IMPORTANT, PLEASE READ:
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, YOU AGREE TO BE BOUND
BY THESE TERMS OF SERVICE AND ALL TERMS INCORPORATED HEREIN BY REFERENCE.
1. Introduction
Welcome to Mesa. These Terms of Service, along with any other
documents referenced herein as applicable to your use of the
products and services , features, technologies, and/or
functionalities offered by Mesa Financial, Inc. ("Mesa") on its
website or in a mobile application (collectively, the "Platform"),
or through any other means (collectively, the "Services") are a
contract between you and Mesa, that establishes rules that control
your use of the Services.
You must be 18 years of age, in the United States, and have a U.S.
bank account to use the Services. Your use of the Services remains
subject to the Mesa privacy policy as updated from time to time
(the "Mesa Privacy Policy") and any other agreements between you
and Mesa that apply to your use of the Services. These Terms of
Service are provided to you in electronic format pursuant to the
Consent to Receive Electronic Disclosures that you accepted and
agreed to when you opened your Account on the Platform
("Account").
"You" and "your" means the person who is authorized to use the
Services as provided in these Terms of Service. "We," "us," and
"our" mean Mesa, and our successors, affiliates, assignees, and
third-party service providers.
If there is a conflict between these Terms of Service and any
other document or statement made to you concerning the Services,
these Terms of Service will govern. If there is a conflict between
these Terms of Service and any other document or statement made to
you concerning any other service or product, the separate terms,
and conditions applicable to that service or product will govern.
As set forth below, any claim, dispute, or controversy of whatever
nature arising out of or relating to this agreement will be
resolved by final and binding arbitration in accordance with the
"Dispute Resolution" provision contained in this agreement. This
agreement also includes a waiver of class action and your right to
a jury trial. Please read the "Dispute Resolution" section
carefully as it affects your legal rights and may be enforced by
us. By entering into this agreement, you expressly acknowledge
that you have read and understand all of the terms of this
agreement and have taken time to consider the consequences of this
important decision.
You agree to comply with all of the terms and conditions in these
Terms of Service. In addition, when using certain Services, you
will be subject to any additional terms applicable to such
Services that may be posted on the Platform. Continued use of the
Services means your ongoing agreement to these Terms of Service.
By continuing to use the Services, you further agree to pay fees
due and outstanding associated with the Services. You are
responsible for the accuracy and completeness of all information
supplied to us.
These Terms of Service may be amended or changed at any time by
posting the amended documents on the Platform, and any such
amendment will be effective upon such posting. The current Terms
of Service are available at joinmesa.com. Reasonable notice in
writing or by any method permitted by law will be provided if
there is an adverse change to these Terms of Service. However, if
a change is made for security purposes, such change can be
implemented without prior notice. When these Terms of Service are
changed, the updated version supersedes all prior versions and
will govern the Services. Your continued maintenance or use of the
Services after the change will be deemed acceptance of any change
and you will be bound by it. If you do not agree with a change,
you may cease use of the Services. Your termination of these Terms
of Service does not affect any of our rights or your obligations
arising under these Terms of Service prior to such termination.
Your privacy is very important to us. All services offered by
Mesa, including the Platform, are subject to Mesa's Privacy
Policy. By using the Service, you consent to our collection and
use of personal data as outlined therein. Please carefully review
Mesa's Privacy Policy for more information.
2. Access to the Service
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Services Description:
Mesa is a payments technology company that offers businesses
payment services as well as invoice financing services.
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Eligibility:
You must be an individual of at least 18 years of age who
resides in the United States or one of its territories to use
the Service. Use of certain Services may have further
eligibility requirements that will need to be verified prior
to you using such Services or from time to time in order to
continue your use of the Services. Certain features of the
Services may be limited depending on the state in which you
reside, the date on which you created your Account or other
factors.
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Your Registration Obligations:
You are required to register on the Platform in order to
access and use certain features of the Service. Your
acceptance of the Consent to Receive Electronic Disclosures
(E-sign Disclosure and Consent) is required to create an
Account. If you choose to register for the Service, you agree
to provide and maintain true, accurate, current, and complete
information about yourself, and your business as prompted by
the Service's registration form. If any of this information
changes, it is your obligation to provide updated information
as soon as possible. You are responsible for providing Mesa
with a correct and operational email address. You must notify
Mesa of any change to your email or postal mailing address, or
if you are unable to access Account information through our
Platform. Mesa will not be liable for any adverse effects as a
result of undelivered mail or email or your inability to
access Account information through the Platform due to a
failure to promptly notify us of a change to your email or
postal mailing address. Mesa is not responsible for any costs
you incur to maintain internet access or an email account.
From time to time, we may also require you to provide further
information as a condition for continued use of the Services.
