MK FINANCING TERMS AND CONDITION
MULTIKRD MEMBERSHIPS, PRODUCTS, AND WEBSITE RULES, TERMS, AND CONDITIONS OF USE
Updated December 12, 2020
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
These Terms of Service constitute a legal agreement between you and MK Financing, LLC (“MK Financing,” “we” or “us”) for the use of the Services. You represent and warrant that you are over the age of eighteen (18) and have the capacity and authority to bind yourself and agree to these Terms of Service.
UNLESS YOU OPT OUT OF ARBITRATION WITHIN THIRTY (30) DAYS AFTER YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURES SPECIFIED IN THE ARBITRATION TERMS PROVIDED IN SECTION G BELOW, AND EXCEPT FOR CERTAIN TYPES OF CLAIMS DESCRIBED IN SECTION G BELOW, YOU AGREE THAT ANY AND ALL DISPUTES AND CLAIMS BETWEEN YOU AND MK FINANCING OR ANY OF ITS AFFILIATES, INCLUDING WITHOUT LIMITATION DISPUTES OR CLAIMS RELATED TO THIS AGREEMENT AND/OR YOUR USE OF THE SERVICES (EXCEPT AS OTHERWISE PROVIDED IN SECTION G BELOW) AND ANY OTHER DISPUTES OR CLAIMS BETWEEN YOU AND MK FINANCING OR ANY OF ITS AFFILIATES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION CONSUMER ARBITRATION RULES EXCLUSIVELY IN HOUSTON, TEXAS, AND YOU HEREBY EXPRESSLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE AGAINST MK FINANCING OR ANY OF ITS AFFILIATES, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
You acknowledge and agree that we may modify these Terms of Service and/or modify or discontinue the Services at any time with or without notice and we shall not be liable to you or any third party for any such modification or discontinuance. If at any time after reviewing or using the Services you wish to terminate your use of same, you must cease access to or use of the Services and the Services.
- Provision and Use of the Services
MK Financing has contracted with your employer to provide you with the Services, through which you may obtain access to your earned wages from your next paycheck from your employer subject to these Terms of Service. The Services are made available to you as an employee of your employer through the Multikrd Employee Discount Benefits Platform provided by Multikrd, LLC (“MultiKrd”). You acknowledge that the Services are provided separately by MK Financing, not by MultiKrd, and agree that any issues, disputes or claims related to any wage access Services are between you and MK Financing, not MultiKrd. You agree that MultiKrd shall have no obligation or liability with respect to any wage access Services and agree to not assert any claims against MultiKrd related thereto. The Services are only available where permitted by applicable laws and are provided by MK Financing only for employees in those states where MK Financing is authorized to provide the Services. We shall not have any liability for any claims arising or resulting from reliance on any representation, warranty, agreement, instruction, notice or communication received from you whether on your own behalf or on behalf of any entity.
Requirements. In order to use the Services, you must be at least 18 years of age and a resident of the U.S. You must have a valid government issued driver’s license or official valid identification with photograph issued by a government agency, and must have an active bank or debit/credit card account that accepts electronic transfers, and a working phone number and email address for verification. You must specifically select activation of wage access Services when registering to become a Multikrd member, or if not selected as part of your initial registration, you must update your registration information to activate wage access Services for your account. You must be actively employed by your employer who has engaged MK Financing for provision of wage access Services to its employees and in good standing, with accrued pay that is not subject to any garnishment order, lien, judgment or other encumbrance, for which a wage access transaction can be made.
By activating wage access services, you consent and agree to disclosure by your employer to MK Financing of your bank account information, debit/credit card, paycheck, wage, salary and/or other compensation information, including whether you are an hourly, exempt or non-exempt employee, your payday and the amount of accrued pay information with your employer and/or your employer’s payroll processing service provider. You are required to click to reaffirm your agreement and consent to the Terms of Service each time you submit a request for a wage access transaction.
Employee Wage Access Request Processing. When you request an earned wage access transaction, MK Financing will request that your employer and/or its payroll processing service provider verify and confirm to MK Financing your employment, pay check, wage, salary and/or other compensation information and your accrued earned wages up to the day of the wage access request. MK Financing will determine, in its sole and absolute discretion, the amount of wage access that it will provide to you based on the accrued earned wages. The maximum amount of wage access requested and/or provided at any time will be equal or less than your accrued wages as of when the applicable wage access transaction is made.
