- These Terms of Service govern the use of (i) our Escrow Services; and (ii) our Website.
- When we say “Deposify”, “we” “us” “our” or similar terms, we mean Deposify Inc. a Massachusetts company.
- When we say “you” or “your” we mean the person who opens a Deposify Escrow Account with us, whether you are a Landlord or a Tenant.
- When we say our “Website” we mean www.deposify.com.
- You must accept these Terms of Service before you can create a Deposify Escrow Account.
2. Landlord’s Covenants and Representations
- Landlord hereby appoints Deposify as its agent for the express purpose of providing the Escrow Services pursuant to the terms and conditions stated herein for Tenant security deposits required in connection with leases of residential real property. Landlord and Tenant will each create a Deposify Escrow Account in order to use the Escrow Services via the Website.
- Deposify’s responsibility is solely to provide Escrow Services for security deposits as agent for the Landlord and Deposify has no responsibility to provide Tenant with any notices, bank account information, information regarding the Landlord, information on the location or amount of the security deposit, information on interest earned or credited to the account of the Tenant or any other information regarding the requirements of laws in connection with security deposits for rentals of residential real estate. Any information of any nature provided to or received by the Tenant from any source connected with Deposify should be confirmed with the Landlord to insure accuracy and validity.
- Landlord and Tenant recognize that these Terms of Service may be inconsistent with the terms of any real property lease. Landlord and Tenant agree that these Terms of Service shall supersede any inconsistent provisions of any real property lease insofar as such lease shall govern the maintenance, payment or return of any Deposits held by Deposify.
- Landlord is responsible for compliance with all legal requirements applicable to Tenant’s security deposits and will indemnify Deposify for any liability for failure to comply with applicable law.
3. Tenant’s Covenants and Representations
- Tenant recognizes that Deposify is the agent of the Landlord and owes duties to the Landlord in providing the Escrow Services and that Deposify does not owe the Tenant any fiduciary duties or other obligations except as specifically described in these Terms of Service and subject to any limitations provided herein.
- Landlord and Tenant confirm that this service is an escrow or safekeeping service and not an electronic funds transfer service as defined under applicable law.
4. Deposify Escrow Service – Summary
- Our Escrow Service allows:
- The Tenant and Landlord to each create a Deposify Escrow Account on the Website that will govern the maintenance of a Tenant’s security deposit;
- Either the Tenant or Landlord to make a Deposit with Deposify as escrow agent for the duration of a Rental Term; and
- The Deposit to be returned to the Tenant at the end of a Rental Term unless a Release Event (as set out in clause 10.1) has occurred in which case all or the relevant part of the Deposit is released to the Landlord and the remainder (if any) returned to Tenant.
- Our Escrow Service also includes a Dispute Resolution Process to manage disagreements between a Landlord and a Tenant in relation to a Deposit. We’ve designed our Escrow Service to minimize the hassles of receiving a security deposit back after the termination of a lease, while maintaining the protections Landlords receive from security deposits.
5. Using the Website
- You may:
- Install our apps provided you comply with, and agree to, these Terms of Service;
- if you do not agree to these Terms of Service, you should not use our Website, install and use our apps, create a Deposify Escrow Account or use our Escrow Services.
- These Terms of Service are an agreement between you and Deposify.
- You acknowledge that the quality and speed of access to Deposify Content and Services will be impacted by the quality and bandwidth of your internet or network service. We are not responsible in any respect for the failure of such services.
- You understand that the technical processing and transmission of the Escrow Service and/or the Deposify Content may involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks. We generally will inform you of any material changes to the technical requirements which may impact on your ability to use the Escrow Services or access the Deposify Content in advance of implementing such changes.
6. Your Deposify Escrow Account
- To use our Escrow Service, you must register and create a Deposify Escrow Account. We can accept or refuse registration for a Deposify Escrow Account in our discretion for any lawful reason.
- You must use your real name when creating a Deposify Escrow Account.
- If you are a Tenant, your registered name must be your legal name and correspond to your name as a tenant in your rental agreement with the Landlord.
- If you are a Landlord, your registered name must be your legal name (whether you are an individual, company, partnership or other legal entity) and correspond to your name as the landlord in your rental agreement with the Tenant.
- If you are a Landlord, you may have your Deposify Escrow Account created by an agent acting on your behalf. Such agent may be a person or legal entity of your choosing and may include a property manager, real estate broker, attorney or other party. This agent may manage your Deposify Escrow Account and execute transactions on your behalf to the same extent that you may use your Deposify Escrow Account directly. You agree to be responsible for all acts of your agent including acts of the agent that are fraudulent, unauthorized, involve theft or embezzlement of the Deposit or funds in your Deposify Escrow Account. You hereby ratify the actions of your agent in managing the Deposify Escrow Account. You may terminate the agency at any time by notice to Deposify in writing. Deposify will have a reasonable period of time to effect the termination and restrict the ability of the agent to manage your Deposify Escrow Account.
- You warrant and represent that the information provided when creating your Deposify Escrow Account is complete, true and accurate in every respect and is not misleading in any respect. You must promptly update your Deposify Escrow Account if any of this information changes.
- You must use the username and password chosen by you as a part of the Deposify Escrow Account registration process.
- You are responsible for keeping your password confidential, safe and secure. If you know or suspect that anyone other than you knows your password or believe its integrity has been compromised, you must change it immediately and notify us at email@example.com.
