Last Updated: August 25, 2023
The following terms of service are terms of a legal agreement (the “Agreement”) between you (“you,” “your,” or “user”) and Applause Technology, Inc. and its subsidiaries, affiliates, agents and assigns (“Applause,” “we,” “us,” or “our”) which sets forth the terms and conditions for your use of Applause’s mobile application (“Mobile App”) and Applause’s website, Applausehq.com, (collectively, the “Platform”) as well as the products and services offered, operated or made available to you by Applause through the Platform (collectively, the “Services”). The Platform and Services are owned and operated by Applause and are being provided to you expressly subject to this Agreement. By accessing, browsing and/or using the Platform or Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations.
YOUR SUCESSFUL ONBOARDING IS NECESSARY IN ORDER FOR YOU TO FULLY RECEIVE THE BENEFIT OF THE SERVICES, INCLUDING THE ABILITY TO TRANSFER FUNDS THAT YOU HAVE EARNED THROUGH THE PLATFORM TO YOUR BANK ACCOUNT. THE ONBOARDING PROCESS MAY INCLUDE “KNOW YOUR CUSTOMER” PROCEDURES, INCLUDING IDENTITY VERIFICATION, WHICH YOU MUST SUCCESSFULLY COMPLETE TO TRANSFER FUNDS. IF YOU DO NOT SUCCESSFULLY COMPLETE IDENTITY VERIFICATION OR IF YOUR ACCESS TO THE SERVICES IS TERMINATED OR SUSPENDED, YOUR FUNDS MAY BE DIRECTED TO YOUR EMPLOYER FOR REMITTANCE TO YOU.
ACCEPTANCE OF AGREEMENT
Please carefully review this Agreement before using the Platform or Services or accessing any data thereon. If you do not agree to these terms, you may not access or use the Platform or Services. To use the Platform or Services and to accept the Agreement, you must (1) be a citizen or permanent legal resident of the United States, (2) be at least 16 years old, (3) work for an employer who is a client of Applause, (4) have an Applause User Account (defined below) in your legal name; and (5) not be prohibited by law from using the Platform or Services. Creating an Applause User Account with false information, which includes creating a User Account with another person’s information, is a violation of our terms and will result in the termination of your access to the Services.
MODIFICATION OF THIS AGREEMENT
Applause reserves the right to amend this Agreement at any time without advance notice unless required by law by posting a revised Agreement on the Applause website. All changes will be effective upon posting, so you should check this Agreement on the Applause website periodically for changes. Your continued use of the Platform or Services after any change to this Agreement constitutes your agreement to be bound by the changes. Applause also reserves the right to terminate, suspend, change, or restrict the Services, or any part of the Services, without notice or liability to you.
CONFLICTS WITH OTHER AGREEMENTS
Certain Services and features we make available to you now or in the future may be governed by other agreements that will be provided to you when you enroll in or access those Services or features. In the event of a conflict between this Agreement and such other agreements, those other agreements will control but only with respect to the applicable Service or feature and the conflicting provisions.
PRIVACY POLICY
Applause maintains a Privacy Policy that details how we handle and protect your data. Our Privacy Policy is available at applausehq.com/privacy-policy. We fully incorporate our Privacy Policy into this Agreement.
MINIMUM TECHNOLOGY REQUIREMENTS TO ACCESS SERVICES
To access and use the Mobile App and Services, you must have a mobile telephone (“mobile device”) with access to the Internet running either Apple iOS 13.0 or higher, or Android 5.1 or higher. You must also have a valid U.S. telephone number provided through a mobile carrier and email address, and sufficient storage space to install the Mobile App.
The Mobile App is available on the Apple App Store (for Apple devices) and Google Play Store (for Android devices).
ESTABLISHING A USER ACCOUNT, USER INFORMATION ACCURACY AND UPDATES
To access Applause’s Services, you must create a Mobile App user account with Applause (a “User Account”). This process will include the creation of a username and password (“Login Credentials”) to access the Mobile App and Services. When you sign up for a User Account, you agree to provide accurate, current and complete information — such as your name, mailing address, and email address – requested through the Mobile App (“User Information”).
In order to use certain Services, Applause 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 Mobile App and/or the Services. Should any of your User Information change, you also agree that you will update this information as soon as possible. You may update your User Information through the Mobile App or by emailing us at support@applausehq.com
Should you believe or have reason to believe that any of your User Information, including your username and/or password, has been compromised, or that another person is accessing your User Account through some other means, you agree to notify us as soon as possible at support@applausehq.com.
