You agree that Visa may provide you with notices and other disclosures in connection with Visa Checkout by email, postings on the Website or other forms of electronic communications in accordance with Visa's electronic communications policy. All electronic communications from us to you shall be deemed to be communications "in writing" and deemed delivered to you no later than the earlier of the date actually received or 5 days from the date of posting or dissemination.
Our failure or delay to exercise or enforce any provision or right contained in these Terms shall not be deemed a waiver of such provision or right.
c. Entire Agreement.
You and Visa agree that if any provision of these Terms are deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Headings and captions are for convenience only and shall not be considered included for purposes of interpretation. Words such as "hereof," "herein," and "hereunder" shall mean and refer to all these Terms, rather than any particular part of the same. The term "including" shall mean "including, without limitation". Whenever used herein, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders.
f. Relationship Of The Parties.
Nothing in these Terms will be construed as creating a joint venture, partnership, employment or agency relationship between you and Visa, and you do not have any authority to create any obligation or make any representation on Visa's behalf.
To the greatest extent permitted by applicable law, you agree to indemnify, defend and hold harmless the Visa Parties from any loss, liability, claim, or demand, including costs and reasonable attorneys' fees, due to, in connection with or arising out of your breach of these Terms.
h. Visa Entities.
As used in these terms, "Visa", "us", "we" or similar pronoun refers to (i) Visa U.S.A. Inc., if you reside in the United States (including Puerto Rico), (ii) Visa Canada Corporation, if you reside in Canada, (iii) Visa International Service Association, if you reside in Argentina, Brazil, Chile, Colombia, Mexico, Peru, South Africa or the United Arab Emirates, and (iv) Visa Worldwide Pte. Limited, if you reside in Australia, China, Hong Kong, Malaysia, New Zealand or Singapore. "Visa Parties" refers to Visa U.S.A. Inc., Visa Canada Corporation, Visa International Service Association, Visa Worldwide Pte. Limited and all affiliates of the foregoing.
i. Dispute Resolution & Governing Law.
To the fullest extent permitted by law, you and Visa agree that:
- 1. if you are a resident of Argentina, Colombia, Mexico, Peru, the United Arab Emirates, or the United States: the following governing law and arbitration provision applies:
THIS SECTION CONTAINS AN ARBITRATION PROVISION. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM RELATING TO VISA CHECKOUT OR THESE TERMS SHALL BE RESOLVED BY BINDING ARBITRATION. IN ARBITRATION NEITHER YOU NOR VISA WILL HAVE THE RIGHT TO LITIGATE CLAIMS IN COURT, OR TO HAVE A JURY TRIAL ON THE CLAIMS. CLAIMS MAY BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS. PRE-HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS WILL BE LIMITED, BUT THE ARBITRATOR CAN AWARD DAMAGES AND RELIEF AS PERMITTED UNDER THESE TERMS.
Any dispute, claim or controversy arising out of or relating to Visa Checkout or these Terms, including the formation, interpretation, breach, performance, termination, enforcement, interpretation or validity of these Terms, the validity and enforcement of this provision, and the determination of the scope or applicability of the agreement to arbitrate (a “Dispute”) that can be subject to arbitration, shall be resolved exclusively pursuant to the process and arbitration clause set out in this section. Any Disputes between you and Visa shall be resolved through binding arbitration; except that, if you are a US resident, you may assert claims in small claims court (if your claims qualify). This arbitration clause only applies to Disputes with Visa regarding Visa Checkout, if you have a dispute with your payment card issuer you must resolve that dispute with your issuer.
The rules governing any arbitration between you and Visa are as follows: The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures if you reside in the United States and JAMS’ International Arbitration Rules if you reside outside the United States within the countries listed in this Section (1.), to the extent that those rules do not conflict with this provision. You may obtain a copy of these rules by contacting JAMS at 1-800-352-5267, by writing to JAMS at 620 Eighth Avenue, 34th Floor, New York, NY 10018 or online at www.jamsadr.com or www.jamsinternational.com/.
ANY CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. THIS MEANS THAT BOTH YOU AND VISA ARE PROHIBITED FROM JOINING OR CONSOLIDATING CLAIMS IN ARBITRATION BY OR AGAINST OTHERS, AND ARE PROHIBITED FROM ARBITRATING ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS. The arbitration will take place before one arbitrator. The arbitration shall (i) be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; and (ii) not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Residents of the United Arab Emirates shall arbitrate in Dubai unless otherwise mutually agreed by the parties. The arbitrator will be mutually agreed upon by you and Visa. If you and Visa cannot agree on an arbitrator, the arbitrator will be appointed according to JAMS procedures. . If for any reason a Dispute proceeds in court rather than in arbitration we both waive any right to a jury trial.
