Last Updated: January 22, 2021
TABLE OF CONTENTS
1. AGREEMENT TO TERMS
2. ELIGIBILITY
3. USER ACCOUNTS AND ACCOUNT SECURITY; VERIFICATION
4. YOUR ACCOUNT
5. MINIMUM TECHNOLOGY REQUIREMENTS AND UPDATES
6. USE OF THE SERVICES
7. PROHIBITED CONDUCT
8. OUR INTELLECTUAL PROPERTY RIGHTS
9. USER CONTENT
10. FEEDBACK
11. COPYRIGHT POLICY
12. THIRD-PARTY CONTENT
13. TERM AND TERMINATION
14. MODIFICATION OF THIS AGREEMENT
15. DISCLAIMER OF WARRANTIES
16. LIMITATIONS OF LIABILITY; WAIVER
17. INDEMNIFICATION
18. ARBITRATION, CLASS-ACTION WAIVER AND JURY WAIVER
19. TIME LIMITATION ON CLAIMS
20. GOVERNING LAW; VENUE
21. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
22. CALIFORNIA USERS AND RESIDENTS
23. MISCELLANEOUS
24. CONTACT US
Please read this Simba User Agreement (“Agreement”) carefully. This Agreement sets forth a legal agreement between you (“you” or “your”) and Simon Wallet, Inc. d/b/a Simba, its subsidiaries and affiliates (collectively, “Simba”, “we”, “us” and/or “our”) regarding your use of the websites, mobile application (the “Application”) and/or technology platform (collectively, the “Services”) offered, operated or made available by Simba. This Agreement applies when you access, interact with, sign up for or use any of the Services.
EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 18 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Other aspects of the Services may be covered by other terms, conditions and agreements with Simba or third parties such as financial institutions.
If you have any question regarding this Agreement or your access to or use of the Services, please email us at support@hellosimba.com or by calling Customer Support at 866-674-9630.
For information about how we collect, use, share and otherwise process information about you, please read our Privacy Policy [here] carefully. By accessing or using the Services you agree to Simba’s Privacy Policy.
By accessing and/or using the Services, you acknowledge you have read, understood, and agree to be bound by all of the terms of this Agreement. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU ARE EXPRESSLY PROHIBITED FROM ACCESSING AND/OR USING THE SERVICES AND YOU MUST DISCONTINUE ACCESS AND/OR USE IMMEDIATELY.
You must be at least eighteen (18) years of age to use the Services. By agreeing to this Agreement you represent and warrant to us: (i) that you are at least eighteen (18) years old; (ii) that you have not previously been suspended, removed or deactivated from the Services; (iii) that you are a legal resident of the United States; and (iv) that your registration and your use of the Services is in compliance with any and all applicable laws and regulations.
(a) Account Registration. To access the Services, you must create a Simba user account (“Account”). This process will include creation of a Login ID and password to access the Services. You agree that the information you provide to Simba on sign up for an Account and at all other times will be true, accurate, current and complete information (“User Information”) and that you will promptly update this information if it changes. You further represent that you are the legal owner of, and that you are authorized to provide Simba with, all the User Information you provide in connection with the Services. We reserve the right to remove, reclaim, or change a Login ID you select if we determine, in our sole discretion, that such Login ID is inappropriate, obscene, or otherwise objectionable.
All information supplied during registration is used in accordance of the USA Patriot Act CIP Notice [here] , to help the government fight the funding of terrorism and money laundering activities.
(b) Account Security. You must create a password for your Account. You must maintain the security of your Account and you will promptly notify us if you believe or have reason to believe that any of your User Information, including your Login ID and/or password, has been compromised, or that another person is accessing your Account through some other means. You agree not to disclose your Login ID and/or password to anyone else, and you will be solely responsible for any activities or actions take under your Account, whether or not authorized by you. Except as provided in Section 26 of the Cardholder Agreement, which limits your liability for unauthorized transfers, we are not liable for any loss or damage from your failure to comply with the requirements of this Section 3(b).
(c) Identity Verification. In order to use certain Services, Simba may be required to verify your identity. You hereby authorize Simba, directly or through our third-party vendor, to make any inquiries we consider necessary to validate your identity and/or authenticate your identity and User Information. This may include asking you for further information and/or documentation about your identity or requiring you to take steps to confirm ownership of your email address, wireless/cellular telephone number or financial instruments, and verifying your information against third party databases or through other sources. If you do not respond to such inquiries or if we cannot verify your identity, we may refuse to allow you to use the Services.