We reserve the right to maintain your Account registration
information after you close your Account for business and
regulatory compliance purposes. You may register for only one
Account. If you open additional Accounts, we reserve the right
to immediately close such additional Accounts.
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Important Information About Procedures for Opening a New
Account:
To help the government fight the funding of terrorism and
money laundering activities, Federal law requires all
financial institutions to obtain, verify, and record
information that identifies each person who opens an Account.
What this means for you: When you open an Account, we will ask
for your name, address, date of birth, and other information
that will allow us to identify you. We may also ask to see
your driver's license or other identifying documents.
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Member Account, Password and Security:
You are responsible for maintaining the confidentiality of
your password and Account, if any, and are fully responsible
for any and all activities that occur in connection with your
password or Account. You agree to (a) immediately notify us of
any unauthorized use of your password or Account or any other
breach of security, and (b) ensure that you exit from your
Account at the end of each session when accessing the Service.
We will not be liable for any loss or damage arising from your
failure to comply with this Section.
3. Modifications to Service
We reserve the right to modify or discontinue, temporarily or
permanently, the Service (or any part thereof) with or without
notice. You agree that we will not be liable to you or to any
third party for any modification, suspension, or discontinuance of
the Service.
4. Use and Storage
You acknowledge that we may establish general practices and limits
concerning use of the Service, including, without limitation, the
maximum period of time that data or other content will be retained
by the Service and the maximum storage space that will be allotted
on our servers on your behalf. You agree that we have no
responsibility or liability for the deletion or failure to store
any data or other content maintained or uploaded by the Service.
You acknowledge that we reserve the right to terminate Accounts
that are inactive for an extended period of time, and that we may
require any balances in those Accounts to be transferred to
another provider. You further acknowledge that we reserve the
right to change these general practices and limits at any time, in
our sole discretion, with or without notice.
5. Mobile Services
Some of the Services are available via a mobile device, including
(a) the ability to upload content to the Service via a mobile
device, and (b) the ability to browse the Service and the site
from a mobile device (collectively, the "Mobile Services"). To the
extent you access the Service via a mobile device, your wireless
service carrier's standard charges, data rates and other fees may
apply. In addition, downloading, installing, or using certain
Mobile Services may be prohibited or restricted by your carrier,
and not all Mobile Services may work with all carriers or devices.
You authorize your wireless operator to disclose your mobile
number, name, address, email, network status, customer type,
customer role, billing type, mobile device identifiers (IMSI and
IMEI) and other subscriber and device details, if available, to us
and our Service providers for the duration of the business
relationship, solely for identity verification and fraud
avoidance.
6. Consent to Receive Communications
To provide you with the best possible service in our ongoing
business relationship, we may need to contact you about your
Account or the Services from time to time by text messaging, push
notifications and/or email. However, we must first obtain your
consent to contact you about your Account or the Services because
we must comply with the consumer protection provisions in the
federal Telephone Consumer Protection Act of 1991 (TCPA), CAN-SPAM
Act, and their related federal regulations and orders issued by
the Federal Communications Commission (FCC).
Your consent is limited to your Account and the Services, and as
authorized by applicable law and regulations. Your consent does
not authorize us to contact you for telemarketing purposes (unless
you otherwise agreed elsewhere). You certify, warrant, and
represent that the telephone numbers that you have provided to us
are your contact numbers. You represent that you are permitted to
receive calls at each of the telephone numbers you have provided
to us. You agree to promptly alert us whenever you stop using a
particular telephone number.
With the above understandings, you authorize us to contact you
regarding your Account and/or the Services until you terminate
your Account using any telephone numbers or email addresses that
you have previously provided to us or that you may subsequently
provide to us. You understand that you are not required to provide
consent to marketing SMS messages as a condition to accessing our
Services or products. You may withdraw your consent to SMS
communications by replying STOP to the SMS message, or by
contacting us at support@joinmesa.com.
You are responsible for any and all charges, including fees
associated with text messaging, imposed by your communications
service provider. You also agree to receive alerts about your
Account activity, balances, payments, suspicious activities, and
other matters involving your use of the Platform or the Services
through push notifications to your smartphone or other device.
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 Account or use of the Platform. We may terminate your use of
push notifications at any time without notice. You may choose to
discontinue receiving push notifications by updating your
preferences on your smartphone or device.
This consent is regardless of whether the number we use to contact
you is assigned to a landline, a paging service, a cellular
wireless service, a specialized mobile radio service, other radio
common carrier service or any other service for which you may be
charged for the call. You further authorize us to contact you
through the use of voice, voicemail, and text messaging, including
the use of pre-recorded or artificial voice messages and an
automated dialing device. If necessary, you may change or remove
any of the telephone numbers or email addresses at any time using
any reasonable means to notify us. To revoke the consent provided
pursuant to this subsection, you must send 10 days' prior written
notice of such revocation to support@joinmesa.com.