- You are responsible for ensuring that all details you provide to us through your Deposify Escrow Account are correct including, in particular, any bank account details. Any payment made by us from your Deposify Escrow Account to an incorrect account is not our responsibility and we may charge you for any cost we incur to assist you in recovering such payments.
- You can view the balance of your Deposify Escrow Account at any time through your Deposify Escrow Account. We will make reasonable efforts to ensure the information provided through your Deposify Escrow Account is accurate and up to date. There may be a time lapse for transactions which are in progress.
- We are not liable where your Deposify Escrow Account is used by someone other than you. You agree to notify us immediately by email to firstname.lastname@example.org if you suspect any unauthorized use has been made of your Deposify Escrow Account.
7. Using the Escrow Service
- You must be 18 years of age or older to create and use a Deposify Escrow Account and to use the Escrow Service.
- To use the Escrow Service:
- the Tenant and Landlord must both have a Deposify Escrow Account.
- the Tenant or Landlord must send a Deposify Request to the other party. This request will set out the Landlord’s and Tenant’s details and details of the property, including the amount of the Deposit and the Rental Term.
- the Landlord or Tenant (as applicable) must accept the Deposify Request.
- Once the Landlord or Tenant (as applicable) accepts the Deposify Request sent to it, the Deposit Contract is created. Once the Deposit Contract is created, we will only release the Deposit (in whole or in part) to either the Landlord or Tenant in accordance with clause 10.1 (Release Events and Withdrawals).
- Each Deposit Contract is separate and distinct from any other Deposit Contract. For instance, if a Landlord has multiple properties, a separate and distinct Deposit Contract is created in accordance with clauses 7.2 and 7.3 in respect of each Deposit for each respective property.
- By creating a Deposit Contract, you agree that the Deposit Contract will prevail over any agreement, lease or similar arrangement between the Landlord and Tenant in relation to the Deposit, so far as is permissible under applicable law.
- The Escrow Service may only be used for lawful purposes and transactions. You shall not use the Escrow Service in connection with any marijuana related business, including without limitation the leasing of real estate for purposes of operating a marijuana related business, or any transaction that is illegal or involves transactions directly or indirectly involving individuals, persons or entities with whom US persons are prohibited from engaging pursuant to laws, regulations, sanctions and export controls administered by the Departments of Treasury, Commerce and State or other agencies
- Deposify, in its sole discretion, may refuse to complete any transaction if Deposify has reason to believe the transaction is unauthorized or made by someone other than you, may violate any law, rule or regulation, or if Deposify has other reasonable cause not to honor it.
8. Making a Deposit
- All deposits to or payments from your Deposify Escrow Account shall be made in US dollars. All sums paid to the Deposify Escrow Account will be held on your behalf in our Bank Account.
- We are only deemed to have received money credited to your Deposify Escrow Account when the Bank makes the funds fully available for withdrawal.
- Your Deposify Escrow Account Credit belongs to you.
- The Deposit continues to be the property of the Tenant. A Landlord only has a contractual right to claim on the Deposit in accordance with the Deposit Contract.
- Your Deposify Escrow Account Credit and the Deposit is not an asset or the property of Deposify and is held in escrow for the Tenant and Landlord.
- The use of a credit or debit card may be limited by your agreement with your financial institution and/or by applicable law. We are not liable to any person or entity if your financial institution fails to honor any credit or debit to or from your Deposify Escrow Account.
9. Our Escrow Service Fee
- The Escrow Service Fee is payable by the Tenant for each Deposit Contract.
- The Escrow Service Fee is a one-time fee of 3% of the Deposit up to a maximum of USD $49 for each Deposit Contract plus any applicable sales or other local tax. This fee covers the Services provided hereunder beyond the maintenance of the security deposit under the applicable lease. The Tenant is under no obligations to select the Services that are covered by this Fee and the Tenant does so voluntarily.
- The non-refundable Escrow Service Fee is payable when the Deposit Contract is created in accordance with clause 7.3 and the Deposit available for withdrawal will be the Deposit amount less the fee payable by the Tenant.
- If the Landlord or Tenant pays any sums by credit or debit card, and later cancels the payment, the Tenant or Landlord, as applicable, is required to pay us any charge we incur to our payment processor as a result of the cancellation. We may deduct this amount from any sums credited to your Deposify Escrow Account or the Deposit (in which case the person that made the cancellation is then responsible for making a further payment through its Deposify Escrow Account to increase the Deposit to the amount required under the Deposit Contract).
- We can, at any time, change the Escrow Service Fee and notify you of such change as set out herein. This change will apply for any Deposit Contract which you create after the date of the change, but won’t apply to any existing Deposit Contract. By continuing to use the Escrow Service, you are deemed to have accepted such change.
10. Release Events and Withdrawals
- There are two (2) ways in which a Deposit will be released:
- Pay: The Tenant or Landlord can release some or all of the Deposit to the other party at any time using the Close Function in the Deposify Escrow Account.
- Dispute: If the Deposit is disputed through the Dispute Function, the Deposit will be released to the Landlord and/or Tenant in the manner determined in accordance with clause 17. (Dispute Resolution)
- The Deposit will not be released in any other case (except as set out in clause 18.1 (Termination)).
- When the Deposit is released in accordance with clause 10.1 this will be reflected in the Deposify Escrow Account Credit balance stated in your Deposify Escrow Account.
