Terms of Services
February 2nd, 2023
These Terms of Services (these “Terms”) apply to the cushion.ai website, application (webapp.cushion.ai), and our related social media sites (collectively, the “Site”) operated by Cushion AI, Inc. (“Us”, “We” or “Our”) and the services available through the Site (the “Services”).
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CUSHION AI, INC. THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18.6 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
AGREEMENT TO TERMS.
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will refer to that entity.
CHANGES TO TERMS OF SERVICES.
We may update the Terms at any time, at our sole discretion. If we do so, we will let you know either by posting the updated Terms on the Site or through other communications. It’s important that you review the Terms whenever we update them, or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you do not agree to be bound by the updated Terms, then, except as otherwise provided in Section 18.6 “Effect of Changes on Arbitration,” you may not use the Services anymore. Because the Services are evolving over time, We may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
ACKNOWLEDGMENT OF LIMITATIONS OF BETA RELEASE/TEST VERSION.
You acknowledge that: (a) the Services (as defined below) have not been thoroughly tested; (b) the Services may not operate properly, be in final form or fully functional; (c) the Services may contain errors, design flaws or other problems; (d) it may not be possible to make the Services fully functional; (e) use of the App and Services may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; and (f) Cushion has no obligation to release a fully functional commercial version of the Services. You assume all risk arising from use of the App and Services.
The Services are available to users who are at least 18 years of age. By accessing and using the Services, you represent and warrant that:
any and all registration information you submit is truthful and accurate;
you will maintain the accuracy of such information; and
your use of the Services does not violate any applicable law, regulation, order or guideline.
Services are available only to Users who are the age of majority and have a valid social security number (“SSN”). You hereby authorize us to request and obtain data from third parties during your account relationship with us to verify any information you provide to us in connection with your Services, including but not limited to Credit Score Builder Services request. You acknowledge and agree that we may rely without independent verification on the accuracy, authenticity, and completeness of all information you provide to us. We may terminate consideration of your application at any time at our sole discretion.
General. In order for you to use the Services, you must register an account on the Site (“Account”). It is important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up to date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone, and you’ll notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
Linked Financial Institution Account. You will also need to link your Account with your accounts at third party financial institutions (e.g., banks and credit card companies) (“Financial Institution Accounts”) to access relevant parts of the Services including facilitating your ability to view and pay bills, build your credit score, assist you in your ability to manage your financial priorities, and other services that may be offered from time to time. You must provide Us access to your Financial Institution Accounts using the Services. You may have to agree to certain third party financial institution terms as part of this process.
CUSHION IS NOT AFFILIATED WITH THE THIRD PARTY FINANCIAL INSTITUTIONS WITH WHICH WE MAY COMMUNICATE. WE DO NOT GUARANTEE THAT OUR SERVICES WILL INTEGRATE WITH EVERY FINANCIAL INSTITUTION. WE WILL ATTEMPT TO NOTIFY YOU AS SOON AS POSSIBLE IF WE ARE UNABLE TO INTEGRATE WITH A FINANCIAL INSTITUTION ACCOUNT.
General. We provide bill pay, financial management and credit building services. We may update our services from time to time to include additional features. Please review the Site for more information. The Services allow you to help manage financial matters, including supporting your ability to manage and pay for eligible bills and build credit. Certain parts of the Services are available for an extra fee. Please review our FAQs for more information on which parts of the Services are available to you based on your Subscription plan.
Banking Services and Cushion Card. Cushion makes available certain bill payment services through the App. Cushion does not generally accept funds from you and will not take possession of your funds. You also have an opportunity to apply for a prepaid card issued by Patriot Bank (“Bank”), Member FDIC (the “Cushion Card”). During the application process for a Cushion Card, and periodically after that, you may receive certain agreements, disclosures, notices, and other information (“Bank Documents”) governing your relationship with the Bank as related to the Cushion Card. For more information, please see the Cardholder Terms at https://cushion.ai/cardholder_agreement/.
