Welcome to Ply! We’re here to help you buy better. Let us handle your mechanical materials purchasing, sourcing and supply needs. Whether you need help comparing quotes and lead times from new and existing suppliers, need flexible payment options and financing, or desire to make your products accessible to willing buyers, we streamline the entire process on your behalf through the Ply online service (the “Service”).
By setting up an account with the Service or by using the Service, Suppliers and Customers (each referred to as “Participant,” “you” and “your”) agree to the terms of this Agreement and are granted a license to use and access the Service as made available by Company. The Service is available only to Participants that can form legally binding contracts. To utilize financing features, Participants may also be required to enter into separate agreement with our Financial Providers (each a “Financial Provider”) as further described below. If the Participant is acting on behalf of another person or entity, the Participant represents and warrants that such person or entity has authorized the Participant to act and enter into legally binding contracts on its or his/her behalf. Without limiting the foregoing, minors in any jurisdiction and individuals who have been suspended or terminated from the Service may not use the Service, whether as a Supplier or Customer.
PLEASE READ THIS AGREEMENT CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING PARTICIPANT’S LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT PARTICIPANT SUBMIT CLAIMS PARTICIPANT HAVE AGAINST COMPANY TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) PARTICIPANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) PARTICIPANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) PARTICIPANT MAY NOT BE ABLE TO HAVE ANY CLAIMS AGAINST THE COMPANY RESOLVED BY A JURY OR IN A COURT OF LAW.
NOTICE REGARDING MESSAGES FROM PLY. BY ACCEPTING THIS AGREEMENT, YOU AGREE AND HEREBY PROVIDE YOUR CONSENT, THAT PLY MAY CONTACT YOU: (A) BY EMAIL THAT YOU HAVE PROVIDED AND/OR AT THE MOBILE PHONE NUMBER YOU PROVIDED TO PLY, BY CALL OR SMS, ABOUT YOUR ACCOUNT, YOUR PAYMENT METHOD, ORDERS, ORDER STATUS, ACCOUNT STATUS, SUBSCRIPTION PERIOD, AND REGARDING INFORMATION PERTINENT TO YOUR ACCOUNT; AND (B) BY CALL, EMAIL OR SMS, TO SEND YOU MARKETING MESSAGES ABOUT YOUR ACCOUNT AND/OR SUBSCRIPTION, AND ABOUT PLY’S PRODUCTS AND SERVICES. FOR MARKETING EMAIL MESSAGES SENT TO YOUR EMAIL ADDRESS, YOU MAY OPT OUT OF RECEIVING THEM AS PROVIDED IN THOSE EMAILS. FOR SMS COMMUNICATIONS, YOU MAY OPT OUT OF RECEIVING THOSE MESSAGES BY FOLLOWING ACCOMPANYING INSTRUCTIONS OR OTHERWISE BY CONTACTING PLY SUPPORT AT [email protected] WITH YOUR SPECIFIC OPT OUT REQUEST. FOR THE PURPOSES OF THIS PARAGRAPH, REFERENCE TO “SMS” SHALL MEAN BOTH SMS AND MMS MESSAGES. PLEASE NOTE THAT FOR CERTAIN EMAIL MESSAGES PERTAINING TO YOUR ACCOUNT, YOU MAY NOT BE ABLE TO OPT OUT OF RECEIVING THEM.
