Wyre+ Rewards Program User Agreement and Terms
LAST UPDATED OCTOBER 19, 2022
THIS AGREEMENT REQUIRES USER AND WYRE TO RESOLVE ALL DISPUTES BY BINDING INDIVIDUAL ARBITRATION INSTEAD OF IN COURT, UNLESS USER CHOOSES TO OPT OUT OF ARBITRATION WITHIN 30 DAYS. PLEASE SEE SECTION 16 TITLED “DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER” BELOW. UNLESS USER OPTS OUT OF THE ARBITRATION AGREEMENT IN THE TIME ALLOWED, USER WAIVES USER’S RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION, AND EXCEPT AS PERMITTED BY SECTION 16, USER WILL NOT BE ABLE TO BRING ANY CLAIMS IN STATE OR FEDERAL COURT.
AS EXPLAINED IN FURTHER DETAIL IN THE SECTION BELOW ENTITLED “E-SIGN DISCLOSURE AND CONSENT,” AUTHORIZATION TO ELECTRONICALLY RECEIVE ANY AND ALL COMMUNICATIONS (DEFINED BELOW) IS A CONDITION OF PARTICIPATION IN THE WYRE+ REWARDS PROGRAM, MEANING THAT IF USER REVOKES USER’S CONSENT TO RECEIVE SUCH COMMUNICATIONS ELECTRONICALLY USER UNDERSTANDS THAT USER MAY NOT CONTINUE TO PARTICIPATE IN THE WYRE+ REWARDS PROGRAM.
As with any asset, the value of digital assets can go up or down, and there is a substantial risk that the value of any digital assets you designate for participation in the program and rewards may decrease in value at the time of withdrawal from the program or payment of rewards. Further, by opting to participate in the Wyre+ Rewards Program, you are agreeing that amounts designated by User for participation in the program may be used by Wyre (or its designees) for any purpose, and there is a risk that Wyre may not be able to return all or a portion of any digital assets or pay accrued Rewards, and you could lose all such amounts to which you may be entitled under the terms of the program. This could happen for a variety of reasons, including if the assets were lent by Wyre or otherwise entrusted to other third parties and those parties defaulted on their obligations to Wyre, or other reasons affecting the general ability of Wyre to honor its obligations. User should carefully consider whether participating in the Wyre+ Rewards Program is suitable for User in light of User’s financial condition, and the risk of potential loss. The Wyre+ Rewards Program is not intended to be an offer of a security in any jurisdiction and Wyre+ Rewards Program has not been registered under the U.S. Securities Act of 1933 or the laws of any state or other jurisdiction. Accordingly, you should assume for purposes of evaluating whether to participate in the Wyre+ Rewards Program that the Wyre+ Rewards Program is not subject to any protections under the U.S. federal securities laws or otherwise. Wyre is not registered with the U.S. Securities and Exchange Commission.
Description of the Service. Through the Wyre+ Rewards Program and for the purpose of encouraging customer loyalty, Wyre utilizes third-party sites to provide rewards payments to Users who elect to contribute certain digital assets, as determined by Wyre (“Eligible Assets”). Wyre, itself or through selected third parties (“Developers”), will provide rewards to User at the then-current rewards rate based on the amount of the Eligible Assets that User contributes to the Wyre+ Rewards Program (the “Participation Amount”) for so long as such participation continues. Eligible Assets may change from time to time in Wyre’s sole discretion. User acknowledges and agrees that, upon Wyre’s receipt of any Wyre+ Participation Amount that User elects to contribute under the Wyre+ Rewards Program, Wyre may use such Participation Amount for any purpose Wyre chooses. User has no rights to any profits or returns that Wyre may generate or receive through its use of any Participation Amount, and User’s sole rights are to receive rewards and have the Participation Amount returned. User further acknowledges that User is aware of and assumes all risks associated with the volatility of the market price of any Participation Amount that User may contribute to the Wyre+ Rewards Program.
