Terms of Service
This Service Agreement (this “Agreement”) is by and between you and Construction ePay. By using the Services provided by Construction ePay, you agree to and accept the terms and conditions set forth in this Agreement.
Definitions:
In this Agreement, "you" or "your" means any person or entity using the Services. Unless otherwise stated, "Construction ePay" "we", "us” or "our" refers to Construction ePay, Inc., an Arizona corporation. Additionally, the following terms have the meanings set forth below:
- “Account” means your information provided to us to perform the Services and our designation of funds deposited by you or available to you.
- “Construction Services” mean construction, design, remodeling or other improvement project services performed at and on Owner Property.
- “Contractor” means an individual, entity or organization that is performing the Construction Services.
- “Owner” means the party contracting with, or otherwise agreeing, to have a Contractor perform Construction Services.
- “Owner Property” means the building, home, office or other structure where Construction Services are performed.
- “Transaction” means the agreement between Owner and Contractor for Construction Services.
- “Services” mean Construction ePay's services set forth in this Agreement in connection with the Transaction.
Description of the Services:
After agreeing to the terms and conditions of this Agreement, Owner may submit money to Construction ePay via our published Payment Processing . Construction ePay will hold the Owner's money in accounts at one or more FDIC-insured banks. You will not receive interest or other earnings on your funds. Construction ePay functions solely to connect and facilitate the Transaction between Owner and the Contractor. We do not endorse either Owner or Contractor and we are not involved in providing the Construction Services. We are not a financial institution or an escrow company and we are not providing banking services.
Processing:
By agreeing to this Agreement and choosing to receive the Services, Owner will deliver money to us pursuant to the Payment Processing methods. We will inform the Contractor when we have received Owner's funds. Pursuant to the type of Payment Processing method selected, Owner's funds will be transferred to Contractor at a predetermined date or upon Owner's release of the funds. Owner and Contractor must select a Payment Processing method and fully complete all information required to establish an Account with us. Any failure or delay by contractor or owner to provide information required for payment processing will result in a delay or inability to transmit Owner's funds to Contractor.
Fees:
Our fees for the Services are two percent (2%) of the total funds that are delivered to us or $100, whichever is greater, (the “Fee”). The Administrative Fee and the Fee are due and payable upon the deposit of money into your Account. You authorize us to withhold from payments to the Contractor or from the return of funds to Owner, the amount of the fees. We will collect the fees when money is available in an Account. For example, if Owner delivers $5,000 to us, we will credit Owner's Account with $4,872.
If Owner attempts to retrieve funds from his/her/its Account, we will verify whether the Contractor has started the Construction Services. If Contractor has begun the Construction Services, we will not allow Owner to retrieve funds and will require that Contractor and Owner proceed under the Dispute Resolution provisions of this Agreement. We will not permit the Owner to withdraw funds in his/her/its Account until Contractor agrees that such funds may be returned to Owner.
If Services are cancelled prior to the transfer of Owner's funds to Contractor, or Contractor and Owner agree that funds should be returned to Owner, the Fee will not be charged but a cancellation fee of $100 and the Administrative Fee will be charged. That amount will be withheld from funds returned to the Owner.
Representations:
Owner represents that (i) he/she/it is the legal owner of Owner Property and the Owner Property is not subject to any lien, claim or indebtedness that affects Contractor's rights to payment for the Construction Services, and (ii) all money that he/she/it transmits to us is money that is due to, or will become due to Contractor pursuant to the Transaction.
Contractor represents that he/she/it is a contractor operating within the laws of the state, or licensed to perform the Construction Services under the laws of the state where the Construction Services are performed.
Each of Owner and Contractor represents that (i) all information that he/she/it provides to us in connection with the Services is true, accurate and complete, and (ii) he/she/it has reviewed and agrees to comply with the Standard Business Practices .
Term:
This Agreement commences as of your acceptance of its terms and conditions by either clicking “I Agree” or executing a paper version of this Agreement. This Agreement will remain in effect and you will have an Account with us until you inform us of your desire to terminate your Account by contacting us at customerservice@constructionepay.com. All Accounts that remain inactive and without funds for more than 365 days will be closed and you will be required to open a new Account with us. WE ARE UNDER NO OBLIGATION TO INFORM YOU OF ANY FUNDS THAT REMAIN IN YOUR ACCOUNT AFTER A COMPLETED TRANSACTION.