- You can:
- withdraw at any time your Deposify Escrow Account Credit by using the Withdrawal Function in your Deposify Escrow Account; and
- withdraw the Deposit released to you in accordance with clause 10.1 by using the Withdrawal Function in your Deposify Escrow Account, which will result in the money being paid to the account at a bank selected by you. To withdraw money, you may be required to verify your identity. If verification of your identity is required, your money will not be released until we are able to verify your identity.
- You are responsible for all instructions given to us through your Deposify Escrow Account.
- You agree that we can rely on any instruction (including any mentioned in clause 8) through your Deposify Escrow Account as being an accurate, binding and final instruction from you.
- You must ensure that all instructions are accurate and complete and correctly identify the Deposit or other amount and the nominated bank account for any payments.
- If you give us an instruction within 9am and 4pm on a Banking Day, we will process this instruction as soon as reasonably practicable but such instruction may be processed on a subsequent Banking Day.
- All transactions using our Escrow Service are subject to acceptance and verification by us and the Bank.
- If your instructions or any required information are incomplete, the transaction may not be implemented. We are not responsible or liable for any consequence of this.
- All transactions in your Deposify Escrow Account are subject to having sufficient available funds. You may not create an overdraft or exceed an approved limit in your Deposify Escrow Account.
12. User-Generated Content
- “Contribution” means the audio, video, text, images, pictures, graphics, animations, comments, photographs, submissions or other content uploaded, posted or made available by you or any person using your Deposify Escrow Account through the Website.
- “User-Generated Content” means the audio, video, text, images, pictures, graphics, animations comments, photographs, submissions or other content uploaded, posted or made available by any user through the Website.
- We do not assert any rights of ownership over your Contributions. All Contributions must comply with these Terms of Service.
- You cannot remove or edit your Contributions. You can ask us to remove your Contributions in which case we may do so where we think this can be done easily, though in other cases we may not where, for instance, we consider this to be impractical, unwieldy, inappropriate or difficult or are concerned that it may interfere with any aspect, part or feature of the Escrow Service or others’ User-Generated Content. If you want us to consider removing your Contributions, you need to clearly identify exactly what and where it is.
- You should be aware that your Contributions may be relevant to, and used, in connection with any dispute between any relationship you have with a landlord, tenant or leasing agent.
- You grant us a perpetual, non-terminable, absolute, fully paid-up, royalty-free, worldwide, transferable, sub-licensable, non-exclusive right and license to:
- use, copy, make publicly available in any way, distribute, reformat, excerpt, translate, exploit, adapt, modify, amend, make derivative works of, incorporate into other works, remove, delete or edit your Contributions (in whole or in part) for any reason or purpose whatever and in whatever manner that we may decide;
- attribute your Contributions (in whole or in part) to your Deposify Escrow Account, username or real name, and you waive any “moral rights” in your Contributions; and
- all rights and remedies (including the right to sue for past, present or future infringements) arising out of or in connection with the unauthorized use by third parties of any such Contributions. This clause shall continue to have effect after your Contributions are removed from our Website and after your Deposify Escrow Account has been closed.
- If you do not want to grant us these rights with respect to your Contributions, please do not share or submit them through the Website.
- You warrant and confirm that you have the right to give us the rights set out in this clause, that the Contributions comply with these Terms of Service and that you have the consent of anyone who is identifiable in your Contributions.
- We may show your Deposify Escrow Account username or real name with your Contributions. We may need to contact you for administrative or verification purposes in relation to your Contributions. We may do this using any contact details provided to us.
- We may (but are not obliged to) investigate, monitor or check for accuracy, appropriateness or completeness or compliance with these Terms of Service your Contributions and others’ User-Generated Content. We may (but are not obliged to) edit, block, move, delete or remove any or all of your Contributions and others’ User-Generated Content.
13. Acceptable Usage
- You are responsible for all Contributions made through your Device or Deposify Escrow Account, even if made by someone else.
- Contributions may be read by other users of the Escrow Services and we cannot guarantee that they won’t be republished elsewhere by third parties.
- Contributions must comply with applicable law in any country in which they are made available.
- You must not submit Contributions that:
- are defamatory against any person or business or impinge upon a person’s or business’ good name or reputation;
- are offensive, sexist, homophobic, obscene, hateful or inflammatory, harassing, bullying or threatening to any person;
- may be likely to bully, harass, upset, embarrass, alarm or annoy any other person or business;
- promote or contain sexually explicit material;
- are in breach of: (i) anyone’s privacy; or (ii) confidentiality;
- infringe any third party’s Intellectual Property Rights;
- may cause anxiety or encourage racial or religious hatred or violence;
- may prejudice legal proceedings;
- promote violence or anti-social conduct;
- may be likely to deceive any person;
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, membership of the travelling community or age;
- promote any illegal activity; or
- are used to impersonate any person, or to misrepresent your identity or affiliation with any person.
- You are not permitted to publish in a Contribution other people’s personal data such as addresses, contact details, credit card numbers, national identity numbers or social security numbers.
- We reserve the right to determine whether there has been a breach of these Terms of Service. Our decision is final.