By accepting these Terms of Service, you expressly consent to be
contacted by us or our affiliates at any telephone number, e-mail
address, mailing address, Account with us, or physical or
electronic address you provide or at which you may be reached. You
agree we, our affiliates, agents, or service providers may contact
you in any way, including by e-mail, SMS messages (including text
messages) and calls using prerecorded messages or artificial voice
at any phone number you have provided to us, including any mobile
phone number, as well as any address in our records or in public
or nonpublic databases. You understand that you are not required
to provide consent to marketing SMS messages as a condition to
accessing our Services or products. You may withdraw your consent
to SMS communications by replying STOP to the SMS message, or by
contacting us at support@joinmesa.com. You agree that we and our
agents, representatives, affiliates, or anyone calling on our
behalf may contact you on a recorded or monitored line and that
any incoming calls may also be recorded and monitored.
We may monitor or record phone calls for security reasons, to
maintain a record, and to ensure that you receive courteous and
efficient service. You consent in advance to any such recording.
We need not remind you of our recording before each phone
conversation. We are not required to act upon instructions you
give us by voice mail or on a telephone answering machine.
7. Conditions of Use
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Account Suspension & Closure:
We may, in our sole and absolute discretion, without liability
to you or any third party, refuse to let you open an Account,
suspend your Account, or terminate your Account or your use of
one or more of the Services. Such actions may be taken as a
result of Account inactivity, failure to respond to customer
support requests, failure to positively identify you, or your
violation of these Terms of Service. If you have a balance
remaining in an Account which has been suspended or closed,
you will be able to recover such funds, unless prohibited by
law or a court order or where we have determined that such
funds were obtained fraudulently. We have full discretion as
to the means by which you will receive such funds following
our decision to return such funds. We reserve the right to
require you to provide further identifying information before
processing such withdrawal or transfer requests and to delay
or prohibit such withdrawal or transfer if we believe
fraudulent or illegal activity has occurred. If you are unable
to login to your Account, you will need to contact us a
support@joinmesa.com to process such withdrawal. You may
terminate this agreement at any time by closing your Account
and discontinuing use of the Services. Upon termination of
this agreement and your Account, you remain liable for all
transactions made while your Account was open.
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User Conduct:
You are solely responsible for all code, video, images,
information, data, text, software, music, sound, photographs,
graphics, messages, or other materials ("content") that you
upload, post, publish or display (hereinafter, "upload") or
email or otherwise use via the Service. The following are
examples of the kind of content and/or use that is illegal or
that we prohibit. You agree to not use the Service to:
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violate (or assist any other party in violating) any
applicable law, statute, ordinance, or regulation;
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intentionally try to defraud (or assist in the defrauding of)
Mesa or other Mesa users;
- provide false, inaccurate, or misleading information;
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take any action that interferes with, intercepts, or
expropriates any system, data, or information;
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partake in any transaction involving the proceeds of illegal
activity;
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transmit or upload any virus, worm, or other malicious
software or program;
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attempt to gain unauthorized access to other Accounts, the
Platform, or any related networks or systems;
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use the Services on behalf of any third party or otherwise act
as an intermediary between Mesa and any third parties;
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collect any user information from other Mesa users, including,
without limitation, email addresses;
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defame, harass, or violate the privacy or intellectual
property rights of Mesa or any other Mesa users; or
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upload, display or transmit any messages, photos, videos, or
other media that contain illegal goods, pornographic, violent,
obscene, or copyrighted images or materials for use as an
avatar, in connection with a payment or payment request, or
otherwise.
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Fees:
To the extent the Service or any portion thereof is made
available for any fee, you will be required to select a form
of payment and provide information to us regarding your form
of payment. You represent and warrant to us that such
information is true, correct, and accurate, and that you are
authorized to use the payment instrument. You will promptly
update your Account information with any changes (for example,
a change in your billing address) that may occur. We reserve
the right to change our prices and any applicable waivers at
any time. If we do change our prices, we will provide notice
of the change on the Platform or in an email to you, at our
option, at least thirty (30) days before the change is to take
effect. Your continued use of the Service after the price
change becomes effective constitutes your agreement to pay the
changed amount. You are responsible for paying any tax, legal
or financial advisors, all taxes associated with the Services
other than U.S. taxes based on our net income and any fees
charged by third parties for you to access or use the
Services.
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Special Notice for International Use; Export Controls:
Software (defined below) available in connection with the
Service and the transmission of applicable data, if any, is
subject to United States export controls. No Software may be
downloaded from the Service or otherwise exported or
re-exported in violation of U.S. export laws. Downloading or
using the Software is at your sole risk. Recognizing the
global nature of the Internet, you agree to comply with all
local rules and laws regarding your use of the Service,
including as it concerns to online conduct and acceptable
content.
