Welcome to Qapital!
Effective Date: November 1, 2017
Qapital, Inc. is a Delaware corporation, with offices at 304 Hudson Street, 5th Floor, New York, New York 10013 (“Qapital,” “We,” “Us,” or “Our”). By using or downloading our mobile application (the “Qapital Mobile App”) or accessing or using our website at www.qapital.com and its subdomains (“Website”), which provide financial information to assist users in managing their finances and encouraging savings, through savings goals, savings rules, aggregation of financial data, a wallet view of income, expense and savings, and social goal sharing (collectively, the “Qapital Platform”) and related services and accounts (“Services”), you indicate your unconditional acceptance of the following Terms and Conditions on your own behalf and on behalf of any organization you represent (collectively, “you” or “your”).
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY CREATE A BINDING CONTRACT BETWEEN YOU AND QAPITAL. FURTHER, THESE TERMS AND CONDITIONS CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND QAPITAL ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS, (SEE “AGREEMENT TO ARBITRATE”).
YOU HEREBY ACKNOWLEDGE AND AGREE THAT QAPITAL, INC. IS NOT A BANK, NOR IS IT A FINANCIAL PLANNER, BROKER OR ASSET MANAGER. THE QAPITAL PLATFORM IS MERELY A TOOL TO ASSIST YOU IN YOUR FINANCIAL PLANNING AND DECISION-MAKING. YOU ARE SOLELY RESPONSIBLE FOR YOUR SAVINGS, INVESTMENT AND SPENDING DECISIONS.
Scope of Service
Qapital maintains the Qapital Platform, and provides Services, as a service to our user community, subject to these Terms and Conditions.
You are responsible for obtaining any equipment and Internet service necessary to access our Qapital Platform and Services and for paying any fees for the equipment and service you select. We may alter, suspend, or discontinue this Qapital Platform and/or our Services, in whole or in part, at any time and for any reason, without notice. We may restrict access to portions of our Qapital Platform and/or Services, for some or all users, from time to time. The Qapital Platform may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
We reserve the right to modify or change the Website, the Qapital Mobile App, or any of the Services, with or without notice to you, and we are not obligated to support or update the Website, the Qapital Mobile App, or any Services.
a. Registered Users. Certain of our Services are reserved for registered users. In order to become a registered user (or “client”), we will ask you to complete a registration form, and also to select a username and create a password (“Login Credentials”). During any such registration, you are required to give truthful contact information (including your name, email address and mobile phone number) and certain financial information (such as your primary bank account information and other account login information). Together with our goals and rules this collectively is your “User Profile”. You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your account (including without limitation financial obligations). You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials. You are responsible for keeping your registration information up to date through your account page, to the extent such feature is made available through the Qapital Platform.
b. Acknowledgement to Receive Email, Push Notifications or Text Messages. As a user of the Qapital Platform and your acknowledgment of these Terms and Conditions which you grant by use of the Qapital Platform, you explicitly consent to receive emails, push notifications and text messages from us regarding our Services. Please be aware that should you choose to receive messages via text message, standard data and messaging rates may apply. We may from time to time send you push notifications or email messages with information about upcoming events, or information about our service offerings from us and our partners. You may opt-out from receiving certain of such correspondence by emailing firstname.lastname@example.org, selecting to unsubscribe as may be provided in the applicable correspondence, or updating your notification settings within the Qapital App.
Fees & Payments
- Subscription Fees. Currently, Qapital is offering the Qapital
Platform and Services at no charge. We may institute subscription fees in the future. We agree to provide you with at least thirty (30) days’ notice before we institute subscription fees by sending you an email to the email address in your Qapital profile.
- Change in Fees. We reserve the right to change our fee structure at any time, except for the subscription fees applicable to any then-current fee-bearing subscription period. If you purchase any Services that we offer for a fee, either on a one-time or subscription basis, you agree to pay Qapital directly or via its designated third party payment processor. You also agree to pay the applicable fees for such Services (including, without limitation, periodic fees for subscriptions) as they become due plus all related taxes. You may cancel your subscription as provided on the Qapital Platform from time to time. We may refuse to renew any subscription.
- Incentives. Qapital may at its sole discretion offer incentives to users of the Qapital Platform or to holders of one of our debit cards issued by our banking partner(s).
- Current Fees. Current fees and incentives can be found on the Website at https://www.qapital.com/policies/fees.