- You agree:
- not to archive or download (other than through caching necessary for use permitted under these Terms of Service) any Deposify Content;
- not to infringe any applicable law (e.g. copyright laws) when using the Escrow Service or streaming, downloading or using Deposify Content;
- not to infringe the rights of, or restrict or inhibit the use or enjoyment of the Escrow Service by, anyone else;
- not to broadcast, rent, lease, sub-license, loan, translate, adapt, vary, modify, copy, frame, reproduce, republish, post, transmit or otherwise use the Escrow Services or Deposify Content in any way except for use permitted under these Terms of Service;
- not to transmit through the Escrow Service any material that is defamatory, offensive, unlawful or otherwise objectionable including material that could cause distress or inconvenience to any person;
- not to use the Escrow Service in a malicious way or in any way that could damage, disable, overburden, impair or compromise in any manner the Escrow Service, its security or operability or our systems or security or interfere with other users;
- not to decompile, reverse engineer or disassemble any software or other products or processes accessible through the Escrow Service or Deposify Content or scrape or harvest Deposify Content from the Escrow Service;
- not to insert any code or product or manipulate the Escrow Service or Deposify Content in any way;
- not to directly or indirectly charge others for accessing or viewing Deposify Content or otherwise using the Escrow Service;
- not to commercialize or resell the Deposify Content or the Escrow Service in any way;
- not to collect or try to collect the contact, usage or other personal data of any person through the Escrow Service;
- not to use the Escrow Service for the promotion of products or services or for any purpose other than use permitted under these Terms of Service; and
- not to disguise or conceal your location and not to attempt to make it appear that you are located at any given time in a country that you are not located in (including by using credit or debit cards for the relevant Appstore account that are not from your country of residence).
- NOTHING IN THESE TERMS OF SERVICE EXCLUDES OR LIMITS OUR LIABILITY FOR FRAUDULENT MISREPRESENTATION, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
- ALL TERMS, CONDITIONS AND WARRANTIES IMPLIED BY LAW (WHETHER UNDER STATUTE, TORT, COMMON LAW, EQUITY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WHILE WE PROVIDE THE ESCROW SERVICES WITH REASONABLE CARE AND MAKE REASONABLE EFFORTS TO KEEP OUR ESCROW SERVICES, WEBSITE AVAILABLE, WE DO NOT GUARANTEE THAT THEY WILL BE FAULT OR ERROR FREE, AVAILABLE 100% OF THE TIME, FREE OF DEGRADATION OR FREE OF OTHER PROBLEMS.
- THE DEPOSIFY CONTENT ON OUR WEBSITE IS PROVIDED FOR GENERAL INFORMATION ONLY. IT IS NOT INTENDED TO AMOUNT TO ADVICE ON WHICH YOU SHOULD RELY. YOU MUST OBTAIN PROFESSIONAL OR SPECIALIST ADVICE BEFORE TAKING, OR REFRAINING FROM, ANY ACTION ON THE BASIS OF THE DEPOSIFY CONTENT ON OUR WEBSITE. ALTHOUGH WE MAKE REASONABLE EFFORTS TO UPDATE THE INFORMATION ON OUR SITE, WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED THAT THE DEPOSIFY CONTENT ON OUR SITE IS ACCURATE, COMPLETE OR UP-TO-DATE.
- WE MAY CHANGE OR REMOVE ANY OR ALL ASPECTS OR FEATURES OF THE ESCROW SERVICE OR OUR WEBSITE FROM TIME TO TIME. HOWEVER, THIS WON’T AFFECT YOUR ABILITY TO BE REPAID THE DEPOSIT TO WHICH YOU ARE ENTITLED.
- WE ARE NOT LIABLE TO YOU IF ANY OTHERS’ USER-GENERATED CONTENT INFRINGES YOUR PRIVACY, GOOD NAME OR OTHER RIGHTS, EVEN IF WE HAVE SEEN THEM OR WERE OR OUGHT TO HAVE BEEN AWARE OF THEIR POTENTIAL IMPLICATIONS FOR YOU.
- WE ARE NOT LIABLE FOR ANY LOSS OF DATA, DELETION OR DESTRUCTION OF CONTRIBUTIONS OR DAMAGE TO YOUR DEVICE OR SOFTWARE.
- OUR LIABILITY TO YOU (WHETHER UNDER CONTRACT, STATUTE, NEGLIGENCE, TORT, EQUITY OR OTHERWISE), WHETHER YOU ARE A TENANT OR LANDLORD, IS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN ALL CASES LIMITED IN AGGREGATE TO THE AMOUNT OF THE DEPOSIT OR OTHER AMOUNT CREDITED TO YOUR DEPOSIFY ESCROW ACCOUNT WHICH WAS OR OUGHT TO HAVE BEEN RELEASED TO YOU UNDER THESE TERMS OF SERVICE AND IN NO CASE WILL OUR LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THIS AMOUNT. IF A LANDLORD HAS MORE THAN ONE DEPOSIT CONTRACT IN PLACE, THE VALUE OF DEPOSITS IS NOT AGGREGATED FOR THE PURPOSES OF THIS CLAUSE 15.8 UNLESS AND ONLY TO THE EXTENT THAT DEPOSIFY WAS IN BREACH OF EACH SUCH DEPOSIT CONTRACT.
- WE ARE NOT LIABLE TO YOU (WHETHER AS LANDLORD OR TENANT) FOR ANY LOSS OR DAMAGE (WHETHER UNDER CONTRACT, NEGLIGENCE, TORT, EQUITY OR OTHERWISE) OTHER THAN THAT SET OUT IN CLAUSE 15.3 EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE IN ADVANCE OR WE WERE OR OUGHT TO HAVE BEEN AWARE OF IT.