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Commercial Use:
Unless otherwise expressly authorized herein or in the
Service, you agree not to display, distribute, license,
perform, publish, reproduce, duplicate, copy, create
derivative works from, modify, sell, resell, exploit, transfer
or upload for any commercial purposes, any portion of the
Service, use of the Service, or access to the Service.
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Illegal Transactions and Internet Gambling:
You must not use our Services or your Account for any illegal
purpose, for internet gambling or to fund any account that is
set up to facilitate internet gambling. We may deny
transactions or authorizations from merchants or other sources
that are apparently engaged in or are identified as engaged in
the internet gambling business.
8. Third Parties
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Third-Party Account Information:
To use the Services, you may direct Mesa to retrieve your
transaction history, 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"). Mesa 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 Mesa
products and services that may be of interest to you. By using
the Services, you authorize Mesa to access this information
maintained by such third parties, on your behalf as your
agent, and you expressly authorize such third parties to
disclose your information to us. Mesa may, but is not required
to, review the Third-Party Account Information for accuracy,
legality, or non-infringement, and Mesa 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 correspond to the information provided by third
parties, and that this information may not reflect pending
transactions or other recent activity.
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Dwolla Terms.
You expressly authorize Mesa's service provider, Dwolla, Inc.
to originate credit transfers to your financial institution
account. You authorize us to collect and share with Dwolla
your personal information including full name, email address
and financial information, and you are responsible for the
accuracy and completeness of that data. Dwolla's Privacy
Policy is available here.
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Third Party Material:
Under no circumstances will we be liable in any way for any
content or materials of any third parties (including users),
including, but not limited to, for any errors or omissions in
any content, or for any loss or damage of any kind incurred as
a result of the use of any such content. You acknowledge that
we do not pre-screen content, but that Mesa and our designees
will have the right (but not the obligation) in our sole
discretion to refuse or remove any content that is available
via the Service. Without limiting the foregoing, we and our
designees will have the right to remove any content that
violates these Terms of Service or that we deem, in our sole
discretion, to be otherwise objectionable. You agree that you
must evaluate, and bear all risks associated with, the use of
any content, including any reliance on the accuracy,
completeness, or usefulness of such content.
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Third-Party Websites:
The Service may provide, or third parties may provide, links
or other access to other sites and resources on the Internet.
We have no control over such sites and resources and are not
responsible for and do not endorse such sites and resources.
You further acknowledge and agree that we will not be
responsible or liable, directly, or indirectly, for any damage
or loss caused or alleged to be caused by or in connection
with use of or reliance on any content, events, goods, or
services available on or through any such site or resource.
Any dealings you have with third parties found while using the
Service are between you and the third party, and you agree
that we are not liable for any loss or claim that you may have
against any such third party.
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Third-Party Information:
Mesa makes no representation as to the completeness or
accuracy of the information provided by any third party on the
Mesa Platform. Mesa does not endorse or represent the
reliability or accuracy of any content or information
distributed through or accessed from the Mesa Platform and has
not performed any investigation into such information. By
using the Mesa Platform, each Investor acknowledges and agrees
that Mesa does not provide any representation, warranty, or
assurance of any kind with respect to the nature, quality,
validity, or legality of any information posted to the Mesa
Platform or offering of securities by any Issuer. Mesa shall
have no liability for any investment decisions made based upon
such information. Any reliance upon any content or information
distributed through or accessed from the Mesa Platform is at
the User's sole risk.
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Third-Party Errors:
Mesa is not responsible for errors made by third parties when
onboarding, offboarding, or otherwise interacting with Mesa
Services.
9. Intellectual Property Rights
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Service Content, Software and Trademarks:
You acknowledge and agree that the Service may contain content
or features ("Service Content") that are protected by
copyright, patent, trademark, trade secret or other
proprietary rights and laws. Except as expressly authorized by
us, you agree not to modify, copy, frame, scrape, rent, lease,
loan, sell, distribute, or create derivative works based on
the Service or the Service Content, in whole or in part,
except that the foregoing does not apply to your own User
Content (as defined below) that you legally upload to the
Service. In connection with your use of the Service you will
not engage in or use any data mining, robots, scraping, or
similar data gathering or extraction methods. If you are
blocked by us from accessing the Service (including by
blocking your IP address), you agree not to implement any
measures to circumvent such blocking (e.g., by masking your IP
address or using a proxy IP address). Any use of the Service
or the Service Content other than as specifically authorized
herein is strictly prohibited. The technology and software
underlying the Service or distributed in connection therewith
are the property of Mesa, and our partners (the "Software").
