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TERMS OF SERVICE

TAPT APP TERMS OF SERVICE

These Terms of Service were last updated on November 24, 2021.

 NOTICE OF ARBITRATION PROVISIONS:

Your use of our Site, the App or other Service is subject to binding individual arbitration of any disputes which may arise, as provided in Section 22 below.  Please read the arbitration provisions carefully and do not use our Site or other Service if you are unwilling to arbitrate any disputes you may have with us as provided below.

OVERVIEW

The Tapt App website (the “Site”) and mobile application (the “Tapt App” or “App”) is operated by FCTI, Inc. (“FCTI”). Throughout the Site and the App, the terms “we,” “us” and “our” refer to FCTI. FCTI offers the Site and the App, including all information, tools, products and services (collectively, the “Service” or “Services”) available from the Site or the App to the user (“you” or “your”), conditioned upon your acceptance of all terms, conditions, policies and notices stated here. The Services include access to a deposit account (“Deposit Account”), debit card (“Card”), and small-dollar credit line (“SDC”) that you apply for and establish with Sutton Bank, as well as financial health tools, bank account aggregation and credit monitoring and reporting. By visiting our Site and/or the App, you agree to be bound by the following terms and conditions (“Terms of Service” or “Terms”).

If you do not agree to these Terms, please do not use the Site, the App or other Service.

We reserve the right to, in our sole discretion and subject to Section 23 (j) below, from time to time on a prospective basis, amend, update, change or replace any part of these Terms of Service, and to modify, add or discontinue any aspect or feature of the Site, App or Service. Such amendments, modifications, additions, and deletions shall become effective upon notice thereof, which may be provided to you by posting to our Site, via e-mail or any other means.  It is your responsibility to check this page periodically for changes. Your continued use of or access to the Site or the App following the posting of any changes constitutes acceptance of those changes.  To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these Terms would rend this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid these Terms being deemed illusory or unenforceable. Your use of the Site, the App or other Service and any information provided by you or gathered by us or third parties during any visit to or use of the Site, the App or other Service is governed by the FCTI Privacy Policy which is incorporated by this reference. You agree to FCTI’s collection, use and sharing of your information as set forth in the FCTI Privacy Policy. 

SECTION 1 – GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time. You understand that your information, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks. 

You may not use the Services if you are under 18 years of age.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the Site or the App through which the Service is provided, without express written permission by us. 

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms. 

SECTION 2 – CONSENT TO CONTACT

You consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any purposes, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including calls using pre recorded messages or artificial voice, and calls and messages delivered using auto telephone dialing systems or automatic texting systems. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine or voicemail.The previous excludes mobile numbers captured via SMS.

You consent to receive calls, and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates, or anyone calling on our behalf at the specific numbers you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture, or other means), with information or questions relating to you, your account, or the Services. We may also send you promotional messages, referral opportunities, and information allowing you to enter into sweepstakes.  The previous excludes mobile numbers captured via SMS.

You can cancel the SMS service at any time. Just text “STOP” to the short code. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time, and we will start sending SMS messages to you again. Consent to receive SMS messages is not required as a condition of purchase.

If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at contact@fcti.net or 800-454-2317.

Carriers are not liable for delayed or undelivered messages

If you choose to download the Tapt app you will receive one text message with a link to a landing page where you can download the Tapt app.

If you opt-in to receive Tapt account related text notifications, message frequency varies.

As always, message and data rates may apply for any messages sent to you from us and to us from you. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.

If you have any questions regarding privacy, please read our Privacy Policy.

SECTION 3 – OUR PRIVACY POLICY

Our Privacy Policy is located here and describes how we collect, use, and share your personal data. We are committed to protecting your personal data, and we consider this to be a vital part of our relationship with you.

SECTION 4 – FCTI IS NOT AN ADVISOR

The Services are generally designed to serve as an administrative platform only, providing you facilities and information for you to manage and make decisions about your finances. We are not a financial advisor, and the Services are not designed or intended to offer financial advice of any kind. You acknowledge and agree that you are not relying on us to provide advice regarding any financial matter.

SECTION 5 – CREDIT REPORT CONSENT

You authorize FCTI to request and obtain a consumer report from a consumer reporting agency containing information about you, from time to time, for any purpose permitted by applicable law, including for use in connection with a credit transaction, to display your credit profile to you, to confirm your identity to avoid fraudulent transactions in your name, to review your account to determine whether you continue to meet the terms of your account, and for other legitimate business needs in connection with a transaction initiated by you. You further authorize FCTI to send you updates to your consumer report and notifications related to your credit profile via push notifications, in-App messages, emails, and text messages.

SECTION 6 – AGREEMENTS WITH BANK

Your Deposit Account, Card, and SDC are provided by Sutton Bank and are governed by the Sutton Bank Deposit Account Agreement (“Deposit Agreement”) available here and Sutton Bank Line of Credit Agreement (“Credit Agreement”) available here. By signing up for the Services or conducting any transaction involving either your Deposit Account, Card or SDC, you agree to the terms in the Deposit Agreement and Credit Agreement. 

