicable law in any court having jurisdiction thereof. Neither party will appeal such award nor seek review, modification, or vacation of such award in any court or regulatory agency.
(k) No Class Action. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED)IN A COURT AS CLASS REPRESENTATIVE OR COLLECTIVE ACTIONS IN A COURT. YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL DISPUTES, CLAIMS, OR CONTROVERSIES BETWEEN THE PARTIES SHALL BE RESOLVED ONLY IN INDIVIDUAL ARBITRATION. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO HAVE ANY DISPUTE, CLAIM, OR CONTROVERSY BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED AS A CLASS, COLLECTIVE, COORDINATED, CONSOLIDATED, AND/OR REPRESENTATIVE ACTION, AND NEITHER AN ARBITRATOR NOR AN ARBITRATION PROVIDER SHALL HAVE ANY AUTHORITY TO HEAR, ARBITRATE, OR ADMINISTER ANY CLASS, COLLECTIVE, COORDINATED, CONSOLIDATED, AND/OR REPRESENTATIVE ACTION, OR TO AWARD RELIEF TO ANYONE BUT THE INDIVIDUAL IN ARBITRATION. THE PARTIES ALSO EXPRESSLY WAIVE THE RIGHT TO SEEK, RECOVER, OR OBTAIN ANY NON-INDIVIDUAL RELIEF. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THIS CLASS ACTION WAIVER DOES NOT PREVENT YOU OR CLOCKOUT FROM PARTICIPATING IN A CLASSWIDE, COLLECTIVE, AND/OR REPRESENTATIVE SETTLEMENT OF CLAIMS. THE PARTIES FURTHER AGREE THAT IF FOR ANY REASON A CLAIM DOES NOT PROCEED IN ARBITRATION, THIS CLASS ACTION WAIVER SHALL REMAIN IN EFFECT, AND A COURT MAY NOT PRESIDE OVER ANY ACTION JOINING, COORDINATING, OR CONSOLIDATING THE CLAIMS OF MULTIPLE INDIVIDUALS AGAINST CLOCKOUT IN A SINGLE PROCEEDING, EXCEPT THAT THIS CLASS ACTION WAIVER SHALL NOT PREVENT YOU OR CLOCKOUT FROM PARTICIPATING IN A CLASSWIDE, COLLECTIVE, AND/OR REPRESENTATIVE SETTLEMENT OF CLAIMS. IF THERE IS A FINAL JUDICIAL DETERMINATION THAT ANY PORTION OF THIS CLASS ACTION WAIVER IS UNENFORCEABLE OR UNLAWFUL FOR ANY REASON, (I) ANY CLASS, COLLECTIVE, COORDINATED, CONSOLIDATED, AND/OR REPRESENTATIVE CLAIMS SUBJECT TO THE UNENFORCEABLE OR UNLAWFUL PORTION(S) SHALL PROCEED IN A COURT OF COMPETENT JURISDICTION; (II) THE PORTION OF THE CLASS ACTION WAIVER THAT IS ENFORCEABLE SHALL BE ENFORCED IN ARBITRATION; (III) THE UNENFORCEABLE OR UNLAWFUL PORTION(S) SHALL BE SEVERED FROM THIS ARBITRATION AGREEMENT; AND (IV) SEVERANCE OF THE UNENFORCEABLE OR UNLAWFUL PORTION(S) SHALL HAVE NO IMPACT WHATSOEVER ON THE ENFORCEABILITY, APPLICABILITY, OR VALIDITY OF THE ARBITRATION AGREEMENT OR THE ARBITRABILITY OF ANY REMAINING CLAIMS ASSERTED BY YOU OR CLOCKOUT.
22. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
23. Waiver. The failure of Clockout to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Any waiver of this Agreement by Clockout must be in writing and signed by an authorized representative of Clockout.
24. Termination. Clockout may terminate this Agreement at any time, with or without notice, for any reason. The following Sections shall survive termination or expiration of this Agreement (where reference is to a Section, all subsections are deemed to be included): 5, 6, 7, 9, 10, 12, 13(b), 13(c), 13(d), 13(e), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, and any other provisions which by their nature should survive such termination or expiration.
25. Relationship of the Parties. Nothing contained in this Agreement, or Your use of the Website shall be construed to constitute either party as a partner, joint-ventures, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
26. Export. The Services and Clockout App may be subject to United States export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services and Clockout App to, or make the Services and Clockout App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services and Clockout App available outside the United States.
27. Entire Agreement; Assignment. This Agreement constitutes the entire agreement between You and Clockout and governs the terms and conditions of Your use of the Website, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and Clockout with respect to the Website. Notwithstanding the foregoing, (a) You may also be subject to additional terms and conditions, posted policies (including the Privacy Policy), guidelines, or rules that may apply when You use the Website, and (b) You may also be subject to additional terms and conditions, posted policies (including the Privacy Policy), guidelines, or rules that may apply when You use the Clockout App. Clockout may revise this Agreement at any time by updating this Agreement and posting it on the Website. Accordingly, You should visit the Website and review this Agreement periodically to determine if any changes have been made. Your continued use of the Website after any changes have been made to this Agreement signifies and confirms Your acceptance of any such changes or amendments to this Agreement. You may not assign, delegate, subcontractor or delegate this Agreement, or any rights or obligations under this Agreement, without Clockout’s prior written consent. Any purported assignment by You in violation of this section is null and void.
28. Waiver. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
29. Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the provisions to which they appertain. This Agreement shall not be construed more strongly against either party regardless of which party is more responsible for its preparation. All uses of “including” means “including without limitation.”
30. Plaid Terms of Service. In order to use the payment functionality of the Services and Clockout App, You must open a “Plaid Account” provided by Plaid Inc. and You must accept the Plaid End User Services Agreement, SMS Terms and End User Privacy Policy located at https://plaid.com/legal/#consumers, as may be updated by Plaid from time to time. Any funds held in or transferred through Your Plaid Account are held or transferred by Plaid’s financial institution partners. You must be at least 18 years old to create a Plaid Account. You authorize us to collect and share with Plaid Your personal information including full name, email address and financial information, and You are responsible for the accuracy and completeness of that data. You understand that You will access and manage Your Plaid Account through our application, and Plaid account notifications will be sent by us, not Plaid. We will provide customer support for Your Plaid Account activity, and can be reached at www.joinclokout.com or support@joinclockout.com.
31. Feedback. As Clockout respects Your rights to Your ideas, You agree that You will not submit any confidential ideas, information, or suggestions in any form to Clockout or any of its affiliates. For any ideas, information, or suggestions You do submit, regardless of what Your communication regarding Your submissions says, You understand that Your submissions are voluntary and the following terms shall apply to Your submissions: (a) Your submissions and their contents will automatically become the property of Clockout, without any compensation to You; (b) Clockout has no obligation to review Your submissions; (c) Clockout may implement and distribute any portion of Your submissions and their contents for any purpose in any way, without any compensation to You; and (d) Clockout has no obligation to keep Your submissions confidential.
32. Contact Information.
Clockout Financial, Inc.
12330 SW 53rd Street | Suite 706
Cooper City, FL., 33330.
support@joinclockout.com