(d) Third-Party Access. In order to use certain Services, to add funds into your Account, or to make payments or transfers, you may allow third-party service providers to have access to your Account and User Information. You acknowledge and agree that the information you provide to any third-party service provider, or the information you provide to Simba through a third-party service provider, will be treated by the third-party service provider in accordance with its Privacy Policy (for example, if you use Plaid, then you understand that your information will be subject to Plaid’s Privacy Policy), and by Simba according to its Privacy Policy.
(e) Limits. You may not create more than one (1) Simba Account.
(a) Type of Account. Your Account is a prepaid debit card account associated with a bank account held
with Metropolitan Commercial Bank (“MCB”) - a Federal Deposit Insurance Corporation (FDIC) insured bank that insures your funds up to $250,000.
(b) Banking Services. We may change the Services you have access to from time to time. The Services
may include the following: (i) prepaid debit card account; (ii) debit-to-debit funds transfer; and (iii) overdraft.
(i) Prepaid Debit Card. Your use of the prepaid debit card is subject to the terms of your cardholder agreement with MCB, which can be found [here]. You may add funds into your Account by transferring funds from external bank accounts or other payment instruments, by depositing funds, or through direct deposit. You will need to provide certain account information to Simba or to a third-party service provider to facilitate the transfer of funds to your Account. We may, from time to time impose limitations on the amount of fund you can deposit into or withdraw from your Account. These limits are listed in [here]. You may use your prepaid debit card to make transactions at ATMs (which can be found through Simba’s ATM Finder). Fees associated with transactions made with your Account may be found at the Schedule of All Fees and Charges for Simba Prepaid Visa Card section of the cardholder agreement [here].
(ii) Debit-to-Debit Funds Transfer. You acknowledge and understand that Simba or its third-party service providers may impose certain limitations on the amounts, timing, or recipients of funds from your Account using the debit-to-debit funds transfer service. We may also request additional information from you regarding the transaction prior to completing your requested transaction. You are responsible for accurately entering your recipient’s information and the details of the transaction, and you acknowledge and understand that your failure to ensure the accuracy of the information could result in you sending funds to the wrong recipient and a loss of your funds. Simba is not responsible for any loss of funds if Simba follows the instructions you provide. Ensure that you know the recipient and that you are not the victim of a scam. You acknowledge and understand that Simba does not have control over aspects of the transfer, including the time it may take for transfers to reach the recipient’s account. Please notify Simba immediately if there is any problem with your transaction, including sending funds to the wrong recipient or a delay in the transfer. Fees associated with these transactions are listed in the Schedule of All Fees and Charges for Simba Prepaid Visa Card section of the cardholder agreement [here]. Simba does not know and is not responsible for any fees you or your recipient may be charged by third parties that are involved in the transaction but are not associated with Simba.
(iii) Overdraft. If your Account balance becomes negative for any reason, that negative balance represents an amount you owe to Simba and you promise to repay the negative balance immediately without any notice from us. If your Account balance is negative, we can set-off the amount you owe us from any amount we owe to you.
(a) Minimum Requirements. You are required to maintain a regularly updated web browser, and computer and mobile device operating systems to access and use the Application and the Services. You must also have a valid email address and sufficient storage space to install any required mobile application. The Application is available on the Apple App Store (for Apple devices) and Google Play Store (for Android devices).
(b) Updates. From time to time, Simba may automatically check the version of the Application installed on any device through which you access the Application (the “Authorized Device”) and, if applicable, provide updates for the Application (“Updates”). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins and new versions of the Application. By installing the Application, you authorize the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the Application and Updates will be governed by this Agreement (as amended by any terms and conditions that may be provided with Updates). Simba reserves the right to temporarily disable or permanently discontinue any and all functionality of the Application at any time without notice and with no liability to you.
You agree to use the Services only for lawful purposes. You are prohibited from any use of the Services that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. You also agree to comply with all applicable laws and regulations governing the downloading, installation and/or use of the Application, including, without limitation, any usage rules set forth in the online application store terms of service.
Any unauthorized use of the Services, including but not limited to unauthorized entry into Simba’s systems, misuse of passwords, or misuse of any information posted through the Services is strictly prohibited. Simba makes no claims concerning whether use of the Services is appropriate outside of the United States. If you access the Services from outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree you will not (i) try to reverse engineer, disassemble, decompile, or decipher the Services or software making up the Application and Services; (ii) navigate or search the Services with any tool, software, agent, engine or other means (including bots, avatars, intelligent agents, or spiders); (iii) use a means other than Simba’s provided interface to access the Application or the Services; (iv) use the Services in a way that could impair, overburden, damage, or disable any portion of the Services; or (v) mirror any material contained on the Services.