Restrictions. We do not offer the Wyre+ Rewards Program in all jurisdictions. Additional information regarding the Wyre+ Rewards Program may be available and obtained through the Site. The Wyre+ Rewards Program, and certain aspects of the Wyre+ Rewards Program, may, as applicable, be delayed, restricted, forfeited, or ultimately unavailable due to certain laws and regulations governing the Wyre+ Rewards Program as well as certain circumstances and conditions associated with User’s participation in the Wyre+ Rewards Program.
Eligibility. In order to participate in the Wyre+ Rewards Program, User must (i) create a Wyre+ Rewards Account (see Section 3 below for details), (ii) be a resident of a jurisdiction we serve and, if you are a natural person, (iii) be at least the age of majority and contractual capacity in the jurisdiction in which User resides.
Compliance. Wyre is not responsible for any losses, whether direct or indirect, that User may incur as a result of our compliance with applicable law, the guidance or direction of any regulatory authority or government agency, or any writ of attachment, lien, levy, subpoena, warrant or other legal order.
Account Creation. In order to participate in the Wyre+ Rewards Program, User must create a Wyre+ Rewards user account through the Site (a “Wyre+ Rewards Account”). In order to create a Wyre+ Rewards Account, User agrees to follow the process set forth in Section 2. If you are an entity, the individual creating a Wyre+ Rewards Account on your behalf confirms that he or she is authorized to enter into this Agreement on your behalf.
Accredited Investors. In addition to the information required pursuant to Section 2, Wyre may request documentation to assess and verify User’s personal net worth or income in order to determine whether User is an “accredited investor” (as defined in Rule 501 of Regulation D of the Securities Act of 1933). This information may be reviewed by Wyre or by a third-party service provider to Wyre. Wyre may determine to offer User Wyre+ Rewards Program services depending on whether User is an accredited investor.
Account Security. USER IS RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF USER’S ACCOUNT CREDENTIALS AND IS FULLY RESPONSIBLE FOR ANY AND ALL ACTIVITIES THAT OCCUR UNDER USER’S WYRE+ REWARDS ACCOUNT. User agrees to notify Wyre immediately if User knows of or suspects unauthorized use of User’s Wyre+ Rewards Account or any other security breach, such as loss, theft, unauthorized disclosure or unauthorized use of User’s Wyre+ Rewards Account, password or other access credentials. Wyre is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords or other access credentials or any unauthorized use of User’s Wyre+ Rewards Account. While Wyre has endeavored to make the Site secure and reliable, User should understand that the confidentiality of any communication or material transmitted to/from us using the Site over the Internet or other form of global communication network cannot be guaranteed. Accordingly, Wyre is not responsible for the accuracy, reliability, or security of any information transmitted to or from us using the Site.
Compliance. User is responsible for understanding and abiding by applicable laws and regulations, and will at all times comply with all applicable laws and regulations in connection with User’s access to and use of the Site, any contribution of a Participation Amount, and any other aspect of the Wyre+ Rewards Program.
Service Limitations. Except as required by law, we may, without notice and without liability to User, suspend or terminate access to or participation in, or refuse to provide, the Wyre+ Rewards Program at any time in our sole discretion, including without limitation:
if we believe that User’s participation, directly or indirectly, or User’s attempt to participate in, the Wyre+ Rewards Program is for any unlawful or improper purpose;
if we believe that User has engaged in any activity that is prohibited on the Site;
if we believe that User has provided any incomplete, incorrect or false information to us;
if we believe that User attempts to tamper, hack, modify or otherwise corrupt the security or functionality of the Site or the Wyre+ Rewards Program;
if we believe that User’s transfer of any Eligible Asset for a contribution of a Participation Amount is unauthorized or fraudulent;
if we believe that User has violated Wyre’s Anti-Money Laundering Policy or any other policy of Wyre,
if we believe that User has breached any portion of this Agreement; and/or
if we determine such action is necessary to comply with this Agreement, any of our policies, procedures or practices, or any law, rule or regulation;
if we believe User is attempting to or has gamed or otherwise use the services for an unintended purpose; and/or
if requested by any regulator, government agency or department or court.
User agrees that we will not be held responsible or liable to User or any other person for such action except as required by law.
