Terms & Policies

Terms & Policies

Banyan Website Privacy Policy

Last Updated: November 22, 2021

Welcome to the website (the “Site”) of Rotomaire, Inc., d/b/a Banyan (“Banyan,” “we,” “us,” or “our”). This Privacy Policy explains what Personal Data (defined below) we collect in connection with your use of our Site and access to our products and services (collectively, “the Service”), how we use and share that data, and your choices concerning our data practices. This Privacy Policy is incorporated into and forms part of our website Terms of Service.Before using the Service or submitting any Personal Data to Banyan, please review this Privacy Policy carefully and contact us if you have any questions. By using the Service, you agree to the practices described in this Privacy Policy. If you do not agree to this Privacy Policy, please do not access the Site or otherwise use the Service.

Personal Data We Collect

We collect information that alone or in combination with other information in our possession could be used to identify you (“Personal Data”) as follows:

  • Identification Data - When you contact us through the Site, we will collect your name, email address and other Personal Data that you voluntarily provide.
  • Communication Data - We may collect information when you contact us with questions or concerns and when you voluntarily respond to questionnaires, surveys or requests for market research seeking your opinion and feedback.  Providing this information is optional to you.
  • Social Media Data - We have pages on social media sites like Facebook, Twitter, and LinkedIn (“Social Media Pages”). When you interact with our Social Media Pages, we will collect Personal Data that you elect to provide to us, such as your contact details. In addition, the companies that host our Social Media Pages may provide us with aggregate information and analytics regarding the use of our Social Media Pages.
  • Internet Activity Data - When you visit, use, and interact with the Site, we may automatically receive certain information about your visit, use, or interactions. For example, we may monitor the number of people that visit the Site, peak hours of visits, which page(s) are visited, the domains our visitors come from (e.g., google.com, yahoo.com, etc.), and which browsers people use to access the Site (e.g., Chrome, Firefox, Microsoft Internet Explorer, etc.), broad geographical information, and navigation pattern. In particular, the following information is created and automatically logged in our systems.
  • Log Data: Information that your browser automatically sends whenever you visit the Site (“log data”). Log data includes your IP address, browser type and settings, the date and time of your request, and how you interacted with the Site.
  • Cookies: Please see the “Cookies” section below to learn more about how we use cookies.
  • Device information: Includes name of the device, operating system, and browser you are using. Information collected may depend on the type of device you use and its settings.
  • Usage Information: We collect information about how you use our Site, such as the types of content that you view or engage with, the features you use, the actions you take, and the time, frequency, and duration of your activities.
  • Domain Information: We may collect information regarding including the websites or other services you visited before and after interacting with the Site.
  • Location Data: We derive a rough estimate of your location from your IP address.

Cookies

We use cookies to operate and administer our Site, gather usage data on our Site, and improve your experience on it. A “cookie” is a piece of information sent to your browser by a website you visit. Cookies can be stored on your computer for different periods of time. Some cookies expire after a certain amount of time, or upon logging out (session cookies), others survive after your browser is closed until a defined expiration date set in the cookie (as determined by the third party placing it), and help recognize your computer when you open your browser and browse the Internet again (persistent cookies). For more details on cookies please contact us. On most web browsers, you will find a “help” section on the toolbar with information on how to receive a notification when you are receiving a new cookie and how to turn cookies off.  Please note that if you limit the ability of websites to set cookies, you may be unable to access certain parts of the Site and you may not be able to benefit from the full functionality of the Site.

Advertising networks may use cookies to collect Personal Data. Most advertising networks offer you a way to opt out of targeted advertising. If you would like to find out more information, please visit the Network Advertising Initiative’s online resources at http://www.networkadvertising.org and follow the opt-out instructions there.

If you access the Site on your mobile device, you may not be able to control tracking technologies through the settings.