Simba reserves the right to take various actions against you if we believe you have engaged in activities restricted by this Agreement or by laws or regulations, and Simba also reserves the right to take action to protect Simba, other users, and other third parties from any liability, fees, fines, or penalties. We make take actions including, but not limited to: (a) updating information you have provided to us so that it is accurate; (b) limiting or completely closing your access to the Services; (c) suspending or terminating your ability to use the Services on an ongoing basis; (d) taking legal action against you; and (e) holding you liable for the amount of Simba’s damages caused by your violation of this Agreement.
You may not access or use the Services for any purpose other than that for which we make the Services available without our consent.
BY USING THE SERVICES, YOU AGREE NOT TO:
Unless otherwise indicated, the Services are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Services (collectively, the “Simba Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. The Simba Content and the Marks are provided on the Services “AS IS” for your information and personal use only. Except as expressly provided in this Agreement, no part of the Services and no Simba Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Services, you are granted a limited, non-exclusive, non-transferable, fully revocable license to access and use the Services. Use of any additional products or services offered through the Services that are subject to special registration, restricted access, or payment is further subject to other terms and conditions specified by Simba for the use of such other Simba products or services. You agree to use the Services and the Simba Content to which you have properly gained access solely for personal, non-commercial purposes. We reserve all rights not expressly granted to you in and to the Services, Simba Content, and the Marks, and no rights are granted to you by implication, estoppel, or otherwise.
(a) User Content. The Services may allow you and other users to provide, upload, submit or send content through the Services or to Simba (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Simba. You understand and agree that all User Content is the sole responsibility of the sender, not Simba, and that you are responsible for your User Content. You acknowledge that Simba’s use of your User Content will not infringe any intellectual property or publicity rights and that you have all the rights necessary to grant us the license described above. Further, you acknowledge and warrant that you own or otherwise control all of the rights of your User Content, and you agree to waive your moral rights and promise not to assert such rights against Simba.
(b) License. You grant Simba, its subsidiaries and affiliates (and parties we work with) a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content without compensation to you, including to improve the Services and create other products and services.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, ideas, or other information regarding the Services (“Feedback”) provided by you to us is non-confidential and will become our sole property. You hereby assign to us all of your rights in and to such Feedback, such that we own exclusive rights, including all intellectual property rights, and are entitled to the unrestricted use and dissemination of this Feedback for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Feedback, and you hereby warrant that any such Feedback is original to you or that you have the right to submit such Feedback. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in any Feedback.
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on the Services infringes any copyright that you own or control, you may notify Simba’s designated agent as follows:
Designated Agent: Luteechia Montague
Address:
Simon Wallet, Inc. DBA Simba
PO Box 1807
North Baldwin, NY 11510
Telephone Number: 347-992-5371
E-Mail Address: luteechia@hellosimba.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you
knowingly misrepresent that any activity or material on the Services is infringing, you may be liable to
Simba for certain costs and damages.
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Simba does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
(a) Term. This Agreement is effective beginning when you accept the Agreement during our customer onboarding process and ending when terminated as described further below.
(b) Termination by Us. Without limiting other remedies, Simba may immediately terminate or suspend your access to and/or use of the Services and remove, subject to any regulatory retention requirements, any material from the Services or our servers, in the event that you breach this Agreement. Notwithstanding the foregoing, we also reserve the right to terminate, limit or suspend your access to or use of the Services at any time and for any reason or no reason, including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of Simba or any third party; or (ii) in connection with any general discontinuation of the Services. We will have no liability whatsoever on account of any change to the Services or any suspension or revocation of your access to or use of the Services.
(c) Termination by You. You may terminate acceptance of this Agreement at any time by permanently deleting your Account on the Services or by deleting the Application in its entirety from the Authorized Device, whereupon (and without notice from Simba) any rights granted to you herein will automatically terminate. If you fail to comply with any provision of this Agreement, any rights granted to you herein will automatically terminate. In the event of such termination, you must immediately delete the Application from the Authorized Device.
(d) Effect of Termination. Upon termination of this Agreement: you understand and acknowledge that we will have no further obligation to provide or allow access to your Account or the Services. Upon termination, all licenses and other rights granted to you by this Agreement will immediately cease. Simba is not liable to you or any third party for termination of the Services or termination of your use of the Services. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION THAT YOU HAVE SUBMITTED, UPLOADED OR OTHERWISE MADE AVAILABLE ON, TO OR THROUGH THE SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, except as may be required by applicable law or as provided in our Privacy Policy, Simba will have no obligation to store or maintain (or delete or destroy) any information stored in our database or to forward any information to you or any third party. If we terminate or suspend your Account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
(e) Survival. In the event of termination of this Agreement or the Services, the terms in this Agreement that by their nature are continuing shall survive such termination, including but not limited to the following sections: 3 (User Accounts and Account Security; Verification); 6 (Use of the Services); 8(Our Intellectual Property Rights); 10(Feedback); 13(Term and Termination); 15(Disclaimer of Warranties); 16(Limitations of Liability; Waiver); 17(Indemnification); 18(Arbitration, Class-Action Waiver and Jury Waiver); 19(Time Limitation on Claims); 20(Governing Law; Exclusive Venue); and 23 (Miscellaneous).