GENERAL PARTICIPATION TERMS
Participation Terms. Terms may be disclosed on our site or Developers’ site; it is your sole responsibility to review and evaluate any and all applicable terms. For the avoidance of doubt, no erroneous or contrary information provided to User by any Developer or third party shall obligate Wyre to provide rewards on terms other than those specified on the Site at the time the Participation Amount is contributed. Such terms may address what we will accept as a contribution of a Participation Amount, which may include (i) each Eligible Asset, (ii) the reward we will pay (the “Wyre+ Rewards Rates”), and (iii) any minimum or maximum amounts of Eligible Assets we will accept. If Wyre makes any changes to Wyre+ Rewards Rates or other terms, Users may be notified through Users’ Wyre+ Rewards Accounts page. For the avoidance of doubt, no erroneous or contrary information provided to User by any Developer or third party shall obligate Wyre to provide rewards on terms other than those specified on the Site at the time the Participation Amount is contributed. The current list of Eligible Assets is BTC, ETH, DAI and USDC. Participation Amounts provided to Wyre are subject to the same market fluctuations as any other digital asset and User accepts that Participation Amounts lent to Wyre may lose value during the time that any Participation Amount is outstanding.
Participation. If User desires to participate in the Wyre+ Rewards Program, User must deliver the relevant Eligible Assets to Wyre in the time and manner specified by Wyre. Upon making such transfer, User has transferred all right, title and interest in and to the Eligible Assets delivered to Wyre. Wyre can use the Eligible Assets for any purpose we choose, and User has no rights to any profits or returns we may generate or receive through our use of such Eligible Assets, or otherwise to any compensation except the agreed-upon Wyre+ Rewards Rate. If User contributes Eligible Assets, Wyre will confirm receipt thereof and reflect the type and amount of Eligible Assets contributed, and the Wyre+ Rewards Rate to be paid, on User’s Wyre+ Rewards Account page.
Linked Destination Account. To participate in the Wyre+ Rewards Program, User must create a wallet with Wyre Payments, Inc, (the “Custodial Wallet”) or have a third party destination wallet address where Wyre can transfer assets withdrawn from the Wyre Rewards Program. Assets in the Custodial Wallet or third party wallet are not subject to this Agreement.
Repayment of Participation Amount. Unless otherwise specified, Participation Amounts will not have a set maturity date (i.e., a date when the Participation Amount is due in full). Wyre may, in its sole discretion, prepay the Participation Amount at any time without penalty and User can demand payment of the entirety or a portion of the Participation Amount, subject to the terms of this Agreement. Wyre will update User’s Wyre+ Rewards Account page to reflect any changes in Participation Amounts a User has made.
If Wyre determines to repay all or a portion of a Participation Amount, we will notify User and will pay any Rewards Rate payment that is due and payable at the time and date of such repayment.
If User demands payment of some or all of a Participation Amount, User must provide a destination wallet address. Wyre will return the requested Participation Amount plus any Wyre+ Rewards Rate payment accumulated through the date that the User claims their participation amount within three business days to the wallet address provided.
Termination of Participation. Participation in the Wyre+ Rewards Program with respect to a Participation Amount will terminate upon Notice from Wyre that it intends to repay the Participation Amount or from User demanding such repayment. Upon termination of participation, User must provide a destination wallet address and Wyre will deliver Eligible Assets subject to the Participation Amount (plus any Wyre+ Rewards Rate payment accumulated at the time of termination) to User at such wallet address.
Repayment of Participation Amount in Illiquid Market. If the market for the Eligible Asset for the Participation Amount becomes illiquid (as determined by Wyre in its good faith discretion based on the trading of such Eligible Asset on the three highest volume digital asset exchanges) on the termination date of for the Participation Amount, User and Wyre will engage in good faith negotiations to reach an agreement regarding a substitute form of repayment for the affected Participation Amount. Any decision reached will be binding on User.