Bill Payment. We facilitate your ability to make eligible bill payments (such as making payments including but not limited to subscription providers, buy now pay later (“BNPL”) providers, utility companies, or to other sources of eligible debt) (collectively, “Merchants”). Cushion has sole discretion to allow or decline any transaction with a particular Merchant. You may provide your Cushion Card information to a Merchant and they can initiate a payment under the Services. You may also allow Merchants to collect payments on an automated, one-off or repeated basis. If you elect to make such payments, you may pause any payments to a designated Merchant at any time in your Account. Cushion does not monitor such payments to ensure that they are for the right amount or are otherwise approved by you. CUSHION IS NOT RESPONSIBLE FOR ANY LOSSES, PAYMENTS, OR OTHER COSTS ONCE A PAYMENT IS INITIATED BY A MERCHANT. FURTHER, CUSHION IS NOT RESPONSIBLE FOR LATE FEES OR OTHER COSTS OR PENALTIES TO YOU RESULTING FROM YOUR ABILITY TO PAUSE PAYMENTS OR IF CUSHION PAUSES PAYMENTS CONSISTENT WITH THESE TERMS. YOU SHOULD USE PAUSE PAYMENTS AT YOUR OWN RISK AND USE THE FEATURE RESPONSIBLY.
If a bill payment is returned or otherwise fails, the funds will be credited back to the associated Cushion Card. It generally takes up to 30 days after we receive notice of the failed bill payment to re-credit your Cushion Card, but it may take longer in certain instances. If the Merchant later processes the payment after we have re-credited your Cushion Card, you authorize Cushion to debit the Cushion Card for the payment amount. Please contact Cushion with any questions regarding the status of a bill payment or return.
If you have any issues with a withdrawal from your Cushion Card, suspect an incorrect or unauthorized payment, or believe there is an error, you should immediately contact Cushion at [email protected] Once you dispute any charges through the Services including without limitation charges from Cushion or from any third party including Merchants, your Cushion Card will be suspended pending the resolution of the dispute. We will make every practicable effort to review and resolve the dispute as promptly as possible but make no assurances on the timeline it may take to do so. BANK DOES NOT PROVIDE THE BILL PAY SERVICES AND HAS NO LIABILITY FOR THEM.
Credit Score Builder. You can use our Services and the Cushion Card to access Cushion’s bill payment feature where Cushion will use its own funds to pay your eligible bill payments upfront and build your credit in the process (“Credit Score Builder”). The Services also allow you to help manage financial matters, including supporting your ability to pay for eligible bills and build credit. If eligible, you will have access to the Credit Score Builder feature as part of the bundle of services available to you under your Subscription. As you continue to make bill payments using your Credit Score Builder Services and on-time repayments to us, Cushion will be able to report positive credit history to the credit bureaus. If you fail to make repayments for any Credit Score Builder Services, your ability to use the Services may be suspended at our sole discretion.
Credit Score Builder Services and Limits. The amount of Cushion funds you are eligible to use as part of your Credit Score Builder is based on several factors including but not limited to the monthly spend through your Cushion Card. Credit Score Builder is based on different tiers. You are eligible for an aggregate total Credit Score Builder amount (“Credit Score Builder Amount”). This amount is reflected in your credit reports and will support your ability to grow your credit. However, you may have access to the full amount or a percentage of that amount through your Cushion Card. We will display the amount reported to the credit bureaus in the App during each period when you use your Cushion Card to make payments to Merchants using Cushion funds as part of the Credit Score Builder Services, and you will be able to continue using the Credit Score Builder Amount so long as you are in good standing with Cushion. We reserve the right to adjust the Credit Score Builder Amount and our eligibility criteria at any time. There are no additional Cushion costs to using Credit Score Builder in addition to the Cushion fees associated with your Subscription plan.
Repayment Authorization. You authorize us to debit your Bank Account or charge your debit card on the day of the authorized bill payment in the full amount of the payment. Our failure to debit your Bank Account or charge your debit card when repayment is due does not waive or extinguish our right to initiate repayment at a later date. If we determine from your Account Information that your Bank Account is unlikely to contain sufficient funds to repay us, we may choose in our sole discretion to wait to initiate repayment at such later time that we determine. We reserve the right to charge your Bank Account or debit card for any amounts due to us under the Services including without limitation the Credit Score Builder Services, repayment any time. However, Cushion warrants that it has no legal or contractual claim against you based on a failure to repay under Credit Score Builder or Services. If there is a Default as defined by Section 7(h), Cushion reserves the right to suspend access to any part of the Services. Any of Cushion’s above limitations with respect to collecting payments does not apply to instances of fraud, abuse, violations of applicable law, or any other violations of these Terms where Cushion suffers a loss due to your actions or omissions.