- Payment of Fees. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ANY FEES AND FOR PROVIDING QAPITAL WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES THROUGH ONE OF THE METHODS THAT WE LIST ON OUR QAPITAL PLATFORM FROM TIME TO TIME.
- Refunds. Other than when expressly set forth on our Services as updated from time to time, or to correct any errors made by Qapital, Qapital has no obligation to provide refunds or credits, but may grant them in certain circumstances, such as a result of specific refund guarantee promotions, in Qapital’s sole discretion.
a. Submitted Content. You are solely responsible for any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “User Content”) that you submit, use, display or share on or via the Service. You must not submit, upload, post, display or share any User Content that you do not have the right to copy, use or share for the purpose of your use of the Services. If you choose to provide information or User Content to us, register for or participate in a service, event, or promotion on our Services, you agree that you will provide accurate, complete, and up to date information as requested on the screens that collect information from you.
b. Ownership and Use of User Content. Qapital does not claim ownership of any User Content. By submitting such User Content, however, You hereby grant Qapital a worldwide license and right to (i) copy, store and use that User Content for the purpose of providing you with our Services; (ii) modify the User Content to remove identifiers of you and any other individuals or companies, aggregate such information (“Aggregated Data”) and copy, store and use such Aggregated Data; and (iii) use the User Content in perpetuity to use (including publishing or re-publishing) your User Content for marketing purposes in any media format. You acknowledge and agree that we may retouch, edit or otherwise alter User Content (such as photos) without your ability to inspect or pre-approve, and that you will not be compensated in any way for our use of your User Content.
c. User Content Authorization. You expressly authorize Qapital to access your Account Information (as defined herein) maintained by identified third parties, which is included in your User Content, on your behalf as your agent. When you use the “Add Accounts” feature of the Service, you will be directly connected to the website for the third party you have identified. Qapital’s third party processors will submit information including usernames and passwords that you provide to log you into such third party website(s). You hereby authorize and permit Qapital to use and store information submitted by you to the Qapital Platform (such as account passwords and usernames) to accomplish the foregoing and to configure the Service so that it is compatible with the third party sites for which you submit your information. For purposes of these Terms and Conditions and solely to provide the Account Information to you as part of the Qapital Platform and Services, you grant Qapital a limited power of attorney, and appoint Qapital as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN QAPITAL IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, QAPITAL IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that the Service is not sponsored or endorsed by any third parties accessible through the Service. Qapital is not responsible for any payment processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate account information.
d. User Content Representations. You represent and warrant that: (i) you own the User Content submitted and used by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms and Conditions; (ii) the submission and use of your User Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you submit or use on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms and Conditions in your jurisdiction.
e. Monitoring. We have the right, but not the obligation, to monitor User Content submitted to our Services, to determine compliance with these Terms and Conditions, including the User Conduct requirements below, and any other applicable rules that we may establish. We have the right in our sole discretion to edit or remove any material submitted to or posted through our Services without prior notice. Without limiting the foregoing, we have the right to remove any material that Qapital, in its sole discretion, finds to be in violation of these Terms and Conditions or otherwise objectionable, and you are solely responsible for the User Content that you post to our Services. Moreover, Qapital may terminate one’s ability to submit User Content if, under appropriate circumstances, a person submitting the content to the Qapital Platform is determined to be a repeat infringer and/or repeatedly violates the below User Conduct requirements.
g. Required Disclosures. You acknowledge and agree that Qapital may store and/or preserve User Content and may also disclose User Content and/or other information provided by you if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of these Terms and Conditions; (c) respond to claims that any User Content violates the rights of third-parties in accordance with these Terms and Conditions; and/or (d) protect the rights, property, or personal safety of Qapital, its representatives and/or agents, its users or the public.
h. Notice of Copyright Infringement. Qapital does not permit copyright infringing activities to occur on the Qapital Platform and may remove any content of any kind, for example, if properly informed that certain User Content infringes upon another’s copyright rights. If you are a copyright owner or an agent thereof and believe that any content on the Qapital Platform infringes upon your copyrights, you may notify Qapital by providing the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed;
- Identification of the location where the original or an authorized copy of the copyrighted work exists;
- Identification of the material that is claimed to be infringing and a description of the infringing activity and information reasonably sufficient to permit Qapital to locate the same;
- Information reasonably sufficient to permit Qapital to contact you, such as an address, telephone number, and, if available, an email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed.