You agree not to copy, modify, create a derivative work of,
reverse engineer, reverse assemble or otherwise attempt to
discover any source code, sell, assign, sublicense, or
otherwise transfer any right in the Software. Any rights not
expressly granted herein are reserved by Mesa. The Mesa name
and logos are trademarks and service marks of Mesa
(collectively, the "Mesa Trademarks"). Other Mesa product, and
Service names and logos used and displayed via the Service may
be trademarks or service marks of their respective owners who
may or may not endorse or be affiliated with or connected to
Mesa. Nothing in these Terms of Service or the Service should
be construed as granting, by implication, estoppel, or
otherwise, any license or right to use any of Mesa Trademarks
displayed on the Service, without our prior written permission
in each instance. All goodwill generated from the use of the
Mesa Trademarks will inure to our exclusive benefit.
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User Content:
With respect to the content or other materials you upload
through the Service or share with other users or recipients
(collectively, "User Content"), you represent and warrant that
you own all right, title and interest in and to such User
Content, including, without limitation, all copyrights and
rights of publicity contained therein. By uploading any User
Content, you hereby grant and will grant to us and its
affiliated companies a nonexclusive, worldwide, royalty free,
fully paid up, transferable, sublicensable, perpetual,
irrevocable license to copy, display, upload, perform,
distribute, store, modify and otherwise use your User Content
in connection with the operation of the Service or the
promotion, advertising or marketing thereof, in any form,
medium or technology now known or later developed. You
acknowledge and agree that any questions, comments,
suggestions, ideas, feedback, or other information about the
Service ("Submissions"), provided by you to us are
non-confidential and we will be entitled to the unrestricted
use and dissemination of these Submissions for any purpose,
commercial or otherwise, without acknowledgment or
compensation to you. You acknowledge and agree that we may
preserve content and may also disclose content 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, applicable laws or government
requests; (b) enforce these Terms of Service; (c) respond to
claims that any content violates the rights of third parties;
or (d) protect the rights, property, or personal safety of
Mesa, its users and the public. You understand that the
technical processing and transmission of the Service,
including your content, may involve (a) transmissions over
various networks; and (b) changes to conform and adapt to
technical requirements of connecting networks or devices.
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Copyright Complaints:
We respect the intellectual property of others, and we ask our
users to do the same. If you believe that your work has been
copied in a way that constitutes copyright infringement, or
that your intellectual property rights have been otherwise
violated, you should notify us of your infringement claim in
accordance with the procedure set forth below. We will process
and investigate notices of alleged infringement and will take
appropriate actions under the Digital Millennium Copyright Act
("DMCA") and other applicable intellectual property laws with
respect to any alleged or actual infringement. A notification
of claimed copyright infringement should be emailed to Mesa's
Copyright Agent at info@mesalabs.com (Subject line: "DMCA
Takedown Request"). You may also contact us by mail at: 1905
15th St. #338, Boulder, CO 80306.
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Copyright Notices:
To be effective, the notification must be in writing and
contain the following information:
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an electronic or physical signature of the person authorized
to act on behalf of the owner of the copyright or other
intellectual property interest;
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a description of the copyrighted work or other intellectual
property that you claim has been infringed;
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a description of where the material that you claim is
infringing is located on the Service, with enough detail that
we may find it on the Service;
- your address, telephone number, and email address;
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a statement by you that you have a good faith belief that the
disputed use is not authorized by the copyright or
intellectual property owner, its agent, or the law;
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a statement by you, made under penalty of perjury, that the
above information in your notice is accurate and that you are
the copyright or intellectual property owner or authorized to
act on the copyright or intellectual property owner's behalf.
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Counter-Notice:
If you believe that your User Content that was removed (or to
which access was disabled) is not infringing, or that you have
the authorization from the copyright owner, the copyright
owner's agent, or pursuant to the law, to upload and use the
content in your User Content, you may send a written
counter-notice containing the following information to the
Copyright Agent:
- your physical or electronic signature;
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identification of the content that has been removed or to
which access has been disabled and the location at which the
content appeared before it was removed or disabled;
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a statement that you have a good faith belief that the content
was removed or disabled as a result of mistake or a
misidentification of the content; and
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your name, address, telephone number, and email address, a
statement that you consent to the jurisdiction of the federal
court located within the Northern District of California and a
statement that you will accept service of process from the
person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, we will
send a copy of the counter-notice to the original complaining
party informing that person that it may replace the removed
content or cease disabling it in ten (10) business days. Unless
the copyright owner files an action seeking a court order
against the content provider, member or user, the removed
content may be replaced, or access to it restored, in ten (10)
to fourteen (14) business days or more after receipt of the
counter-notice, at our sole discretion.
