Last updated 04/18/2020
We may amend this Agreement at any time by posting a revised version on our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a Substantial Change, we will provide you with 30 Days' prior notice of any Substantial Change
Electronic Communications Delivery Policy
This policy describes how XTRM communicates with you electronically, provides additional detail about the Communications we provide you, and sets out the hardware and software you need to receive these Communications.
Electronic delivery of communications
- You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide in connection with your XTRM account ("Account") and your use of our services. Communications include, but are not limited to:
- annual disclosures, including prospectuses and reports for XTRM Funds;
- transaction receipts or confirmations;
- account statements and history;
- federal and state tax statements we are required to make available to you; and
- information related to any other Account, XTRM Funds account, or transaction.
We will provide these Communications to you by posting them on the XTRM website and/or by emailing them to you at the primary email address listed in your XTRM Account Profile.
Hardware and software requirements
In order to access and retain electronic Communications, you will need the following computer hardware and software:
- a computer with an Internet connection;
- a current web browser that includes 128-bit encryption (e.g. MS Edge Version, Internet Explorer version 8.0 and above, Firefox version 60.0 and above, Chrome version 70.0 and above, or Safari 9.0 and above) with cookies enabled;
- Adobe Acrobat Reader version 8.0 and above to open documents in .pdf format;
- a valid email address (your primary email address on file with XTRM); and
- sufficient storage space to save past Communications or an installed printer to print them.
We will notify you if there are any material changes to the hardware or software needed to receive electronic Communications from XTRM. By giving your consent you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of these Communications for your records as they may not be accessible online at a later date.
How to withdraw your consent
You may withdraw your consent to receive Communications electronically by writing to us at "Attn: Electronic Communications Delivery Policy, 303 Twin Dolphin Drive, Floor 6, Redwood City CA, 94065 or by contacting us via the “Contact” or "Contact Us" link at the bottom of each page of the XTRM website. If you fail to provide or if you withdraw your consent to receive Communications electronically, XTRM reserves the right to either deny your application for an Account, restrict or deactivate your Account or charge you additional fees for paper copies.
Updating your contact information
It is your responsibility to keep your primary email address up to date so that XTRM can communicate with you electronically. You understand and agree that if XTRM sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, XTRM will be deemed to have provided the Communication to you.
Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add XTRM to your email address book so that you will be able to receive the Communications we send to you.
You can update your primary email address or street address at any time by logging into the XTRM website. If your email address becomes invalid such that electronic Communications sent to you by XTRM are returned, XTRM may deem your Account to be inactive, and you will not be able to transact any activity using your XTRM Account until we receive a valid, working primary email address from you.
1. Our Relationship with You.
1.1 XTRM is a Payment Service Technology and Data Processing Provider. XTRM helps you process data and make payments to and accept payments from third parties. XTRM is an independent contractor for all purposes, and is not your agent or trustee. XTRM does not have control of, or liability for, the products or services that are paid for with the XTRM Services.
1.3 Privacy of Others; Marketing. If you receive Information about another User through the XTRM Services, you must keep the Information confidential and only use it in connection with the XTRM Services. You may not disclose or distribute a User's Information to a third party or use the Information for marketing purposes unless you receive the User's express consent to do so.
You may not send unsolicited email to a User or use the XTRM Services to collect payments for sending, or assisting in sending, unsolicited email to third parties.
1.4 Intellectual Property. "XTRM.com", "XTRM", “XTRM AnySource”, “XTRM AnyPay”, “XTRM API, ”and all logos related to the XTRM Services are either trademarks or registered trademarks of XTRM or XTRM's licensors. You may not copy, imitate or use them without XTRM's prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of XTRM. You may not copy, imitate, or use them without our prior written consent. You may use HTML logos provided by XTRM without prior written consent for the purpose of directing web traffic to the XTRM Services. You may not alter, modify or change these HTML logos in any way, use them in a manner that is disparaging to XTRM or the XTRM Services or display them in any manner that implies XTRM's sponsorship or endorsement. All right, title and interest in and to the XTRM website, any content thereon, the XTRM Services, the technology related to the XTRM Services, and any and all technology and any content created or derived from any of the foregoing is the exclusive property of XTRM and its licensors.
1.5 Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without XTRM's prior written consent. XTRM reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
1.6 Password Security and Keeping Your Email and Address Current. You are responsible for maintaining adequate security and control of any and all IDs, passwords, personal identification numbers (PINs), or any other codes that you use to access the XTRM Services. If you use a XTRM Payment Card, you should also carefully safeguard this card. You are responsible for keeping your mailing address and email address up to date in your Account Profile.
1.7 Notices to You. You agree that XTRM may provide you Communications about your Account and the XTRM Services electronically as described in our Electronic Communications Delivery Policy. Any electronic Communications will be considered to be received by you within 24 hours after the time we post it to our website or email it to you.
1.8 Notices to XTRM. Except as otherwise stated above in the Electronic Communications Delivery Policy, and below in Section 11 (Unauthorized Transactions and Other Errors) and Section 12 (Disputes with XTRM), notice to XTRM must be sent by postal mail to: XTRM, Inc., Attention: Legal Department, 303 Twin Dolphin Drive, Floor 6, Redwood City, CA, 94065
1.9 Account Statement. You have the right to receive an Account statement. You may view your Account statement by logging into your Account.
1.10(a) Contacting You. In order to contact you more efficiently, we may at times contact you using autodialed or prerecorded message calls or text messages at the telephone number(s) you have provided us. We may place such calls or texts to (i) provide notices regarding your Account or Account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. You agree that we and our service providers may contact you using autodialed or prerecorded message calls and text messages to carry out the purposes we have identified above. We may share your phone number(s) with service providers with whom we contract to assist us in pursuing these interests, but will not share your phone number(s) with third parties for their own purposes without your consent. Standard telephone minute and text charges may apply. We and our service providers will not use autodialed or prerecorded message calls or texts to contact you for marketing purposes at the telephone number(s) you designate unless we receive your prior express written consent.
1.10(b) Your Choices. You do not have to consent to receive autodialed or prerecorded message calls or texts in order to use and enjoy XTRM’s products and services. Where XTRM is required to obtain your consent for such communications, you may choose to revoke your consent by contacting customer support at 1-866-367-9289 and informing us of your preferences.
1.11 Recording Calls. You understand and agree that XTRM may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with XTRM or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with XTRM may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by XTRM, and XTRM does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
2.1 Eligibility. To be eligible to use the XTRM Services, you must be at least 18 years old and a resident of the United States or one of the countries listed on the XTRM Global page.
2.2 Personal and Business Accounts; Types of Transactions. We offer the following types of Accounts: Personal and Business Accounts. By opening a Business Account and accepting the terms as outlined in this Agreement, you attest that you are not establishing the Account primarily for personal, family, or household purposes.
