These Terms provide that all disputes between you and Flywire will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 20 ("Dispute Resolution and Arbitration") for the details regarding your agreement to arbitrate any disputes with Flywire.
1. Flywire Service Overview.
Flywire helps people live globally and pay locally. We enable businesses, educational institutions, healthcare facilities, and other related billers to collect payments towards fees owed, from individuals and companies located in over 200 countries and territories making payment through their home currency.
2. Use of the Service.
The Service allows users to pay bills they receive from businesses outside their home country and permits international students and patients, their family members or other third parties to pay their tuition, room and board, or other fees owed to secondary schools, colleges, and universities, or pay their medical bills and associated fees to hospitals and associated healthcare facilities, for which Flywire Payments Corporation, Flywire Healthcare Corporation and affiliates serve as payment agents (each payment recipient, a "Designated Entity" ). We may work with local banks, foreign exchange providers, and other third-party service providers (each, a "Service Provider" ) to receive and/or settle payments to a Designated Entity’s bank account.
You must be at least 18 years of age to use the Service. By agreeing to these Terms, or by providing a notification to a Designated Entity that payment will be directed to the Designated Entity by Flywire on the Designated Entity’s behalf through the Service (each, a "Transaction" ), you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, company, or other payors, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization, or other payors. The Service may not be available in whole or in part in different locations, countries, and jurisdictions. We will inform you in the process of signing up or attempting to enter a Transaction whether we can serve your jurisdiction.
4. Accounts and Registration.
To access features of the Service, you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You agree to keep your access credentials confidential and secure. If you have reason to believe that your account has been compromised, then you must immediately notify us at [email protected].
5.1. Payments Generally.
Entering into a Transaction, or using other features of the Service, may require you to pay fees and/or may result in compensation for Flywire for currency conversion or services provided by Flywire as agent of the Designated Entity. The total Transaction amount displayed will be inclusive of any fees including foreign exchange fees applicable to the Transaction. By continuing with the Transaction, you agree to pay the total Transaction amount requested by Flywire. We are not responsible for any fees or charges for the Transaction that may be imposed by a financial institution or other payment provider, including Service Providers, associated with your Transaction. We are not responsible for any insufficient funds charges, chargeback fees, or other, similar charges that might be imposed on you by your bank or other provider or a Service Provider. We are not responsible for any taxes, duties, levies, withholdings or other liabilities that may be imposed on your Transaction (collectively, "Taxes"), and we are not responsible for any penalty, fine, surcharge, interest, charges or costs relating to such Taxes.
5.2. Flywire’s Role.
You acknowledge that the payments made by you to the Designated Entity are transactions between you and the Designated Entity and not Flywire. Flywire is a third-party service provider facilitating payment processing as agent and on behalf of the Designated Entity and is not a party to any payment processed through the Service. Further, Flywire is not your financial institution or a money transmitter, and does not receive, hold, process or transfer any funds on your behalf. Flywire is not responsible if you do not complete a payment to a Designated Entity.
5.3. Payments Accepted on Behalf of Designated Entities.
You agree to pay to us, on behalf of the Designated Entity, the amount you indicated when you submitted notice of the Transaction through the Service. If additional charges apply to the processing of this Transaction for the Designated Entity, we will notify you. Payment is due to the Designated Entity through the Service at the time you submit your Transaction through the Service. If as a result of your Transaction we are charged with non-sufficient funds fees, chargeback or reversal fees, or other similar fees, you agree to reimburse us for all such fees. In some instances, for Transactions funded from the sender’s bank account, you agree that we or our Service Provider may charge your bank account for less than the amount of the transfer as part of our effort to confirm ownership of the account.
5.4. Payment Instructions.
5.4.1. Transaction Booking.
A Transaction can only be processed to a Designated Entity if a booking is created through the site, through the website of a Service Provider, or through another arrangement that the Designated Entity has established with Flywire. In the event that a booking is not created, Flywire will be unable to process a Transaction until a booking has been created. Additionally, we will not be responsible for any delays in processing or additional charges that may occur, such as, but not limited to, when we receive a payment with no booking or due to movements of the currency market, which may, or may not, result in a payment losing value.