The timing of a standard non-expedited wage access funds transfer varies but is approximately three (3) business days after you submit your online request to proceed with the wage access transaction. You can also obtain expedited processing for an additional expedited processing charge (which will be specified on the applicable user screen when requesting expedited processing) within one (1) business day by requesting and authorizing the expedited charge for same when submitting your online request to proceed with the wage access transaction. MK Financing will notify your employer and/or its payroll processing service provider that the wage access transaction has been made, including the amount of the wage access and the funds transfer processing charges and program participation charge, and the corresponding amount of the wage access together with the applicable funds transfer processing charges and program participation charge shall be deducted by your employer and/or its payroll processing service provider from your next paycheck and shall be paid over to MK Financing on the applicable regular pay day established by your employer.
Your clicking to proceed with a wage access transaction constitutes your representation and warranty that the wages for which the wage access transaction is requested have been earned by you and are due to you and you have not received payment for such wages, and that you have the right to authorize us to make the wage access transaction and for the wage access transaction amount together with the funds transfer processing charges and program participation charge to be deducted from your next paycheck and paid over to MK Financing. You agree to indemnify and hold us and MK Financing harmless from any claims or liability whatsoever related to your wage access transactions.
Your clicking to proceed with the wage access transaction also constitutes your unconditional express agreement to your employer to pay the wage access amount plus the applicable funds transfer processing charges and program participation charge in full to MK Financing, by deducting such amounts from your next paycheck. You authorize your employer and/or its payroll processing service provider to deduct and pay the wage access amount plus the applicable funds transfer processing charges and program participation charge from your next paycheck over to MK Financing. In the event that your employment is terminated before your next pay check, any wage access amounts as well as the applicable funds transfer processing charges and program participation charge shall be due immediately to MK Financing and shall be deducted from the next/last payment that you are entitled to receive from your employer.
Transaction Costs and Charges. MK Financing does not charge interest on the wage access transactions. MK Financing will charge a processing charge, separately from the requested wage access transaction amount, equal to the amount that MK Financing is charged by its third party funds transfer processing service provider(s) for the applicable wage access funds transfers plus a reasonable mark-up of such funds transfer processing charges as a wage access program participation charge. The amount of such wage access program participation charge is determined by MK Financing based only on the transaction costs for disbursement of the applicable wage access amount and is specified to you in the wage access transaction screen(s) prior to your clicking to proceed with the applicable wage access transaction. Additionally, wage access transactions for which you request expedited processing will require payment of an expedited processing charge according to the established charges set forth in the MK Financing website and specified to you in the wage access transaction screen(s) prior to your clicking to proceed with the applicable wage access transaction, which shall also be deducted from your wages when your employer regularly pays your wages. Such transaction costs and charges are non-refundable. See Section 4 below for additional terms regarding payment processing services provided by Flex Payment Solutions, Inc., the payment processing services provider for the wage access program transactions.
If reimbursement for a wage access transaction (including the wage amount accessed and the above-described transaction costs and charges) is not received from your employer or your employer’s payroll processing service provider in accordance with the wage access transaction terms, you may be unable to use the Services again until such reimbursement is received.
Consumer Notice: Wage access transactions are made by MK Financing on behalf of your employer, as defined in the Fair Labor Standards Act, 29 U.S.C. 203(d), as part of your employer’s employee benefits program such that MK Financing will be provided information regarding your accrued wages as an employee of your employer. The wage access is provided to you as an employee of your employer and the wage access transactions are made only against the accrued cash value of any wages that you have earned up to the date of the applicable wage access transaction. The amount of wages accessed must not exceed your accrued wages. Accrued wages are unpaid wages you are entitled to receive for work that you have already performed for your employer in the event of separation. This amount is determined under applicable state law.
Each time that you request a wage access transaction, MK Financing warrants all of the following to you before the wage access transaction is processed:
(1) You will not be required to pay any charges or fees in connection with the applicable wage access transaction other than the above-described funds transfer processing charges charged by third party funds transfer processing service providers and the wage access program participation charge described in the “Transaction Costs and Charges” section above, which is equal to a reasonable mark-up of such funds transfer processing charges. The amount of such mark-up of the funds transfer processing charges is determined by MK Financing based only on the transaction costs for disbursement of the wage access amount and is specified to you in the wage access transaction screen(s) prior to your clicking to proceed with the applicable wage access transaction;
(2) MK Financing and its business partners do not have any legal or contractual claim or remedy against you based on your failure to repay. This provision does not prevent MK Financing from obtaining the above-described one-time authorization to seek repayment from your payroll account with your employer.