You may send money from, and receive money into, your Account, as described in more detail in Section 3 (Sending Money) and Section 4 (Receiving Money). You may also add money to your Balance using an available Payment Method, as described in more detail in Section 3, and withdraw money from your Balance, as described in more detail in Section 6 (Withdrawing Money).
2.3 Identity Authentication. You authorize XTRM, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you to provide your date of birth, a taxpayer identification number and other information that will allow us to reasonably identify you, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report, or verifying your Information against third party databases or through other sources. We may also ask to see your driver’s license or other identifying documents at any time. If you use certain XTRM Services, federal law requires that XTRM verify some of your Information. XTRM reserves the right to close, suspend, or limit access to your Account and/or the XTRM Services in the event we are unable to obtain or verify this Information.
2.4 Credit Report Authorization. If you open a Business Account, you are providing XTRM with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain your personal and/or business credit report from a credit bureau. You are also authorizing XTRM to obtain your personal and/or business credit report at any time XTRM reasonably believes there may be an increased level of risk associated with your Business Account.
2.5 Third Party Permissions. If you grant express permission to a third party to take specific actions on your behalf, or access particular information about your Account, either through your use of the third party's product or service or through your Account Profile, you acknowledge that XTRM may disclose the information about your Account that is specifically authorized by you to this third party. You also acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. Further, you acknowledge and agree that you will not hold XTRM responsible for, and will indemnify XTRM from, any liability arising from the actions or inactions of this third party in connection with the permissions you grant. You may change or remove these permissions at any time by changing your settings in your Account Profile.
3. Sending Money.
3.1 Companies can send money to anyone with an email address or mobile number. The money will go to their XTRM account.
3.2 Sending Limits. We may, at our discretion, impose limits on the amount of money you can send through the XTRM Services, including money you send for purchases. You can view your sending limit, if any, by logging into your Account. If you have a Verified Account, we may increase your sending limits.
3.3 Preferred Payment Method. If you select a Preferred Payment Method but have available Balance in your Account, your Balance will be used to fund your payment first.
3.4 Payment Method Limitations. In order to manage risk, XTRM may limit the Payment Methods available for a transaction. In addition, Payment Methods may be limited if you make a XTRM payment through certain third party websites or applications. For XTRM Business Payments, you are limited to funding your XTRM payment via your Balance.
3.5 Bank Transfers. When you use your bank account as your Payment Method for any transaction or to initiate a Fund transaction, you are requesting an electronic transfer from your bank account. For these transactions, XTRM will make electronic transfers via ACH from your bank account in the amount you specify. You agree that such requests constitute your authorization to XTRM to make the transfers. Once you have provided your authorization for the transfer, you will not be able to cancel the electronic transfer.
All Foreign Exchange or Derivatives and/or Bank Transfers in XTRM.com is provided by a Third Party, a financially licensed and regulated, wholly owned subsidiary of Associated Foreign Exchange, Inc. (“AFEX”). “AFEX” is the marketing trade name for the International Payment Solutions and Risk Management Solutions provided by several subsidiaries of Associated Foreign Exchange, Inc. Services in Australia are provided by Associated Foreign Exchange Australia Pty Ltd; in Canada by Associated Foreign Exchange, ULC; in Switzerland by Associated Foreign Exchange (Schweiz) AG; in the UK and the European Economic Area (EEA) on a cross-border basis by Associated Foreign Exchange Ltd; in the Channel Islands by AFEX Offshore Ltd; in Singapore by Associated Foreign Exchange (Singapore) Pte Ltd and in the U.S. by Associated Foreign Exchange, Inc. (collectively referred to as “AFEX”). Use of this service is governed by the AFEX Terms and Conditions accepted by the Client’s accepting the XTRM Terms and conditions
3.6 Accuracy of Information.
You are responsible for confirming the accuracy of the information you provide about each payment you send, including the email address or telephone number of the recipient and the amount of the transaction.
3.7 XTRM Mobile. XTRM Mobile allows you to access certain XTRM Services through your mobile phone. XTRM Mobile is not available in all countries. If you use XTRM Mobile, you are responsible for any fees that your phone service provider charges, such as fees for SMS, data services, and any other fees that your phone service provider may charge. Your phone service provider is not the provider of the XTRM Services.
4. Receiving Money.
4.1 Balance. All received payments are deposited in your online XTRM account and displayed by currency.
4.2 Refund and Reversal Currencies. All refunds and reversals will be made in the same currency as the original transaction. If your transaction must be refunded or reversed and you do not have the correct currency available in your Balance, a currency conversion will be performed.
4.3 Taxes. It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. XTRM is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.
5. Account Balances.
5.1 Balances. You do not need to maintain a Balance in your Account in order to receive payments. If you do hold a Balance, that Balance represents an unsecured claim against XTRM and is not insured by the FDIC. XTRM will combine your Balance with the Balances of other Users and may invest those funds in liquid investments in accordance with State money transmitter laws. XTRM will own the interest or other earnings on pooled Balances. XTRM will not voluntarily make Balances available to its creditors in the event of bankruptcy.
5.2 Negative Balances and Multiple Currencies. If your Account has a negative Balance, XTRM may deduct amounts you owe XTRM from money you subsequently add or receive into your Account. If you have multiple currency Balances in your Account and one of the currency Balances becomes negative for any reason, XTRM may set off the negative Balance by using funds you maintain in a different currency Balance. If you have a negative balance in non-U.S. Dollars for a period of 21 Days or longer, XTRM will convert this negative Balance to U.S. Dollars. If you open more than one Account, XTRM may set off the negative Balance in one Account by using any Balance that you maintain in your other Account(s). In the event that a negative Balance is offset by XTRM pursuant to this paragraph, it may be bundled with another debit coming out of your Account.
5.3 Risks of Maintaining Balances in Multiple Currencies. You are responsible for all risks associated with maintaining Balances in multiple currencies. You agree that you will not attempt to use multiple currencies for speculative trading.
5.4 Setoff of Past Due Amounts. If you have a past due amount owed to XTRM, we may debit your Account to pay any amounts that are more than 180 Days past due.
5.5 Security Interest. To secure your performance of this Agreement, you grant to XTRM a lien on and security interest in and to the Balances in your Account in the possession of XTRM.5.6
5.6 Information about pass-through FDIC insurance.
When you add money to your XTRM balance the funds in your balance will be eligible for FDIC pass-through insurance. XTRM will hold these funds as your agent and custodian and you will be the ultimate beneficial owner of the funds. XTRM will deposit your funds into one or more custodial accounts we maintain for the benefit of XTRM account holders at one or more FDIC-insured banks . These custodial accounts will be set up so that XTRM's customers will be eligible for the benefits of pass-through FDIC insurance coverage. Subject to the limitations set forth below, this means that if a bank holding the custodial account in which your funds are deposited fails, you should be eligible to be insured by the FDIC up to the standard deposit insurance amount (currently $250,000). Note that the FDIC insurance maximum applies to the aggregate of all funds that you have on deposit in other accounts with the same bank in a particular FDIC ownership category.