Obligations:
Owner acknowledges and agrees that he/she/it is financially responsible for the Transaction and paying the Contractor for the Construction Services.
Contractor acknowledges and agrees that he/she/it is responsible for performing the Construction Services as set forth in the Transaction.
General Disclaimer of Warranties :
The Services are provided “ AS-IS ” without any warranties of any kind, either express or implied except as specifically stated in this Agreement. We will take reasonable efforts to ensure that all Services are performed in a timely manner; however, we do not make any representations regarding processing times because we must rely on outside sources over which we have no control. We will not be liable for any delay in or failure in our provision of Services where such failure is due to factors outside our control.
We have no control over, and make no representations about, the quality of the Construction Services, the qualifications of a Contractor or the value of the Construction Services. We make no representations about the genuineness of or enforceability of the Standard Business Practices .
To the maximum extent permitted by applicable law, WE DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, TITLE AND NON-INFRINGEMENT. WE DO NOT WARRANT THE SERVICE OR THE CONSTRUCTION SERVICES. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY WEBSITE OFFERING THE SERVICES OR IN ANY MATERIALS ASSOCIATED WITH THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED OR THAT ANY WEBSITES, MATERIALS OR ANY SERVER(S) USED BY US ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, CORRECTNESS, ACCURACY, RELIABILITY OR TRUTHFULNESS OF ANY WEBSITES USED BY US, ANY MATERIALS OR ANY SITES LINKED TO OR FROM ANY OF OUR WEBSITES.
Limitation of Liability:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA OR PROFIT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABLITY, IS LIMITED TO THE AMOUNT OF FEES YOU HAVE PAID TO US OVER THE TWELVE (12) MONTHS PRECEEDING THE DETERMINATION OF LIABLITY. Some states do not allow for the exclusion or limitation of incidental or consequential damages, so the above exclusion or limitation may not apply.
Prohibited Activities:
You will not, and will not attempt to, (i) violate any laws, third party rights or other policies governing the Services, (ii) use the Services if you are not able to form legally binding contracts, (iii) be false, inaccurate or misleading, (iv) be defamatory, threatening or harassing, (v) distribute viruses or any other technologies that may damage, interfere with, surreptitiously intercept or expropriate any system, data or other personal information or interfere with the Services, or (vi) breach security or authentication measures without proper authorization. If you use, or attempt to use, the Services for purposes other than those set forth in this Agreement, you will be subject to damages and other penalties, including criminal prosecution if available.
Cancellation:
You can cancel the Services by contacting us at 1-480-751-1012 subject to the Administrative fee, cancellation fee and any other fees that may apply.
Privacy Policy:
Your use of the Services is governed by our privacy policy .
Dispute Resolution:
If any disputes arise between the Contractor and the Owner regarding the Construction Services, the Account or the Services, you agree to take the following actions:
1. You agree to work with the other party to the Transaction to resolve any disputes. We do not act as an agent of either party in resolving any disputes and we do not have responsibility for resolving the disputes.
2. If you are unable to resolve a dispute with the other party to the Transaction, you may request that we help facilitate a resolution to the dispute. We are under no obligation to assist and may accept or decline your request for assistance. If we choose to help you resolve a dispute, we will spend only as much time as we feel is reasonable to assist in facilitating a resolution. We will take such actions without compensation. WE WILL NOT BE LIABLE TO ANY PARTY FOR ANY ACT OR OMISSION IN CONNECTION WITH OUR ATTEMPT TO ASSIST IN THE RESOLUTION OF YOUR DISPUTE. WE ARE NOT A NECESSARY PARTY IN ANY JUDICIAL PROCEEDING RELATED TO THE DISPUTE. WE ARE INCOMPETENT TO TESTIFY AS A WITNESS IN ANY PROCEEDING RELATING TO A DISPUTE FOR WHICH WE ATTEMPTED TO FACILITATE A RESOLUTION. You release and agree to indemnify us against all claims you may have arising out of or in any way related to any act or omission in the performance of any acts by us under this paragraph, including all expenses, costs, and attorney fees we may incur.