Fair Credit Reporting Act and other General Disclaimers. You acknowledge that each credit bureau has unique approaches to data furnishing and reporting. For the Credit Score Builder Services, we will report your completed and timely payments to major credit bureaus. While Cushion takes all commercially reasonable steps to report data correctly to the credit bureaus according to their methods and recommendations, Cushion cannot guarantee the accuracy of the data on your credit report. You understand that it may take up to three months for your payments to appear on credit bureau records. If you identify any apparent errors with your credit report, Cushion will assist you in investigating the issue upon receiving a request from you. In addition, you may file a dispute with Cushion or directly with the credit bureaus. YOU UNDERSTAND THAT A CREDIT FREEZE DOES NOT PREVENT CUSHION FROM SENDING DATA TO THE CREDIT BUREAUS. A CREDIT FREEZE ONLY PREVENTS THE CREDIT BUREAUS FROM PROVIDING CUSHION AND OTHERS WITH INFORMATION FROM USER’S CREDIT PROFILE. THE DATA DISPLAYED BY CUSHION REGARDING CREDIT HISTORY IS ONLY A REPRESENTATION OF THE USER’S ACTUAL CREDIT SCORE, AND NOT ACTUAL DATA FROM THE CREDIT BUREAUS. EACH USER SHOULD REVIEW THEIR CREDIT PROFILE AT EACH BUREAU IN ORDER TO VERIFY THE ACCURACY OF THE CREDIT REPORTING.
We cannot guarantee any improvement in credit scores. Cushion’s satisfaction guarantee cannot be claimed as a result of your credit score not improving. User acknowledges that Cushion is not a Credit Bureau and does not have direct influence over any aspect of credit, credit profiles, or how credit scores are calculated.
ALTHOUGH CUSHION IS HELPING USERS AVOID OVERDRAFT FEES, CUSHION IS NOT RESPONSIBLE FOR ANY OVERDRAFT FEES, OVER-THE-LIMIT FEES, INSUFFICIENT FUND CHARGES, OR ANY OTHER BANK FEES THAT RESULT FROM YOUR FAILURE TO MAINTAIN A SUFFICIENT BALANCE IN YOUR BANK ACCOUNT. CUSHION MONITORS YOUR BALANCE AND WILL ATTEMPT TO ENSURE YOU HAVE SUFFICIENT FUNDS BEFORE DEBITING YOUR ACCOUNT, BUT CUSHION MAKES NO WARRANTIES THAT AN OVERDRAFT WILL NOT OCCUR.
Default. Any of the following events is a breach of this Agreement and is a default under the Agreement (a “Default”):
An uncured outstanding repayment (“Delinquency”) that has continued in effect until the earliest of the following dates: (1) the 90th day after the date the Delinquency first occurred or (2) the date on which the Services or Credit Score Builder Services is made.
Any of the accounts constituting your Bank Account are terminated or you revoke or modify any consent or authorization you have granted to us to access, or debit or initiate payment from.
You file or there is instituted against you any bankruptcy or insolvency bank proceeding or you make any assignment for the benefit of creditors.
You die or are declared dead or incompetent.
You commit fraud or make a misrepresentation in your request for the Credit Score Builder Services or any representation you make in this Agreement or any other documents, applications or related materials delivered to us in connection with your Cushion account becomes untrue.
One-Time Payments and Subscriptions. Cushion requires payment of a fee for use of the Services (or certain portions thereof) and you agree to pay such fees. You have the option of making a one-time payment (“One-Time Payment”) or purchasing a subscription (“Subscription”) for such use.
General. Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit or debit card number, the expiration date of your credit or debit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
Subscriptions. If you purchase a Subscription, you will be charged the monthly Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE Cushion TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month on the day of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. No less than seven (7) days and no more than fifteen (15) days before your Subscription term ends, or otherwise in accordance with applicable law, Cushion will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Cushion. Your Subscription continues until canceled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
Canceling One-Time Payment or Subscription. You may cancel your Account at any time. If something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. UNLESS GRANTED BY CUSHION, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to [email protected]. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
BILL PAYMENT AUTHORIZATION.