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Repeat Infringer Policy:
In accordance with the DMCA and other applicable law, we have
adopted a policy of terminating, in appropriate circumstances
and at our sole discretion, users who are deemed to be repeat
infringers. We may also in our sole discretion limit access to
the Service and/or terminate the memberships of any users who
infringe any intellectual property rights of others, whether
or not there is any repeat infringement.
10. Indemnity and Release
You agree to release, indemnify and hold Mesa, and its officers,
directors, shareholders, employees, successors, predecessors,
representatives, principals, agents, assigns, parents,
subsidiaries and/or insurers harmless for any losses, damages,
suits and expenses, including reasonable attorneys' fees, that we
may incur, without regard to the merit or lack thereof, arising
out of, or related in any way to (1) the matters set forth herein;
(2) our taking any action or not taking any action that we are
entitled to take pursuant to these Terms of Service and applicable
law; (3) any action or omission by you in violation of these Terms
of Service or applicable law; or (4) our action or inaction in
reliance upon oral, written or electronic instructions or
information from you. If you are a California resident, you waive
California Civil Code Section 1542, which says: "A general release
does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor." If you are a resident of another
jurisdiction, you waive any comparable statute or doctrine.
11. Disclaimer Of Warranties
Your use of the service is at your sole risk. The service is
provided on an "as is" and "as available" basis. Mesa expressly
disclaims all warranties of any kind, whether express, implied, or
statutory, including, but not limited to, the implied warranties
of merchantability, fitness for a particular purpose, title, and
non-infringement. Mesa makes no warranty that (i) the service will
meet your requirements, (ii) the service will be uninterrupted,
timely, secure, or error-free, (iii) the results that may be
obtained from the use of the service will be accurate or reliable,
or (iv) the quality of any products, services, information, or
other material obtained by you through the service will meet your
expectations.
12. Limitation Of Liability
You expressly understand and agree that Mesa will not be liable
for any indirect, incidental, special, consequential, exemplary
damages, or damages for loss of profits, including, but not
limited to, damages for loss of goodwill, use, data, or other
intangible losses (even if Mesa has been advised of the
possibility of such damages), whether based on contract, tort,
negligence, strict liability, or otherwise, resulting from: (i)
the use or the inability to use the service; (ii) unauthorized
access to or alteration of your transmissions or data; (iii)
statements or conduct of any third party on the service; or (iv)
any other matter relating to the service. In no event will Mesa's
total liability to you for all damages, losses, or causes of
action exceed the amount you have paid Mesa in the last six (6)
months, or, if greater, one hundred dollars ($100). Some
jurisdictions do not allow the disclaimer or exclusion of certain
warranties or the limitation or exclusion of liability for
incidental or consequential damages. Accordingly, some of the
limitations set forth above may not apply to you or be enforceable
with respect to you. If you are dissatisfied with any portion of
the service or with these terms of service, your sole and
exclusive remedy is to discontinue use of the service. If you are
a user from New Jersey, the foregoing sections titled "Disclaimer
of Warranties" and "Limitation of Liability" are intended to be
only as broad as is permitted under the laws of the state of New
Jersey. If any portion of these sections is held to be invalid
under the laws of the state of New Jersey, the invalidity of such
portion will not affect the validity of the remaining portions of
the applicable sections.
13. Dispute Resolution By Binding Arbitration Please Read This
Section Carefully As It Affects Your Rights.
This Dispute Resolution provision (this "Dispute Resolution
Provision") sets forth the circumstances and procedures under
which Claims (as defined below) will be arbitrated instead of
litigated in court upon the election of either party. Neither you
nor we will have the right to: (1) have a court or a jury decide
the dispute; (2) engage in information-gathering (discovery) to
the same extent as in court; (3) participate in a class action in
court or in class arbitration; or (4) join or consolidate a claim
with claims of any other persons. Arbitration procedures are
simpler and more limited than rules applicable in court. The
decision of the arbitrator is final and binding.
As used in this Dispute Resolution Provision, the term "Claim"
means any claim, dispute, or controversy between you and Mesa, or
any of its agents or retailers, arising from or relating to these
Terms of Service or the Services as well as any related or prior
agreement that you may have had with us, including the validity,
enforceability or scope of this Dispute Resolution Provision or
the Terms of Service. "Claim" includes claims of every kind and
nature, including, but not limited to, initial claims,
counterclaims, crossclaims and third-party claims and claims based
upon contract, tort, fraud and other intentional torts, statutes,
regulations, common law, and equity. The term "Claim" is to be
given the broadest possible meaning that will be enforced. We will
not elect to use arbitration under the Dispute Resolution
Provision for any Claim that you properly file and pursue in a
small claims court of your state or municipality so long as the
Claim is individual and pending only in that court; any appeals
from that court will be pursued only in arbitration. As used in
this Dispute Resolution Provision, the terms "we" and "us" will
for all purposes mean Mesa, our wholly or majority owned
subsidiaries, affiliates, licensees, predecessors, successors, and
assigns, and our agents, employees, directors, and
representatives. In addition, "we" or "us" will include any third
party using or providing any product, service or benefit in
connection with the Services (including, but not limited to, third
parties who use or provide services, debt collectors and all of
their agents, employees, directors and representatives) if, and
only if, such third party is named as a co-party with us (or files
a Claim with or against us) in connection with a Claim asserted by
you. As solely used in this Dispute Resolution Provision, the
terms "you" or "yours" will mean all persons or entities using the
Services.