Analytics

We use Google Analytics, a web analytics service provided by Google, Inc. (“Google”). Google Analytics uses cookies to help us analyze how users use the Site and enhance your experience when you use the Site. For more information on how Google uses this data, go to www.google.com/policies/privacy/partners.

Online Tracking and Do Not Track Signals

We and our third-party service providers, including Facebook, may use cookies, pixels, or other tracking technologies to collect information about your browsing activities over time and across different websites following your use of the Site and use that information to send targeted advertisements. Our Site currently does not respond to “Do Not Track” (“DNT”) signals and operates as described in this Privacy Policy whether or not a DNT signal is received. If we do respond to DNT signals in the future, we will update this Privacy Policy to describe how we do so.

How We Use Personal Data

We may use Personal Data for the following purposes:

  • To provide the Service;
  • To respond to your inquiries, comments, feedback, or questions;
  • To send administrative information to you, for example, information regarding the Service and changes to our terms, conditions, and policies;
  • To analyze how you interact with our Service;
  • To maintain and improve the content and functionality of the Service;
  • To develop new products and services;
  • To prevent fraud, criminal activity, or misuses of our Service, and to ensure the security of our IT systems, architecture, and networks; and
  • To comply with legal obligations and legal process and to protect our rights, privacy, safety, or property, and/or that of our affiliates, you, or other third parties.

Aggregated Information. We may aggregate Personal Data and use the aggregated information to analyze the effectiveness of our Service, to improve and add features to our Service, and for other similar purposes. In addition, from time to time, we may analyze the general behavior and characteristics of users of our Services and share aggregated information like general user statistics with prospective business partners. We may collect aggregated information through the Service, through cookies, and through other means described in this Privacy Policy.

Marketing. We may use your Personal Data to contact you to tell you about products or services we believe may be of interest to you. For instance, if you elect to provide your email or telephone number, we may use that information to send you special offers. You may opt out of receiving emails by following the instructions contained in each promotional email we send you. To the extent you create an account, you can also control the marketing emails and/or text messages you receive by updating your settings through your account. In addition, if at any time you do not wish to receive future marketing communications, you may contact us. If you unsubscribe from our marketing lists, you will no longer receive marketing communications but we will continue to contact you regarding management of your account, other administrative matters, and to respond to your requests.

Sharing and Disclosure of Personal Data

In certain circumstances we may share your Personal Data with third parties without further notice to you, unless required by the law, as set forth below:

  • Vendors and Service Providers: To assist us in meeting business operations needs and to perform certain services and functions, we may share Personal Data with vendors and service providers, including providers of hosting services, cloud services, and other information technology services providers, event management services, email communication software and email newsletter services, advertising and marketing services, payment processors, customer relationship management and customer support services, and web analytics services. Pursuant to our instructions, these parties will access, process, or store Personal Data in the course of performing their duties to us.
  • Business Transfer: If we are involved in a merger, acquisition, financing due diligence, reorganization, bankruptcy, receivership, sale of all or a portion of our assets, or transition of service to another provider (collectively a “Transaction”), your Personal Data and other information may be shared in the diligence process with counter parties and others assisting with the Transaction and transferred to a successor or affiliate as part of that Transaction along with other assets.
  • Legal Requirements: If required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, including to meet national security or law enforcement requirements, (ii) protect and defend our rights or property, (iii) prevent fraud, (iv) act in urgent circumstances to protect the personal safety of users of the Services, or the public, or (v) protect against legal liability.

Update your Information

Please contact us if you need to change or correct your Personal Data.

California Privacy Rights Disclosures

Collection, Disclosure, and Use of Personal Data

The categories of Personal Data we have collected in the preceding twelve months are described above in the “Personal Data We Collect” section. In the preceding twelve months, we have disclosed for business purposes each of the categories identified in that section to the categories of third parties identified in the “How We Share and Disclose Personal Data” section. The business and commercial purposes for collecting Personal Data are described in the “How We Use Personal Data” section.