(3) With respect to the amounts accessed, MK Financing will not engage in any debt collection activities if the wage access transaction amounts are not directly deducted from your wages or otherwise repaid on the scheduled due date;
(4) MK Financing and its business partners will not place the wage amount accessed as debt with a third party or sell it as debt to a third party; and
(5) MK Financing and its business partners will not report information to a consumer reporting agency concerning the wage amount accessed.
However, if reimbursement for a wage access transaction (including the amount of wages accessed and applicable funds transfer processing charges, program participation charges and expedited processing charges (if expedited processing is requested) is not received from your employer or your employer’s payroll processing service provider in accordance with the wage access terms, you may be unable to use the Services until such reimbursement is received.
A wage access transaction provides access to your accrued earned wages with your employer and result in receiving some or all of your accrued earned wages before your regularly-scheduled pay day, and the amount accessed will no longer be paid to you later on your regularly scheduled pay day. They do not constitute long-term financial solutions. In the event that you are facing debt and credit difficulties, you should seek out debt and credit advisory help. Consumers are encouraged to consult their federal, state, and local government to learn more about the risks involved with wage access transactions, local laws and regulations governing wage access transactions, possible alternatives and recent developments in their state.
MK Financing may change any aspect of the Services by posting the changes online via links or notices on the Services user screens or by emailing, text messaging or otherwise corresponding with you. If any such change is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions. YOUR CONTINUED USE OF THE SERVICES AFTER A CHANGE CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES, YOU MUST CEASE USING THE SERVICES.
D. Access and Use of the Services
The Services are provided by a U.S. entity for use within the U.S. The laws of your jurisdiction may be different than the laws that apply to the Services. Accessing the Services from outside the United States is done at your own risk and we reserve the right to prohibit the provision to or receipt of the Services with respect to anyone that does not reside in and is not located within the U.S. You are solely responsible for compliance with jurisdiction laws. If you access the Services from outside the United States, you consent to the transmission and/or transfer of data relating to your user account and communications and transactions relating to the Services across all applicable international boundaries.
1. Limited Authorization
MK Financing grants you a limited authorization to access and make only personal use of the Services. Such authorization does not include, without limitation: (a) any resale or commercial use of the Services; (b) modification, adaptation, translation, reverse engineering, de-compilation, disassembly or conversion into human readable form any of the Services, including use of or directly viewing the underlying HTML or other code from the Services, except as interpreted and displayed in a web browser. Except as noted above, you are not granted any right or license by implication, estoppel, or otherwise in or under a patent, trademark, copyright, or proprietary right of MK Financing or any third party. You may not use any meta tags or any other “hidden text” utilizing MK Financing’s name, trademark, or product name without our express prior written consent. We may terminate your authorization to use or access the Services if you make or permit any unauthorized use of them and/or for any other reason or no reason as we determine in our sole discretion. Unauthorized use of the Services by you may violate applicable law including, without limitation, copyright laws, trademark laws (including trade dress), and communications regulations and statutes. We reserve the right to take legal action against you and/or any other violators and if your conduct is criminal, to have your and/or any other violators fully prosecuted.
2. Passwords & Security
You are responsible for maintaining the confidentiality of your password and for restricting access to your account and computer, and you agree to accept responsibility for all activities that occur on your account or with your password. If the confidentiality of your account or password is compromised in any manner, then you must notify MK Financing immediately. MK Financing does not control the privacy and security of the Multikrd site or any other third party site. If the confidentiality of your account or password is compromised, then you should notify MK Financing, as applicable, immediately. MK Financing reserves the right to take all action, as it deems necessary or reasonable to maintain the security of the Services and your account, including without limitation, suspending access to or use of your account, terminating your account, changing your password, or requesting additional information to authorize transactions on your account. While MK Financing takes prudent steps to protect your account and the Services, it cannot protect your information outside of the Services. For example, when MK Financing communicates with you via unencrypted email from time to time at your request and/or consent, the communication is not secure, is not stored securely, and the information contained may be viewed by others. You acknowledge that by requesting information by email, you agree that we may transmit it to you from time to time and store it in an unencrypted form and manner. MK Financing may rely on the authority of anyone accessing your account or using your password, and in no event will MK Financing be liable to you or any third party for any liability or damage resulting from or arising out of: (i) any action or inaction of MK Financing under this provision; (ii) any compromise of the confidentiality of your accounts or passwords, and; (iii) any unauthorized access to your account or use of your password; (iv) any action or inaction by Multikrd regarding your membership with Multikrd or access to the Services via the Multikrd site.