5.4.2. Wire Transfer/Direct Debits.
In order for us to process a wire transfer/direct debit received for the Designated Entity in a timely manner, you must diligently follow the instructions contained in your invoice from a Designated Entity or sent to the email address you provided on the site when you notified us of the Transaction through the Service or that you provided on the website of a Service Provider that you were referred to through the Service. You will need to either take the instructions to your financial institution or, if available, process the wire transfer or direct debit via your financial institution’s online portal. Our Service Providers may make available additional options for you to initiate a wire transfer/direct debit through their services. We do not have access to your bank account, so if your payment fails or is insufficient, you must resubmit the payment. You agree that, when you book a Transaction to a Designated Entity through the Service, if you will be initiating a payment from your bank account, that your account is denominated in the same currency as the Transaction booking information. PLEASE DO NOT MAKE A PAYMENT TO ANY ACCOUNT NUMBER OTHER THAN THAT PROVIDED IN THE INSTRUCTIONS.
5.4.3. Credit/Debit Card Payments.
Flywire may make available to you the option to pay the Designated Entity by credit or debit card. If this option is available, your card will be charged in your local currency by Flywire on behalf of your Designated Entity for the amount of the payment and any applicable fees or charges. Such fees or charges will be disclosed to you prior to your initiating the Transaction. The merchant of record for such transactions will be Flywire’s European entities - Flywire Spain, S.L. or Flywire Payments Ltd.
5.4.4. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE OR ARE OWNER OF, AS APPLICABLE, ANY BANK ACCOUNT, CREDIT OR DEBIT CARD, OR OTHER PAYMENT METHOD USED TO INITIATE A PAYMENT THROUGH THE SERVICE.
5.5. Effective Date of Payment to Designated Entity.
Once Flywire receives your funds on behalf of the Designated Entity, your payment to the Designated Entity will be considered paid and your obligation to the educational institution, healthcare facility or other biller, discharged. You will receive a payment confirmation email alerting you to Flywire’s receipt of your funds. This will constitute proof of payment for your Transaction to the Designated Entity. Please note that the Designated Entity may take three or more business days to reflect payment in its student, patient, or customer account system.
5.6. Foreign Exchange Fees.
The exchange rate applied to a particular Transaction is effective only for that Transaction,for the Designated Entity that you indicated you will pay , and not for any other Transaction. The payment amount received from the payor, excluding applicable fees and prior to any foreign exchange conversion conducted by Flywire for the Designated Entity (the "Amount Received" ) will be the only amount processed by Flywire on the Designated Entity’s behalf. If there are Transactions with missing amounts, the additional amounts might not be considered for the original exchange rate provided.
5.7. Material Currency Fluctuations and Other Extraordinary Events.
Flywire may, in its sole discretion and at any time, cancel a booked Transaction due to material changes in exchange rate fluctuations or due to other circumstances beyond our control. In such instances, you will be notified of the cancellation and have the option to rebook a Transaction with us at a newly quoted exchange rate. If delivery of the funds you have paid have been initiated, you will receive a refund of the amount remitted in the Transaction to your originating payment account as soon as is practicable.