OVERVIEW OF SERVICES
Applause offers a variety of services and features collectively referred to in this Agreement as the
“Services,” which are the services available to you through our Mobile App or website, including the ability to collect and transfer customer tips, bonuses, and other incentives received through your employer. You are not eligible to receive any Services if your employer is not a customer of Applause. Your eligibility to receive any Services also depends on your successful onboarding, and you agree to promptly provide any information necessary for your onboarding and continued approval to use the Services.
THIRD-PARTY AND APPLAUSE BANKING ACCOUNT INFORMATION
To use some of our Services, you will need to give us access to information related to your bank accounts at other financial institutions. This includes balance information and/or other information maintained by third-parties with which you have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). Applause works with one or more third-party service providers to access this Third-Party Account Information. We will use this information to provide you with the Services you request, for our own internal business purposes, and to offer you other Applause or third-party products and services that may be of interest to you. By using the Services, you authorize Applause to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. By agreeing to this Agreement, you are also agreeing that you are responsible for keeping secure any passwords and usernames you provide to us so we can retrieve this Third-Party Account Information, and for keeping those passwords and usernames up to date through the Mobile App.
Applause does not review the Third-Party Account Information for accuracy, legality or non-infringement, and Applause is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites. You acknowledge that any Third-Party Account Information that is 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.
LINKED ACCOUNTS
After you create a User Account, you will be prompted to identify and connect one or more of your bank accounts held or issued by a depository institution (each, a “Linked Account”). Your Linked Accounts will be used to receive disbursements of tips, bonuses, or other incentives from your User Account.
You may only connect Linked Accounts that you own and are authorized to transact upon. Each Linked Account may only be connected to one User Account. If we determine that you have connected a Linked Account that you do not own or are not authorized to transact upon, or that is already connected to another User Account, we may terminate your access to the Services.
You may choose to unlink a Linked Account from your User Account through the Mobile App. By unlinking your Linked Account from your User Account, you may lose your ability to receive some or all of the Services.
REQUESTING DISBURSEMENTS AND DISBURSEMENT LIMITS
You can request that tips, bonuses, and other incentives you have accrued be disbursed to your Linked Account through the Mobile App. We offer two methods of disbursing funds: (1) Standard ACH and (2) Instant Transfer. The availability of Instant Transfer depends on the bank associated with your Linked Account, and your bank may not permit Instant Transfers. Your bank determines when your funds will be made available to you in your Linked Account. However, Standard ACH transfers will typically take 1 to 3 business days to appear in your Linked Account and Instant Transfers typically appear within minutes. You will be able to choose the method of disbursing funds through the Mobile App at the time you request the disbursement, based on what methods are available through the bank associated with your Linked Account.
There are several disbursement limits for transferring money from your User Account to your Linked Account:
You may not transfer less than $1.00.
You may not make more than 3 transfers in any rolling 24-hour period.
You may not transfer over $999.99 in any rolling 168-hour (7-day) period.
You may not make more than one transfer for the same amount in any rolling 24-hour period.
Transfers can be declined for reasons other than the limits above in Applause’s sole discretion.
TRANSACTION FEES
Applause charges fees for certain transactions related to the Services. These fees include:
An instant transfer fee (“Instant Transfer Fee”), only applicable if the Instant Transfer option is selected when you request disbursement of accrued tips, bonuses, or other incentives, option equal to $0.99 per transfer. If selected, the Instant Transfer Fee will be subtracted from the total amount you request to be transferred.
An instant processing fee when a customer transfers a tip to you using the Services, which is equal to a maximum of 15% of the total amount paid by the customer. This amount is not charged to you. Rather, this amount is charged to the person transferring the tip to your User Account.
PAYMENT OF ACCRUED TIPS AND INCENTIVES UPON TERMINATION OR SUSPENSION
If your access to the Platform or Services is terminated or suspended for any reason, any funds you have accrued but have not yet used or disbursed will be remitted to the employer through which you earned the tips, bonuses or incentives. The employer will be responsible for paying these funds to you to the extent you are entitled to them, and you should contact your employer if you have any questions or concerns about payment after termination or suspension of your access to the Platform or Services.