If funds are received in your account other than through Direct Deposit, there might be a delay between the time that funds are credited to your XTRM account and when we actually transfer those funds to one of the custodial accounts. Your XTRM balance funds might not be insured by the FDIC during this period, although we will still be holding the funds as your agent and custodian. Also, FDIC insurance coverage is contingent upon our maintaining accurate records and on both us and the bank in which the funds are deposited otherwise complying with requirements in FDIC regulations. The determinations of whether these requirements have been satisfied and whether you are eligible for insurance coverage will be made by the FDIC at the time that a bank holding a custodial account fails. As stated above, you will not receive interest or any other earnings on funds held in these custodial accounts and you agree that any interest that may be earned on funds in a custodial account belongs to XTRM.
FDIC pass-through insurance protects you against the risk of loss of your deposits (up to the standard deposit insurance amount) should the FDIC-insured bank where we deposit your funds fail. FDIC pass-through insurance does not protect you against the risk of our insolvency. We believe that, in the unlikely event of our insolvency, funds that we have on deposit in a custodial account for the benefit of our account holders should not be included in our bankruptcy estate and should be protected from claims by our creditors. Additionally, even if funds in your XTRM balance (whether held by us or held in a custodial account) are protected from claims by our creditors in the unlikely event of our insolvency, it is possible that you will not have access to those funds while court or other legal proceedings to determine ownership of the funds are ongoing.
Your eligibility for FDIC pass-through insurance only applies to USD funds held in your XTRM balance. It does not apply to fund held in any non-USD currencies.
6. Withdrawing Money.
6.1 How to Withdraw Money. You may withdraw funds from your Account by electronically by transferring them to your bank account, a Visa Debit Card, a bank check, transferring to a Digital Gift Card or to a Virtual VISA card.
6.2 Withdrawal Limits. Depending on the degree to which you have Verified your Account and your identity level, we may limit the amount you may withdraw to $500.00 USD per month. You can view your withdrawal limit, if any, by logging into your Account. In addition, we may delay withdrawals of large sums of money while we perform a risk review.
7. Closing Your Account.
7.1 How to Close Your Account. You may close your Account at any time by following the instructions in your Account Profile. Upon Account closure, we will cancel any pending transactions. You must withdraw your Balance prior to closing your Account.
7.2 Limitations on Closing Your Account. You may not close your Account to evade an investigation. If you attempt to close your Account while we are conducting an investigation, we may hold your Balance for up to 180 Days to protect XTRM, its affiliates, or a third party against the risk of Reversals, Chargebacks, Claims, fees, fines, penalties and other liability. You will remain liable for all obligations related to your Account even after the Account is closed.
7.3 Escheatment of Dormant Accounts. If you do not log in to your Account for two or more years, XTRM may close your Account and send the Balance to your primary address or, if required, escheat (send) your Balance to your state of residency. XTRM will determine your residency based on the state listed in your address. If your address is unknown or registered in a foreign country, your Balance will be escheated to the state of Delaware. Where required, XTRM will send you a notice prior to escheating or closing your Account. If you fail to respond to this notice, your Balance will be escheated to the applicable state. If you would like to claim any escheated Balance from the state, please contact your state's Unclaimed Property Administrator.
8. Data Processing
8.1 Data Collection
Data processing services include inbound transfer of data via API or batch submission. Data submission can be in, but not limited to CSV, XLSX, DOCX, HTML format.
8.2 Processing Time. Data processing times vary by complexity and volume. We may require clarification on data before processing is completed. Data may not be validated if validation logic is part of the submitters system.
9. Fees and Currency Conversion.
9.1 Fees Overview. Fees may apply when transferring money into an account, between accounts or out of an account. These are known as 'Fund', 'Send' or 'Transfer' Fees. Some fees are expressed as a percentage of the payment amount and some as a fixed transaction amount. Some Fees are related to time and volume of data processed. All Fees are in U.S. Dollars unless otherwise stated.
- All Fees depends on volume and the transfer method you use.
- Additional Fees may apply if you are sending or receiving money to or from a country outside the United States or transacting in a foreign currency.
- Data Processing fees are based on time or data volume and will be automatically debited from the designated customer wallet.
- We reserve the right to adjust your future Fees at our sole discretion upon 30 days’ written notice to you.
9.2 Currency Conversion.
All Foreign Exchange or Derivatives and/or Payments in XTRM.com is provided by a Third Party, a financially licensed and regulated, wholly owned subsidiary of Associated Foreign Exchange, Inc. (“AFEX”). “AFEX” is the marketing trade name for the International Payment Solutions and Risk Management Solutions provided by several subsidiaries of Associated Foreign Exchange, Inc. Services in Australia are provided by Associated Foreign Exchange Australia Pty Ltd; in Canada by Associated Foreign Exchange, ULC; in Switzerland by Associated Foreign Exchange (Schweiz) AG; in the UK and the European Economic Area (EEA) on a cross-border basis by Associated Foreign Exchange Ltd; in the Channel Islands by AFEX Offshore Ltd; in Singapore by Associated Foreign Exchange (Singapore) Pte Ltd and in the U.S. by Associated Foreign Exchange, Inc. (collectively referred to as “AFEX”). Use of this service is governed by the AFEX Terms and Conditions accepted by the Client’s accepting the XTRM Terms and conditions
10. Restricted Activities.
10.1 Restricted Activities. In connection with your use of our website, your Account, the XTRM Services, or in the course of your interactions with XTRM, other Users, or third parties, you will not:
a. Breach this Agreement, or any other agreement or policy that you have agreed to with XTRM;
b. Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising);
c. Infringe XTRM's or any third party's copyright, patent, trademark, trade secret or other intellectual property rightsor rights of publicity or privacy;
d. Act in a manner that is defamatory, trade libelous, threatening or harassing;
e. Provide false, inaccurate or misleading information;
f. Send or receive what we reasonably believe to be potentially fraudulent funds;
g. Refuse to cooperate in an investigation or provide confirmation of your identity or any Information you provide to us;
h. Control an Account that is linked to another Account that has engaged in any of these Restricted Activities;
i. Conduct your business or use the XTRM Services in a manner that results in or may result in complaints, Disputes, Claims, Reversals, Chargebacks, fees, fines, penalties or other liability to XTRM, other Users, third parties or you;
j. Have a credit score from a credit reporting agency that indicates a high level of risk associated with your use of the XTRM Services;
k. Use your Account or the XTRM Services in a manner that XTRM, Visa, MasterCard, American Express, Discover or any other electronic funds transfer network reasonably believes to be an abuse of the card system or a violation of card association or network rules;
l. Allow your Account to have a negative Balance;
m. Access the XTRM Services from a country that is not included on XTRM's permitted countries list;
n. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our website or the XTRM Services;
o. Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers;
p. Use the XTRM Services to test credit card behaviors;
q. Circumvent any XTRM policy or determinations about your Account such as temporary or indefinite suspensions or other Account holds, limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional XTRM Account(s) when an Account has a negative balance or has been restricted, suspended or otherwise limited; creating new or additional XTRM Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s XTRM Account;
r. Harass and/or threaten our employees, agents, or other users.