Privacy Rights

Where provided for by law and subject to any applicable exceptions, California residents may have the following rights under the California Consumer Privacy Act of 2018 (“CCPA”):

  • To know the categories of Personal Data that Banyan has collected about you, the business purpose for collecting your Personal Data, and the categories of sources from which the Personal Data was collected;
  • To access the specific pieces of Personal Data that Banyan has collected about you;
  • To know whether Banyan has disclosed your Personal Data for business purposes, the categories of Personal Data so disclosed, and the categories of third parties to whom we have disclosed your Personal Data;
  • To have Banyan, under certain circumstances, delete your Personal Data; and
  • To be free from discrimination related to the exercise of these CCPA rights.
  • Banyan does not sell your Personal Data.

If you would like to exercise any or all of these rights, you may do so by contacting us. Your authorized agent may submit requests in the same manner. Once we receive your request, we will verify your identity by sending an email to the email address you provide to us.

Please contact us if you have questions about your rights or our disclosures under the CCPA, or to request access to an alternative format of this Privacy Policy.

Children

Our Service is not directed to children who are under the age of 16. Banyan does not knowingly collect Personal Data from children under the age of 16. If you have reason to believe that a child under the age of 16 has provided Personal Data to Banyan through the Service please contact us and we will endeavor to delete that information from our databases.

Links to Other Websites

The Service may contain links to other websites not operated or controlled by Banyan, including social media services (“Third-Party Sites”). The information that you share with Third-Party Sites will be governed by the specific privacy policies and terms of service of the Third-Party Sites and not by this Privacy Policy. By providing these links we do not imply that we endorse or have reviewed these sites. Please contact the Third-Party Sites directly for information on their privacy practices and policies.

Security

You use the Service at your own risk. We implement commercially reasonable technical, administrative, and organizational measures to protect Personal Data both online and offline from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. However, no Internet or e-mail transmission is ever fully secure or error free. In particular, e-mail sent to or from us may not be secure. Therefore, you should take special care in deciding what information you send to us via the Service or e-mail. Please keep this in mind when disclosing any Personal Data to Banyan via the Internet. In addition, we are not responsible for circumvention of any privacy settings or security measures contained on the Service, or third-party websites.

International Users

By using our Service, you understand and acknowledge that your Personal Data will be transferred from your location to our facilities and servers in the United States.

Your Choices

In certain circumstances providing Personal Data is optional. However, if you choose not to provide Personal Data that is needed to use some features of our Service, you may be unable to use those features. You can also contact us to ask us to update or correct your Personal Data.

Changes to the Privacy Policy

The Service and our business may change from time to time. As a result we may change this Privacy Policy at any time. When we do we will post an updated version on this page, unless another type of notice is required by the applicable law. By continuing to use our Service or providing us with Personal Data after we have posted an updated Privacy Policy, or notified you by other means if applicable, you consent to the revised Privacy Policy and practices described in it.

Contact Us

If you have any questions about our Privacy Policy or information practices, please feel free to contact us at our designated request address: privacy@getbanyan.com.

Terms of Service

Last Updated: April 19, 2021

Rotomaire, Inc. dba Banyan (“Banyan,” “we,” “us,” “our”) provides its services (described below) to you through its websites located at https://getbanyan.com/, https://developers.getbanyan.com, (each a “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Platform(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Platform or changes made for legal reasons will be effective immediately. Your continued use of the Platform after the date any such changes become effective constitutes your acceptance of the new Terms of Service.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST ROTOMAIRE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

[In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Platform from time to time, including, without limitation, the Privacy Policy located at http://getbanyan.com/privacy/. All such terms are hereby incorporated by reference into these Terms of Service.]

Access and Use of the Platform

Platform Description

The Platform is designed to provide a uniform API for access to receipt data from Merchant systems and accounts (“Accounts”) that enables users to connect their receipt data to third party apps (“Apps”).