CONSENT TO ELECTRONIC COMMUNICATIONS AND DOING BUSINESS ELECTRONICALLY
a. Communications to Be Provided in Electronic Form
By choosing to use the Mobile App or Services, you will receive from time-to-time disclosures, notices, documents, and other communications about our Services, the Mobile App, or Applause (collectively, “Communications”). We can only give you the benefits of our Services by conducting business through the Internet and need you to consent to receive all Communications electronically. This section informs you of your rights when receiving electronic Communications from us. We may discontinue electronic provision of Communications at any time at our sole discretion.
b. Communications in Writing
By accepting this Agreement, you agree that electronic Communications shall be considered “in writing” and have the same meaning and effect as if provided in paper form. You agree that we have no obligation to provide you Communications in paper format unless required to by law, although we reserve the right to do so at any time.
c. Minimum Requirements
You understand that, in order to view and/or retain copies of the electronic Communications, you will need to meet the minimum technology requirements described in Section 5 above, as well as have software that allows you to open and view PDF files, such as the Adobe Acrobat Reader. You will also need sufficient storage space to save Communications or the capability to print the Communications from the device on which you view them.
d. Withdrawing Consent
You may withdraw your consent to receive Communications electronically by contacting us at support@applausehq.com. If you withdraw your consent, we may close your User Account and stop providing you with the Services. The legal validity and enforceability of prior Communications delivered in electronic form will not be affected by your withdrawal of consent.
e. Updating Records
You can update your User Information through the Mobile App or by emailing us at support@applausehq.com.
SMS MESSAGING AND TELEPHONE CALLS
By creating a User Account, you consent to receive SMS and MMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with non-marketing informational Communications related to the Mobile App, the Services, or your use of them. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Applause and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice without liability to you.
PUSH NOTIFICATIONS
By creating a User Account, you also agree to receive push notifications from us. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. We are not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content; or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted, and may include your name and information pertaining to your use of the Applause website, Mobile App, or Services. We may terminate your use of push notifications at any time without notice. You can opt out of receiving push notifications by adjusting your device settings. You acknowledge that opting out of receiving push notifications from us may impact your use of the Applause Mobile App and Services.
LIMITATIONS OF USE
You agree to use the Platform and Services only for lawful purposes. You are prohibited from any use of the Services or Mobile App that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. Any unauthorized use of the Platform or Services, including unauthorized entry into Applause’s systems, misuse of passwords, or misuse of any information posted on the Platform or through the Services is strictly prohibited. Applause makes no claims concerning whether use of the Platform or Services is appropriate outside of the United States. If you access the Platform or Services from outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree you will not (1) try to reverse engineer, disassemble, decompile, or decipher the Platform or Services or software making up the Platform and Services, (2) navigate or search the Platform or Services with any tool, software, agent, engine or other means (including bots, avatars, intelligent agents, or spiders), (3) use a means other than Applause’s provided interface to access the Platform or Services, (4) use the Platform or Services in a way that could impair, overburden, damage, or disable any portion of the Platform or Services, or (5) mirror any material contained on the Platform or Services.
Applause reserves the right to take various actions against you if we believe you have engaged in activities restricted by this Agreement or by laws or regulations, and Applause also reserves the right to take action to protect Applause, other users, and other third parties from any liability, fees, fines, or penalties. We may take actions including, but not limited to: (1) updating information you have provided to us so that it is accurate, (2) limiting or completely closing your access to the Platform or Services, (3) suspending or terminating your ability to use the Platform or Services on an ongoing basis, (4) taking legal action against you, and (5) holding you liable for the amount of Applause’s damages caused by your violation of this Agreement.
INTELLECTUAL PROPERTY RIGHTS
The Platform and Services are owned and operated by Applause. All content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, text, data, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever and the selection and arrangement thereof (collectively, the “Applause Materials”) are owned exclusively by Applause or the licensors or suppliers of Applause and are protected by U.S. copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Nothing on the Applause website, Mobile App or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Applause Materials displayed on the Platform or Services, without our prior written permission in each instance. You may not use, copy, display, distribute, modify or reproduce any of Applause Materials found on the Platform or Services unless in accordance with written authorization by us. Applause prohibits use of any of the Applause Materials as part of a link to or from the Platform or Services unless establishment of such a link is approved in writing by us in advance. Any questions concerning any Applause Materials, or whether any mark or logo is an Applause Material, should be referred to Applause. All rights related to the Applause Materials are hereby reserved. You agree that the Applause Materials may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without the express prior written consent of Applause. You acknowledge that the Applause Materials are and shall remain the property of Applause. You may not modify, participate in the sale or transfer of, or create derivative works based on any Applause Materials, in whole or in part.