NOTICE REGARDING SUBSCRIPTIONS. SUBSCRIPTIONS SERVICES AUTOMATICALLY RENEW UNLESS YOU CANCEL THEM. CANCELATIONS MUST BE RECEIVED AT LEAST THIRTY (30) BUSINESS DAYS PRIOR TO THE DATE OF RENEWAL. YOU WILL BE CHARGED SUBSCRIPTION FEES, IF APPLICABLE, PLUS APPLICABLE TAXES UNTIL YOUR SUBSCRIPTION IS CANCELED. BY AGREEING TO PURCHASE A SUBSCRIPTION, YOU CONSENT TO ALLOW PLY TO CHARGE YOUR CREDIT CARD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL SUBSCRIPTION PERIOD AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. NO REFUNDS ARE PROVIDED IF YOU CANCEL. TO CANCEL YOUR SUBSCRIPTION, YOU MUST SEND A CANCELATION NOTICE BY EMAIL TO [email protected] AND IDENTIFY THE SUBSCRIPTION YOU DESIRE TO CANCEL. FOR FEATURES THAT UTILIZE FINANCIAL PROVIDERS, YOU MUST HAVE AN ACTIVE CREDIT CARD TO SIGN UP AND MUST MAINTAIN AN ACTIVE CREDIT CARD ASSOCIATED WITH YOUR FINANCIAL PROVIDER ACCOUNT.
NOTICE REGARDING TRANSACTIONS. PARTICIPANT ACKNOWLEDGES AND AGREES THAT WHILE THE SERVICE FACILITATES TRANSACTIONS BETWEEN SUPPLIERS AND CUSTOMERS, AND BETWEEN FINANCIAL PROVIDERS AND SUPPLIERS AND/OR CUSTOMERS, THE COMPANY IS NOT A PARTY TO ANY AGREEMENT BETWEEN SUPPLIERS AND CUSTOMERS OR TO ANY AGREEMENT BETWEEN FINANCIAL PROVIDERS AND SUPPLIERS AND/OR CUSTOMERS, AND THE COMPANY HAS NO CONTROL OVER THE CONDUCT OF SUPPLIERS, CUSTOMERS OR FINANCIAL PROVIDERS, SO THE COMPANY WILL NOT BE LIABLE FOR ANY CLAIM, LOSS OR LIABILITY THAT MAY ARISE BETWEEN A CUSTOMER AND A SUPPLIER, OR BETWEEN A CUSTOMER OR SUPPLIER AND A FINANCIAL PROVIDER, RELATED TO AGREEMENTS OR ARRANGEMENTS BETWEEN ANY OF THEM.
Account Setup & Payment
If Participant is engaging with Financial Providers, Participant must follow Financial Providers’ application processes and enter into a separate agreement with each of the applicable Financial Providers through mechanisms enabled by Company. Participants acknowledge and agree, and hereby provide express consent, that Financial Provider and Company may share and exchange data about Participant, the Participant’s Financial Provider account and all transactions and activity with respect to their Financial Provider account (collectively, “Activity”). Participants acknowledge and agree that Financial Provider, not the Company, provides Financial Provider services directly to Participants and that Company, its officers, directors, employees, agents, successors and assigns (collectively, “Company Parties”) will not have any liability to Participant based on or arising from any action or inaction of Financial Provider, including but not limited to suspension or termination of a Financial Provider account or any actions taken or not taken by Financial Provider with respect to the Participant’s Financial Provider account and/or related data.
To participate as a Supplier, the Supplier must follow Company’s then-current Supplier application process for the Service and be accepted for participation by Company.
The Company may elect to, but is not obligated to, undertake additional identification and background verification of Participants as permitted by applicable law. As a condition for being allowed to use the Service, Participants agree to cooperate with any such additional verification procedures as reasonably requested by Company.
After setting up your account, you will be able to:
- Link your business operational software (field service management), bank account(s), and accounting software
- Generate an RFQ (request for quote) – the ability to generate and manage a materials request
- Interact with your dedicated buyer via in-app chat, SMS, email, or phone
- Receive material request quotes from suppliers
- Pay for or request financing for material request quotes
- Manage and search materials within your businesses materials catalog
- Manage user permissions
From time to time we may offer free accounts for testing or evaluation purposes (“Free Accounts”), but they may not have all the features of paid Accounts and are subject to limitations described in this Agreement and as implemented by Ply from time to time.
Subscription Period; Fees & Commissions
Subscription Period. The subscription period (“Subscription Period”). is for the duration of that we make the account available to you or until it is terminated.