Payment of Rewards. Wyre agrees to pay User the Wyre+ Rewards Rate on each Participation Amount. Wyre+ Rewards Rate payments are earned and paid in the same type of digital asset as the applicable Participation Amount. All rates are displayed in APY compounding monthly. Wyre+ Rewards Rate amounts are payable in arrears and added to the total principal balance of each Participation Amount (and thus included for purposes of calculating the amount of additional Wyre+ Rewards Rate payments accrued). Participation Amounts will begin accruing Wyre+ Rewards Rate amounts on the first full calendar day of their term. Wyre may change its Wyre+ Rewards Rates at any time in its sole discretion. If User does not demand payment of a Participation Amount that is subject to a revised Wyre+ Rewards Rate within three (3) calendar days of Wyre posting notice of such changes, User is deemed to have accepted the revised Wyre+ Rewards Rate for User’s Participation Amount on a going-forward basis. Wyre+ Rewards Rate payments made to User are not determined based on Wyre’s income or profit, or generated, directly or indirectly, as a result of Wyre’s use of a particular digital asset.
Calculation. Wyre uses the daily balance method to calculate the Wyre+ Rewards Rate amounts owed to User. This method applies a daily periodic rate to the principal amount of the Participation Amount on each day. The daily periodic rate is calculated by dividing User’s applicable Wyre+ Rewards Rate by the number of days in the year. Wyre may round certain amounts that do not compound. Wyre+ Rewards Rate payment amounts will be credited to User’s Participation Amount principal on the first business day of each calendar month for the Wyre+ Rewards Rate payment amounts accrued during the preceding calendar month. Rewards are calculated daily based on the wallet balance at 11 pm UTC of that day and added to pending rewards. Pending rewards are released to the saving wallet at the end of each month.
TAXES AND REPORTING. User is solely responsible for the reporting of Wyre+ Rewards Rate rewards amounts earned, any payment of, and all taxes associated therewith earned from User’s contributed Participation Amount. While Wyre may provide User with statements and other documentation regarding User’s contributed Participation Amounts, Wyre shall bear no responsibility nor liability for any of User’s tax reporting or payment obligations.
INTENT. Both User and Wyre agree that Participation Amounts are intended to enable participation in Wyre+ Rewards Program, in which Wyre provides rewards to User at the designated Wyre+ Rewards rate. The parties do not intend such participation or the Wyre+ Reward Program to be securities under the U.S. federal or state securities laws.
REPRESENTATIONS AND WARRANTIES. Wyre and User each represent and warrant that it has the power to execute and deliver this agreement, to make and accept the Participation Amounts as contemplated hereby and to perform its obligations hereunder, and that it is in compliance with applicable law. Wyre and User both represent that they will each make their own independent decisions to make or accept the contributions of the Participation Amounts and own determination as to whether the contribution of such Participation Amounts is appropriate or proper.
INTELLECTUAL PROPERTY. Wyre reserves all rights in and to the Site and Wyre+ Rewards Program and all related intellectual property. “Wyre,” and all associated logos, trademarks or other identifiers displayed within the Site are the sole property of Wyre or its licensors. User acknowledges that, as between User and Wyre, all rights, title and interest, including all copyright, trademark, patent, trade secret and other intellectual property or proprietary rights, related to the Site (including all modifications, improvements, upgrades, and derivative works thereof) or to the Wyre+ Rewards Program belong exclusively to Wyre. User shall honor and comply with any and all contractual, statutory or common law rights of Wyre, as well as any applicable third parties, arising out of or relating to the provision or use of the Site or participation in the Wyre+ Rewards Program.
TERMINATION. Wyre, in its sole discretion, may suspend or terminate User’s access to or use of the Site or User’s participation in the Wyre+ Rewards Program, for any reason, including, without limitation, if we receive a facially valid subpoena, court order or other binding order from a government authority requiring us to do so or if we believe User has violated this Agreement, in letter or in spirit. Wyre may also, in its sole discretion, discontinue providing the Wyre+ Rewards Program, or any part thereof, with or without notice. Unless otherwise directed by a governmental authority, in the event Wyre determines to suspend or terminate User’s access to the Site or participation in the Wyre+ Rewards Program or to discontinue the Wyre+ Rewards Program, we will repay all Participation Amounts in full and direct such payment to the destination wallet address User provides to us. User may terminate this Agreement by demanding repayment of all outstanding Participation Amounts and requesting that we close User’s Wyre+ Rewards Account, either by contacting Wyre at firstname.lastname@example.org.
INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, USER AGREES TO INDEMNIFY AND HOLD WYRE, ITS AFFILIATES, AND ITS AND ITS AFFILIATES’ RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, DIRECTORS, MANAGERS, EQUITY OWNERS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “WYRE GROUP”), HARMLESS FROM AND WITH RESPECT TOANY CLAIM OR DEMAND BY ANY THIRD PARTY AND ANY ASSOCIATED LOSS, LIABILITY, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY, “LOSSES”), ARISING OUT OF OR RELATED TO (i) USER’S PARTICIPATION IN THE WYRE+ PROGRAM, (ii) YOUR VIOLATION OF (x) THIS AGREEMENT, (y) THE RIGHTS OF ANY PERSON OR ENTITY OR (z) ANY APPLICABLE LAW OR REGULATION, OR (iii) YOUR NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT; BUT EXCLUDING ANY LOSSES TO THE EXTENT PRIMARILY ATTRIBUTABLE TO THE RECKLESSNESS OR WILLFUL MISCONDUCT OF WYRE OR WYRE’S VIOLATION OF APPLICABLE LAW OR REGULATION. FOR PURPOSES OF THIS SECTION 13, ANY ACT OR OMISSION DONE VIA YOUR WYRE+ ACCOUNT SHALL BE DEEMED TO BE YOUR ACT OR OMISSION, EVEN IF THE USE OF YOUR WYRE+ ACCOUNT TO PERFORM SUCH ACT OR OMISSION WAS NOT AUTHORIZED BY YOU.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, WYRE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE OR DATA OR OTHER INTANGIBLES, EVEN IF WYRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES RESULTING FROM (I) THE PARTICIPATION IN OR THE INABILITY TO PARTICIPATE IN THE WYRE+ PROGRAM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR (III) UNAUTHORIZED ACCESS TO USER’S WYRE+ ACCOUNT OR ALTERATION OF USER’S WYRE+ ACCOUNT OR DATA. USER SPECIFICALLY AGREES THAT WYRE IS NOT RESPONSIBLE OR LIABLE TO USER OR ANYONE ELSE FOR ANY LOSS OF, ON, OR THROUGH THE SITE OR THE WYRE+ PROGRAM. WYRE IS NOT LIABLE FOR ANY CHANGES IN VALUE IN ELIGIBLE ASSETS. WYRE’S TOTAL LIABILITY TO USER FOR BREACH OF CONTRACT AND FOR ANY AND ALL OTHER CLAIMS (INCLUDING TORT CLAIMS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE OR THE WYRE+ PROGRAM, SHALL NOT EXCEED THE TOTAL PARTICIPATION AMOUNT CONTRIBUTED AND WYRE+ REWARDS RATE AMOUNTS DUE TO USER FROM WYRE HEREUNDER (AS MEASURED IN THE APPLICABLE DIGITAL ASSET). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, USER EXPRESSLY AGREES THAT USER’S USE OF THE SITE AND PARTICIPATION IN THE WYRE+ PROGRAM ARE AT USER’S SOLE RISK AND EXPENSE AND SUBJECT TO THIS AGREEMENT, ANY APPLICABLE LAW, AND ANY ADDITIONAL TERMS AND CONDITIONS IMPOSED BY ANY ISSUER OF ELIGIBLE ASSETS OR OTHER APPLICABLE THIRD PARTY. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WYRE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY. WYRE MAKES NO WARRANTY THAT THE SITE OR WYRE+ PROGRAM WILL MEET USER’S REQUIREMENTS, OR THAT THE SITE OR WYRE+ PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM THE WYRE GROUP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS; THEREFORE, SOME OR ALL OF THE PROVISIONS OF THIS SECTION MAY NOT APPLY TO YOU.
DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER
Please read this provision very carefully. It limits your rights in the event of a dispute between you and us.
“Country of Residence” for purposes of this agreement to arbitrate means the country in which you hold citizenship or legal permanent residence; provided that if you have more than one country of citizenship or legal permanent residence, it shall be the country in which you hold citizenship or legal permanent residence with which you most closely are associated by permanent or most frequent residence.