10.2 Unlawful Internet Gambling Notice. Restricted transactions as defined in Federal Reserve Regulation GG are prohibited from being processed through your Account or your relationship with XTRM. Restricted transactions generally include, but are not limited to, transactions in which credit, electronic fund transfers, checks, or drafts are knowingly accepted by gambling businesses in connection with unlawful Internet gambling.
11. Your Liability - Actions We May Take.
11.1 Your Liability.
a. General. You are responsible for all Reversals, Chargebacks, Claims, fees, fines, penalties and other liability incurred by XTRM, a User, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the XTRM Services. You agree to reimburse XTRM, a User, or a third party for any and all such liability.
11.2 Reimbursement for Your Liability. In the event that you are liable for any amounts owed to XTRM, XTRM may immediately remove such amounts from your Balance. If you do not have a Balance that is sufficient to cover your liability, your remaining Balance (if any) will be removed; your Account will have a negative Balance up to the amount of your liability; and you will be required to immediately add funds to your Balance to eliminate the negative Balance. If you do not do so, XTRM may engage in collection efforts to recover such amounts from you.
11.3 Actions by XTRM - Restricted Activities. If XTRM, in its sole discretion, believes that you may have engaged in any Restricted Activities, we may take various actions to protect XTRM, other Users, other third parties, or you from Reversals, Chargebacks, Claims, fees, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
a. We may close, suspend, or limit your access to your Account or the XTRM Services (such as limiting access to any of your Payment Methods, and/or your ability to send money, make withdrawals, or remove financial Information).
b. We may update inaccurate Information you provided us;
c. We may refuse to provide the XTRM Services to you in the future;
d. We may hold your Balance for up to 180 Days if reasonably needed to protect against the risk of liability or if you have violated our Acceptable Use Policy;
e. We may take legal action against you; and
f. If you violate the XTRM Acceptable Use Policy, then in addition to the above actions you will be liable to XTRM for the amount of XTRM's damages caused by your violation of the Acceptable Use Policy. You acknowledge and agree that $2,500.00 USD per violation of the Acceptable Use Policy is presently a reasonable minimum estimate of XTRM's actual damages considering all currently existing circumstances, including the relationship of the sum to the range of harm to XTRM that reasonably could be anticipated because, due to the nature of the violations of the Acceptable Use Policy, actual damages would be impractical or extremely difficult to calculate. XTRM may deduct such damages directly from any existing Balance in the offending Account or any other Account you control.
g. XTRM, in its sole discretion, reserves the right to terminate this Agreement, access to its website, or access to the XTRM Services for any reason and at any time upon notice to you and payment to you of any unrestricted funds held in your Balance.
11.4 Actions by XTRM - Court Orders or Other Legal Process.
XTRM, in its sole discretion, may take various actions including placing a hold, Reserve, or other limitation on your Account or the funds in it and/or releasing any or all of your funds in the event it receives notice of a court order or other legal process that restricts the use of or access to your funds or requires their release. XTRM will give notice of a hold, Reserve, or limitation it makes to comply with a court order or other legal process, unless the court order or other process directs that XTRM not provide you notice, in which case the court order or other process supersedes any notice obligation XTRM has undertaken or agreed to under the terms of this Agreement. XTRM has no obligation to contest or appeal from any such order or process. Holds, Reserves, or limitations on your account that are placed in response to a court order or other legal process may be maintained longer than 180 Days. XTRM will decide in its sole discretion the appropriate scope of a hold, Reserve, and/or limitation to assure compliance with a court order or other legal process.
Additionally, in the event XTRM receives notice of a garnishment or equivalent legal process directing the restraint of funds in your Account or directing payment of funds from your Account to the court or another third party, XTRM may limit your Account and hold the funds in it for up to 180 days, and may disburse funds from your Account, as needed, for the purpose of resolving any Dispute, Claim, Chargeback, or Reversal.
11.5 Actions by XTRM - Holds.
a. Risk-Based Holds. XTRM, in its sole discretion, may place a hold on any or all of the payments you receive when XTRM believes there may be a high level of risk associated with you, your Account, or any or all of your transactions. XTRM’s determination may be based on a number of different factors and XTRM may rely on information it receives from third parties. If XTRM places a hold on a payment, the funds will appear in your “Pending” transactions. If XTRM places a hold on any or all of the payments you receive XTRM will provide you with notice of our actions. XTRM will release the hold on any payment after 21 Days from the date the payment was received into your Account unless you receive a Dispute, Claim, Chargeback, or Reversal or XTRM has taken another action permitted under this Section 10. XTRM, in its sole discretion, may release the hold earlier under certain circumstances, for example XTRM may release the hold earlier if you have uploaded tracking information. If you receive a Dispute, Claim, Chargeback, or Reversal, XTRM may continue holding the payment in your Account until the matter is resolved pursuant to this Agreement.
11.6 Actions by XTRM - Reserves.
XTRM, in its sole discretion, may place a Reserve on funds held in your Business Account when XTRM believes there may be a high level of risk associated with your Account. If XTRM places a Reserve on funds in your Account, they will be shown as "pending" in your XTRM Balance. If your Account is subject to a Reserve, XTRM will provide you with notice specifying the terms of the Reserve. The terms may require that a certain percentage of the amounts received into your Account are held for a certain period of time, or that a certain amount of money is held in reserve, or anything else that XTRM determines is necessary to protect against the risk associated with your Account. XTRM may change the terms of the Reserve at any time by providing you with notice of the new terms.
11.7 Actions by XTRM - Account Closure, Termination of Service, Limited Account Access; Confidential Criteria. If we close your Account or terminate your use of the XTRM Services for any reason, we will provide you with notice of our actions. Except as expressly provided otherwise in this Agreement, if we limit access to your Account, including through a Reserve or hold, we will provide you with notice of our actions; we will also provide you with an opportunity to request restoration of access if, in our sole discretion, we deem it appropriate. Further, you acknowledge that XTRM’s decision to take certain actions, including limiting access to your Account by placing holds or imposing Reserves, may be based on confidential criteria that are essential to our management of risk and the security of Users’ Accounts and the XTRM system. You agree that XTRM is under no obligation to disclose the details of its risk management or security procedures to you.
12. Unauthorized Transactions and Other Errors.
12.1 Unauthorized Transactions and Other Errors. An "Unauthorized Transaction" is a type of error that occurs when money is sent from your Account that you did not authorize and that did not benefit you. For example, if someone steals your password, uses the password to access your Account, and sends a payment from your Account, an Unauthorized Transaction has occurred. If you give someone access to your Account (by giving them your login information) and they conduct transactions without your knowledge or permission, you are responsible for any resulting use. Such transactions are not considered Unauthorized Transactions.