Subscription Fees. Subscription fees may apply based upon the account type and features you’ve selected (“Subscription Fees”). All payments are non-cancelable and non-refundable.
Company Commission. For transactions enabled through the Service, Company shall be entitled to retain a commission, with the amount of the commission set at the time the transaction is initiated (a “Commission”) along with any credit card fees charged to Company. BY UTILIZING FINANCIAL PROVIDERS THROUGH THE SERVICE: (I) PARTICIPANTS CONSENT TO ALLOW COMPANY TO CHARGE THE CUSTOMER’S CREDIT CARD OR DEBIT THE CUSTOMER’S DESIGNATED PAYMENT METHOD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR COMMISSIONS, ANY CREDIT CARD FEES, AND OTHER ALLOWABLE OFFSETS, AND (II) PARTICIPANTS CONSENT TO ALLOW COMPANY, AS SUBCONTRACTOR AND AGENT, TO TRANSACT IN THEIR CUSTOMER FINANCIAL PROVIDER ACCOUNTS TO RECEIVE PAYMENT OF COMMISSIONS DUE COMPANY AND FOR REIMBURSEMENT OF CREDIT CARD FEES AND OTHER ALLOWABLE OFFSETS. Further, Participants acknowledge and agree that Company and/or Financing Providers shall have the right to withhold payments or issue stop payment instructions pending investigation of suspicious account activity and to refuse or defer payment for its own protection or for an offset of Participants’ obligations to the Company or where Company or Financing Providers consider account activity to be in bad faith or to violate this Agreement or where any withholding is required under applicable law.
Renewals and Cancellations
Accounts subject to Subscription Fees shall automatically renew for the same Subscription Period unless you cancel the account by the end of the then-current Subscription Period. You can cancel your account at any time by contacting customer service at [email protected] provided that all fees for your then-current Subscription Period and unpaid Commissions and unpaid allowable offsets shall remain due and payable. Cancellation will be effective immediately. Please note that after you cancel your account, you will not be able to use or access the Service and you will not be entitled to a refund of any fees that you’ve paid.
License to Use the Service
Subject to this Agreement, Ply grants you a non-exclusive, non-transferable license when you set up a Ply account, to: (i) use and access the Service for your own use; and (ii) use and copy any documentation created by Ply related to the Service (“Documentation”) solely in conjunction with your use of the Service. Except for the foregoing license grant, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other right, title or interest in the Service, ownership of which is retained by Ply and its suppliers, as applicable. Except as expressly authorized in this Agreement or allowed by applicable law, you may not allow third parties to use your Account.
Requirements to Use the Service
Equipment and Financial Provider Accounts. To use the Service, you’ll need to have a computer with Internet access. You are responsible for paying for all equipment and other third party services you use to access the Service. You acknowledge that in order to utilize Financial Providers through the Service, you must maintain your accounts with them and that Ply will not have any liability to you in the event the Financial Provider features of the Service cannot be available due to the inability or other problems with your Financial Provider account. You represent that you have all necessary rights to grant the licenses to Ply set forth in this Agreement.
Compliance with Laws. You agree to comply with any local laws and regulations regarding your right to use the Service. You acknowledge and agree that you will not use or access the Service if you are a denied person, entity, or against any general denial order, as listed with the DOC as follows: Denied Persons List, Entities List, the Unverified List, and General Order No. 3 to Supplement No. 1 to Part 736 of the Export Administration Regulations, or on any Office of Foreign Asset Control list, currently the Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, or if your use is for military end-use not authorized under the applicable provision of the EAR, or if you are subject to U.S. trade sanctions.