We want to address your concerns without the need for a formal dispute resolution process. Before filing a claim against us, therefore, you agree to try to resolve the Dispute informally by contacting us in writing at: [enter physical address] or via e-mail [insert email] to notify us of the actual or potential Dispute. Similarly, we will undertake reasonable efforts to contact you to notify you of any actual or potential dispute to resolve any claim we may possess informally before taking any formal action. The party that provides the notice of the actual or potential Dispute (the “Notifying Party”) will include in that notice (a “Notice of Dispute”) your name (to the extent known), the Notifying Party’s contact information for any communications relating to such Dispute (including for the Notifying Party’s legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the “Notified Party”) to understand the basis of and evaluate the concerns raised. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.
If, notwithstanding the Notifying Party’s compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of this Agreement, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Dispute.
Unless you opt out of this agreement to arbitrate as provided below, you and we each agree to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, subject to the exceptions set forth below.
If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to us at 9100 S. Dadeland Blvd Suite 1500 Miami FL 33156 or via e-mail at email@example.com within thirty (30) days of the first time you accept this Agreement (or any prior version of this Agreement) or, if earlier, your first use of any of our Services. You must date the notice and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with us through arbitration. If no notice is submitted in the manner described above by the 30-day deadline, you will have irrevocably waived your right to litigate any Dispute except with regard to the exceptions set forth below. By opting out of this agreement to arbitrate, you will not be precluded from using any Services, but you and we will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
You and we agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Consumer Arbitration Rules in effect at the time arbitration is sought (“AAA Rules”), except that if any provision of this agreement to arbitrate conflicts with the AAA Rules, the provision of this agreement to arbitrate will control. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit, other than remedies that you effectively waived pursuant to this Agreement. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other of our customers or users, as reasonably determined by either party, such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. In that event, each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law with experience arbitrating or mediating disputes in the financial services industry. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this paragraph shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as may be and to the extent otherwise required by law, the arbitration proceeding and any award shall be confidential.
ANY ARBITRATION UNDER THIS AGREEMENT MUST BE INITIATED WITHIN ONE YEAR AFTER THE COMPLAINING PARTY DISCOVERS THE FACTS THAT FORM THE BASIS FOR THE CONTROVERSY OR CLAIM, OR THE RIGHT TO BRING AN ARBITRATION BASED ON THOSE FACTS IS FOREVER WAIVED BY THAT PARTY.
You and we further agree that the arbitration will be held in the English language in Wilmington, Delaware, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If we elect arbitration, we shall pay all of the AAA 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 AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law.
Regardless of the rules of any arbitration forum, you and we agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor we may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against us will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
To the maximum extent permitted by applicable law, neither you nor we shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities with any Disputes, or to arbitrate or litigate any Dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any Dispute, any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph or otherwise relating to the prohibition of Collective Arbitration shall be determined exclusively by the arbitrator.
Notwithstanding this agreement between you and us to arbitrate Disputes, you and we each retain the following rights:
You and we retain the right to bring an individual action in small claims court or otherwise utilizing the small claims process of your Country of Residence.
You and we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
If your Country of Residence is not the United States, this agreement to arbitrate does not deprive you of the protection of the mandatory provisions of the consumer protection laws in your Country of Residence; you shall retain any such rights and this agreement to arbitrate shall be construed accordingly.
Except as otherwise required by the applicable law of your Country of Residence or provided in this Agreement, in the event that this agreement to arbitrate is found not to apply to you or your Dispute, or you opt out of this agreement to arbitrate as provided above, you and we agree that any judicial proceeding may only be brought in a court of competent jurisdiction in Delaware. Both you and we consent to venue and personal jurisdiction in Delaware for purposes of such a proceeding. Notwithstanding the foregoing, either party may bring any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights, to compel arbitration or to confirm an arbitral award in any court or administrative agency having jurisdiction.
This agreement to arbitrate shall survive the termination or expiration of this Agreement. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court or arbitrator decides that any part of this agreement to arbitrate is invalid or unenforceable under applicable law, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. If a court or arbitrator decides that the prohibition of Collective Arbitration is invalid or unenforceable under applicable law, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of this Agreement unrelated to arbitration shall be void), and any remaining Dispute must be litigated in court.