Our agent for notice of claims of copyright infringement can be reached as follows:
304 Hudson Street, 5th Floor
New York, New York 10013
You acknowledge that if you fail to comply with all of the requirements above, your notice may not be valid.
You understand and agree not to use the Qapital Platform or Services to:
- Post or upload images, content or initiate communications which are unlawful, libelous, abusive, obscene, discriminatory, or otherwise objectionable.
- To violate any laws or for any illegal purpose.
- Contribute funds to a savings goal, or create a savings goal to which others could make contributions, for the purpose of money laundering or other illegal transferring of funds.
- Falsely state, impersonate, or otherwise misrepresent your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present.
- Upload, post, email, transmit or otherwise make available any content, or initiate communications which include information, that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
- Upload, post, email, transmit or otherwise make available any content, or initiate communication that infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights.
- Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. This prohibition includes but is not limited to: a) using the Qapital Platform or Services to send messages to people who don’t know you or who are unlikely to recognize you as a known contact; b) using the Qapital Platform or Services to connect to people who don’t know you and then sending unsolicited promotional messages to those direct connections without their permission; and c) sending messages to distribution lists, newsgroup aliases, or group aliases.
- Upload, post, email, transmit or otherwise make available any material that 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.
- Stalk or harass anyone.
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through Qapital.
- Post content in fields that are not intended for that content. Example: Putting an address in a name or title field.
- Interfere with or disrupt Qapital or servers or networks connected to Qapital, or disobey any requirements, procedures, policies or regulations of networks connected to Qapital.
Access and Interference
You agree that you will not, directly or indirectly:
- Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Qapital Platform or Services or any portion of the Qapital Platform or Services, without Qapital’s express written consent, which may be withheld in Qapital’s sole discretion;
- Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Qapital Platform or Services, other than the search engines and search agents, if any, available through the Service and other than generally available third-party web browsers (such as Microsoft Explorer);
- Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Qapital Platform or Services; or
- Attempt to decipher, decompile, disassemble, or the Qapital Platform or Services.
c. If we suspect an unauthorized transaction relating to your Qapital Account or that the account was created based on fraudulent information or for a fraudulent or illegal purpose, we may freeze the account pending further investigation and may notify you of the end result of that investigation.
Your Qapital Account
a. Qapital Accounts not linked to the Qapital Visa® Debit Card: Any funds that you direct to be transferred from your third party financial account (the “Funding Source”) to Qapital, either manually via the Qapital App or in accordance with Savings rules you have established via the Qapital App, will be held by Qapital for your benefit (your “Qapital Account”), in an FDIC-insured account maintained at one of Qapital’s partner banks (each a “Partner Bank”). You will not be entitled to any interest or other earnings that may accrue with respect to the funds held on your behalf by Qapital, and you hereby irrevocably assign and transfer to Qapital any right or interest that you may have therein. However, Qapital does not hereby obtain any rights to the principal amount of the funds it holds on your behalf.
b. Qapital Visa® Debit Card Accounts: When you apply for and open a Qapital Visa® Debit Card, the associated account funds will be held by Lincoln Savings Bank (“LSB”) in one or more interest-bearing account(s). You will earn interest or other earnings that accrue with respect to the funds maintained in those accounts at LSB in accordance with the terms applicable to those accounts from time to time. The Qapital Visa® Debit Card is issued solely by LSB, and Qapital is not responsible for any decisions or actions made by LSB in its capacity as the card issuer.
Authorization to initiate ACH transactions
By accepting these terms and conditions you authorize Qapital and/or our third party processor partners to initiate ACH credit and/or debit transactions between your Funding Source and your Qapital Account. These transactions will be either initiated in the Qapital App by you (“Manual Transfers”) or initiated by Qapital based on “Rules” you’ve set up through the Services. The frequency and amount of these ACH credit and/or debit transactions will be determined by your Manual Transfers or your Rules. Periodic ACH transactions will be generated by Qapital to move funds from your Funding Source to your Qapital Account based on “Savings” that arise from Qapital applying the Rules you’ve established. Manual Transfers will be processed when authorized by your entry.
You understand that this authorization will remain in full force and effect until you notify Qapital that you wish to revoke this authorization. You understand that Qapital requires at least 3 business days’ prior notice in order to cancel this authorization.