You may not tamper with the Services, commit unauthorized intrusion into any part of Services or use the Services to intrude into any other site. Acts of interference, including but not limited to, password cracking, denial-of-service attacks (sending packets with an illegal packet size, UDP flooding, ping-flooding, half-open TCP connection flooding, etc.) are prohibited. You acknowledge and agree that the Services may be inaccessible or inoperable from time to time due to maintenance, upgrades, hardware or software malfunctions or failures, Internet or other telecommunications issues, system or network congestion, third party attacks or other issues and MK Financing shall have no liability with respect thereto.
3. Intellectual Property
All works of authorship, branding and other intellectual property embodied by or forming part of the Services are, as between you and us, owned by us, our service providers, merchants, and/or others and are protected by United States and international copyright, trademark and other laws. © 2020 MK Financing, LLC. All rights reserved. None of the Services content or materials or any intellectual property described in these Terms of Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior written permission of MK Financing or the respective intellectual property owner, except that you may electronically copy and print to hard copy portions of the Services for the sole purpose of using materials it contains for informational and non-commercial, personal use only without further reproduction, distribution or display. Any other use of the materials in the Services, including any commercial use, reproduction for purposes other than described above, modification, distribution, republication, display without the prior written permission of MK Financing is strictly prohibited. The software, including any files, images incorporated in or generated by any such software, and data accompanying any such software (collectively, “Software”), that are used in, comprise or may be made available on the Services are made available only for use by you on a non-exclusive, limited, and revocable basis solely for your single use as one end user. All other rights are reserved by MK Financing. MK Financing shall retain full and complete title and all intellectual property rights to such Software. You shall not copy, distribute, sell, modify, decompile, reverse engineer, disassemble or create derivative works from any Software.
4. Third Party Links, Websites and Services
MK Financing makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of, or any representations made on, any web sites or online services accessible by hyperlink from the Services or from MK Financing’s communications to you via email or other electronic messaging.
Your accessing and/or use of such third party sites and any products or services provided by such third parties is subject to such additional terms, conditions and privacy policies, each of which is incorporated herein by reference with respect thereto, and you acknowledge, agree and consent to same by accessing and using such third party sites and/or acquiring or receiving such products or services. MK Financing neither regularly monitors nor assumes responsibility for the content of third parties’ statements or websites. MK Financing makes no representations or warranties whatsoever regarding their representations, accuracy, or completeness of the information on these third party websites or with respect to any products, services provided by them or transactions between you and them. You agree to not make any claims against MK Financing related to any of the above-referenced third parties or any of their products or services, any transactions or interactions with them, or the use of your information by them.
Flex Payment Solutions, Inc. and/or such financial institutions will charge processing fees for wage access transactions, which will be charged to you and will be deducted from your wage payments from your employer when your wage access transactions are deducted from your wage payments by your employer and reimbursed to MK Financing.
By clicking to agree to proceed with a wage access transaction, you consent and agree to the processing of such transaction by Flex Payment Solutions, Inc. and such financial institutions and agree to the Flex Payment Solutions, Inc. and financial institution privacy policies with respect thereto. You further agree that MK Financing may provide confirmatory evidence of your consent to Flex Payment Solutions, Inc. and/or such financial institutions upon request by Flex Payment Solutions, Inc. or such financial institutions. You acknowledge and agree that Flex Payment Solutions, Inc. and/or such financial institutions may reject payment processing transaction requests at their sole discretion, and may restrict payment processing transaction services to specified states from time to time. You further agree that you have no right to cancel any wage access processing transaction after submitting the wage access transaction request.
5. By using the Services, you agree not to do any of the following:
a) Upload to, distribute or otherwise publish through the Services any message, information, text or other material (“Content”) that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable.
b) Upload or transmit any Content that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law.
c) Upload or transmit any Content that may infringe upon any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party. By posting any Content, you represent and warrant that you have the lawful right to distribute and reproduce such Content.
d) Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, or otherwise send any false or misleading information.
e) Upload to, distribute or otherwise publish through the Services any Content such as charity requests, petitions for signatures, chain letters or letters relating to pyramid schemes, advertising or solicitations for funds, political campaigning, mass mailings, any form of unsolicited commercial email or “spam,” (regardless of whether the email itself complies with the requirements of federal or state law for sending commercial email) or offering or disseminating fraudulent products, services, schemes or promotions.
f) Disseminate any harmful content of any kind, including without limitation, viruses, Trojan horses, worms, time bombs, zombies, cancel bots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information.
g) Harvest or otherwise collect information about others, including contact information.
h) Access or use the Services for the purpose of obtaining information to directly or indirectly develop or provide wage access services or otherwise develop or provide a service that competes with MK Financing’s Services.