- WITHOUT LIMITING OR AFFECTING THE OTHER TERMS OF THIS CLAUSE WE ARE NOT LIABLE TO YOU, IN PARTICULAR, FOR ANY:
- BREACHES OR LIABILITIES ARISING UNDER ANY STATE OR OTHER LAW RELATING TO SECURITY DEPOSITS WHICH ARE NOT RELATED TO THE ESCROW SERVICES SET OUT IN THESE TERMS OF SERVICE.;
- DAMAGE TO YOUR REPUTATION OR GOODWILL;
- LOSS OF OPPORTUNITY OR RENTAL;
- LOSS OF BUSINESS, INCOME, REVENUE OR PROFITS;
- CORRUPTION OR DAMAGE TO EQUIPMENT;
- INCREASED RENTAL PAYMENTS OR SECURITY OR DEPOSIT REQUIREMENTS;
- LIABILITY UNDER ANY CONTRACT TO WHICH YOU ARE A PARTY (INCLUDING ANY CONTRACT WITH A LANDLORD OR TENANT);
- LOSS OR CORRUPTION OF ANY INFORMATION OR DATA RELATING TO YOU, YOUR DEPOSIT OR YOUR DEPOSIFY ESCROW ACCOUNT (THOUGH THIS DOES NOT REMOVE OUR OBLIGATION TO RELEASE TO YOU ANY OF THE DEPOSIT OR YOUR DEPOSIFY ESCROW ACCOUNT CREDIT TO WHICH YOU ARE ENTITLED UNDER THESE TERMS OF SERVICE);
- LOSS OR DAMAGE WHICH WAS NOT FORESEEABLE TO BOTH YOU OR US; AND/OR
- INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE SUFFERED OR INCURRED BY YOU.
- YOU ARE LIABLE TO US AND YOU SHALL FULLY AND EFFECTIVELY INDEMNIFY AND HOLD HARMLESS DEPOSIFY AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYERS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY COSTS, LOSSES, EXPENSES, DAMAGES AND LIABILITIES SUFFERED, INCURRED OR AGREED TO BE PAID OUT BY DEPOSIFY IN CONNECTION WITH ANY CLAIM TAKEN OR THREATENED AGAINST DEPOSIFY ARISING FROM OR RELATED TO YOUR NEGLIGENCE, FRAUD, CRIMINAL BEHAVIOR OR BREACH OF THESE TERMS OF SERVICE. THIS CLAUSE SURVIVES THE TERMINATION OR EXPIRATION OF THE TERMS OF SERVICE.
- ANNEX 1 IS INCORPORATED INTO THESES TERMS OF SERVICE HERE BY REFERENCE. THE BANK WITH WHICH WE PLACE YOUR DEPOSITS IS A THIRD PARTY BENEFICIARY TO THESE TERMS OF SERVICE.
15. Your Personal Data
- You agree that we or the Bank can provide your personal data to any third party in order to affect any transactions which you have instructed us to undertake.
- A Tenant or a Landlord can initiate a dispute by choosing the Dispute Function in their Deposify Escrow Account. This function sends a message to the other party that a Dispute has been triggered and, subject to these Terms of Service, places a hold on the Deposit until a release is triggered in accordance with clause 10.1.
- The Tenant, in its discretion, may, if the Landlord disputes the return of the Deposit, use the Dispute Resolution Process set out in clause 17 (provided the Landlord also agrees to do so). The Tenant makes this choice through the options given to it in its Deposify Escrow Account.
- Both the Landlord and Tenant must elect to use the Dispute Resolution Process or it will not be available. If the Dispute Resolution Process is selected, Landlord and Tenant will then be required to rely on the remedies which are available to them under applicable law.
17. Dispute Resolution Process
- If both the Landlord and Tenant elect to use our Dispute Resolution Process, we enable communications between the Tenant and the Landlord through the private messaging service in their Deposify Escrow Accounts to try resolve the Dispute between them. If both the Landlord and the Tenant agree, Deposify will appoint one of its mediators to attempt to resolve the Dispute. The mediator will accept written statements from the parties and any factual information to support disputed claims. The mediator will make a nonbinding recommendation within forty five (45) days from appointment. There shall be no charge for the services of the mediator.
If the Dispute is resolved, then the Deposit may be released in accordance with the terms of the resolution made between the Tenant and Landlord. This is done by the Landlord or Tenant, as the case may be, issuing a pay instruction through the Close Function in their respective Deposify Escrow Accounts.
- If the Landlord and Tenant do not elect to use our Dispute Resolution Process, then we will hold the Deposit until a court of competent jurisdiction has determined the dispute and valid documentation to reflect such determination has been delivered to Deposify by email to email@example.com in which case the Deposit will be released in accordance with clause 10.1. and the determination of the court. You agree that if we are unsure as to the validity of the documentation provided to us regarding the court’s determination, we may contact either or both of the Landlord or Tenant to verify the determination and, if there is disagreement in this regard, we may contact the court directly to verify the determination. If there has been no resolution of the Dispute within six months of the date that the Dispute Function has been activated by either the Tenant or Landlord, Deposify will return the Deposit to the Landlord.
- We may terminate these Terms of Service at any time if you are in breach of these Terms of Service and release any sums credited to your Deposify Escrow Account to you. Your Deposify Escrow Account will then be terminated.
- These Terms of Service do not have a minimum or finite duration and will continue to be binding on you until you or we terminate your Deposify Escrow Account. As long as Landlord and Tenant both agree, you can terminate your Deposify Escrow Account at any time by closing it in accordance with the procedures provided in Section 10.1(a) of these Terms of Service.