Funding Source Verification
The Funding Source verification process is in place to ensure a Funding Source is compatible with Qapital and supports ACH transfers; to prevent Users’ goals from being disclosed to unknown funding sources; and to verify external Funding Source account ownership.
One of two methods are used to verify a Funding Source: (1) To successfully verify a funding source, two small credit transactions will be sent for processing to the external Funding Source. The amounts of those credits will then be immediately debited out of the Funding Source. Users will need to verify the external Funding Source by entering the deposit amounts in the required fields provided in their Qapital Account. Users will be responsible for any fees or penalties assessed by a financial institution that may occur by validating this funding source or (2) the external funding source will be accessed by our data integration partner and ownership and ACH support will be verified.
Qapital provides its Users with the ability to share their respective savings goals and send messages between Users sharing the same savings goal. Where you share your savings goals through use of the Qapital Platform, all Users sharing that specific savings goal will have the ability to view the total saved by others sharing that savings goal as well as the transaction detail of money saved toward that savings goal. You agree that in inviting others to share one of your goals that others sharing that savings goal will be able to view the amount of your savings, solely as it applies to that savings goal. You agree that by accepting an invitation to share a savings goal, others sharing that savings goal will be able to view your data, solely as it applies to that savings goal.
Third Party Financial Institutions and Subcontractors
Qapital employs third parties in order to provide its Services to you. Third party services are used to: verify your identity, speed up and streamline on-boarding, issue cards, process savings transactions, retrieve financial data and aggregate data. These third parties will have access to only that information provided by you to Qapital that is needed by them to execute specific processes necessary to provide you with the Services or with the bank account services you register for in connection with the Qapital Platform or Qapital Visa® Debit Card. Qapital may employ different or additional third parties for these Services from time to time in its sole discretion. In addition, to the extent that Qapital is permitted to undertake any action under these Terms and Conditions, you agree that we may permit our third party financial institutions or subcontractors to undertake such action on our behalf.
You agree Qapital may access any account you have set up through our third party processor in connection with the Services. We may use that information to in order to provide you with the Qapital Platform and Services, to develop our products and services, and for our internal business purposes.
Timeliness and Accuracy of External Data
As part of the Qapital Platform, Qapital will retrieve User information from your bank accounts (“Your Bank Accounts”) you maintain online with third-party financial institutions with which you have customer relationships, maintain account(s) or engage in financial transactions (“Account Information”). Qapital works with one or more online financial service providers to access this Account Information. Qapital makes no effort to review the Account Information for any purpose, including but not limited to accuracy, legality or non-infringement. Qapital is not responsible for the products and services offered by or on third-party sites.
Qapital cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. Qapital cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, when displayed through the Qapital Platform, Account Information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites. You can refresh your Account Information through the Qapital Platform, in the manner prescribed in the associated instructions.
a. Automatic Alerts. Qapital may from time to time provide automatic alerts. Automatic alerts may be sent to you following certain changes made online to your User Profile or your Accounts. Electronic alerts will be sent to the email address or mobile number you have provided. If your email address or your mobile number changes, you are responsible for informing us of that change. Changes to your email address or mobile number will apply to all of your alerts. Because alerts are not encrypted, we will never include your passcode. However, alerts may include your Qapital Login ID and some information about Your Bank Accounts.
b. Disclaimer. You understand and agree that any alerts provided to you through the Qapital Platform may be delayed or prevented by a variety of factors. Qapital does its best to provide alerts in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any alert. You also agree that Qapital shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
Qapital’s Intellectual Property Rights
a. Contents. The contents of Qapital.com and the Qapital Mobile App, including, without limitation, its “look and feel” (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software (including, without limitation, html-based computer programs) and other material are protected under both United States and other applicable copyright, trademark and other intellectual property laws. The contents of the Qapital Platform belong or are licensed to Qapital, Inc. or its software or content suppliers. Qapital grants you the right to view and use the Qapital Platform subject to these terms. You may download or print a copy of information provided on the Qapital Platform for your personal, internal and non-commercial use only. Any distribution, reprint or electronic reproduction of any content from the Qapital Platform in whole or in part for any other purpose is expressly prohibited without our prior written consent.
b. Copyright Notice. © Qapital, Inc. 2014-2017, all rights reserved. Unless otherwise specified, the content of the Qapital Website and Qapital Mobile App including, but not limited to, text, graphics, logos, buttons, images, data compilations, icons, and code, is the property of Qapital, Inc. and/or its affiliates, and is protected by United States and international copyright laws.