TERMINATION
Unless prohibited by law, Applause may terminate this Agreement at any time, or suspend or terminate your access and use of the Platform or Services at any time, with or without cause, in Applause’s absolute discretion and without notice. The following provisions of this Agreement shall survive termination of your use or access to the Platform or Services: the sections concerning Indemnification, Disclaimer of Warranties, Limitation of Liability, Waiver, Dispute Resolution by Binding Arbitration, and General Provisions, and any other provision that by its terms survives termination of your use or access to the Platform or Services. Applause further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Platform or Services at any time with or without notice.
DISCLAIMER OF WARRANTIES
THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, APPLAUSE AND ALL OF ITS SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS, ASSIGNS, LICENSORS AND SUPPLIERS INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS (COLLECTIVELY, THE “APPLAUSE PARTIES”) EXPRESSLY MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO THE CONTENT OR OPERATION OF THE PLATFORM OR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM OR SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” THE APPLAUSE PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE INFORMATION OR CONTENT ON THE PLATFORM, OR SERVICES, AND EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. THE APPLAUSE PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE PLATFORM OR SERVICES ARE FREE OF VIRUSES, BUGS, DEFECTS, ERRORS, OR OTHER COMPUTING ROUTINES THAT CONTAIN DAMAGING OR OTHERWISE CONTAMINATING PROPERTIES, OR PROGRAMS INTENDED TO INTERCEPT OR STEAL PERSONAL OR SYSTEM DATA.
Please note, the ability to exclude warranties varies in different jurisdictions. To the extent that a jurisdiction places limits on the ability for a party to exclude warranties, these exclusions exist to the extent permitted by law. Because of this jurisdictional variance, some of the above exclusion may not apply to you.
NO LEGAL, TAX OR FINANCIAL ADVICE
APPLAUSE DOES NOT INTEND TO PROVIDE YOU WITH ANY LEGAL, TAX, OR FINANCIAL ADVICE THROUGH THE PLATFORM OR SERVICES. APPLAUSE IS NOT A LAWYER, TAX ADVISOR, BROKER, OR FINANCIAL PLANNER. APPLAUSE ENCOURAGES YOU TO CONSIDER CONSULTING AN ACCOUNTANT OR OTHER FINANCIAL ADVISOR AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES BEFORE IMPLEMENTING ANY FINANCIAL STRATEGY OR MAKING OTHER FINANCIAL DECISION. FURTHER, APPLAUSE IS NOT LIABLE FOR ANY ERRORS IN THE DELIVERY OR CONTENT OF INFORMATION PROVIDED THROUGH THE PLATFORM, AND APPLAUSE IS NOT LIABLE FOR ACTIONS YOU TAKE, OR DO NOT TAKE, IN RELIANCE ON INFORMATION SO PROVIDED. APPLAUSE IS NOT LIABLE FOR ANY THIRD-PARTY RELIANCE ON INFORMATION PROVIDED THROUGH THE PLATFORM.
LIMITATION OF LIABILITY
THE APPLAUSE PARTIES WILL NOT BE RESPONSIBLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, INCLUDING DAMAGES UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER CLAIMS, ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM OR SERVICES, THE APPLAUSE MATERIALS, OR ANY CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE PLATFORM OR SERVICES, EVEN IF APPLAUSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE APPLAUSE PARTIES WILL ALSO NOT BE LIABLE TO YOU FOR ANY USE OF INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED VIA THE PLATFORM OR SERVICES, OR FOR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING FROM, INCLUDING LOSS OF PROFIT, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO, OR USE OF, THE PLATFORM OR SERVICES. IN NO EVENT WILL THE APPLAUSE PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED USD $1,000 (ONE THOUSAND UNITED STATES DOLLARS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR SERVICES OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
INDEMNIFICATION
To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless the Applause Parties from and against any and all claims, losses, expenses, demands or liabilities, including reasonable attorneys” fees arising out of or relating to (i) your access to, use of or alleged use of the Platform or Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. Applause reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of Applause.