Message Analysis. By electing to use the Service, you acknowledge and agree that: (i) Company may need to review and analyze the content of messages sent by and to you using the communications features of the Service (“Message Content”) and uploaded content for the purposes of supporting Customers and Suppliers, for confirming communications and orders, for compliance with Service requirements, and for resolving any conflicts, confusion and disputes (collectively, “Message Analysis”). Per the requirements of 18 U.S.C. §2702(b), Company needs your express consent as a subscriber of the Service, for Company and Its employees and contractors (“personnel”) to use and access that Message Content for Message Analysis. Accordingly, by accepting this Agreement, you hereby grant Company and our personnel a limited license to review your Message Content for the purposes of Message Analysis and to review uploaded content for the purposes of providing the Service.
Your License Grant to Us
You acknowledge that use of the Service requires you to provide data that does not include any personally identifiable information, such as model numbers, pricing, specifications, lead times, etc. (“Anonymous Data”) and that Ply needs that data to build and maintain its data modeling algorithms, databases and models. Accordingly, you grant Ply a non-exclusive, irrevocable, worldwide, royalty-free, perpetual right and license to use, process, store, display, manipulate, disclose, copy, modify, append, make derivative works of, and sublicense such Anonymous Data for data modeling and business purposes, with such license to survive expiration or termination of this Agreement.
Your Account is for Your Use Only. You shall be responsible for all acts and omissions of your employees, contractors and other third parties you authorize to access the Service (“Users”) and all actions taken or not taken by you and Users based on your and their use the Service. You may only make the Service available to your Users, and not to any third party. You shall not, and shall not allow any third party to: (i) reverse engineer, reverse assemble, decompile, or otherwise attempt to derive source code from, or to otherwise alter or modify the Service; or (ii) remove, obscure or alter any notice of patent, copyright, or other proprietary right in or on the Service and the Documentation. You agree not to access the Service by any means other than through the interfaces that are provided and/or authorized by us. You shall not do any “mirroring” or “framing” of any part of the Service or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. No rights are granted by us with respect to any source code. Ply reserves the right in its sole discretion to take any action that it deems necessary if you violate this Agreement, including suspension or termination of your account.
Your Actions. You acknowledge that some or all of the information, reporting and analyses available through the Service (“Reporting”) are based on the data made available by you and estimates, projections, pricing, processes, available market data, and calculations based thereon, or from Suppliers (“Analytics”). You acknowledge and agree that any decision made by you, or any action taken or not taken by you, in reliance upon the Reporting and Analytics shall be in your sole discretion after review and consideration of all other information you may have available and that neither us nor any of our directors, officers, employees, agents, contractors, affiliates, successors or assigns shall have any liability for any such decision made or action taken or not taken by you based on use of the Reporting and Analytics.
Uploaded Content. With respect to any content that you upload or provide to us for use with the Service, you: (a) represent and warrant that: (i) you own all right, title and interest in and to such content, including, without limitation, all copyrights and rights of publicity contained therein, and that you have obtained all necessary releases and consents; (ii) use of the content you supply does not violate this Agreement and will not cause injury to any person or entity; and (iii) and that you will indemnify Company Parties for all claims resulting from content you supply; and (b) hereby grant to the Company and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, license to copy, upload, perform to use, reproduce, alter the resolution of, transmit, publicly display, distribute, and make available such content as Company deems appropriate for the sole purpose of providing the Service.
Participant Conduct. Participants are solely responsible for all content and materials that they upload, post, publish or display or otherwise use or make available (hereinafter, “upload”) via or in connection with the Service. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting offenders to law enforcement authorities. You agree to not use the Service to:
- upload or store any content that: (I) infringes or misappropriates any intellectual property rights, or violates any other rights, of any other party; (II) you do not have a right to upload under any law or under contractual or fiduciary relationships; (III) contains viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (IV) poses or creates a privacy or security risk to any person; (V) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially or ethnically, or otherwise objectionable as determined by Company in its sole discretion; (VI) constitutes or contains any inaccurate information or data; or (VII) in the sole judgment of Company, is objectionable or which restricts or inhibits any anyone from using or enjoying the Services, or which may expose Company or any other party to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other Participants from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any purpose that is not specifically authorized or for which you don’t have any necessary rights;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Service Levels & Maintenance
Ply uses reasonable efforts to make the Service available 7 days a week 24 hours a day. However, Ply does not guarantee availability of the Service and is under no obligation to provide you with maintenance, technical support or updates for the Service. We reserve the right to suspend access to your account if your use of the Service disrupts, impedes or otherwise negatively impacts the operation of our Service or use of our Service by other customers.