You may elect to hire an attorney, but are not required to do so. Each party will be responsible for its own attorney fees and costs, unless awarded by the arbitrator under applicable law. The party that initiates the arbitration will pay the filing fee (unless otherwise dictated by JAMS due to a finding of hardship). Visa will advance all other administration, case management and arbitrator fees associated with the arbitration, through payment directly to JAMS. At the end of the arbitration, the fees paid by Visa may be allocated between you and Visa at the direction of the arbitrator in compliance with JAMS procedures.
All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Any decision of the arbitrator shall be final. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Visa’s liability is limited as described in Section 14 above, to the fullest extent permitted by applicable law.
This section and arbitration provision shall survive the termination of your Visa Checkout account. If any part of this section, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. If a waiver of class actions rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this section shall be unenforceable.
These Terms and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware exclusive of conflict or choice of law rules.
The remainder of this Section (1.) applies to US residents:
The arbitrator cannot award punitive or exemplary damages, except as may be required by statute, or any pre-award interest; nor may the arbitrator award any incidental, indirect or consequential damages, including damages for lost profits or harm suffered by third parties. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the Terms and this section shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
If you established your Visa Checkout Account prior to the update of these terms on January 27, 2014, you may opt-out of this arbitration clause by submitting written notice (“Opt-Out Notice”) to Visa postmarked by March 31, 2015. Your Opt-Out Notice must be sent to Visa U.S.A. Inc., Attn: Litigation, P.O. Box 8999, San Francisco, CA 94128-8999. Your Opt-Out Notice must be signed by you, declare that you do not agree to the Visa Checkout arbitration provision, and include the following information about yourself: name, address, phone number and your username. The foregoing process is the only way to opt-out of the arbitration provision. All other provisions of these Terms will continue to apply to you even if you provide a valid Opt-Out Notice. Opting out has no effect on any previous, other or future arbitration provision you may have with Visa.
2. if you are a resident of Chile: (i) any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout will be governed by and construed under the laws of Delaware, excluding only its conflict of law provisions; and (ii) any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout shall be resolved exclusively within the federal and state courts residing within Delaware.
3. if you are a resident of Australia, China, Hong Kong, Malaysia, New Zealand, or Singapore: (i) any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout will be governed by and construed under the laws of the Singapore, excluding only its conflict of law provisions; and (ii) any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout shall be resolved exclusively within the federal and state courts residing within Singapore.
4. if you are a resident of Brazil: any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout will be governed by and construed under the laws of the Federative Republic of Brazil, excluding only its conflict of law provisions.
5. if you are a resident of Canada: (i) if you are not a resident of Quebec, any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout will be governed by and construed under the laws of Ontario, excluding only its conflict of law provisions, and any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout shall be resolved exclusively within the courts residing within Toronto, Ontario; or (ii) if you are a resident of Quebec, any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout will be governed by and construed under the laws of Quebec, excluding only its conflict of law provisions, and any disputes, claims or causes of action arising out of or in connection with these Terms or Visa Checkout shall be resolved exclusively within the courts residing within Montreal, Quebec. You and Visa specifically exclude from application to these Terms the United Nations Convention for the International Sale of Goods.
6. if you are a resident of South Africa: any disputes, claims or other matter arising between us in connection with these Terms or Visa Checkout shall be resolved exclusively by arbitration in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”). Such arbitration shall be conducted for final resolution in accordance with the rules of AFSA by an arbitrator appointed by the AFSA. Any such arbitration shall be held at a location in South Africa to be mutually agreed upon by the parties, and if no agreement on location is reached within 14 days of the referral to AFSA, then in Johannesburg. These Terms and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware in the United States exclusive of conflict or choice of law rules.
You may not assign these Terms, by operation of law or otherwise, without Visa's prior written consent. Visa reserves the right to assign these Terms, and the rights and obligations hereunder, to any third party without notice to or consent from you. Subject to the foregoing, these Terms will be binding on, inure to the benefit of, and be enforceable against you and your respective successors and assigns.
k. Export Laws.
You acknowledge that applicable laws and regulations of the United States and other countries may restrict the export and re-export of Visa Checkout. You agree that you will not export or re-export Visa Checkout in any form or to any recipient whether inside or outside the United States in violation of applicable United States and foreign law.
l. Quebec Residents Only.
You confirm that you prefer these Terms and any related documents be in English. Vous confirmez préférer que cette convention et les documents s'y rattachant soient rédigés en anglais.
Despite termination of these Terms, these Terms continue to apply to any use of Visa Checkout by you prior to termination. Any sections of these Terms that by their nature should survive termination shall so survive any termination of these Terms or your use of Visa Checkout, including the following: Sections 10, 12, 14, 15 and 19.