3. If a dispute remains unresolved after taking the above stated actions (or we choose not to act under item 2 above), you may request that we refer you to a neutral, third party, licensed contractor or licensed home inspector who will act as an independent mediator (the “Mediator”). If either party objects to the Mediator a new mediator will be referred to you. If the parties cannot agree on a mediator, the parties will proceed as set forth below in item 4. The Mediator will review the Transaction and any written documents agreed to by the Owner and Contractor. As the Mediator deems necessary, the Mediator will inspect the Construction Services at the Owner Property to evaluate the Construction Services and determine if the Construction Services comply with and satisfy the Transaction, any written documents agreed to by the parties and state law. Within forty-eight (48) hours of the inspection, or if such inspection is deemed unnecessary within twenty-four (24) hours of reviewing the Transaction and all related documentation, the Mediator will draft a written decision setting forth his/her/its findings and stating a remedy. The party initiating mediation under this paragraph will pay a mediation fee of a minimum of $250 to the Mediator. The total mediation fee will be contingent upon the complexity of the Construction Services, the Transaction and associated documents. You acknowledge and agree that if you initiate mediation pursuant to this paragraph, you will be responsible for compensating the Mediator for his/her/its services and paying the Mediator's costs and expenses.
4. If the parties are unable to resolve their dispute by taking the steps noted above, you agree that the dispute will be finally settled by binding, non-appealable arbitration administered by one arbitrator appointed in accordance with the procedures of the American Arbitration Association as provided in its Commercial Arbitration Rules. You agree that any such arbitration will be held in Maricopa County , Arizona . You agree that a judgment of any court of competent jurisdiction may be entered upon the arbitration award; and you specifically acknowledge and agree that the Superior Court of Arizona in and for Maricopa County, Arizona, as well as the United States District Court for the District of Arizona, may enter judgment upon any such arbitration award . By accepting this User Agreement, you acknowledge that you are waiving your right to a jury trial of any dispute arising out of the Construction Services, the Account and Services .
We will take the actions directed by the Mediator and the arbitrator, if arbitration occurs, including returning funds to the Owner or paying funds to the Contractor. Owner and Contractor will defend, indemnify and hold harmless Construction ePay, its partners, affiliates, officers, directors, shareholders, employees and assigns, the Mediator and any individual or entity associated with the actions taken under the Dispute Resolution provision for, from and against any liability, claim, demand, loss, cost, expense or damage, including without limitation attorneys' fees and court costs, caused by, arising out of, resulting from, attributable to or in any way incidental to the performance of the Dispute Resolution procedures.
Construction ePay, Owner, Contractor and all other parties will keep confidential the subject matter of any disputes arising under this Agreement, all mediation findings, and any written reports associated with mediation or arbitration under this Agreement. Such information may be used only as necessary to implement and enforce any award or as required by law.
All disputes arising between Owner or Contractor and Construction ePay will be finally settled by arbitration as set forth in item 4 above. By accepting this User Agreement, you acknowledge that you are waiving your right to a jury trial of any dispute arising out of the Services .
Indemnification:
You and your successors will defend, indemnify and hold harmless Construction ePay, its partners, affiliates, officers, directors, shareholders, employees, agents and assigns, and each of them, for, from and against any liability, claim, demand, loss, cost, expense or damage, including without limitation attorneys' fees and court costs, caused by, arising out of, resulting from, attributable to or in any way incidental to (i) the performance of the Services, the Transaction or both, or (ii) your breach of any representations or warranties set forth in this Agreement.
Changes to and termination of Services:
Due to the nature of our business and our desire to add additional features and benefits from time to time, we may amend this Agreement by providing you with a written copy of the amended terms or posting the amended terms to our website. We may suspend or terminate your use of the Services at any time, without notice for any reason, in our sole discretion. Except as warranted by risk to the security, privacy or integrity of the Services, we will attempt to provide you with prior notice of the suspension or termination of the Services. You will remain liable for all Services you initiate prior to such termination.
Governing Law and Jurisdiction:
This Agreement is governed by the laws of the State of Arizona without regard to its conflict of laws principles.
Non-Transferability of the Services:
You may not assign this Agreement or delegate your rights or duties under this Agreement to any other person, entity or organization. Any assignment or transfer in violation of this provision is null and void.
Relationship:
You and Construction ePay are independent parties. We are not acting as your agent or partner in connection with the Services.
General:
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Our failure to act with regard to a breach by you or others of any provision of this Agreement does not act of a waiver of our right to enforce that provision. This Agreement, the Application Form, the Payment Processing form, the Standard Business Practices and any and all other documents referenced in any of the foregoing govern the relationship between you and Construction ePay.
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