5.8. Delays; Availability.
Your payment may be delayed or cancelled in the course of our efforts to verify your identity, validate your Transaction instructions, contact and locate you, and otherwise comply with internal protocols of verification of identity against government-issued sanctions or watch lists, or any other applicable national, federal, state, or local law. Your payment may be delayed or cancelled if you engage any third party service provider that Flywire has not designated or approved to process, transfer, and/or settle funds on your behalf. In such situations, Flywire needs to exert additional efforts to verify your service provider’s identity, validate Transaction instructions conducted through such service provider and contact and locate such service provider to ensure that Transactions comply with applicable national, federal, state, or local law. Business hours and currency availability may also cause a delay. While we make reasonable efforts to ensure that Transactions are processed in a timely manner, we make no representations or warranties that we will complete processing of a Transaction or regarding the time needed to complete processing. The Service is largely dependent on many factors outside our control. Nevertheless, you may be entitled to a refund in certain circumstances, at our discretion, as described in these Terms. The Service may not be available to all users at all times. We may, in our sole discretion, refuse Transactions funded from certain payment instruments. We may, at our sole discretion, refuse Transactions from certain payors or their party service providers (if any) and to certain Designated Entities, including payors and Designated Entities located in countries or territories subject to applicable economic or trade sanctions and entities and individuals that are included on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals and Blocked Persons, HM Treasury’s Office of Financial Sanctions Implementation’s Consolidated List of Financial Sanctions Targets, the Financial Action Task Force’s list of Non-Cooperative Countries or Territories, and such other sanctions or watch lists as may be issued from time to time by the United Nations or governmental and regulatory authorities anywhere in the world.
The Service is provided by Flywire, as agent of a Designated Entity, for international students, medical patients, and others to make payments to a Designated Entity. Flywire, and its affiliates, are not responsible for providing refunds of any payment Transaction made through the Service to a Designated Entity. You should contact the Designated Entity directly for further details on obtaining a refund. Subject to limited exceptions, all refunds will be returned to the originating account in the originating currency. Refund amounts will be adjusted to account for changes in the value of the U.S. dollar or foreign currency from the time your Transaction was submitted. Additional fees, including, but not limited to, debit or credit card processing fees may also occur which we may, or may not, charge.
5.10. Verifying Information; No Changes.
You authorize us, directly or through third parties, to make any inquiries we consider necessary to validate the information you have provided to us. This may include asking you for additional information, requiring you to take steps to confirm ownership of your email address or financial instruments, verifying your information against third party databases, or through other sources. We do not let you change the details of your payment once you have submitted it on the Service. It is your responsibility to make sure your payment details are accurate before they are submitted.
5.11. Additional Terms for Republic of Ireland; Visas.
If a student requires a visa to study in the Republic of Ireland, Flywire must confirm that the Irish Naturalisation and Immigration Service ("INIS") has approved the visa application before delivering the funds to the Designated Entity. To facilitate this process, Flywire will collect certain information from you or from the Designated Entity, such as the visa application number, at the time you submit your Transaction (if available) or after the Designated Entity informs Flywire that the INIS has made a decision on the visa application. If the INIS approves your visa, Flywire will deliver the funds to the Designated Entity. If the INIS rejects the visa application, then the refund process set forth above shall govern.
6. User Content.
6.1. User Content Generally.
Certain features of the Service may permit users to upload content to the Service, including reviews, data, text, and other types of works ( "User Content" ) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
6.2. Limited License Grant to Flywire.
By posting or publishing User Content, you grant Flywire a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
6.3. User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that: a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Flywire and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Flywire, the Service, and these Terms; and b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Flywire to violate any law or regulation.
6.4. User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Flywire may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Flywire with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Flywire does not permit copyright-infringing activities on the Service.
7. Prohibited Conduct
BY USING THE SERVICE YOU AGREE NOT TO, AND AGREE TO PROCURE YOUR THIRD PARTY SERVICE PROVIDERS (IF ANY), NOT TO:
7.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
7.2. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
7.3. post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
7.4. interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
7.5. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
7.6. use the Service for any of the following activities: sexually-oriented materials or services, gambling activities, fraud, money-laundering, the funding of terrorist organizations, or the purchase or sale of tobacco, firearms, prescription drugs, or other controlled substances;
7.7. use the Service other than for the processing of payments on behalf of an international student, healthcare patient, or other party to a Designated Entity;
7.8. use the Service to submit a Transaction on behalf of any other person unless there is a legal reason and provided there is a relationship between the parties;
7.9. register for more than one dashboard account on the Service, without our prior written permission;
7.10. provide false, inaccurate, or misleading information;
7.11. refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
7.12. use an anonymous proxy;
7.13. use any robot, spider, other automatic device, or manual process to monitor or copy our Site without our prior written permission;
7.14. frame any elements of the Service with any other website without our prior written permission;
7.15. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
7.16. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 12) or any right or ability to view, access, or use any Material;
7.17. refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
7.18. use the Services in any manner not expressly authorized by Flywire, including, without limitation, aggregation of payments without the payor and payment details that Flywire, its Service Providers, and/or other financial institutions require and any behavior that suggests or implies a partnership, affiliation, joint venture, or other relationship with Flywire or
7.19. attempt to do any of the acts described in this Section 7, or assist or permit any person in engaging in any of the acts described in this Section 7.