Ownership by You. As between we and you and subject to the licenses granted in this Agreement, all title and intellectual property rights in and to the information you upload to the Service is owned exclusively by you.
Our Intellectual Property Rights. You agree that all right, title and interest in and to all intellectual property rights in the Service are owned exclusively by us or our licensors. Except as provided in this Agreement, the license granted to you does not convey any rights in the Service, whether express or implied. Notwithstanding any other provision of this Agreement, we may make use of any ideas, concepts, know-how, methodologies, processes or techniques, whether or not patentable, learned, acquired or developed by us in the provision of the Service for all purposes of our business provided that we do not breach any obligation of confidentiality set out in this Agreement.
Content. All pages and content within the Service and any material made available for download are the property of Company or its licensors or suppliers or of the applicable Participant. The Service is protected by federal and international copyright and trademark laws. No portion of the materials on the Service may be reprinted, republished, modified, or distributed in any form without the express written permission of Company or the applicable Participant. Participant agrees that Participant shall respect our intellectual property rights and the intellectual property rights of others. Participant also agrees that Participant shall keep intact any proprietary notices, including copyright notices, contained on any downloaded materials and shall comply with any applicable end user license agreements. Any rights not expressly granted by this Agreement or any applicable end user license agreements are reserved by Company. Participant agrees not to portray Company or the Service in a false or misleading manner. Participant further agrees not to link to the Service for any purpose or in any way that is defamatory, fraudulent, indecent, or damages the name or reputation of Company Parties.
Participants acknowledge and agree that the Service is only an online venue for Participants. Any agreements reached by and between Suppliers and Customers are solely among such parties. Company is not a party to any transaction between Suppliers and Customers, or between either of them an Financial Providers, and makes no representations or warranties to either Suppliers or Customers that either party, or any Financial Provider, is suitable or qualified to engage in such transactions. BY ENTERING INTO ANY TRANSACTIONS FACILITATED THROUGH THE SERVICE, PARTICIPANTS ACKNOWLEDGE AND AGREE THAT THEY ARE SOLELY RESPONSIBLE FOR ALL TRANSACTION COSTS. TO THE FULL EXTENT PERMITTED BY LAW, COMPANY PARTIES: MAKE NO PROMISES, WARRANTIES, OR REPRESENTATIONS AS TO THE SERVICE OR ITS PARTICIPANTS OR ANY FINANCIAL PROVIDERS; AND (II) DISCLAIM ANY LIABILITY OR RESPONSIBILITY FOR ACTS, OMISSIONS, OR CONDUCT OF PARTICIPANTS AND FINANCIAL PROVIDERS IN CONNECTION WITH SERVICE.
In consideration for making the Service available to Suppliers and Customers, each Supplier and Customer agrees that if they have not had a prior business relationship before connection through the Service, then for a period of sixty (60) days months from the date one of them identifies the other through the Service, neither will solicit, provide, obtain or arrange similar services with the other outside or separate from the Service, whether directly or through third parties. In the event of violation of the foregoing (a “Circumvention”) and in addition to any other remedies available to Company, for each Circumvention the Supplier and Customer shall each pay Company, as liquidated damages and not as a penalty, the amount of seven percent (7%) of the gross transaction value of any transaction between them during such sixty (60) day period where such transaction could have been facilitated through the Service. Suppliers, Customers and Company agree that damages to Company for a Circumvention may be difficult to ascertain, and the foregoing amount is fair and reasonable commensurate with the value of the Services being provided by Company.