In addition, "Other Errors" occur when money is either incorrectly taken from your Account or incorrectly placed into your Account, or when transactions are incorrectly recorded in your Account. Other Errors that are covered by XTRM are limited to the following events: if you send a payment and it is incorrectly debited from your Account; if an incorrect amount is credited to your Account; if a transaction is missing from or not properly identified in your Account statement; and if there is a computational or mathematical error by XTRM. Unauthorized Transactions and Other Errors do not include Disputes, Claims, Chargebacks, and Reversals. You agree that XTRM is authorized to handle Disputes, Claims, Chargebacks, and Reversals as set forth in this Agreement, and that no determination made by XTRM or a card issuer with respect to a Dispute, Claim, Chargeback or Reversal will be considered an Unauthorized Transaction or Other Error. Routine inquiries about your Account balance or the status of a pending transfer into or out of your Account are not considered Unauthorized Transactions or Other Errors unless you expressly notify us of an Unauthorized Transaction or Other Error in connection with the transfer. Requests for information for tax or other recordkeeping purposes and requests for duplicate documentation also are not deemed to be Unauthorized Transactions or Other Errors.
You may request documentation or information regarding your Account or transaction to determine whether an Unauthorized Transaction, Other Error or a Remittance Transfer Error exists by contacting us through the “Contact” or “Contact Us” link at the bottom of each page of the XTRM website.
12.2 Notification Requirements.
You should immediately notify XTRM if you believe:
a. there has been an Unauthorized Transaction, unauthorized access to your Account, or the occurrence of an Other Error;
b. there is an error in your Account statement (you can access your Account statement by logging into your Account) or your transaction confirmation sent to you by email;
c. your password or XTRM Mobile PIN has been compromised;
d. you need more information about a transaction listed on the statement or transaction confirmation.
b. You should regularly log into your Account and review your Account statement to ensure that there has not been an Unauthorized Transaction or Other Error. XTRM will also send an email to the primary email address you have provided in order to notify you of each transaction from your Account, unless you have opted out of receiving certain notifications. You should also review these transaction confirmations to ensure that each transaction was authorized and is accurate.
c. For Unauthorized Transactions or Other Errors in your Account, notify us as follows:
. Email firstname.lastname@example.org
a. Write to XTRM, Attn: Error Resolution Department, 303 Twin Dolphin Drive, Redwood City, CA 94065 ; or
b. Telephone XTRM Customer Service at (866) 367.9289.
d. When you notify us, provide us with all of the following information:
. Your name and email address registered to your Account;
a. A description of any suspected Unauthorized Transaction or Other Error and an explanation as to why you believe it is incorrect or why you need more information to identify the transaction; and
b. The dollar amount of any suspected Unauthorized Transaction or Other Error.
If you notify us orally, we may require that you send us your complaint or question in writing within 10 Business Days. During the course of our investigation, we may request additional information from you.
12.3 XTRM Actions after Receipt of Your Notification. Once you notify us of any suspected Unauthorized Transaction or Other Error, or we otherwise learn of one, we will do the following:
- We will conduct an investigation to determine whether there has been an Unauthorized Transaction or Other Error that is eligible for protection.
- We will complete our investigation within 10 Business Days of the date we received your notification of the suspected Unauthorized Transaction or Other Error. If your Account is new (the first transaction from your Account was less than 30 Business Days from the date you notify us), we may take up to 20 Business Days to complete this investigation. If we need more time, we may take up to 45 Days to complete our investigation (or up to 90 Days for new Accounts, or if your transaction was at a point of sale where you were physically present, or a foreign initiated transaction).
- If we decide that we need more time to complete our investigation, we will provisionally credit your Account for the amount of the suspected error. You will receive the provisional credit within 10 Business Days of the date we received your notice (or 20 Business Days for new Accounts). This will allow you to have use of the money until we complete the investigation. We will notify you of the provisional credit within 2 Business Days of the crediting. If we ask you to put your complaint or question in writing and we do not receive it within 10 Business Days (or 20 Business Days for new Accounts), we will not provisionally credit your Account.
- We will inform you of our decision within 3 Business Days after completing our investigation.
- If we determine that there was an error, we will promptly credit the full amount of the error into your Account within 1 Business Day of our determination. Or, if you have already received a provisional credit, you will be allowed to retain those amounts.
- If we decide that there was not an error, we will include an explanation of our decision in our email to you. If you received a provisional credit, we will remove it from your Account and notify you of the date and amount of the debit. You may request copies of the documents that we used in our investigation.
12.4 XTRM Processing Errors. We will rectify any processing error that we discover. If the error results in your receipt of less than the correct amount to which you are entitled, XTRM will credit your Account for the difference. If the error results in your receipt of more than the correct amount to which you are entitled, XTRM will debit the extra funds from your Account. If the error resulted in our not completing a transaction on time or in the correct amount, we will be liable for your losses or damages directly caused by this failure, unless: (a) through no fault of ours, you did not have enough available funds to complete the transaction, (b) our system was not working properly and you knew about the breakdown when you started the transaction, or (c) circumstances beyond our control (such as fire, flood or loss of Internet connection) prevented the transaction, despite our reasonable precautions.
13. Disputes with XTRM.
You and XTRM agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Section (Section 12: Disputes with XTRM). Please read this Section carefully. It affects your rights and will impact how claims you and we have against each other are resolved.
13.1 Contact XTRM First. If a dispute arises between you and XTRM, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and XTRM regarding the XTRM Services may be reported to Customer Service online through the XTRM Help Center at any time, or by calling (866) 367 9289 from 8AM to 5PM, Pacific Standard Time.
13.2 Applicable Law. You agree that, except to the extent inconsistent with or preempted by federal law and except as otherwise stated in this User Agreement, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and XTRM.
13.3 Agreement to Arbitrate. You and XTRM each agree that any and all disputes or claims that have arisen or may arise between you and XTRM, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
a. Prohibition of Class and Representative Actions and Non-Individualized Relief.
YOU AND XTRM AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND XTRM AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER XTRM USERS.
- Arbitration Procedures.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of this User Agreement as a court would. All issues are for the arbitrator(s) to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of subsection (a) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”) to XTRM, Inc., Attn: Litigation Department, Re: Notice of Dispute, 303 Twin Dolphin Drive, Redwood City, CA 94065. XTRM will send any Notice to you to the physical address we have on file associated with your XTRM Account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and XTRM are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or XTRM may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or XTRM may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and XTRM subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or XTRM may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by you or XTRM shall not be disclosed to the arbitrator(s).
The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different XTRM users, but is/are bound by rulings in prior arbitrations involving the same XTRM user to the extent required by applicable law. The award of the arbitrator(s) shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
With the exception of any of the provisions in subsection (a) of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions in subsection (a) of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief") is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the User Agreement, including all other provisions of Section 12 (Disputes with XTRM), will continue to apply.
- Opt-Out Procedure.
