Online Ordering Terms and Conditions
Updated as of October 20, 2020
PLEASE READ SECTION 7 (DISPUTE RESOLUTION) AND SECTION 8 (CLASS ACTION WAIVER) CAREFULLY AS THEY RELATE TO YOUR RIGHTS WITH RESPECT TO ARBITRATION AND CLASS ACTIONS
The following Online Ordering Terms and Conditions (these “Terms”) apply to your use of Heartland Payment Systems, LLC’s (“Heartland”) online ordering services (the “Services”) and form a legally binding contract between you and Heartland. PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING AND/OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, THEN YOU SHOULD NOT ACCESS OR USE THE SERVICES. HEARTLAND MAY AMEND THESE TERMS FROM TIME TO TIME IN ITS SOLE DISCRETION AND WITHOUT PRIOR NOTICE TO YOU. YOU MUST READ THESE TERMS CAREFULLY EACH TIME YOU UTILIZE THE SERVICES AS ANY CHANGES TO THESE TERMS MAY AFFECT YOUR LEGAL RIGHTS.
- Introduction. You must be at least eighteen (18) years old to use the Services. If you are not at least eighteen (18) years old, do not use the Services. As a part of the Services, Heartland enables its customer to accept your order by processing your payment on behalf of Heartland’s customer. All purchases made by you via the Services are also subject to the terms and conditions of the Heartland customer providing the goods and services you purchase. By using the Services, you acknowledge and agree that Heartland has no obligation whatsoever to you in relation to your order and will not be liable to you in any circumstances for any orders processed via the Services, including, without limitation, any claims in relation to the products and/or Services purchased by you via the Services.
- Use of Services. You agree to only use the Services in accordance with these Terms. You acknowledge and agree that you use the Services at your own risk. You represent and warrant that all information you submit in connection with the Services is true and accurate. You agree to only use the Services for personal, lawful purposes and in connection with a bona fide purchase of goods and/or services offered by Heartland’s customer(s) in the ordinary course of such customer’s business. You agree not to use the Services in connection with the sale or transfer of securities, check cashing, loan repayment, or other similar or related services.
- Payment. If your payment cannot be completed for any reason, including insufficient funds or error in the information which you submitted, you will retain the same liability, which is your sole responsibility, for payment as though you had not attempted to make the payment. You also understand that additional fees and penalties may be collected to the extent of applicable law. A receipt can be printed after payment is accepted which may serve as evidence of your payment. If an email address is provided during the payment process, a receipt may be emailed to you after the payment is processed.
- Restrictions. Heartland may, in its sole discretion, reject, deny, restrict, suspend, and/or terminate your access to the Services at any time without prior notice to you and without liability. Heartland may reject, reverse, or deny any transactions submitted by you through the Services without prior notice to you and without liability. You agree that you will not copy, modify, distribute, publish, sell, rent, lease, decompile, disassemble, reverse engineer, or create derivative works of the Services. You agree not to attempt to gain authorized access to the Services or any systems or network connections connected thereto or to exploit the Services in any unauthorized way whatsoever. The Services may include information from, and/or links to, third parties and third party sites. Heartland does not endorse any such sites and is not responsible for any of the content therein and any such content and/or links are accessed at your own risk. Any and all Heartland trademarks, as well as any trademarks and other related proprietary information contained in the Services are protected from copying and/or simulation under applicable law and may not be copied or reproduced without the express written consent of their owners. All intellectually property rights in or related to the Services remain the sole and exclusive property of Heartland and/or its licensors. You do not obtain any ownership right regarding the Services and/ or any information contained therein.
- Limitation of Liability; Indemnification. The Services and all information provided in relation thereto are offered on an “AS-IS” and “AS AVAILABLE” basis. Heartland does not guarantee that the Services will be uninterrupted, error free, or that the Services are free of viruses, time bonds, Trojans, or other harmful components. To the maximum extent permitted by applicable law, Heartland disclaims any and all representations and warranties, express or implied, whatsoever regarding the Services and any products or services purchased through the Services, including without limitation, implied warranties of merchantability, accuracy, and/or fitness for a particular purpose. In no circumstance shall Heartland be liable for any direct, indirect, incidental, special, consequential, compensatory, or punitive damages, losses, costs or expenses, including, without limitation, any lost profits, that may result from your use of, or your inability to use, the Services and/or the products and services purchased through the Services, even if Heartland has been advised of the possibility of such damage(s). You acknowledge and agree that the unauthorized use of the Services may cause irreparable harm to Heartland. In the event of an unauthorized use of the Services or Heartland’s marks, Heartland shall be entitled to an injunction, without the posting of bond or other security, in addition to any other remedies available at law or in equity. You agree to indemnify, defend, and hold harmless Heartland and its affiliates for any and all unauthorized use of the Services by you.
- Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND THE RESOLUTION OF DISPUTES.
MANDATORY ARBITRATION: ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE RELATIONSHIPS WHICH RESULT FROM THESE TERMS SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT; HOWEVER, YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF (1) THE CLAIMS QUALIFY FOR SMALL CLAIMS COURT; (2) THE MATTER REMAINS IN SMALL CLAIMS COURT AT ALL TIMES; AND (3) THE MATTER PROCEEDS ONLY ON AN INDIVIDUAL (NOT A CLASS OR REPRESENTATIVE) BASIS). ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING.
ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. The arbitrator's award or decision will not affect issues or claims involved in any proceeding between Heartland and any person or entity who is not a party to the arbitration. The arbitrator may award monetary, declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator's award, if any, will not apply to any person or entity that is not a party to the arbitration. However, nothing in this Section or these Terms shall preclude any party from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief on your behalf.
Further, notwithstanding the foregoing, nothing in this Section or these Terms prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief.
The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply (if no such rules are in effect, JAMs default arbitration rules shall apply). For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply (if no such rules are in effect, JAMS default arbitration rules shall apply). Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in Muscogee County, Georgia (although, for your convenience, any party or its counsel may participate telephonically); and (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient. Any decision rendered in any arbitration proceeding shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law.
If the total damage claims in an arbitration are $10,000 or less, not including your attorney fees (“Small Arbitration Claim"), the arbitrator may, if you prevail, award you reasonable attorney fees, expert fees and costs (separate from Arbitration Costs as defined below), but may not grant Heartland its attorney fees, expert fees or costs (separate from Arbitration Costs) unless the arbitrator determines that you claim was frivolous or brought in bad faith. In a Small Arbitration Claim case, Heartland will pay all arbitration filing, administrative and arbitrator costs (together, “Arbitration Costs"). You must submit any request for payment of Arbitration Costs to JAMS at the same time the you submit a Demand for Arbitration. However, if you want Heartland to advance the Arbitration Costs for a Small Arbitration Claim before filing, Heartland will do so at the your written request which must be sent to Heartland at Heartland Payment Systems, LLC, 3550 Lenox Road NE, Suite 3000, Atlanta, Georgia 30326, ATTN: Legal Department.
If your total damage claims in an arbitration exceed $10,000, not including your attorney fees (“Large Arbitration Claim"), the arbitrator may award the prevailing party its reasonable attorneys' fees and costs, or it may apportion attorneys' fees and costs between you and Heartland (such fees and costs being separate from Arbitration Costs).
In a Large Arbitration Claim case, if you are able to demonstrate that the Arbitration Costs will be prohibitive as compared to the costs of litigation, Heartland will pay as much of the Arbitration Costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
Choice of Forum: A court, not the arbitrator, will decide any questions regarding the validity, scope and/or enforceability of Sections 7 and 8. Any litigated action (as opposed to an arbitration) regarding, relating to or involving the validity, scope and/or enforceability of Sections 7 and 8, or otherwise, shall be brought in either the courts of the State of Georgia sitting in Muscogee County or the United States District Court for the Northern District of Georgia, and you expressly agree to the exclusive jurisdiction of such courts. You hereby agree and consent to the personal jurisdiction and venue of such courts, and expressly waive any objection that you might otherwise have to personal jurisdiction or venue in such courts.
- Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND THE RESOLUTION OF DISPUTES.
YOU ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. YOU FURTHER AGREE TO WAIVE, AND HEREBY WAIVE, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS.
- Entire Agreement. These Terms constitute the entire understanding of you and Heartland and supersede all prior agreements, understandings, representations, and negotiations, whether oral or written between you and Heartland with respect to the Services.
- No Waiver of Rights. Any failure of Heartland to enforce any of the terms, conditions or covenants of these Terms shall not constitute a waiver of any rights under these Terms.
- Section Headings. All section headings contained herein are for descriptive purposes only, and the language of such section shall control.
- Relationship of the Parties. Nothing contained herein shall be deemed to create a partnership, joint venture or, except as expressly set forth herein, any agency relationship between you and Heartland.
- Severability. If any term or provision of these Terms is found to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of these Terms, but such terms or provisions shall be deemed modified solely to the minimum extent necessary to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
No part or portion of Section 7 (Mandatory Arbitration), Section 8 (Class Action Waiver), or Section 14 (Choice of Law) shall be deemed so integral to either this Agreement as a whole, or to the remaining parts or portions thereof, that the unenforceability of any part or portion thereof should have any impact on or render the remainder unenforceable.
- Choice of Law. You agree that any and all disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or in connection with (a) these Terms, (b) the relationships which result from these Terms, or (c) the validity, scope, interpretation, or enforceability of the choice of law and forum provisions of this Agreement, shall be governed by the laws of the State of Georgia, notwithstanding any conflicts of laws rule; provided, however, that the Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of Sections 7 and 8 when permitted.
- No Third Party Beneficiary. Under no circumstance, shall any third party be considered a third party beneficiary of your rights or remedies under these Terms or otherwise be entitled to any rights or remedies available to you under these Terms.
- Amendments. Heartland may change these Terms of or add new terms to these Term at any time without prior written notice and any such changes or new terms shall be effective when posted by Heartland.
- E-SIGN. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), these Terms and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (1) your electronic signature is associated with these Terms and related documents, (2) you consent and intend to be bound by these Terms and related documents, and (3) these Terms are delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). These Terms and all related electronic documents shall be governed by the provisions of E-Sign. By pressing "I Accept", "Submit", or other similar language, you agree (i) that these Terms and related documents shall be effective by electronic means, (ii) to be bound by these Terms, and (iii) that you have the ability to access, print, or otherwise store these Terms and related documents.
- Contact. You may contract Heartland directly at 888-963-3600 and Heartland Payment Systems, LLC, One Heartland Way, Jeffersonville, Indiana, 47130.