- On termination of the contract created by these Terms of Service for any reason:
- all rights granted to you under these Terms of Service shall cease;
- you must immediately cease all activities authorized by these Terms of Service , including accessing and using your Deposify Escrow Account; and
- The termination of these Terms of Service does not affect any accrued rights, obligations or liabilities of the Landlord, Tenant or us or any provisions of these Terms of Service which are intended to survive, or commence after, termination.
20. Third Party Websites and Materials
- We are not responsible for the availability or content of any third party websites or material accessed through the Escrow Services or User-Generated Content. We do not exercise any control or supervision of content of these linked websites.
- We do not endorse, and shall not be held responsible for any content, advertising, products, services or information on or available from third party websites. Third party websites linked through the Escrow Services are not covered by these Terms of Service and we accept no responsibility for them or for any loss or damage that may arise from your use of them.
21. Linking to our Site
- You may link to our homepage of our Website, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
- You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
- You must not establish a link to our website in any website that is not owned by you.
- Our Website must not be framed on any other site, nor may you create a link to any part of our website other than the home page.
- We reserve the right to withdraw linking permission without notice and with immediate effect.
- The Website in which you are linking must comply in all respects with the standards set out in clause 12.
- If you wish to make any use of content on our site other than that set out above, please contact firstname.lastname@example.org
22. Intellectual Property
- All Intellectual Property Rights in and to the Escrow Service, Website and Deposify Content belong to us and others who have licensed it to us. All rights in the Escrow Service and the Deposify Content are reserved.
- Your use of the Escrow Service and/or the Deposify Content grants no rights to you in relation to the Escrow Service and/or Deposify Content except as expressly stated in these Terms of Service.
- Our status and that of any identified contributors, as the authors of Deposify Content on our website or app must always be acknowledged.
23. Events Beyond our Control
- We are not in breach of these Terms of Service or liable to you if there is any total or partial failure of performance of the Escrow Service or the website resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
- We may suspend or withdraw access to and use of the Escrow Service (including Deposify Escrow Accounts) or our Website (in whole or in part) if there is a breakdown or malfunction of, or connected to, any system or software used in connection with them, or where there is a real or potential security risk or for any other reason whatsoever we feel justifies doing so. We are not liable to you for any suspension or withdrawal of the Escrow Services or our website.
- Unfortunately, the use of the internet, by its nature, is not always secure. As a result, while we have reasonable security measures in place in line with industry standards, we cannot absolutely guarantee the security or privacy of communications made over the internet related to your Deposify Escrow Account or the Escrow Service.
- You are responsible for providing all you require to safely and properly access and use the Escrow Services including a computer, an internet connection and security software.
- There may be a security process which must be followed for certain types of card payment transactions or payments by us to your nominated bank account details while in other cases there may be no security process. We choose in our discretion whether or not to apply a security process. Where there is a security process, and once this has been completed, we may or may not make any further authentication or enquiry.
- You must send any formal notice under these Terms of Service to us by sending it by email to email@example.com
- We may send any formal notice under these Terms of Service to you by sending it by email to the email address registered to your Deposify Escrow Account, by post to the address registered to your Deposify Escrow Account or through an in-app communication.
- If, at any time, any provision of these Terms of Service is or becomes illegal, invalid or unenforceable, that shall not affect or impair the legality, validity or enforceability of the remainder of these Terms of Service (including the remainder of a provision where only part of it is or has become illegal, invalid or unenforceable).
- The exercise by us of any of our rights under these Terms of Service is without prejudice to any of our other rights and remedies. The provisions of these Terms of Service may only be waived by us in writing by express reference to the provision in question. No delay, neglect or forbearance on our part in enforcing any provision of these Terms of Service is a waiver, or in any way prejudices any rights under these Terms of Service. A waiver by us of any breach of any of the provisions of these Terms of Service does not constitute a general waiver of such provision or of any subsequent act contrary to it.
- Your Deposify Escrow Account is personal to you and you may only obtain and create a Deposify Escrow Account on your own behalf.
- We may assign, transfer or otherwise dispose of all or any of our rights or obligations under these Terms of Service, in whole or in part, with prior notice to you, provided that in doing so we do not materially prejudice your interests under these Terms of Service.
30. Compliance with Law
- You must not use the Escrow Service for illegal purposes, including but not limited to fraud, money laundering, terrorism or other criminal activity or to transfer money to persons who may be subject to sanctions.
- We can take whatever action we consider appropriate to meet our legal obligations anywhere in the world (including suspending your Deposify Escrow Account or any transactions) relating to the prevention of fraud, money laundering, terrorism or other criminal activity and to the provision of financial and other services to persons who may be subject to sanctions. If this results in a delay or failure to effect instructions, we are not liable for any resulting loss, damage or other liability suffered by you or any third party. We reserve the right to notify the appropriate authorities and/or terminate a Deposit Contract and return or withhold any Deposit or sum paid where we believe or suspect that our Escrow Service is being used for inappropriate or unlawful purposes or in breach of these Terms of Service.
31. Entire Agreement
- These Terms of Service represent the entire understanding of the Landlord, Tenant and Deposify concerning the Escrow Service (and all related matters) and supersede all prior agreements (whether written, oral or implied) which are hereby revoked by mutual consent. You confirm that you have not relied upon, and have no remedies in respect of, any representations, terms or conditions except those set out in these Terms of Service.