8. Third-Party Services and Linked Websites.
Flywire may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Flywire with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as "like" or "share" buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content. We prohibit the use of any links to the Service from any other websites unless we approve the establishment of the link in advance.
9. Termination of Use; Discontinuation and Modification of the Service.
You may terminate your account at any time by contacting customer service at [email protected] If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Flywire may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
10.2. Additional Terms.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms" ), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 11. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
11. Modification of these Terms.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Service. Material modifications will be effective upon the published effective date. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Ownership; Proprietary Rights
The Service is owned and operated by Flywire. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ( "Materials" ) provided by Flywire are protected by intellectual property and other laws. All Materials included in the Service are the property of Flywire or our third-party licensors. Except as expressly authorized by Flywire, you may not make use of the Materials. Flywire reserves all rights to the Materials not granted expressly in these Terms.
The trademarks, logos and service marks appearing on the Service, including, but not limited to, the trademark: "Flywire" are the trademarks and service marks of Flywire. Other company, product, and service names and logos used and displayed on the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing on the Service should be construed as granting, by implication or otherwise, any license or right to use any of trademarks and service marks displayed on the Service, without our prior written permission in each instance.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service ( "Feedback" ), then you hereby grant Flywire an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
You are responsible for your use of the Service, and you will defend and indemnify Flywire, its service providers, and their respective officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Flywire Entities" ) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
15. Disclaimers; No Warranties.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE FLYWIRE ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE FLYWIRE ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED (INCLUDING BUT NOT LIMITED TO INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE OR SETTLEMENT OF PAYMENT TRANSACTIONS), SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FLYWIRE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. Limitation of Liability.
IN NO EVENT WILL THE FLYWIRE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FLYWIRE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED IN SECTION 19.4(iii), THE AGGREGATE LIABILITY OF THE FLYWIRE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FLYWIRE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Governing Law.
These Terms are governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Flywire agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Suffolk County, Massachusetts for the purpose of litigating any dispute. We operate the Service from our offices in Massachusetts, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
19. Dispute Resolution and Arbitration.
In the interest of resolving disputes between you and Flywire in the most expedient and cost effective manner, you and Flywire agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FLYWIRE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 19.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Flywire will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules" ) of the American Arbitration Association ( "AAA" ), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Flywire.
19.4. Notice; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ( "Notice" ). Flywire’s address for Notice is: Flywire Payments Corporation, Attn: Customer Service/Terms, 141 Tremont Street, 10th Floor, Boston, Massachusetts 02111. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ( "Demand" ). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Flywire may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Flywire must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Flywire will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Flywire in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with these Terms, Flywire will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Suffolk County, Massachusetts, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Flywire for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
19.6. No Class Actions.
YOU AND FLYWIRE 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, unless both you and Flywire agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
19.7. Modifications to this Arbitration Provision.
If Flywire makes any future change to this arbitration provision, other than a change to Flywire’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Flywire’s address for Notice, in which case your account with Flywire will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If Section 19.6 is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.
20. Force Majeure.
We will not be liable for any failure or delay in performance under these Terms or in connection with the Service due to any cause beyond our reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
21. Contact Information.
The Service is offered by Flywire Payments Corporation, located at 141 Tremont Street, 10th Floor, Boston, Massachusetts 02111 or by an affiliate of Flywire. You may contact us by sending correspondence to that address or by emailing us at [email protected].