Term and Termination
Your rights to use the Service are effective through the end of applicable Subscription Period unless earlier terminated. This Agreement will terminate immediately without notice to you upon the earlier of (I) notice of your election to cancel your account, or (II) the posting of a new version of this Agreement on the Ply website at https://www.ply1stg.wpengine.com (the “Site”) with notice to you (which you acknowledge that Ply may provide by any means, including without limitation, by posting on the Site), in which case the new Agreement shall apply to you unless separately agreed upon in writing between you and Ply. Either we or you may terminate this Agreement upon written notice (email to suffice) in the event the other party commits a material breach of any provision of this Agreement. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event that (a) the other party becomes insolvent or unable to pay its debts when due; (b) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) the other party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors. Further, Ply reserves the right to terminate this Agreement and your account without prior notice and without liability to you upon requests by government and/or law enforcement agencies.
Unless otherwise separately agreed upon in writing between you and Ply, Ply may terminate your account without cause during the Subscription Period provided that if you have paid a Subscription Fee, Ply returns a pro rata portion of the Subscription Fee to the party who has paid for the account, with such pro rata refund being your sole remedy for such termination.
Upon termination, the licenses granted to you by Ply shall cease, you will not be able to access your account. You agree that Ply may keep your personal data associated with your Account on its servers for reasonable time following expiration or termination. Ply shall permanently delete any personally identifiable data associated with your account after such period.
Termination of your account terminates this Agreement and termination of this Agreement terminates your account. If this Agreement is terminated as a result of our breach, then you, as your sole remedy, and our sole liability, shall be entitled to a refund of the pro rata portion of any pre-paid Subscription Fees paid by you directly to us which correspond to the terminated portion of the Subscription Period.
In the event of expiration or termination of your account, the representations made by you in this Agreement, the “Notice” provisions at the beginning of this Agreement, the Sections entitled “Subscription Period; Fees & Commissions,” “Requirements to Use the Service,” “Proprietary Rights,” “Service Requirements,” “Non-Circumvention,”“Term and Termination,” “Indemnity and Release,” “Disclaimer of Warranties,” “Limitation of Liability,” “Dispute Resolution by Binding Arbitration,” and “General,” together with the provisions which by their terms are to survive expiration or termination, shall survive such expiration or termination.
Indemnity and Release
Participant agrees to release, indemnify and hold Company Parties (each an “Indemnitee”) harmless from any from any and all losses, liabilities, damages, fines, penalties, expenses, including reasonable attorneys’ fees and costs, rights, claims, actions of any kind and injury (including death) arising out of or relating to Participant’s use of the Service, any content Participant uploads to or obtains from the Service, Participant’s connection to the Service, actions or inactions of Financing Provider based on Activity and/or Participant’s conduct, Participant’s violation of this Agreement, Participant’s violation of any rights of another, or Participant’s violation of applicable law. Further, each Participant that engages with a Financing Provider: (I) represents and warrants to Company that they will comply with all the requirements of the Financing Provider Agreement and that they are solely responsible for their Financing Provider account Activity; and (II) shall indemnify, defend, and hold harmless Company Parties from and against any and all refunds, reversals, losses, liabilities, damages, fines, penalties, expenses, including reasonable attorneys’ fees and costs, arising from or related to their Financing Provider Agreement or Activity. If Participant is a California resident, Participant waives California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If Participant is a resident of another jurisdiction, Participant waives any comparable statute or doctrine.
Disclaimer of Warranties
PARTICIPANT’S USE OF THE SERVICE IS AT PARTICIPANT’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET PARTICIPANT’S REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY PARTICIPANT THROUGH THE SERVICE WILL MEET PARTICIPANT’S EXPECTATIONS.
Limitation of Liability
PARTICIPANT EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF PARTICIPANT’S CONTENT OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) ANY ACTION OR INACTION OF FINANCING PROVIDER; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL COMPANY PARTIES AGGREGATE, TOTAL LIABILITY TO PARTICIPANT FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE SUBSCRIPTION FEES PAID TO COMPANY FOR THE APPLICABLE SUBSCRIPTION PERIOD.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO PARTICIPANT OR BE ENFORCEABLE WITH RESPECT TO PARTICIPANT. IF PARTICIPANT IS DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, PARTICIPANT’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS PARTICIPANT’S RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.”