c. Trademarks Belonging to Qapital. Trademarks are pending on the stylized “Q”, the Stylized “QAPITAL” and the word QAPITAL. Alone or as a part of any trademark, logo, work or domain name they are a trademark of Qapital, Inc. Any trademarks of third parties used in connection with the Qapital Platform are property of such third parties and not of Qapital.
d. Feedback. While we welcome your feedback, ideas, and suggestions, it is important to be aware of the following restrictions. If you send us feedback, ideas, or suggestions (collectively, “unsolicited ideas”), you agree that: (1) your unsolicited ideas become the property of Qapital and you are not owed any compensation in exchange; (2) none of the unsolicited ideas contain confidential or proprietary information of any third party; (3) Qapital may use or redistribute unsolicited ideas for any purpose and in any way; (4) there is no obligation for Qapital to review your unsolicited ideas; and (5) Qapital has no obligation to keep any unsolicited ideas confidential.
Disclaimer Regarding Use of Mobile Devices
Use of the Qapital Platform may be available through a compatible mobile device, Internet and/or network access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider. QAPITAL MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
Disclaimer of Representations and Warranties
THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE QAPITAL PLATFORM AND SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. QAPITAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE QAPITAL PLATFORM OR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE QAPITAL PLATFORM IS AT YOUR SOLE RISK.
QAPITAL MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE QAPITAL PLATFORM, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. QAPITAL MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE QAPITAL PLATFORM IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
Limitations on Qapital’s Liability
QAPITAL SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO THE QAPITAL PLATFORM AND SERVICES, YOUR USE OF THE QAPITAL PLATFORM AND SERVICES, OR THESE TERMS AND CONDITIONS, EVEN IF QAPITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, QAPITAL’S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $500.00 (FIVE HUNDRED UNITED STATES DOLLARS), EXCEPT TO THE EXTENT ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR OTHER CAUSE FOR WHICH APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION.
QAPITAL RESERVES THE RIGHT TO CANCEL OR RESTRICT YOUR ACCESS TO THE QAPITAL PLATFORM AND SERVICES WITHOUT NOTICE TO YOU. QAPITAL IS NOT RESPONSIBLE FOR DAMAGES SUFFERED BY YOU OR ANY INCONVENIENCE CAUSED DIRECTLY OR INDIRECTLY BY OUR TERMINATION OF YOUR ACCESS TO THE QAPITAL PLATFORM OR SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, QAPITAL WILL NOT ACCEPT OR HAVE ANY LIABILITY IN THE EVENT OF UNAUTHORIZED USE OF YOUR QAPITAL ACCOUNT, THE CONDUCT OF FRAUDULENT OR ILLEGAL ACTIVITIES VIA YOUR QAPITAL ACCOUNT, ANY INABILITY TO TRANSACT OR PROBLEMS RELATED TO POOR INTERNET ACCESS, MOBILE DEVICE OR COMPUTER FAILURE OR OTHER COMMUNICATION ISSUES, OR ANY ISSUES RELATED TO THE TIMELY EXECUTION OF A PAYMENT, TRANSFER, DEPOSIT OR SIMILAR.
By accepting these Terms and Conditions, you agree to indemnify and otherwise hold harmless Qapital, Inc., each of its affiliates and each of their respective officers, directors, employees, agents, partners and representatives from any direct, indirect, incidental, special, consequential, punitive or exemplary damages arising or resulting from; (i) your use of the Qapital Platform, (ii) unauthorized access to or alteration of your communications with or through the Qapital Platform, or (iii) any breach of these Terms and Conditions. Any business transactions that may arise between Users from their use of the Qapital Platform are the sole responsibility of the Users involved.
Term and Termination
Until your access to the Qapital Platform is terminated by either you or Qapital, these Terms and Conditions will remain in force. You may terminate these Terms and Conditions by notifying Qapital via email at email@example.com of your intention to terminate. Qapital may terminate these Terms and Conditions at any time upon notice, to the email address provided by you as part of your User Profile. In the event of termination by you or by us, Qapital will delete your User Profile and deactivate your login within 48 hours. Any funds held in your Qapital Account at the time of termination will be credited to your Primary Account. If Qapital cannot connect to a primary account, you will need to add a new checking account in order to receive the funds. Any items that attempt to post to a Qapital Account following closure thereof (whether by you or Qapital) will be returned “Account Closed”.