32. Governing Law
- The laws of Massachusetts apply to the formation, interpretation, existence and application of these Terms of Service, and any matter or dispute arising out of or in connection with them (including non-contractual disputes), and the courts of Massachusetts have jurisdiction in connection with the Terms of Service and all such matters and disputes. You hereby agree to submit to the exclusive jurisdiction of such courts for any and all such matters and disputes.
33. About Deposify
- We can be contacted by email at firstname.lastname@example.org and by telephone in Boston, Massachusetts at 617.963.0430 or New York at 646.889.2403
34. Definitions and Interpretation
- Reference to any gender includes all genders and number includes the plural and vice versa and words importing persons include firms or companies. The section headings to the provisions are inserted for convenience of reference only and are not a part of, and do not or affect the construction or interpretation of, the Terms of Service. None of these Terms of Service will be interpreted so as to deprive you of any rights you have under applicable law unless you may waive such rights.
- The following expressions have the meanings given to them below:
“Bank” means the bank chosen by Deposify at which one or more of your Deposits is held.
“Bank Account” means the bank account with the Bank where Deposits from the Tenant and other sums credited to the Deposify Escrow Account by the Landlord, Tenant and others, are kept by Deposify for the purpose of providing the Escrow Service.
“Banking Day” means a day that all banks are open for business in Massachusetts, meaning Monday to Friday, excluding weekends and public holidays in Massachusetts.
“Close Function” is the function in your Deposify Escrow Account that permits you, in accordance with clause 10.1(a), to release some or all of the Deposit to the Landlord (if you are the Tenant) or to the Tenant (if you are the Landlord).
“Deposify Escrow Account” means, as the context so admits or requires, the account set up on the Website by either a Landlord or a Tenant.
“Deposify Escrow Account Credit” means any money standing in credit in your Deposify Escrow Account (but excluding the Deposit).
“Deposify Content” means the audio, video, text, images, graphics, animations or other content made available by us through the Escrow Service.
“Deposify Request” means the request setting out the details of a proposed Deposit Contract (including the Deposit amount, Tenant and Landlord name, Rental Term and property address) that is sent by either the Tenant to the Landlord (or vice versa) through our Website and, once accepted by the other party, creates the Deposit Contract.
“Deposit” means the sum to be held in escrow by Deposify pursuant to these Terms of Service and the Deposit Contract, as that sum is more particularly identified in the Deposify Request.
“Deposit Contract” means the agreement, made in accordance with clause 7 by and between Deposify, the Landlord and Tenant identified in the relevant Deposify Request. The Deposify Contract ensures that the Deposit will be held by Deposify in escrow and will only be released by Deposify in accordance with these Terms of Service. The specific details with respect to a Deposit Contract are set out in the relevant Deposify Request accepted by the Landlord or Tenant, as applicable.
“Dispute” means a dispute between a Landlord and Tenant about a Deposit.
“Dispute Function” means the function in your Deposify Escrow Account that enables you to send a message to, as applicable, the Landlord or Tenant that a Dispute has been triggered subject to these Terms of Service.
“Dispute Resolution Process” means the Dispute resolution process more particularly described in clause 17.
“Escrow Service” means the service provided by Deposify subject to, and in accordance with, these Terms of Service to Landlords and Tenants.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, goodwill, rights in designs and in computer software and all other intellectual property rights, in each case whether registered or unregistered.
“Landlord” means a person that:
- has a Landlord Deposify Escrow Account (whether set up and used by that person or by an agent on their behalf) as permitted under clause 6.2(c). For the purposes of this definition, “agent” means any property management company to which the Landlord has delegated authority; and
- with respect to a particular Deposit Contract, is identified in the Deposify Request as the landlord of the property for which the Deposit is being made.
“Landlord Deposify Escrow Account” means a registered landlord account with Deposify, created and managed through our Website, which contains the Landlord’s user profile.
“Release Event” means any of the release events described in clause 10.
“Rental Term” means the period during which a property is rented or leased by a Tenant as set out in the relevant Deposify Contract. The Rental Period can be extended by the Landlord and Tenant when one of them sends an Extend request through our Website and the other accepts that request.
“Tenant” means a person that:
- has a Tenant Deposify Escrow Account; and
- with respect to a particular Deposit Contract, is identified in the Deposify Request as the tenant of the property for which the Deposit is being made.
“Tenant Deposify Escrow Account” means a registered tenant account with Deposify, created and managed through our Website, which contains the Tenant user profile.
“Withdrawal Function” is the function in your Deposify Escrow Account described in clause 10 that permits you to withdraw and pay money in your Deposify Escrow Account to the bank account details provided by you.
ANNEX 1 TO TERMS OF SERVICE (BERKSHIRE BANK)
If your Deposits are held by Deposify at Berkshire Bank, this Annex applies to you as part of the Terms of Service between you and Deposify. In the event of any conflict or inconsistency between this Annex and any other agreement, disclosure, or understanding between you and Deposify, including the main body of the Terms of Service, this Annex will govern and control.