IF YOU ARE A NEW XTRM USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO XTRM, INC., ATTN: LITIGATION DEPARTMENT, 303 Twin Dolphin Drive, Redwood City, CA 94065
You must complete the Opt-Out Notice form which we can provide on request, by providing the information called for in the form, including your name, address, phone number, and the email address(es) used to log in to the XTRM account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the User Agreement, including all other provisions of Section 14 (Disputes with XTRM), will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
- Future Amendments to the Agreement to Arbitrate.
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against XTRM prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and XTRM. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.XTRM.com at least 30 days before the effective date of the amendments and by providing notice through email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.
13.4 Insolvency Proceedings. If any proceeding by or against you is commenced under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, XTRM will be entitled to recover all reasonable costs or expenses (including reasonable attorneys' fees and expenses) incurred in connection with the enforcement of this Agreement.
13.5 No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
13.6 Indemnification. You agree to defend, indemnify and hold XTRM, our parent, Affiliates and the officers, directors, agents, joint venturers, employees and suppliers of XTRM, our parent, or our Affiliates, harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this Agreement, your improper use of the XTRM Services, and/or your violation of any law or the rights of a third party.
13.7 Assumption of Rights. If XTRM pays out a Claim, Reversal or Chargeback that you file against a recipient of your payment, you agree that XTRM assumes your rights against the recipient and third parties related to the payment, and may pursue those rights directly or on your behalf, in XTRM's discretion.
13.8 Release of XTRM. If you have a dispute with one or more Users, you release XTRM (and our parent, our Affiliates, and our and their respective officers, directors, agents, joint ventures, employees and suppliers) from any and all Claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise – e.g., California Civil Code § 1542) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
13.9 State Agencies. In addition to reporting complaints against XTRM directly to XTRM as described above, if you are a California resident, you may report complaints to the California Department of Financial Institutions at its toll-free telephone number, 1-800-622-0620, by e-mail at email@example.com, or by mail at Department of Financial Institutions, Consumer Services, 1810 13th Street, Sacramento, CA 95811. Florida residents may contact the Florida Department of Financial Services in writing at 200 East Gaines Street, Tallahassee, Florida, 32399, or by telephone at 1-800-342-2762. If you are a California resident, you have a right to receive the information listed in Section 1.7 (Notices to You) by email. To make such a request, send a letter to XTRM at the address listed in Section 1.8 (Notices to XTRM), include your email address, and request the information provided in Section 1.7.
14. General Provisions.
14.1 Limitations of Liability. IN NO EVENT SHALL WE, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF XTRM, OUR PARENT OR OUR AFFILIATES BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH OUR WEBSITE, THE XTRM SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), UNLESS AND TO THE EXTENT PROHIBITED BY LAW. OUR LIABILITY, AND THE LIABILITY OF OUR PARENT AND AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, XTRM, OUR PARENT, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND SUPPLIERS ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD THESE PARTIES RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL, OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM: (1) YOUR USE OF OR YOUR INABILITY TO USE XTRM’S SITES AND SERVICES; (2) DELAYS OR DISRUPTIONS IN XTRM’S SITES AND SERVICES; (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING XTRM’S SITES OR SERVICES OR ANY SITE OR SERVICE LINKED TO XTRM’S SITES OR SERVICES; (4) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN XTRM’S SITES OR SERVICES OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM; (5) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES; (6) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; (7) YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS USER AGREEMENT OR XTRM’S POLICIES. XTRM RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS USER AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
14.2 No Warranty. THE XTRM SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. XTRM, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF XTRM, OUR PARENT OR OUR AFFILIATES, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. XTRM does not have any control over the products or services that are paid for with the XTRM Services. XTRM does not guarantee continuous, uninterrupted or secure access to any part of the XTRM Services, and operation of our site may be interfered with by numerous factors outside of our control. XTRM will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts and credit cards are processed in a timely manner but XTRM makes no representations or warranties regarding the amount of time needed to complete processing because the XTRM Services are dependent upon many factors outside of our control, such as delays in the banking system or the U.S. or international mail service. Certain XTRM Services may not be available to you based on residency, geographic location or other eligibility criteria. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary from state to state.
14.3 License Grant. If you are using XTRM software such as an API, developer's toolkit or other software application that you have downloaded to your computer, device, or other platform, then XTRM grants you a revocable, non-exclusive, non-transferable license to use XTRM's software in accordance with the documentation. This license grant includes the software and all updates, upgrades, new versions and replacement software for your personal use only. You may not rent, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation and use requirements contained in all XTRM documentation accompanying the XTRM Services. If you do not comply with XTRM’s implementation and use requirements you will be liable for all resulting damages suffered by you, XTRM and third parties. XTRM may change or discontinue any APIs upon notice to you. You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software. You acknowledge that all rights, title and interest to XTRM’s software are owned by XTRM. Any third party software application you use on the XTRM website is subject to the license you agreed to with the third party that provides you with this software. XTRM does not own, control nor have any responsibility or liability for any third party software application you elect to use on the XTRM website and/or in connection with the XTRM Services. If you are using the XTRM Services on the XTRM website, or other website or platform hosted by XTRM, or a third party, and are not downloading XTRM’s software or using third party software applications on the XTRM website, then this section does not apply to your use of the hosted XTRM Services.
14.5 License Grant from You to XTRM; IP Warranties. Subject to section 13.6, when providing XTRM with content or posting content using XTRM Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, and sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights against XTRM, its sublicensees or its assignees. You represent and warrant that none of the following infringe any intellectual property or publicity right: your provision of content to XTRM, your posting of content using the XTRM Services, and XTRM’s use of such content (including of works derived from it) in connection with the XTRM Services.”
14.6 Complete Agreement. This Agreement, along with any applicable policies and agreements on the XTRM website, sets forth the entire understanding between you and XTRM with respect to the XTRM Services. Sections 1 (Our Relationship with You), 7 (Closing Your Account), 8 (Fees), 10 (Your Liability - Actions We May Take), 12 (Disputes with XTRM), 13 (General Provisions), and 14 (Definitions), as well as any other terms which by their nature should survive, will survive the termination of this Agreement. Unless stated otherwise in this Agreement, if any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
14.7 Translated Agreement. Any translation of this Agreement is provided solely for your convenience and is not intended to modify the terms of this Agreement. In the event of a conflict between the English version of this Agreement and a version in a language other than English, the English version shall apply.
"ACH" means the Automated Clearing House network.
"Account" means a Personal or Business XTRM account.
"Account Profile" means the location on our website where you can, after logging in, view and manage your profile, including your personal information, Payment Method details, Leaderboards, Account Balances and your Account settings including your notification preferences.
"Add Money" means your ability to add money into your Account through a XTRM hosted process (and not from a third party website).
"Affiliate" or "Affiliated Company" are companies that are direct or indirect subsidiaries of XTRM, Inc. or are otherwise related to XTRM through common ownership or control.
"Agreement" means this user agreement including all subsequent amendments.