- Violate any applicable laws, regulations or other legal requirements.
We shall have no obligation to monitor the usage of the Services but reserve the right to review any communications or Submissions directed to the Services and to remove any of same at our sole discretion. We also reserve the right at all times to disclose any information as necessary to satisfy any applicable law, regulation or other legal requirement, legal process or governmental or law enforcement request, or to edit, or refuse to post or remove any information or materials, in whole or in part, in our sole discretion.
When you use and access the Services, we may place cookie files in your web browser. Some of these cookies are essential and enable you to move around the Services and use its features, such as accessing logged in or secure areas. Others help improve how the Services work or allow us to tailor the Services to provide enhanced features and content for you by remembering how you’ve customized the Services. Cookies can also remember that your device has visited a site or service and track your device’s browsing activity. This information may be shared with organizations outside MK Financing, such as advertisers and/or advertising networks to deliver the advertising, and to help measure the effectiveness of an advertising campaign, or other business partners for providing aggregate service usage statistics and aggregate testing.
Please note, however, that if you delete cookies or refuse to accept them, you might not be able to use all the features we offer, you may not be able to store your preferences, and some of our pages might not display properly.
- All About Cookies: http://www.allaboutcookies.org/
- Network Advertising Initiative: http://www.networkadvertising.org/
7. Policies and Enforcement
All access and use of the Services is governed by and subject to these Terms of Service and any additional policies that MultiKrd may implement by notifying you or posting them on the Services user screens. MK Financing may:
i. Monitor any activity & content associated with any areas on the Services user screens.
iii. Disclose such information to any third party including law enforcement agencies to protect our rights or property in response to legal process, or in a product faith belief that such disclosure is justified or required in an emergency.
iv. Investigate any reported violation of our policies or complaints.
v. Take any action we deem appropriate, including but not limited to action to issue a warning, suspend or terminate your access and use of the Services at any time and block, remove or edit any communication and materials that MK Financing believes in its sole discretion may violate applicable law, the Terms of Service or a third party’s rights.
MK Financing takes no responsibility and assumes no liability for any Content posted or uploaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter.
The Services are designed for and intended for use by adults with legal capacity to enter into valid and enforceable agreements. If you are under 18 or the applicable legal adult age in your jurisdiction, you may use the Services only with involvement of a parent or guardian. If you are a parent or legal guardian, you should not permit the use of the Services by children, minors and others under your care and you agree to be solely responsible for any use of the Services by them.
THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED BY MK FINANCING. MK FINANCING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT THERETO AND WITH RESPECT TO ANY SERVICES. MK FINANCING DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. MK FINANCING DOES NOT REPRESENT OR WARRANT THAT THE SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, EVEN IF MK FINANCING OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR OTHER IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
F. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MK FINANCING OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER SIMILAR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL CUMULATIVE AGGREGATE LIABILITY OF MK FINANCING (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF OR RELATING TO THE SERVICES EXCEED $100.
THESE LIMITATIONS DO NOT LIMIT OR EXCLUDE LIABILITY FOR MK FINANCING’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD IN CONNECTION WITH THE SERVICES.
G. Applicable Law, Arbitration; Class Action Waiver; Limitation of Actions
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Texas applicable to agreements made and entirely performed within Texas, without resort to its conflict of law provisions or any other rule or interpretation that would result in the application of the laws of another jurisdiction.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO OPT OUT OF THE ARBITRATION TERMS PROVIDED BELOW IN ACCORDANCE WITH THE OPT OUT SECTION BELOW.
You and MK Financing agree that these Terms of Service affects interstate commerce and that the Federal Arbitration Act, governs the interpretation and enforcement of these arbitration provisions.
The term “Dispute” means any dispute, claim or controversy between you and us or our officers, directors, employees or agents, that arises out of these Terms of Service, or the use of the Services, regardless of legal theory, and includes claims that accrued before the date you entered into these Terms of Service as well as claims relating to the interpretation, validity, enforcement or scope of the Agreement to arbitrate disputes contained in this section. The term “Dispute” is to be interpreted in the broadest sense allowed by law. The only disputes excluded from this broad provision are claims that can be resolved in small claims court and intellectual property claims and claims by MK Financing for injunctive or other equitable relief as provided below.
Regardless of how, when or where you access the Services, by agreeing to these Terms of Service, you agree to resolve any and all disputes with MK Financing as follows:
Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration or litigation. You can reach MK Financing by email at firstname.lastname@example.org or by regular mail at MK Financing LLC, P.O. Box 131834, Spring, Texas 77393. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to resolve all disputes in good faith negotiations between them, which both agree is a precondition to either initiating an arbitration or lawsuit.