Modifications to Platform

Banyan reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice. You agree that Banyan will not be liable to you or to any third party for any modification, suspension or discontinuance of the Platform.

General Practices Regarding Use and Storage

You acknowledge that Banyan may establish general practices and limits concerning use of the Platform, including without limitation the maximum period of time that data or other content will be retained by the Platform and the maximum storage space that will be allotted on Banyan’s servers on your behalf. You agree that Banyan has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Platform. You acknowledge that Banyan reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Banyan reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Commercial Use

Unless otherwise expressly authorized herein or in the Platform, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Platform, use of the Platform, or access to the Platform. The Platform is for your use only.

Intellectual Property Rights

Platform Content, Software and Trademarks

You acknowledge and agree that the Platform may contain content or features

(“Platform Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Banyan, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Platform Content, in whole or in part. In connection with your use of the Platform you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Banyan from accessing the Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Platform or distributed in connection therewith are the property of Banyan, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Banyan.

The Banyan name and logos are trademarks and service marks of Banyan (collectively the “Banyan Trademarks”). Other company, product, and service names and logos used and displayed via the Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Banyan. Nothing in this Terms of Service or the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Banyan Trademarks displayed on the Platform, without our prior written permission in each instance. All goodwill generated from the use of Banyan Trademarks will inure to our exclusive benefit.

Third Party Accounts and Apps

These Terms of Service only apply to information that Banyan collects, uses, and shares. It does not cover what third parties may do with your information that we provide to them with your consent (or any other information they may collect about you separately from Banyan which are governed by the third party account/app’s privacy policy). You further acknowledge that the Service may provide, or third parties may provide, links or other access to other sites, Accounts, Apps, and resources on the Internet. Banyan has no control over such sites, Accounts, Apps, and resources and Banyan is not responsible for and does not endorse such sites, Accounts, Apps, and resources. You further acknowledge and agree that Banyan will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such sites, Accounts, Apps, or resource. Any dealings you have with third parties found while using the Platform are between you and the third party, and you agree that Banyan is not liable for any loss or claim that you may have against any such third party.

Indemnity and Release

You agree to release, indemnify and hold Banyan and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Platform, your connection to the Platform, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ROTOMAIRE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

ROTOMAIRE MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT ROTOMAIRE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ROTOMAIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL ROTOMAIRE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID ROTOMAIRE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Dispute Resolution by Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

You agree to release, indemnify and hold Banyan and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Platform, your connection to the Platform, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

  • Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Banyan, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Platform, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Banyan are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
  • Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND BANYAN 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 BANYAN AGREE OTHERWISE, THE ARBITRATOR 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 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), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
  • Pre-Arbitration Dispute Resolution: Banyan is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at legal@getBanyan.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Banyan should be sent to ___________________ (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Banyan and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Banyan may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Banyan or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Banyan is entitled.
  • Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Banyan and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Banyan agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
  • Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Banyan will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Banyan will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Banyan will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
  • Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
  • Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
  • Future Changes to Arbitration Agreement: Notwithstanding any provision in this Terms of Service to the contrary, Banyan agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Platform, you may reject any such change by sending Banyan written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

Termination

You agree that Banyan, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Platform and remove and discard any content within the Platform, for any reason, including, without limitation, for lack of use or if Banyan believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Platform, may be referred to appropriate law enforcement authorities. Banyan may also in its sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Platform under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Banyan may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Platform. Further, you agree that Banyan will not be liable to you or any third party for any termination of your access to the Platform.

General

These Terms of Service constitute the entire agreement between you and Banyan and govern your use of the Platform, superseding any prior agreements between you and Banyan with respect to the Platform. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Banyan agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York. The failure of Banyan to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Banyan, but Banyan may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Platform may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Platform.

Questions? Concerns? Suggestions?

If you have any questions about our Privacy Policy or information practices, please feel free to contact us at our designated request address: privacy@getbanyan.com.