We will receive repayment from a connected user bank account (“Bank Account”). You certify that the Bank Account identified in the App is a checking account in good standing held by you; that you are authorized to withdraw funds from the Bank Account; and that you have designated the Bank Account to be used for your participation in the Services. You agree to deposit into the Bank Account necessary amounts to keep your Cushion Account in good standing. You agree to provide us with online viewing access to the Bank Account by supplying login and other information we request, and to provide us with updated login information immediately if it is changed. You agree not to change, close, or terminate the Bank Account without our prior express written consent. If the Bank Account is closed or suspended for any reason, and you are not able to resolve the issue with your bank within five days of the closure or suspension, you agree to obtain a replacement Bank Account and provide us with the replacement Bank Account information we need to debit the account and view account activity within fifteen days after the closure or suspension of the Bank Account. If you replace the Bank Account with a new account in accordance with this provision, the replacement account shall become the Bank Account under this Agreement.
This authorization shall remain in place while you have access to the Credit Score Builder Services or other Services.
You acknowledge that the “Transfer Funds” feature allows you to electronically transfer funds via the Automated Clearing House (“ACH”) between my eligible Cushion (“Cushion”) account(s) and your external account(s) at other financial institutions (“External Account(s)”, once you have successfully registered your External Account(s). This includes:
One-time on-demand transfers, which allow you to initiate multiple, non-recurring, individual transfers based on the transfer date and dollar amount that you request through the Transfer Funds feature of Online and Mobile Banking from time to time;
Recurring transfers, which allows you to initiate recurring transfers of a set dollar amount at regular intervals that you have established through the Transfer Funds feature of Online and Mobile Banking; and/or
Other ACH transfer features that Cushion may make available.
Subject to the terms of the Transfer Funds feature and the terms of your other agreements with Cushion, you hereby authorize Cushion to initiate electronic credit/debit entries to your eligible Cushion account(s) and each registered External Account for (a) various amounts at varying times by making on-demand transfers pursuant to your instructions, and/or (b) fixed amount at the frequency you have selected by making recurring transfers pursuant to your instructions (a “Preauthorized Transfer”). If any transfer date falls on a weekend or bank holiday, you understand and agree that the transfer may be executed on the next business day, or as soon as reasonably possible at the discretion of Cushion.
You hereby represent and warrant that you have all necessary right, power and authority to debit and credit my Cushion account and any External Account(s) registered, and that all information or instructions that you provide to Cushion in relation to any ACH transfer are complete and accurate. You agree that ACH transactions you authorize comply with all applicable law.
Should an incorrect amount be withdrawn from or deposited to your External Account(s) or your Cushion account(s), you authorize Cushion to correct the error by debiting/crediting your External Account(s) or your Cushion account(s).
This authorization is to remain in full force and effect until Cushion has received written notification from you of its termination in such time and in such manner as to afford Cushion a reasonable opportunity to act on it. For Preauthorized Transfers, you understand that it is your responsibility to contact Cushion to stop or cancel a Preauthorized Transfer at least three (3) days prior to the following scheduled payment. In either case, you will send your notice to: [email protected].
You acknowledge that the origination of ACH transactions must comply with the provisions of applicable law and the rules of the National Automated Clearing House Association (NACHA). You request the financial institution that holds my External Account(s) to honor all transfers initiated in accordance with this authorization form.
You agree to print this ACH Authorization and retain a hard copy or save it as an electronic copy.
OWNERSHIP. The contents, including information, text, images and graphics and all other material contained on the Site or features and functions made available through the Services (the “Content”) are for your personal informational purposes only. The Content is owned by Cushion AI, Inc. or by Our designers or other third parties who have licensed their rights in Content to Us. You may use the Content solely for your personal, non-commercial use. You must not delete or alter any copyright or other notice We place on any Content. Content is owned by Us or Our licensors or other users and is protected by copyright, trademark and other laws and regulations of the United States and foreign laws. You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Content without Our express prior written consent. You may not use Content in any way not expressly permitted by these Terms of Service and if you do, your right to use the Services will automatically terminate. The Content, the Services and the Site generally, are subject to change or termination without notice. The trademarks, names, slogans, logos, characters and Services marks (collectively “Trademarks”) displayed on Our Site belong to Us or have been licensed to Us. Nothing contained on Our Site should be construed as granting any license or right to use any Trademark displayed on Our Site. Your use/misuse of the Trademarks displayed on Our Site, except as provided in these Terms of Services, is strictly prohibited.
RIGHTS AND TERMS FOR APPS.
Rights in App Granted by Us. Subject to your compliance with these Terms, we grant to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Us reserves all rights in and to the App not expressly granted to you under these Terms.
Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”).
You acknowledge and agree that:
These Terms are concluded between you and Us, and not with the App Provider, and We (not the App Provider), are solely responsible for the App.
The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Our sole responsibility.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, We will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You must also comply with all applicable third party terms of Services when using the App. General Prohibitions and Our Enforcement Rights. You agree not to do any of the following:
Use, display, mirror or frame the Services or any individual element within the Services, Our name, any trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Our express written consent;
Access, tamper with, or use non-public areas of the Services, Our computer systems, or the technical delivery systems of Our providers;
Attempt to probe, scan or test the vulnerability of any Our system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Us or any of Our providers or any other third party (including another user) to protect the Services;
Attempt to access or search the Services or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Us or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Us trademark, logo URL or product name without Our express written consent;
Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
LINKS TO THIRD PARTY WEBSITES OR RESOURCES.
The Services (including the App) may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
You will indemnify and hold harmless Cushion AI, Inc. and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your violation of these Terms, or (iii) your violation of applicable laws.
You acknowledge and agree that your use of the Services is at your own risk and is provided “as is,” without warranty of any kind, and we hereby disclaim all representations, conditions, guarantees or warranties, oral or written or of any kind, whether express or implied, and whether by statute, common law, from a course of performance or dealing, trade usage, including but not limited to the implied warranties or conditions of merchantability, satisfactory quality, non-infringement, or fitness for a particular purpose. Without limiting the foregoing, we do not warrant that the Services will be uninterrupted, free of errors or defects, or that errors or defects are capable of being corrected. We do not warrant that all Institutions will accept the Services. We disclaim any liability if the use of the Services violates any terms of Services or other agreement that you may have with an Institution.
LIMITATION OF LIABILITY.
NEITHER CUSHION AI, INC. NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICES INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CUSHION AI, INC. OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In addition, we have no liability for any claims between you or any of the Institutions with which we communicate, including any impact on your account or financial relationship with such Institutions.
IN NO EVENT WILL Our TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED ONE HUNDRED DOLLARS $100.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Cushion AI, Inc. AND YOU.
Any suggestions, ideas, enhancement requests, feedback, recommendations or other information you provide to Us relating to the Services, including the Site, are owned exclusively by Us. You hereby assign such rights to Us and agree to sign any documents necessary to ensure Our ownership is perfected.
TERM AND TERMINATION.
We may terminate the Terms and terminate or suspend your Account immediately, without prior notice or liability, and for any or no reason. You may terminate the Terms and your Account at any time through the user interface on the Site. Upon the termination of the Terms, your right to access the Services immediately ceases. However, Sections 1, 6.3, 6.5, 10, 12, 13, 14, 16, 17 and 20 of these Terms will survive such termination.
GOVERNING LAW AND FORUM CHOICE.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Cushion AI, Inc. are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Cushion AI, Inc. each waive any objection to jurisdiction and venue in such courts.
Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Cushion AI, Inc. agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Cushion AI, Inc. are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions and Opt-out. As limited exceptions to Section 15(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at [email protected] or by regular mail at 2261 Market Street #4644
San Francisco, CA 94114 within thirty (30) days following the date you first agree to these Terms.
Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
Class Action Waiver. YOU AND CUSHION AI, INC. 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.
Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Effect of Changes on Arbitration. Notwithstanding the provisions of Section 3 “Changes to Terms or Services” above, if Cushion AI, Inc. changes any of the terms of this Section 18 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Cushion AI, Inc. email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Cushion AI, Inc. in accordance with the terms of this Section 18 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Severability. With the exception of any of the provisions in Section 5 of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
Entire Terms. These Terms constitute the entire and exclusive understanding and agreement between Cushion AI, Inc. and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Cushion AI, Inc. and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Cushion AI, Inc.’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Cushion AI, Inc. may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices. Any notices or other communications provided by Cushion AI, Inc. under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Assignment. The Terms is personal to you, and you may not assign or transfer your rights or obligations under the Terms. We may assign our rights and obligations under the Terms to a third party in connection with a merger or sale of all or substantially all Our assets related to the Services.
Waiver of Rights. Cushion AI, Inc. failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Cushion AI, Inc. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Information. If you have any questions about these Terms or the Services, please contact Cushion AI, Inc. at [email protected], ATTN: Terms of Services Questions.