If Participant has a dispute regarding this Agreement, Participant must first provide us with written notice of the dispute via mail or overnight courier to Company’s address noted below, with such notice to include Participant’s name and contact information, a written explanation of the claim including all legal claims Participant intends to assert and each set of facts which support each of such claims, and the relief Participant is requesting. Participant agrees that if any of Participant’s claims are omitted from that notice, Participant forever waives those claims and covenant not to assert them in any action or proceeding related to this Agreement. We will attempt to resolve the dispute with Participant without further court action or arbitration.
All disputes, whether based on circumstances in the past or future, which cannot be resolved as provided above which arise out of or relate to this Agreement (including but not limited to this “Dispute Resolution” Section) shall be resolved by binding arbitration before a sole arbitrator, except that Participant may assert claims in small claims court if Participant’s claims qualify and Company may pursue a collection action against Participant in court. The Federal Arbitration Act and federal arbitration law apply. Arbitration does not involve a court or a judge; instead the arbitrator follows this Agreement and applicable law and awards relief accordingly.
Participant or Company may initiate arbitration through JAMS and the JAMS JA streamlined arbitration rules and procedures then in force (see www.jamsadr.com for additional information), or may pursue a dispute in court in New York, New York, which Participant hereby consent to be the exclusive jurisdiction and venue for such dispute, and not by arbitration if the dispute qualifies for small claims court or Participant opt out of arbitration, as provided below. The arbitration shall be commenced as an individual arbitration, and not in a class, representative, consolidated or action involving multiple plaintiffs. Participant shall not join or consolidate claims or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. Any arbitration will be confidential. Participant or Company may initiate arbitration in either New York, New York, or the federal judicial district where Participant resides. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the then current Terms of Service. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that this Agreement and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
PARTICIPANT MAY OPT OUT OF ARBITRATION BY PROVIDING WRITTEN NOTICE TO COMPANY AT COMPANY’S ADDRESS NOTED BELOW, TO THE ATTENTION OF “CLASS OPT OUT COORDINATOR” TO BE RECEIVED NO LATER THAN THIRTY (30) CALENDAR DAYS FROM THE DATE OF PARTICIPANT’S ORIGINAL ACCEPTANCE OF THE COMPANY TOS WITH THIS PROVISION INCLUDED. IF PARTICIPANT DOES NOT SEND NOTICE AS REQUIRED IN THE FOREGOING SENTENCE, PARTICIPANT WILL NOT HAVE OPTED OUT OF ARBITRATION. IF PARTICIPANT OPTS OUT OF ARBITRATION AS PROVIDED ABOVE, THE OTHER PROVISIONS OF THIS AGREEMENT SHALL STILL APPLY.
Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section.
This Agreement constitutes the entire agreement between Participant and Company and governs Participant’s use of the Service, superseding any prior agreements between Participant and Company with respect to the Service. This Agreement will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, Participant and Company agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in or for New York, New York. The failure of Company to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Participant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Participant may not assign this Agreement without the prior written consent of Company, but Company may assign or transfer this Agreement in whole or in part, without restriction. Company Parties shall not have any liability to Participant for any, or be deemed to be in default for any, delay or failure to perform any act under this Agreement resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, terrorism, war, accidents, fires, explosions, earthquake, flood, failure of transportation, pandemic, strikes or other work stoppages, or any other cause beyond its reasonable control. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Notices to Participant may be made via either email or regular mail. The Service may also provide notices to Participant of changes to this Agreement or other matters by displaying notices or links to notices generally on the Service.
Last updated: February 13, 2023
Ply Financial, Inc.
609 Greenwich St.
New York, NY 10014
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