E-SIGN DISCLOSURE AND CONSENT
Scope of Communications to Be Provided in Electronic Form. User understands and agrees that we may provide User with any or all of the following types of communications electronically: (i) legally required disclosures, notices and other communications associated with User’s participation in the Wyre+ Rewards Program, including, but not limited to information about fees or charges, and any and all legally required pre- and post-transaction disclosures; (ii) customer service communications; (iii) privacy policies and notices; (iv) changes to this Agreement, (v) statements, information and records regarding User’s transactions; (vi) information regarding the debiting or charging, as applicable, of User’s selected payment method; (vii) any and all legally required error resolution policies, and responses to claims filed in connection with User’s participation in the Wyre+ Rewards Program; (viii) any other communications related to User’s participation in the Wyre+ Rewards Program, and (ix) with User’s consent, marketing and other promotional communications (collectively, “Communications”).
Communications in Writing. All Communications in either electronic or paper format from us to User will be considered “in writing.” User should print or download for User’s records a copy of this Agreement and any other Communication that is important to User.
Method of Providing Communications to User in Electronic Form. All Communications that we provide to User in electronic form will be provided either (i) via e-mail, (ii) by access to a web site that we will designate in an email notice we send to User at the time the information is available, or (iii) to the extent permitted by law, on the Site or via SMS text message. User agrees to promptly review all Communications sent to User, and that these are reasonable procedures for sending and receiving electronic communications.
How to Update User’s Records. To receive electronic Communications, at the time that User first participates in the Wyre+ Rewards Program, User must provide us with a true, accurate and complete email address and User’s other contact information, and User must promptly notify us of any changes to this information. User can update information (such as User’s email address) through the Site.
Hardware and Software Requirements. In order to access, view, and retain electronic Communications that we make available to User, User must have an electronic device that enables access to User’s e-mail account or a commercially available Internet browser. User may wish to utilize a device that is capable of storing or printing the Communications for User’s records.
Requesting Paper Copies. Unless User has withdrawn consent to receive electronic Communications pursuant to Section 17.g, we will not send User a paper copy of any Communication unless we deem it appropriate to do so or User requests such a copy as provided below. User can obtain a paper copy of an electronic Communication by printing it. We reserve the right, but assume no obligation, to provide a paper (instead of electronic) copy of any Communication that User has authorized us to provide electronically. User may obtain a paper copy of any legally-required Communications and or agreements. User may request such a paper copy by contacting Wyre at firstname.lastname@example.org.
How to Withdraw Consent. User may withdraw User’s consent to receive Communications in electronic form at any time by contacting Wyre at email@example.com. Any withdrawal of User’s consent to receive electronic Communications will be effective only after we have received User’s request for withdrawal, and have a reasonable period of time to process such request. In the meantime, User will continue to receive Communications in electronic form. If User withdraws such consent, User will no longer be able to participate in the Wyre+ Rewards Program. Withdrawing consent to receive marketing communications only does not preclude participation in the Wyre+ Rewards Program, however. If User withdraws User’s consent, the legal validity and enforceability of prior Communications delivered in electronic form will not be affected, and User’s previous electronic records will remain accessible for such period as is required under law and in a form that allows the record to be accurately reproduced to all persons who are entitled under law to access the record.
Federal Law. User acknowledges and agrees that User’s consent to electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that User and we both intend that the E-Sign Act apply to the fullest extent possible to validate our ability to conduct business with User by electronic means.
Termination/Changes. We reserve the right, in our sole discretion, to discontinue the provision of User’s electronic Communications, or to terminate or change the terms and conditions on which we provide electronic Communications. We will provide User with notice of any such termination or change as required by law.
Entire Agreement. This Agreement constitutes the entire agreement between User and Wyre and governs User’s participation in the Wyre+ Rewards Program, superseding any prior agreements between User and Wyre with respect to User’s use of the Site and participation in the Wyre+ Rewards Program. User may also be subject to additional terms and conditions that may apply when User uses third party services in conjunction with User’s participation in the Wyre+ Rewards Program, and User represents and warrants that User will comply with all such additional terms and conditions.