NEITHER YOU NOR WE ARE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY
OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO
INCLUDE IN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A
REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION
IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY
GENERAL CAPACITY, UNLESS THOSE PERSONS ARE BENEFICIARIES ON YOUR
ACCOUNT. THIS IS SO WHETHER OR NOT THE CLAIM HAS BEEN ASSIGNED.
FURTHER, NEITHER YOU NOR WE HAVE THE RIGHT TO LITIGATE A CLAIM IN
COURT, SUBJECT TO THE SECTION TITLED EXCLUDED CLAIMS, OR HAVE A
JURY TRIAL ON A CLAIM, OR TO ENGAGE IN DISCOVERY, EXCEPT AS
PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA.
Any Claim will be resolved, upon the election by you or us, by
arbitration pursuant to this Dispute Resolution Provision and the
code of procedures of the national arbitration organization to
which the Claim is referred in effect at the time the Claim is
filed. Claims will be referred to either Judicial Arbitration and
Mediation Services ("JAMS") or the American Arbitration
Association ("AAA"), as selected by the party electing to use
arbitration. If a selection by us of one of these organizations is
unacceptable to you, you will have the right within thirty (30)
days after you receive notice of our election to select the other
organization listed to serve as arbitrator administrator. For a
copy of the procedures, to file a Claim or for other information
about these organizations, contact them as follows: (i) JAMS at
1920 Main Street, Suite 300, Los Angeles, CA 92614; website at
www.jamsadr.com; and (ii) AAA at 335 Madison Avenue, New York, NY
10017; website at www.adr.org.
If either party elects to resolve a Claim by arbitration, that
Claim will be arbitrated on an individual basis. There is no right
or authority for any Claims to be arbitrated on a class action
basis or on bases involving Claims brought in a purported
representative capacity on behalf of the general public, other
Account holders or other persons similarly situated. The
arbitrator's authority to resolve Claims is limited to Claims
between you and us alone, and the arbitrator's authority to make
awards is limited to you and us alone. Furthermore, Claims brought
by you against us or by us against you may not be joined or
consolidated in arbitration with Claims brought by or against
someone other than you, unless otherwise agreed to in writing by
all parties.
Any arbitration hearing that you attend will take place in the
federal judicial district of your residence. At your written
request, we will consider in good faith making a temporary advance
of all or part of the filing administrative and/or hearing fees
for any Claim you initiate as to which you or we seek arbitration.
At the conclusion of the arbitration (or any appeal thereof), the
arbitrator (or panel) will decide who will ultimately be
responsible for paying the filing, administrative and/or hearing
fees in connection with the arbitration (or appeal). If and to the
extent you incur filing, administrative and/or hearing fees in
arbitration, including for any appeal, exceeding the amount they
would have been if the Claim had been brought in the state or
federal court which is closest to your billing address and would
have had jurisdiction over the Claim, we will reimburse you to
that extent unless the arbitrator (or panel) determines that the
fees were incurred without any substantial justification.
This Dispute Resolution Provision is made pursuant to a
transaction involving interstate commerce, and will be governed by
the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be
amended (the "FAA"). The arbitration will be governed by the
applicable Code, except that (to the extent enforceable under the
FAA) this Dispute Resolution Provision will control if it is
inconsistent with the applicable Code. The arbitrator will apply
applicable substantive law consistent with the FAA and applicable
statutes of limitations and will honor claims of privilege
recognized at law and, at the timely request of either party, will
provide a brief written explanation of the basis for the decision.