If you do not make use of the Service for a designated amount of time, applicable laws may require Qapital to report these funds in your account as unclaimed property. Should this occur, we may try to locate you at the contact information you provided to us. If our attempts fail and we cannot locate you, we may be required, depending on state law, to report your funds as unclaimed property. The designated amount of time to report the funds as unclaimed varies, based on the state, but typically falls in a range of two to five years.
Governing Law and Forum for Disputes
These Terms and Conditions, and your relationship with Qapital under these Terms and Conditions, shall be governed by the laws of the State of New York without regard to conflicts of law principles. Any dispute with Qapital, or its officers, directors, employees, agents or affiliates, arising under or in relation to these Terms and Conditions shall be resolved exclusively through arbitration as set forth in the Section below, except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case Qapital may seek such relief in any court with jurisdiction over the parties. You understand that, in return for agreement to this provision, Qapital is able to offer the Service at the terms designated. Your assent to this provision is an indispensable consideration to these Terms and Conditions.
Agreement to Arbitrate
Notwithstanding any provision in these Terms of Service to the contrary, you and we agree that if we make any change to the arbitration procedures set forth herein (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Qapital prior to the effective date of the change. Moreover, if we seek to terminate the arbitration procedures from these Terms of Service, such termination shall not be effective until 30 days after the version of these Terms of Service not containing the arbitration procedures is posted to the Website, and shall not be effective as to any claim that was filed in a legal proceeding against Qapital prior to the effective date of removal.
These Arbitration provisions will survive the termination of Your relationship with Qapital.
If any portion of these Terms and Conditions is deemed invalid, unlawful, void or for any reason unenforceable by any arbitrator or court of competent jurisdiction, these Terms and Conditions as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of these Terms and Conditions that is unlawful, void or unenforceable shall be stricken from these Terms and Conditions, and that portion deemed invalid, unlawful, void, or unenforceable shall not affect the validity and enforceability of any remaining provisions; provided, however, the foregoing severability provision does not apply to residents of New Jersey, who are instead subject to the provisions contained in the Legal Notice For New Jersey Residents Section.
Waiver, Survival, and Other Agreements
You agree that if Qapital does not exercise or enforce any legal right or remedy which is contained in these Terms and Conditions, this will not be taken to be a formal waiver of Qapital’s rights and that those rights or remedies will still be available to Qapital.
All covenants, agreements, representations and warranties made in these Terms and Conditions shall survive your acceptance of these Terms and Conditions and the termination of these Terms and Conditions.
These Terms and Conditions represent the entire understanding and agreement between you and Qapital regarding the subject matter of the same, and supersede all other previous agreements.
Legal Notice for New Jersey Residents
Under the New Jersey Truth-in-Consumer Contract, Warranty and Notice ACT (“TCCWNA”), N.J.S.A. 56:12-14 et seq., consumers may not be offered any written contract which includes any provision that violates any clearly established legal right of a consumer, or responsibility of a seller, as established by state or federal law. In addition, under the TCCWNA, no consumer contract may state that any of its provisions are or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable in New Jersey. Therefore, the following provisions of these Terms and Conditions shall not be applicable to New Jersey residents: (1) in the Registration Section, in the Billing and Payment Policy Sub-Section of the Fees & Payments Section, in the User Content Authorization Sub-Section of the User Content Section, in the Timeliness and Accuracy of External Data Section, in the Alerts Section, in the Disclaimer Regarding Use of Mobile Devices Section, and in the Disclaimer of Representations and Warranties Section, the provision concerning limiting our liability for any loss or damage is not applicable to New Jersey residents to the extent we were negligent or have breached our obligation to you; (2) in the Limitations on Qapital’s Liability Section, (a) the provision concerning limiting our liability for any loss or damage is not applicable to New Jersey residents to the extent we were negligent or have breached our obligation to you, and (b) the provision concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents with respect to punitive damages, loss of data, and loss of or damage to property; (3) in the Indemnification Section, the provision concerning the indemnification by you is not applicable to New Jersey residents unless you were negligent or have breached these Terms and Conditions; and (4) in the Agreement to Arbitrate Section, the provision concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents with respect to punitive damages, loss of data, and loss of or damage to property.