"Balance" means any amount of funds that you have in your Account, which could be a negative amount if you owe XTRM money. The terms "money" and "funds" are used interchangeably in this Agreement. A XTRM balance represents an unsecured claim against XTRM and is not insured by the FDIC.
"Business Account" means an Account that is established primarily for business purposes and not for personal, family, or household purposes.
"Business Days" means Monday through Friday, excluding Holidays.
"Commercial Entity Agreement" means the agreement that commercial entities are required to enter into directly with XTRM's payment processor(s).
"Communications" means any Account, XTRM Funds account, or transaction information that XTRM provides to you, including: any agreements and policies you agree to, including updates to these agreements or policies; annual disclosures, including prospectuses and reports for XTRM Funds; transaction receipts or confirmations; Account statements and history; and federal and state tax statements we are required to make available to you.
"Chargeback" means a request that a buyer files directly with his or her debit or credit card company or debit or credit card issuing bank to invalidate a payment.
"Digital Gift Card" means branded stored value or branded prepaid digital card, or other electronic or digital debit payment mechanism, electronic promise, number, or payment code providing prepaid access to funds or the value of funds that can be used only for goods or services in transactions involving a defined merchant or location (or set of locations), such as a specific retailer or retail chain.
"Confirmed Address" means an address that has been reviewed by XTRM and found highly likely to be that of the User to which it is associated.
"Customer Service" is XTRM's customer support which can be accessed online through the XTRM Help Center at any time, or by calling (866) 367-9289 from 8AM to 5PM PST.
"Days" means calendar days.
"Default Payment Methods" means the order in which XTRM uses your Payment Methods to fund a transaction if you do not select a Preferred Payment Method.
"Digital Goods" means goods that are delivered and used in an electronic format.
"Dispute" means a dispute filed by a User directly with XTRM in the Online Support Center pursuant to Section 12 of this Agreement.
"Fees" means those amounts stated in Section 8 (Fees) of this Agreement.
"Holidays" means New Year's Day (January 1), Birthday of Martin Luther King, Jr. (the third Monday in January), Washington's Birthday (the third Monday in February), Memorial Day (the last Monday in May), Independence Day (July 4), Labor Day (the first Monday in September), Columbus Day (the second Monday in October), Veterans Day (November 11), Thanksgiving Day (the fourth Thursday in November) and Christmas Day (December 25).If a Holiday falls on a Saturday, XTRM shall observe the Holiday on the prior Friday. If the Holiday falls on a Sunday, XTRM shall observe the Holiday on the following Monday.
"Information" means any confidential and/or personally identifiable information or other information related to an Account or User, including but not limited to the following: name, email address, date of birth, tax identification number, billing/shipping address, phone number and financial information.
"Instant Transfer" means a payment or transfer funded using the sender's bank account Payment Method in which XTRM credits the recipient instantly.
"Merchant Processing Delay" means a delay between the time you Authorize a payment and the time the Merchant processes your payment.
"Other Errors" has the definition provided in Section 11 (Unauthorized Transactions and Other Errors) of this Agreement.
"Payment Review" means the process described in Section 4 (Receiving Money) of this Agreement.
"Payment Method" means the payment method used to fund a transaction. The following payment methods may be used to fund a transaction: Balance or Instant Transfer.
"XTRM," "we," "us" or "our" means XTRM, Inc. and its subsidiaries and affiliates related through common ownership or control or an agent acting on their behalf.
"XTRM Business Payments" means payments where the sender must fund their payment exclusively using their Balance for which the XTRM Business Payment Fee applies.
"XTRM Mobile" means a XTRM Service that allows you to send and receive payments through your mobile phone.
"XTRM Services" means all our products and services and any other features, technologies and/or functionalities offered by us on our website or through any other means.
"Personal Account" means an Account established primarily for personal, family, or household purposes.
"Policy" or "Policies" means any Policy or other agreement between you and XTRM that you entered into on the XTRM website or in connection with your use of the XTRM Services.
"Preferred Payment Method" (also called "Backup Payment Method") means a Payment Method that you select to fund a payment instead of using the Default Payment Methods.
"Redemption Code" means the sequence of letters, numbers, and/or symbols placed on gift certificates, promotional coupons or other promotional offers and used to obtain a benefit.
"Reserve" means a percentage of the funds received into your Account that we hold in order to protect against the risk of Reversals, Chargebacks, Claims or any other liability related to your Account and/or use of the XTRM Services.
"Restricted Activities" means those activities described in Section 9 (Restricted Activities) of this Agreement.
"Reversal" means XTRM reverses a payment you received because (a) it is invalidated by the sender's bank, (b) it was sent to you in error by XTRM, its parent, or Affiliates, (c) the sender of the payment did not have authorization to send the payment (for example: the sender used a credit card that did not belong to the sender), (d) you received the payment for activities that violated this Agreement, the XTRM Acceptable Use Policy, or any other XTRM agreement, or (e) XTRM decided a Claim against you.
"Send Money" means your ability to send money through the XTRM Services including in connection with a purchase of goods or services or as a Personal Payment.
"Significantly Not as Described" has the definition provided in Section 13 (Protection for Buyers) of this Agreement.
"Substantial Change" means a change to the terms of this Agreement that reduces your rights or increases your responsibilities.
"Transaction Details Page" means the page on the XTRM website titled "Transaction Details" that displays information about the transaction. This page is accessible from the individual transaction in your Account on the XTRM website.
"Verified Account" means an Account status that reflects that XTRM is reasonably sure that an Account holder has legal control of one or more of his or her Payment Methods. A Verified Account status does not constitute an endorsement of a User or a guarantee of a User's business practices.
“Unauthorized Transaction” has the definition provided in Section 12 (Unauthorized Transactions and Other Errors) of this Agreement.
"User" means any person or entity using the XTRM Services including you.
XTRM Inc – Privacy Notice and GDPR Compliance
This Privacy Notice sets out how the XTRM Inc processes data, whether on individuals (including personal data in respect of individuals who are clients, intermediaries or other third parties the XTRM Inc interact with, or any individual who is connected to those parties) or otherwise. Where the data held are on individuals, this document also sets out the rights of those individuals in respect of that personal data.
Any questions in relation to this Privacy Notice or requests in respect of personal data should be directed to firstname.lastname@example.org.
Who we are
XTRM Inc is a payment processing provider that aggregates end-point transfer mechanisms that enable a payment recipient to transfer or withdraw payments to one or many payment end-points.
The relevant XTRM Inc entity with the primary relationship will be confirmed in an engagement letter in relation to any client relationship.
Please note that XTRM Inc operates a global Data Protection Policy.
The data we hold
XTRM Inc processes data in order to provide payment processing services. The type of data we may collect and process includes:
· Contact details (including names, postal addresses, email addresses and telephone numbers);
· Information required for XTRM Inc to meet legal and regulatory requirements, in particular in respect of anti-money laundering legislation, including information on source of funds and source of wealth;
· Financial information, such as payment related information;
· Any other information you may provide to us.