In conducting the arbitration proceeding, the arbitrator will not
apply the Federal or any state rules of civil procedure or rules
of evidence. Either party may submit a request to the arbitrator
to expand the scope of discovery allowable under the applicable
Code. The party submitting such a request must provide a copy to
the other party, who may submit objections to the arbitrator with
a copy of the objections provided to the other party, within
fifteen (15) days of receiving the requesting party's notice. The
granting or denial of such request will be at the sole discretion
of the arbitrator who will notify the parties of his/her decision
within twenty (20) days of the objecting party's submission. The
arbitrator will take reasonable steps to preserve the privacy of
individuals, and of business matters. Judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction. The arbitrator's decision will be final and binding,
except for any right of appeal provided by the FAA. However, any
party can appeal that award to a three-arbitrator panel
administered by the same arbitration organization, which will
consider anew any aspect of the initial award objected to by the
appealing party. The appealing party will have thirty (30) days
from the date of entry of the written arbitration award to notify
the arbitration organization that it is exercising the right of
appeal. The appeal will be filed with the arbitration organization
in the form of a dated writing. The arbitration organization will
then notify the other party that the award has been appealed. The
arbitration organization will appoint a three-arbitrator panel,
which will conduct arbitration pursuant to its Code and issue its
decision within one hundred twenty (120) days of the date of the
appellant's written notice. The decision of the panel will be by
majority vote and will be final and binding.
This Dispute Resolution Provision will survive termination of your
Account, your use of the Services, these Terms of Service and any
bankruptcy by you or us. If any portion of this Dispute Resolution
Provision is deemed invalid or unenforceable under any principle
or provision of law or equity, consistent with the FAA, it will
not invalidate the remaining portions of this Dispute Resolution
Provision, these Terms of Service, or any prior agreement you may
have had with us, each of which will be enforceable regardless of
such invalidity.
14. Termination
You agree that Mesa, in its sole discretion, may suspend or
terminate your Account (or any part thereof) or use of the Service
and remove and discard any content within the Service, for any
reason, including, without limitation, for lack of use or if Mesa
believes that you have violated or acted inconsistently with the
letter or spirit of these Terms of Service. Any suspected
fraudulent, abusive, or illegal activity that may be grounds for
termination of your use of Service, may be referred to appropriate
law enforcement authorities. Mesa may also in its sole discretion
and at any time discontinue providing the Service, or any part
thereof, with or without notice. You agree that any termination of
your access to the Service under any provision of these Terms of
Service may be affected without prior notice and acknowledge and
agree that Mesa may immediately deactivate or delete your Account
and all related information and files in your Account and/or bar
any further access to such files or the Service. Further, you
agree that Mesa will not be liable to you or any third party for
any termination of your access to the Service.
15. User Disputes
You agree that you are solely responsible for your interactions
with any other user in connection with the Service and we will
have no liability or responsibility with respect thereto. We
reserve the right, but have no obligation, to become involved in
any way with disputes between you and any other user of the
Service.
16. General
These Terms of Service constitute the entire agreement between you
and Mesa and govern your use of the Service, superseding any prior
agreements between you and Mesa with respect to the Service;
provided, however, that you may also be subject to additional
terms and conditions for products or Services provided by Mesa, as
applicable. These Terms of Service will be governed by the laws of
the State of Colorado without regard to its conflict of law
provisions. With respect to any disputes or claims not subject to
arbitration, as set forth above, you and Mesa agree to submit to
the personal and exclusive jurisdiction of the state and federal
courts located within [Denver County, Colorado]. The failure of
Mesa to exercise or enforce any right or provision of these Terms
of Service will not constitute a waiver of such right or
provision. If any provision of these Terms of Service is found by
a court of competent jurisdiction to be invalid, the parties
nevertheless agree that the court should endeavor to give effect
to the parties' intentions as reflected in the provision, and the
other provisions of these Terms of Service remain in full force
and effect. You agree that regardless of any statute or law to the
contrary, any claim or cause of action arising out of or related
to use of the Service, or these Terms of Service must be filed
within one (1) year after such claim or cause of action arose or
be forever barred. A printed version of this agreement and of any
notice given in electronic form will be admissible in judicial or
administrative proceedings based upon or relating to this
agreement to the same extent and subject to the same conditions as
other business documents and records originally generated and
maintained in printed form. You may not assign these Terms of
Service without the prior written consent of Mesa, but Mesa may
assign or transfer these Terms of Service, in whole or in part,
without restriction. The section titles in these Terms of Service
are for convenience only and have no legal or contractual effect.
Notices to you may be made via either email or regular mail. The
Service may also provide notices to you of changes to these Terms
of Service or other matters by displaying notices or links to
notices generally on the Service.
17. Notice for California Users
Under California Civil Code Section 1789.3, users of the service
from California are entitled to the following specific consumer
rights notice: The Complaint Assistance Unit of the Division of
Consumer Services of the California Department of Consumer Affairs
may be contacted in writing at 1625 North Market Blvd., Suite N
112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or
(800) 952-5210. You may contact us at support@joinmesa.com.
18. Questions? Concerns? Suggestions?
Please contact us at support@joinmesa.com to report any violations
of these Terms of Service or to pose any questions regarding these
Terms of Service or the Service.