We reserve the right, in our sole discretion, to change, modify, augment, limit, suspend, discontinue or terminate any or all of the Services at any time or for any reason without prior notice. You will be notified of any change in the manner provided by applicable law before the effective date of the change. However, if the change is made for security purposes, we may implement such change without prior notice. All modifications and additions to the Services shall be governed by this Agreement, unless otherwise expressly stated by Simba in writing.
However, we have no obligation to update any information on the Services. We will not be liable to you or any third party for any modification, suspension, or discontinuance of the Services. Simba may, from time to time, modify the Agreement. Please check this Agreement periodically for changes. Your continued use of the Services after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to this Agreement materially modifies your rights or obligations, we will make an effort to notify you of the change, such as by sending you an email to the address we have on file for you or presenting a pop-up window or other notification to you through the Services when you log in, and we may require that you accept the modified Agreement in order to continue to use the Services. Immaterial modifications are effective upon publication, and material changes will be effective upon the earlier of (i) continued use of the Services with actual knowledge of the modification; or (ii) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Agreement in effect that the time the dispute arose. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of then-current version of this Agreement.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW. WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (i) THE SERVICES, (ii) THE SIMBA CONTENT, OR (iii) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO US OR VIA THE SERVICES. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS 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.”
WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR MALICIOUS CODE. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICES ARE ACCURATE, COMPLETE, OR USEFUL. FURTHER, WE DO NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND WE SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THIS AGREEMENT.
(A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SIMBA, AND OUR SUBSIDIARIES AND AFFILIATES, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, PARTNERS AND EMPLOYEES (INDIVIDUALLY AND COLLECTIVELY, THE “SIMBA PARTIES”) WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF SIMBA OR THE OTHER SIMBA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) THE TOTAL LIABILITY OF SIMBA AND THE OTHER SIMBA PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO USE THE SERVICES.
(C) THE LIMITATIONS SET FORTH IN THIS SECTION 16 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF SIMBA OR THE OTHER SIMBA PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless the Simba Parties, from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (i) your access to or use of the Services; (ii) your violation of this Agreement; (iii) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (iv) any disputes or issues between you and any third party; or (v) your conduct in connection with the Services. You agree to promptly notify Simba Parties of any third-party Claims, cooperate with Simba Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the Simba Parties will have control of the defense or settlement, at Simba’s sole option, of any third-party Claims. You agree not to settle any matter without the prior written consent of Simba. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Simba or the other Simba Parties.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND SIMON WALLET, INC. TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
(a) Applicability of Arbitration Agreement. You and Simon Wallet, Inc. agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these this Agreement or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Simon Wallet, Inc. are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of this Agreement.
(b) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this Agreement.
(c) Waiver of Jury Trial. YOU AND SIMON WALLET, INC. WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Simon Wallet, Inc. are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Simon Wallet, Inc. over whether to vacate or enforce an arbitration award, YOU AND SIMON WALLET, INC. WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(d) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 20.
(e) Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
(f) Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor Simon Wallet, Inc. can force the other party to arbitrate. To opt out, you must notify us in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Login ID and the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must mail your opt-out notice to this address: Simon Wallet, Inc., 115 Broadway, 5th Floor, NY, NY 10006
(g) Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with us.
You agree that any claim you may have arising out of or related to your relationship with us must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
This Agreement and your use of the Services are governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles. To the extent that this Agreement allows you or us to initiate litigation in a court, you agree that all claims and disputes (whether in contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to this Agreement or use of the Services will be litigated exclusively in the federal and state courts of New York, New York. You expressly consent to the personal jurisdiction of such courts.
Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via text or SMS, email, and through the Services, satisfy any legal requirement that such communication be in writing. If you sign up to receive certain Simba notifications or information via text or SMS, you may incur additional charges from your wireless provider for these notices. You agree that you are solely responsible for any such charges. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means. Contact us immediately at support@hellosimba.com or by Customer Support at 866-674-9630, if you are having trouble receiving notices from us.
Please see: Simba Electronic Communications Disclosure here for more information.
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
This Agreement and any policies or operating rules posted by us on the Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement operates to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We will not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of this Agreement is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of this Agreement or use of the Services. You agree that this Agreement will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
support@hellosimba.com or at 866-674-9630