SECTION 7 – USE OF MOBILE DEVICES

The Services include certain services that are available via a mobile device, including the ability to upload content to the Services using a mobile device, browse the Services from a mobile device, and access certain features through the App when it is downloaded and installed on a mobile device. To the extent you access the Services through 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. By using our App, you agree that we may communicate with you by SMS, MMS, when you opt-in as referenced in SECTION 2, or other electronic means to your mobile device, and, as a result, that certain information about your usage of our App may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to a person who acquires your old number.

SECTION 8 – ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We are not responsible if information made available on the Site or the App is not accurate, complete or current. The material on the Site or the App is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information.  Any reliance on the material on the Site or the App is at your own risk. 

The Site and the App may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Site or the App at any time, but we have no obligation to update any information on our Site or the App. You agree that it is your responsibility to monitor changes to our Site and the App. 

SECTION 9 – MODIFICATIONS TO THE SERVICE AND FEES

Fees for the Services are subject to change without notice.

We reserve the right at any time to modify or discontinue the Site, the App or the Service (or any part, product or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Site, the App or the Service.

SECTION 10 – PRODUCTS OR SERVICES

We reserve the right in our sole discretion, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or Services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or Service made on the Site or the App is void where prohibited.

We do not warrant that the quality of any products, Services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 11 – ACCURACY OF ACCOUNT INFORMATION

You agree to provide current, complete and accurate purchase and account information for all Services you sign up for. You agree to promptly update your account and other information, including your email address and payment account information, so that we can complete your transactions and contact you as needed.

SECTION 12 – OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. 

Any use by you of optional tools offered through the Site or the App is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new Services and/or features through the Site or the App (including the release of new tools and resources). Such new features and/or Services shall also be subject to these Terms of Service.

SECTION 13 – THIRD-PARTY PRODUCT PROVIDERS

We use third parties to gather and verify information about your financial accounts, including obtaining your authority and right to access these accounts, as well as manage and initiate transactions involving your accounts. You authorize us and these third parties to access the websites and sources of your financial accounts, on your behalf, and to gather information about you. You agree to the transfer, storage, and processing of your information by these third parties in accordance with their respective privacy policies. You give us and these third parties a limited power of attorney and appoint us and these third parties as your true and lawful attorney-in-fact, and agent, with full power of substitution and resubstitution, for you and in your name and place, in any capacity, to access third-party websites and sources, servers, or documents, retrieve information, and use this information, with full power and authority, to do anything with the information in connection with the Services. You license to us and these third parties any information, data, passwords, materials, or other content gathered. You agree that we and these third parties may use, modify, display, and distribute this content, create new material with it, and do the same with any new material. You understand and agree that our Services are not endorsed or sponsored by these third parties and that these third parties are third-party beneficiaries of these Terms with respect to the products and services provided by these third parties.

SECTION 14 – THIRD-PARTY LINKS

Certain content, products and services available via our Service may include materials from third-parties. Third-party links on the Site or the App may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties, including but not limited to payment settlement services.

We are not liable for any harm or damages related to the purchase or use of goods, the Services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 15 – USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If, at our request, you send certain specific submissions or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

You agree that your Comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service, the Site or the App. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third-party.

SECTION 16 – PERSONAL INFORMATION

Your submission of personal information through the Site or the App is governed by our Privacy Policy.

SECTION 17 – ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our Site or the App or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on our Site or the App or in the Service is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service or on the Site or the App, including without limitation, fee information, except as required by law. No specified update or refresh date applied in the Service or on the Site or the App should be taken to indicate that all information in the Service or on the Site or the App has been modified or updated.

SECTION 18 – PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Service, the Site, the App or their content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service, the Site, the App, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service, the Site, the App, other websites, or the Internet. We reserve the right to terminate your use of the Service, the Site or the App for violating any of the prohibited uses.

SECTION 19 – NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, users 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 (800) 952-5210.

SECTION 20 – SPECIAL TERMS REGARDING APPLE-ENABLED SOFTWARE APPLICATIONS

We offer software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to software that is made available for your use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:

  1. We and you acknowledge that these Terms are concluded between us and you only, and not with Apple, and that as between us and Apple, we, not Apple, are solely responsible for the Apple-Enabled Software and its content.
  2. You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
  3. Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
  4. Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
  5. Apple is not responsible for any product warranties, whether expressed or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be our sole responsibility, to the extent it cannot be disclaimed under applicable law.
  6. We and you acknowledge that we, not Apple, are responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
  7. In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between us and Apple, we, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
  8. You represent and warrant that (a) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) you are not listed on any U.S. government list of prohibited or restricted parties.
  9. If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to us by email at contact@fcti.net.

We and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third-party beneficiary.