Binding Arbitration. Unless you opt out of arbitration in accordance with the terms provided above, if we cannot resolve the Dispute with you within thirty (30) days of when we start informal Dispute resolution, then you and MK Financing agree that the Dispute shall be resolved exclusively by binding arbitration which may be begun by either you or MK Financing. The arbitration shall be administered by the American Arbitration Association in accordance with its Consumer Arbitration Rules then in effect except as modified by these Terms of Service, and excluding any rules or procedures governing or permitting class or representative actions. Said rules are posted at https://www.adr.org/sites/default/files/Consumer_Rules_Web_1.pdf. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all such disputes and has the power to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Opt-Out of Arbitration. You may opt out of the binding arbitration described in this section by sending MK Financing written notice that you are opting out of binding arbitration (an “Arbitration Opt-Out Notice”) by email at email@example.com or regular mail at MK Financing, LLC, P.O. Box 131834, Spring, Texas 77393 within thirty (30) days following the date you first agree to these Terms of Service. If you don’t provide MK Financing with an Arbitration Opt-Out Notice within such thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to the exceptions noted in the “Exceptions” section below. Any Arbitration Opt-Out Notice received after such thirty (30) day period shall not be valid or enforceable.
In the event that you provide to MK Financing a timely Arbitration Opt-Out Notice or the arbitration terms of these Terms of Service are held not to be applicable, then you and MK Financing agree that the exclusive jurisdiction and venue for any Dispute will be the state and/or federal courts located in Houston, Texas and each of the parties hereto waives any objection to jurisdiction and venue in such courts. In such event, you and MK Financing further waive the right to a jury trial.
Starting an Arbitration. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.adr.org); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to the American Arbitration Association (see www.adr.org for the applicable address, or for online filing); and (c) send one copy of the Demand for Arbitration to MK Financing LLC, P.O. Box 131834, Spring, Texas 77393 and a copy by email to firstname.lastname@example.org
You and MK Financing each understand that, absent the arbitration provision in this section, each has the right to sue in court and have a jury trial. You also acknowledge that unless you opt out of arbitration in accordance with the opt-out terms provided above, you are giving up the right to a jury trial and understand that the costs of arbitration and right to pre-trial discovery is more limited than many courts permit. The parties will either select one mutually acceptable arbitrator or, if the parties do not agree to a single arbitrator, each party shall select one arbitrator and the two arbitrators selected by the parties shall select a third arbitrator, and the arbitration shall be held before the three arbitrators, and shall be decided by vote of the three arbitrators with a vote of the majority of the arbitrators required for a decision. UNLESS YOU OPT OUT IN ACCORDANCE WITH THE OPT-OUT TERMS PROVIDED ABOVE, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND MK FINANCING, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, THE SERVICES OR TRANSACTIONS RELATED THERETO AND ANY OTHER CLAIM OR DISPUTE BETWEEN YOU AND MK FINANCING EXCEPT FOR THE EXCEPTIONS SPECIFIED BELOW WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AS PROVIDED HEREIN. UNLESS YOU PROVIDE AN ARBITRATION OPT-OUT NOTICE TO MK FINANCING IN ACCORDANCE WITH THE OPT-OUT TERMS PROVIDED ABOVE, YOU ACKNOWLEDGE AND AGREE THAT YOU AND MK FINANCING ARE EACH WAIVING THE RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
Location of Arbitration. You and MK Financing both agree that arbitration between MK Financing and you shall take place in Houston, Texas.
Class Action Waiver. You and MK Financing agree that any and all arbitrations shall be conducted in their individual capacities only and not as a class action or other representative action, and you and MK Financing expressly waive the right to file a class action or seek relief on a class basis or any other representative basis. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of such parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than all parties to the arbitration, or resolve any Dispute of anyone other than any such party; nor (b) make an award for the benefit of, or against, anyone other than any such party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this specific paragraph, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. YOU AND MK FINANCING AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, EVEN IF THE DISPUTE OR DISPUTES THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT.
If any court or arbitrator determines that the arbitration, jury trial waiver or class action waiver provisions of these Terms of Service are void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Litigation of Intellectual Property and Small Claims Court Claims. MK Financing may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property, and claims for injunctive or other equitable relief in the state or federal courts located in Houston, Texas, and you consent to such venue and personal jurisdiction therein for any such proceedings and waive any claim, argument or defense that such courts constitute an improper or inconvenient venue for such proceedings. Either party may also seek relief in a small claims court located in Houston, Texas for disputes or claims within the scope of that court’s jurisdiction.