DISPUTE RESOLUTION BY BINDING ARBITRATION
YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 23(c) BELOW.
a. Election to Arbitrate.
You and Applause agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 23 (the “Arbitration Provision”), unless you opt out as provided in Section 23(c) below. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of Section 23(h) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. Please note that you may continue to assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
b. Applicability of the Federal Arbitration Act; Arbitrator’s Powers.
This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
c. Opt-Out of Arbitration Provision.
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to support@applausehq.com, within 60 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.
d. Informal Dispute Resolution.
If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to support@applausehq.com at any time.
e. Arbitration Procedures.
The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the Aase web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. The arbitration will be held in the United States county where you live or work, or any other location we agree to.
f. Arbitration Fees.
If we elect arbitration, we shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
g. Appeals.
Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.
h. No Class Actions.
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. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Except for claims seeking public injunctive relief and unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 23(h), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 23(h) shall be determined exclusively by a court and not by the administrator or any arbitrator.
i. Survival and Severability of Arbitration Provision.
This Arbitration Provision shall survive the termination of this Agreement. If any portion of this Arbitration Provision other than Section 23(h) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision’s limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 23(h) are finally adjudicated pursuant to the last sentence of Section 23(h) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
j. Judicial Forum for Claims.
Except as otherwise required by applicable law, in the event that this Arbitration Provision is found not to apply to you or your Claim, you and Applause agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Bexar County, Texas. Both you and Applause consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
k. WAIVER OF RIGHT TO LITIGATE.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
GOVERNING LAW AND VENUE
Except for Section 23, which is governed by the FAA, this Agreement and all Claims are governed by the laws of the State of Utah, without regard to conflict-of-law rules.
SEVERABILITY
If any provision of this Agreement is found to be invalid, unlawful, void, or unenforceable by either an arbitrator or a court of competent jurisdiction, this Agreement’s remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions of the Agreement shall remain in full force and effect.
WAIVER
You agree that if Applause does not enforce any of its legal rights or remedies under this Agreement, or other legal rights or remedies Applause has under applicable laws, this shall not be construed as a formal waiver of those rights or remedies or any other rights in any way whatsoever.
Mobile App Availability
We shall have the right, in our sole discretion and with reasonable notice, to establish or change limits concerning use of the Mobile App features, temporarily or permanently, including the number of times and the maximum duration for which you may access the Mobile App in a given period of time. We reserve the right to make any such changes effective immediately to maintain the stability or security of the system or to comply with any laws or regulations. You may reject changes by discontinuing use of the Mobile App features to which such changes relate. Your continued use of the Mobile App will constitute your acceptance of and agreement with such changes. Maintenance upon the Mobile App may be performed from time-to-time resulting in interrupted service, delays or errors in the App features. Attempts to provide prior notice of scheduled maintenance will be made, but Applause cannot guarantee that such notice will be provided.
Links to other Applause websites and services
The Mobile App and our Applause website may contain links to outside services and resources, the availability and content of which Applause does not control or monitor. We are not responsible for examining or evaluating, and we cannot guarantee and expressly do not warrant the offerings of these businesses or individuals or the content of their web sites. Except where an endorsement or relationship is expressly disclosed, links to and from such sites do not constitute an Applause endorsement, and Applause does not represent or imply that there is any business relationship between Applause and the other entities. Applause does not assume any responsibility or liability for the actions, products, and content of these and any other third-parties. Any concerns regarding any such service or resource, or any link thereto, should be directed to the particular outside service or resource.
CONTACTING US
If you have questions regarding the Agreement or the practices of Applause, please contact us by e-mail at support@applausehq.com or by regular mail at Applause Technology, Inc., Attn: J. Taylor Olson, 5442 S 900 E #561 Salt Lake City, Utah 84117.
GENERAL PROVISIONS
This Agreement is the entire understanding and agreement between you and Applause. This Agreement supersedes any previous Terms of Use agreement or other agreement to which you and Applause may have been bound. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Neither the course of conduct between parties nor trade practice shall act to modify any provision of the Agreement. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement or any of our rights or obligations under this Agreement at any time without notice. All rights not expressly granted herein are hereby reserved. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Definitions in the singular also apply in the plural, and vice versa. For purposes of this Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.”