- Deposits placed at Berkshire Bank by Deposify as your agent will be held in aggregated deposit accounts. Deposify is solely responsible for maintaining records of each Landlord’s and Tenant’s respective balances in the aggregated accounts at any given time. Berkshire Bank will pay interest on the balances in each of the accounts held by Deposify as your agent at a rate that is comparable to rates Berkshire Bank pays on escrow savings accounts in the same market as the relevant Deposify Escrow Account. Timing, calculations, methodology, and payment of interest will be in accordance with Berkshire Bank’s customary practices for escrow savings accounts in Berkshire Bank’s sole and absolute discretion. Deposify is solely responsible for tracking, determining, reporting, and paying individual Landlord’s and Tenant’s respective account balances and interest earnings. You will not receive bank statements from Berkshire Bank. All statements and reporting to as well as payments to you will be the sole responsibility of Deposify.
- You acknowledge and agree that Deposify and Berkshire Bank are independent contractors. You further acknowledge and agree that if the relationship between Deposify and Berkshire Bank ends, under certain circumstances you may, at Berkshire Bank’s election, automatically become a customer of Berkshire Bank, in which case Berkshire Bank will automatically become the agent for all of your funds formerly held by Deposify as your agent. If this occurs, then Berkshire Bank may move the your funds to individual escrow savings accounts, deposit escrow sub accounts (DESA), or other account types as Berkshire Bank deems appropriate in its sole and absolute discretion. All funds moved out of the aggregated accounts into other account types will be subject to Berkshire Bank’s then-current terms and conditions applicable to each of the relevant account types, and disclosures will be provided to you by Berkshire Bank as required by law. If you do not become a Berkshire Bank customer under the circumstances described above, you will either receive your funds from Deposify or have your funds transferred by Deposify to another depository institution. Deposify will be solely responsible for notifying you regarding the disposition of your funds.
- You represent and warrant that:
- all information you or anyone acting as your agent provides to Deposify is and will remain true and accurate, and that if any information about you changes, you will notify Deposify immediately;
- you will not use Deposify or any Deposify services in connection with a lease of any property to a marijuana business; and
- you are not on any Specially Designated Nationals And Blocked Persons List (SDN) maintained by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury and any other government list that would prohibit Berkshire Bank or Deposify from doing business with you (any, a “Government Exclusion List”).
- You acknowledge and agree that Deposify and Berkshire Bank may check any of your and your agents’ personal information against Government Exclusion Lists or perform any other checks required by either of their regulators or applicable law. If you appear on any Government Exclusion List, you will not be permitted to use Deposify’s Website or services and will have no recourse against Deposify or Berkshire Bank. Further, funds associated with any individuals or entities whose name appears on any Government Exclusion List at any time may be frozen by Berkshire Bank or Deposify and may be reported to any regulatory agency or government body.
- You acknowledge and agree that Berkshire Bank may act solely upon instructions from Deposify with regard to the disbursement, return, or payment of your funds, and you will have no right to instruct or otherwise communicate with Berkshire Bank regarding the disposition of any of your funds held by Deposify on your behalf at Berkshire Bank. Any dispute resolution process offered by Deposify is only for you and Deposify and in no way involves Berkshire Bank. You covenant that you will not involve or attempt to involve Berkshire Bank in any dispute resolution process offered by Deposify, including any mediation. You further covenant that any agreements between you and Deposify concerning any dispute resolution process and any outcomes or agreements resulting from any dispute resolution process, including any mediation, will not involve or in any way be binding upon Berkshire Bank.
- BERKSHIRE BANK MAKES NO WARRANTIES OF ANY KIND TO YOU AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY STATUTORY WARRANTIES AND INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
- YOU AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST BERKSHIRE BANK IN RESPECT OF YOUR FUNDS HELD BY DEPOSIFY AT BERKSHIRE BANK AND YOUR USE OF DEPOSIFY’S SERVICES, SYSTEMS, PLATFORMS, OR SOFTWARE. YOU FURTHER AGREE TO RELEASE AND HOLD BERKSHIRE BANK HARMLESS FROM ANY CLAIMS REGARDING DEPOSIFY (INCLUDING ITS AFFILIATES, CONTRACTORS, AND EMPLOYEES), INCLUDING WITHOUT LIMITATION DEPOSIFY’S ACTS OR OMISSIONS AS AGENT FOR THE DEPOSIT OF YOUR FUNDS, DEPOSIFY’S SERVICES, SYSTEMS, PLATFORMS, OR SOFTWARE, THE PAYMENT OF FUNDS BY BERKSHIRE BANK TO ANY PERSON OR COMPANY AT DEPOSIFY’S DIRECTION, AND ANY OTHER MATTER RELATING TO YOUR RELATIONSHIP WITH DEPOSIFY OR THE ULTIMATE DISPOSITION OF ANY FUNDS PLACED ON DEPOSIT WITH BERKSHIRE BANK VIA DEPOSIFY.
IN NO EVENT WILL BERKSHIRE BANK BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR FOR ANY DAMAGES OR LIABILITY TO YOU FOR LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL OR SIMILAR LOSSES, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODS, LOSS OF USE, OR LOSS OR CORRUPTION OF DATA OR INFORMATION. WITHOUT LIMITING THE APPLICABILITY OF ANY OF THE EXCLUSIONS IN THE PRECEDING SENTENCE, IF, NOTWITHSTANDING A YOUR RELEASE OF BERKSHIRE BANK AND WAIVER OF ALL CLAIMS AGAINST IT PURSUANT TO OTHER PROVISIONS OF THE DEPOSIFY TERMS OF SERVICE A COURT OF COMPETENT JURISDICTION NONETHELESS FINDS BERKSHIRE BANK LIABLE TO YOU, IN NO EVENT WILL BERKSHIRE BANK’S AGGREGATE LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100.00).