Survival. This arbitration and class action waiver section will not be affected by any termination of your use of the Services and will survive termination of the relationship between you and MK Financing.
H. Termination of Services Access
MK Financing may terminate your access to the Services at its discretion without notice and for any reason. Termination may be caused by conduct that we determine, at our discretion, violates these Terms of Service or any applicable law, is harmful to our interests or another user or if MK Financing no longer offers the Services. Other reasons for termination may include, but are not limited to: if any agreement between MK Financing and your employer to provide the Services is cancelled, if you leave your place of employment for any reason; if MK Financing winds down its operations or determines that it will no longer offer the Services; and/or if any agreement between MK Financing and any third party service provider related to the Services is terminated. MK Financing may thereafter block or prevent future access to and use of the Services.
I. Notices; Consent to Email Communication and Calls/Texts
Each party may give notice to the other party by written communication sent by certified first class mail, return receipt requested, or via hand delivery or overnight courier, if to you, at the address you provided in your registration information, and if to us to MK Financing LLC, P.O. Box 131834, Spring, Texas 77393, attn.: Customer Service, or such other address as the applicable party may specify by providing written notice in accordance herewith. Such notice shall be deemed to have been given upon the expiration of three (3) business days after mailing (if sent by first class mail), and upon delivery if sent by hand delivery or overnight courier. We may also provide notice to you by means of a general notice posted on the Services user screens or by email to your email address on file with your user registration information, and such notice shall be effective as of when posted or emailed. You may also provide notices to us by email to email@example.com.
When you visit the Services, or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically and agree that we may communicate with you by email or by posting a notice on the Services.
You may correct or update your contact information by contacting us at firstname.lastname@example.org or by regular mail to MK Financing, LLC, PO Box 131834, Spring, Texas 77393. Additionally, once you have created an account with online, you may update your name, email address, phone number (if part of your account) and password by clicking signing in using your email address and password.
You agree that we may treat specific actions by you, such as checking boxes to receive email updates, sending us an email directly or through the Services, or leaving a telephone message with an email address for Customer Service to respond to a query about your account, as a request that we communicate with you by unencrypted email. You acknowledge and agree that unencrypted email sent over the Internet is not secure and may be read by others, and you agree that when you request that we send you email you are authorizing us to transmit and disclose your information (including your personal or financial information) from time to time in an unencrypted manner. You further acknowledge that emails sent with this information are not stored in a secure manner.
You agree that we may call and send SMS text messages to you regarding the Services and monitor and record any telephone calls made or received by us for our business purposes including quality assurance and to document your agreement to terms or actions. You also agree that we may send text messages to you regarding wage access payment information, account information, due dates, delinquent accounts, program updates and other marketing messages. In order to access, view, and retain SMS text messages that we make available to you, you must have: (1) a SMS−capable mobile phone, (2) an active mobile phone account with a communication service provider; and (3) sufficient storage capacity on your mobile phone. All SMS text messages from us to you will be considered “in writing.” There is no service fee charged by MK Financing for SMS text messages but you are responsible for any and all charges, including but not limited to fees associated with text messaging, imposed by your communications service provider. Other charges may apply, such charges may include those from your communications service provider. Please consult your mobile service carrier’s pricing plan to determine the charges for sending and receiving text messages. These charges will appear on your phone bill. Message frequency depends on account settings. Additionally, you agree to indemnify, defend and hold us harmless from and against any and all claims, losses, liability, cost and expenses (including reasonable attorneys’ fees) arising from your provision of a mobile phone number that is not your own or your violation of applicable federal, state, or local law, regulation or ordinance. SMS text messages are provided for your convenience only. Receipt of each SMS text message may be delayed or impacted by factor(s) pertaining to your communications service provider(s). We will not be liable for losses or damages arising from any disclosure of account information to third parties, non−delivery, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the SMS text messages sent by us. We may modify or terminate our SMS text messaging services from time to time, for any reason, and without notice, including the right to terminate text messaging with or without notice. You agree and consent to be contacted by us, MK Financing and its and their respective agents, employees, attorneys, affiliates, assignees, subsequent creditors, and third party collectors through the use of email, telephone and/or text or SMS messages to your cellular, home or work phone numbers as well as any other phone numbers you have provided in conjunction with any wage access payment you receive, including the use of automatic dialing systems, autodialers or artificial or pre-recordings.