SECTION 21 – DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

While FCTI uses reasonable efforts to include up to date information on the Site, the App and the Service, FCTI makes no warranties or representations as to its accuracy, timeliness, reliability, completeness or otherwise.

FCTI PROVIDES THE SITE, THE APP, THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ON (EXCEPT AS EXPRESSLY STATED BY US) AN “AS IS” AND “AS AVAILABLE” BASIS. FCTI, ITS PARENT, SUBSIDIARIES, AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, SUPPLIERS, INTERNS, ATTORNEYS AND EMPLOYEES (COLLECTIVELY, THE “FCTI PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE FOREGOING, FCTI DOES NOT WARRANT THAT THE SITE, APP OR SERVICE WILL (1) BE UNINTERRUPTED; (2) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (3) MEET YOUR REQUIREMENTS; OR (4) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR OTHER PRODUCTS YOU USE.  YOUR USE OF THE SITE, APP AND SERVICE IS SOLELY AT YOUR RISK.

NONE OF THE FCTI PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OR INABILITY TO USE THE SITE, THE APP, ANY OF THE SERVICES OR ANY PRODUCTS PURCHASED USING THE SERVICES.  THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF FCTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD.  YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF THE FCTI PARTIES SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE, APP OR SERVICE.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION.  IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU.

IN NO EVENT WILL THE FCTI PARTIES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SITE, APP AND SERVICE OR THESE TERMS EXCEED THE AMOUNT PAID BY YOU TO FCTI FOR THE SERVICE OR PRODUCT IN QUESTION.

SECTION 22 – INDEMNIFICATION

You agree to indemnify, defend and hold harmless the FCTI Parties from and against any claim, demand, loss, cost or expense (including without limitation, legal fees and costs) incurred in connection with any third-party claim, demand, proceeding or action (“Claim”) brought against any of the FCTI Parties, made by any third-party due to or arising out of your use of the Site, the App or the Service or any alleged breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.  If you are obligated to indemnify any of the FCTI Parties, FCTI may, in its sole and absolute discretion, control the defense and disposition (including its possible settlement) of any Claim at your sole cost and expense.  Without limitation of the foregoing, you will not settle, compromise or in any other manner dispose of any Claim without the written consent of FCTI.

SECTION 23 – BINDING ARBITRATION OF ALL DISPUTES

We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms, if you have any dispute or disagreement with us regarding or relating to (i) your use of or interaction with the Site, the App or other Service, (ii) any purchases or other transactions or relationships with FCTI, or (iii) any data or information you may provide to FCTI or that FCTI may gather in connection with such use, interaction or transaction (collectively, “FCTI Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim, and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Site, the App or other Service, you agree to binding arbitration as provided below.

We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using the Site, the App or other Service, you agree that any complaint, dispute, or disagreement you may have against FCTI, and any claim that FCTI may have against you, arising out of, relating to, or connected in any way with these Terms, our Privacy Policy, or any FCTI Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules and Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations (“Minimum Standards”) in effect which would be applicable to the matter in dispute, FCTI agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section 23, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section 23 shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that: 

  1. the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and FCTI (the “Arbitrator”);
  2. the Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions in this Section 23, including but not limited to any claim that all or any part of these Terms is void or voidable;
  3. the Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and FCTI; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
  4. the Arbitrator (i) shall apply internal laws of the State of California consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
  5. the Arbitration can resolve only your and/or FCTI’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
  6. the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
  7. in the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, FCTI will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
  8. in the event you recover an Award greater than FCTI’s last written settlement offer, the Arbitrator shall also have the right to include in the Award FCTI’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but FCTI shall in all events bear its own attorneys’ fees;
  9. with the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor FCTI shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction;
  10. FCTI may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after FCTI has given notice of such modifications; and
  11. notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against FCTI in your local small claims court within the United States, if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.

SECTION 24 – TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our Site and App.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate your use of and access to the Service at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).  FCTI shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension of the Site, App or Service.  Termination, suspension, or cancellation of your use of the Service shall not affect any right or relief to which FCTI may be entitled, at law or in equity, and all rights granted to you will automatically terminate and immediately revert to FCTI.

SECTION 25 – GENERAL

These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the United States and the state of California without regard to its conflict of law provisions. Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms will be brought exclusively in the federal or state courts located in Los Angeles, California, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise. No failure or delay by FCTI in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect. You agree that regardless of any statute or law which establishes a different statute of limitations, to the maximum extent permitted under applicable law, any claim or cause of action (including any arbitration) arising out of, related to or connected with the use of the Site, App or other Service, or these Terms, our Privacy Policy, or other FCTI Transactions or Relationships must be filed within one (1) year after such claim or cause of action arose or be forever barred. The paragraph or section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms represent the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter, and may not be amended, altered or waived except in writing by the party to be charged. These Terms are binding upon and shall inure to the benefit of parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. You shall not assign your rights or obligations hereunder without FCTI’s prior written consent.

SECTION 26 – CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at contact@fcti.net.