Governing Law and Waiver of Jury Trial. To the fullest extent permitted under the laws of your Country of Residence, this Agreement is governed by and construed in accordance with the laws of the State of Delaware applicable to contracts entered into and performed in Delaware by residents thereof; provided that all provisions hereof related to arbitration shall be governed by and construed in accordance with the Federal Arbitration Act (U.S. Code Title 9). TO THE EXTENT THE DISPUTE RESOLUTION BY BINDING ARBITRATION PROVISION ABOVE IS INAPPLICABLE TO A CLAIM OR ACTION, AND WITHOUT PREJUDICE TO SUCH PROVISION, EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT; EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION; AND EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY TO ENTER INTO THIS AGREEMENT. User and Wyre agree that any lawsuit arising out of or related to this Agreement or User’s use of the Site or participation in the Wyre+ Rewards Program, which is brought by User or any third party, must commence within one (1) year after the cause of action arises; otherwise, such cause of action is permanently barred.
Feedback. We welcome questions, comments and other feedback about this Agreement and the Wyre+ Rewards Program, including ideas, proposals, suggestions or other materials (“Feedback”). However, you acknowledge and agree that we will treat all Feedback as non-confidential, and you hereby grant us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid-up license to create derivative works based upon any of your Feedback and to reproduce, publicly display, publicly perform, use, commercialize, disclose, import and distribute such Feedback in any way and for any purpose, and to sublicense, assign or otherwise transfer such license or otherwise authorize others to do any of the foregoing, without notice or obligation to you. You further acknowledge and agree that your provision of Feedback is gratuitous, unsolicited and without restrictions, and does not place us under any fiduciary or other obligation.
Waiver. Wyre’s failure to exercise or enforce or delay in exercising or enforcing any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Wyre in writing.
Force Majeure. No party shall be liable for failure or delay in performing obligations set forth in this Agreement, and no party shall be deemed in breach of such obligations, if such failure or delay is due to natural disasters or any cause reasonably beyond the control of such party.
Third Party Beneficiaries. The provisions of this Agreement are solely for the benefit of User and Wyre, and, except as specifically provided herein, no third party (including creditors of any party) may seek to enforce, or benefit from, these provisions, or seek redress for any breach or other damage, alleged or proved, under this Agreement.
Headings. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
Severability. Except as provided above regarding the provisions hereof relating to Collective Arbitration, if any provision of this Agreement, either in whole or in part, is held to be illegal, invalid, void as against public policy, or unenforceable for any reason under present or future law, such provision shall be fully severable without effect on the remaining provisions, which shall continue in full force and effect and remain legal, valid, effective, and enforceable as if the illegal, invalid, void, or unenforceable provision(s) had never comprised a part of such provision or this Agreement, as applicable. In lieu of the illegal, invalid, void, or unenforceable provision, there shall be added a provision as similar in terms and legal effect to the illegal, invalid, void, or unenforceable provision as may be possible and which may be legal, valid, effective and enforceable.
Modification of Terms. Wyre reserves the right to modify or discontinue all or any portion of the Wyre+ Rewards Program with or without notice to User. Wyre will not be liable to User if we modify or discontinue all or any portion of the Wyre+ Rewards Program. Wyre may change the terms and conditions of this Agreement at any time in its sole discretion upon notice provided to you by any of the means contemplated in this Agreement. User’s continued use of the Site or participation in the Wyre+ Rewards Program subsequent to such modification shall be deemed an acknowledgment and acceptance thereof. Notwithstanding the foregoing, Wyre will not modify the terms related to any Participation Amount already contributed without User’s consent (except as set forth in Section 5(a) , with respect to Wyre+ Rewards Rates).
Assignment. User may not assign this Agreement or any of your rights under this Agreement. We reserve the right to assign our rights without restriction, including without limitation to any Wyre’s affiliates, or to any successor in interest of any business associated with the Wyre+ Rewards Program. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns. In the event that Wyre is acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from User as part of such merger, acquisition, sale, or other change of control.
Relationship of the Parties. Wyre is an independent contractor for all purposes. Nothing in this Agreement shall be deemed or is intended to, nor shall it, cause User and Wyre to be treated as partners, joint ventures, or otherwise as joint associates for profit, or either User or Wyre to be treated as the agent of the other.