Opt-Out. IF YOU WISH TO OPT OUT OF MARKETING EMAILS, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF TEXTS, YOU MAY REPLY STOP FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF MARKETING CALLS OR CALLS TO A WIRELESS NUMBER, THEN YOU MAY MAKE A DO NOT CALL REQUEST EITHER DURING A CALL YOU RECEIVE FROM US OR BY CALLING BACK THE PHONE NUMBER PROVIDED DURING THE CALL. TO OPT OUT OF SUCH TEXTS OR PHONE CALLS, YOU MAY ALSO EMAIL US AT CONTACTUS@MKFINANCING.COM WITH A REQUEST TO STOP RECEIVING SUCH TEXTS OR CALLS AT A SPECIFIED PHONE NUMBER. You understand and agree that you may: (i) continue to receive communications while we process your opt-out request, (ii) receive a communication confirming the receipt of your opt-out request, and (iii) after opting out of receiving marketing messages, continue to receive certain non-marketing communications by email or to a non-wireless number, such as confirmations or updates related to your account, or transactions through the Services. To unsubscribe from email newsletters and promotional messages, you may also contact us by postal mail as follows: MK Financing LLC, P.O. Box 131834, Spring, Texas 77393 or by email to email@example.com. Your withdrawal of consent will be effective only after we have a reasonable period of time to process your withdrawal. Please allow up to 5 days for our records to be updated.
J. Legal Equivalency of Electronic Documents and Communications
This electronic document and any other electronic documents, electronic communications, clicks to agree to same that are incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents, and; (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or administer of proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
You further acknowledge and agree that your action when clicking to submit or to consent to or agree to any terms, conditions or transactions constitutes your contractually binding agreement to the terms, conditions and/or transactions for which you clicked to submit, consent or agree to equivalent to your having manually executed and delivered a written agreement for same.
Any Services offered by MK Financing are void where prohibited by law. If any provision of the Terms of Service is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed to be severed from the rest of these Terms of Service and shall not affect the validity and enforceability of any remaining provisions. The provision held to be unlawful, void or unenforceable shall be modified if possible to the extent necessary to become enforceable and the modified provision shall be deemed to form part of these Terms of Service from inception without further action being required.
L. Force Majeure
We will not be liable for any failure or delay in our performance under these Terms of Service or the provision of any Services or any other obligation due to any cause beyond our reasonable control, including act of war, acts of God, earthquake, storms or other weather or natural events, embargo, riot, civil unrest, sabotage, terrorism, epidemic, pandemic, labor shortage or dispute or other industrial disturbances, systemic electrical, telecommunications network issues, or other utility failures, governmental act or failure of the Internet, provided that we: (i) give you prompt notice of such cause, and (ii) use our reasonable commercial efforts to correct promptly such failure or delay in performance.
No waiver, express or implied, by either party of any breach of or default under these Terms of Service will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default. No waiver shall be valid unless given in writing signed by us or posted by us on the Services in an update to these Terms of Service. Our failure to insist upon or enforce your strict compliance with these Terms of Service will not constitute a waiver of any of our rights.
You agree to indemnify, defend, and hold harmless MK Financing, its affiliates and their respective employees, agents, successors, officers, managers, representatives, successors and assigns (collectively, the “MK Financing Indemnified Parties”) from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney’s fees and other legal expenses) that they may sustain or incur arising from your use of the Services, your failure to comply with any applicable laws and regulations, your breach of any of your representations, warranties or obligations set forth in this Agreement, or any other act or omission by you. Notwithstanding the foregoing, you shall not settle any such claim, suit or proceeding without the written consent of the applicable MK Financing Indemnified Parties. As used herein, “affiliate” means any person or entity directly or indirectly controlling or having the power to control, or controlled by or being under common control with another person or entity. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of such party, whether through ownership or stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists.
O. Changes to Terms of Service
MK Financing may modify these Terms of Service at its sole discretion from time to time, and only MK Financing has the right to do so. If the Terms of Service are changed, we will post the new Terms of Service via links or otherwise on the Services user screens and note the date they were last updated. Any changes or modifications will be effective upon posting of the Terms of Service as revised, and your use of the Services following the posting will constitute your acceptance of the new Terms of Service. If any such change is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions.
The terms of Sections A, D.3, D.4, E, F, G, and I-Q shall survive termination or your use of the Services.
Q. Contact Us
If you are experiencing technical difficulties using the Services, please contact MK Financing by e-mail or postal mail as follows: MK Financing LLC, P.O. Box 131834, Spring, Texas 77393 or by email to firstname.lastname@example.org.