Purposes of processing
We use data (including personal data of individuals) for the following purposes (the below also confirming the lawful basis we are relying on in each case):
Lawful Basis for Processing
To enter into client relationships and provide payment processing services
Any one or more of the following:
The legitimate interest of XTRM Inc as a provider of payment processing services to process personal data for the purpose of providing those services
In instances where an individual has been provided with this Privacy Notice and provides personal data thereafter, the processing may be carried out on the basis of consent. Consent may be withdrawn at any time by writing to email@example.com
Where the client is an individual: to fulfil the contract we have entered into with the individual to provide payment processing services
To manage our client, intermediary and other business relationships
The legitimate interests of XTRM Inc to seek to ensure its business is conducted efficiently and with a view to enhancing client service
To ensure the security of XTRM systems, staff and premises (including the use of CCTV equipment)
The legitimate interests of XTRM Inc in protecting its systems, staff and premises from being misused or the victim of any criminal activity
To provide access to our Client Portal or API
The legitimate interests of XTRM Inc and the user of the Portal or API for the communication and storage of relevant material (such use being subject to the terms and conditions of the relevant Portal or API)
In instances where any user of any Portal or API has been provided with this Privacy Notice and provides personal data thereafter, the processing may be carried out on the basis of consent. Consent may be withdrawn at any time by writing to firstname.lastname@example.org
To provide our contacts with marketing material and to invite contacts to events which may be of interest to them, and to manage such mailings and events
The legitimate interests of XTRM Inc as a provider of payment processing services to process personal data to communicate with persons on topics and events which may be of interest to those individuals.
The right of those individuals to unsubscribe from mailings and/or manage preferences will be noted within all mailings and
any requests to unsubscribe may be made via links available in the mailings.
To meet all legal, regulatory and ethical obligations applicable to XTRM Inc (including in respect of managing potential conflicts of interest)
The legitimate interests of XTRM Inc as a provider of payment processing services to process data to the extent necessary to ensure it meets all legal, regulatory and ethical obligations incumbent on it.
In certain instances, the processing of data may also be necessary for the exercise of functions of public authorities and/or necessary for compliance with a legal obligation to which XTRM Inc is subject
For the purposes of internal know-how and training
The legitimate interests of XTRM Inc as a provider of payment processing services to process data for the purposes of internal know-how and staff training. XTRM Inc will use reasonable endeavours to ensure any personal data contained in the material which is not integral to the understanding of the material is redacted.
In certain instances, personal data processed may include "Special Category Data" (which includes information on a person's race, ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic or biometric data processed for the purpose of uniquely identifying a natural person, health data, data on a person's sex life or sexual orientation or data relating to a person's criminal record or alleged criminal activity). In such instances, legal bases for processing that data may include explicit consent (where the Special Category Data has been provided to XTRM Inc by the data subject for any of the above-listed purposes) or the processing being necessary for compliance with a legal obligation or the purposes of legal proceedings or legal advice.
Sources and Recipients of data
The sources of data may include clients, intermediaries, data subjects directly, third parties connected to the data subject (for example, their employer or another service provider who provides services to the data subject) or open-source material.
The provision of data to one entity in XTRM Inc may result in that data being accessible by all other members of the XTRM Inc. Reasonable endeavours are made to ensure that data is only accessible by those with a need for access to fulfil the purposes set out above. Requests for access to be restricted in any particular manner should be made to email@example.com and will be considered and, where possible with reference to legal and regulatory obligations, actioned.
The following is a list of potential recipients of data (in each case including respective employees, directors and officers):
· Other members of the XTRM Inc;
· Other providers of services (legal, governance or otherwise, including any bank or financial institution providing services in relation to any matter on which XTRM Inc is instructed) where disclosure to that provider of services is considered necessary to fulfil the purposes set out above;
· Any sub-contractors, agents or service providers of the XTRM Inc;
· Courts or tribunals;
· Third parties with whom XTRM Inc engages for the hosting of events or other marketing initiatives;
· Law enforcement agencies where considered necessary for XTRM Inc to fulfil legal obligations applicable to it;
· Regulators or other governmental or supervisory bodies with a legal right to the material or a legitimate interest in any material;
· Any registrar of a public register where the data is to be included in a public registry;
· Potential parties with whom XTRM Inc intends to merge or sell any part of the XTRM Inc.
Where XTRM Inc is entering into an engagement with a third party pursuant to which data may be processed by that third party, we will seek to enter into an agreement with that third party setting out the respective obligations of each party and will seek to be reasonably satisfied that the third party has measures in place to protect data against unauthorized or accidental use, access, disclosure, damage, loss or destruction.
In the event that any such third party is outside of the European Union and where the data being transferred would include personal data which would be protected under applicable Data Protection regulation we will ensure we meet the relevant requirements of that Data Protection regulation prior to carrying out any such transfer. This may include only transferring the data where we are satisfied that:
· the non-European Union country has Data Protection laws similar to the laws in the European Union;
· the recipient has agreed through contract to protect the information in the same Data Protection standards as the European Union;
· we have obtained consent from relevant data subjects to the transfer; or
· if transferred to the United States of America, the transfer will be to organizations that are part of the Privacy Shield.
Rights of data subjects
Data subjects in the European Union (or any jurisdiction with equivalent legislation to the European Union General Data Protection Regulation) have certain rights in respect of their personal data.
Any such data subject wishing to exercise any rights under applicable data protection laws (including the right to withdraw any consent to processing previously given; the right of access to data; or to have data corrected, updated, rectified or erased; or for access to data to be restricted or provided to any third party; or to object to any particular processing) should send the request in the first instance to firstname.lastname@example.org.
In any case in which a data subject chooses not to provide any personal data or where any of the rights set out above are exercised to limit the processing of personal data the XTRM Inc may be unable to provide relevant services, or there may be a restriction on the services which can be provided.
XTRM Inc only keeps data for as long as necessary to fulfil the purposes (as set out above) for which we collected it. The XTRM Inc policy is to retain data in relation to a client matter for 11 years from the conclusion of that matter. This is subject to certain exceptions (including where the matter relates to wills & probate, property and conveyancing and trusts (where, in each case, records may be kept indefinitely) or in instances where the personal data is relevant to a dispute after closure of the matter or where the data cannot be deleted for legal, regulatory or technical reasons).
Any requests for further information in relation to the continued processing of specific data, and requests for destruction of data, should be made to email@example.com.
XTRM Inc has a Data Protection Officer and all enquiries in respect of this Privacy Notice or any request to exercise any of the rights set out above should be directed to the Data Protection Officer via firstname.lastname@example.org.
Changes to this Privacy Notice
We keep this Privacy Notice under review and any updates will appear on our website at www.xtrm.com.
We last updated this Privacy Notice on 1 May 2018.
How to contact us
If you have any questions about this Privacy Notice or any data which we hold about you, please contact: email@example.com.