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Terms & Conditions
BerkShares, Inc.
Last Updated November 23, 2021
Effective November 23, 2021
This BerkShares User Agreement (“Agreement”) is a contract between you and BerkShares, Inc. (“BerkShares,” “we” or “us”) and governs the terms and conditions that apply to your BerkShares Wallet and BerkShares services. By using your BerkShares Wallet, you agree to these terms.
This Agreement includes an Arbitration provision that governs any disputes between you and us. This provision will:
Eliminate your right to a trial by jury; and
Substantially affect your rights, including preventing you from bringing, joining or participating in class or consolidated proceedings.
You agree that we may provide notices, disclosures and amendments to this Agreement, and other information relating to your BerkShares Wallet by electronic means, including posting such materials online at https://berkshares.org/about/terms-and-conditions/.
Your BerkShares Wallet is a digital wallet that enables you to (i) pre-fund a balance for the payment of goods and services with local businesses, (ii) transact peer-to-peer with other BerkShares account holders, (iii) redeem the dollar value of your BerkShares Wallet balance to US Dollar (applicable to business BerkShares Wallets generally and to personal BerkShares Wallets only when the balance is B$ 5 or less, equal to $5 USD or less, in both cases subject to applicable fees discussed below), and (iv) utilize other services, features and content made available through the BerkShares application (collectively “Services”). Your BerkShares Wallet and Services can only be accessed through the BerkShares application.
BerkShares, Inc. is not a money transmitter and does not perform money transmission or money transfer or payment services. In order to use the payment functionality of our application, you must open a “Dwolla Account” provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla’s financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize us to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla Account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla Account activity, and can be reached at info@berkshares.org.
To the extent that your BerkShares Wallet permits you to hold a stored value of funds associated with your BerkShares Wallet (a “BerkShares Balance”), any funds recorded as held in your BerkShares Balance are held by our Financial Institution Partners in one or more pooled holding accounts. These Financial Institution Partners are currently Lee Bank and Salisbury Bank.
While the BerkShares tokens themselves are not eligible for FDIC insurance, the underlying USD deposits, as represented by the dollar value of the balance in your BerkShares Wallet, is eligible for FDIC pass-through insurance. We will hold the underlying USD funds as your agent and custodian, and you will be the ultimate beneficial owner of the USD funds. We will deposit your funds into one or more holding accounts we maintain for the benefit of eligible BerkShares Wallet users at one or more FDIC-insured banks (currently Lee Bank and Salisbury Bank).
Subject to the limitations set forth below, this means that if a bank holding the custodial account in which your funds are deposited fails, you should be eligible to be insured by the FDIC up to the standard maximum deposit insurance amount (currently $250,000) based on the dollar equivalent of your BerkShares balance at the time of the bank failure. Note that the FDIC insurance maximum applies to the aggregate of all funds that you have on deposit in all accounts you have with the same bank in a particular FDIC ownership category. If the total balance you have at any bank exceeds FDIC insurance limits, the amount in excess of those limits could be lost if the bank fails.
FDIC insurance coverage is contingent upon our maintaining accurate records and on both us and the bank in which the funds are deposited otherwise complying with requirements in FDIC regulations. The determinations of whether these requirements have been satisfied and whether you are eligible for insurance coverage would be made by the FDIC at the time that a bank holding a custodial account fails.
In funding your BerkShares Wallet balances, there might be a delay between the time that funds are credited and when we actually transfer those funds to one of the holding accounts. Similarly, when redeeming your BerkShares Wallet balances, there might be a delay between the time that funds are debited and when we actually transfer those funds from one of the holding accounts to your financial institution. In both cases, the amount in transit may not be insured by the FDIC in your name during this period. Funds in transit between your financial institution and our Financial Institution Partners are processed through third-party Financial Institution Partners using accounts that may not provide you the full benefit of FDIC insurance should those third-party Financial Institution Partners fail.
BerkShares Wallets are available to Business Customers (as more specifically defined below) and to Personal Customers. BerkShares Wallets must be used in accordance with these Terms and Conditions. You agree that any information you provide to BerkShares to create your BerkShares Wallet is true and accurate at the time you create your BerkShares Wallet, and you agree to update that information from time to time to ensure that it remains true and accurate at all times you have an open BerkShares Wallet. If you fail to update this information, we may suspend or terminate your BerkShares Wallet. You authorize us to share this information with our Financial Institution Partners and other third parties in accordance with our Privacy Policy. When you load or redeem your BerkShares balance, which requires transfer of data between your financial institution and our Financial Institution Partners and other third-party financial institutions.
We offer BerkShares Wallets for two types of purposes: personal wallets and approved merchant wallets. You may only have one personal wallet. To create a personal wallet, you must be a resident of the United States or one of its territories, be at least 18 years old unless the age of majority in your state of residence is a different age (in which case, you must be at least that age) and use a cellular/wireless telephone number that you own. Your BerkShares Wallet is a personal wallet unless you have received our express written approval to open a business BerkShares wallet. In addition to this agreement, approved merchants accounts are also subject to all terms set forth in the “Use of BerkShares by Merchants” section of this agreement.
Except for commercial transactions expressly authorized by BerkShares, for example, transactions with authorized merchants or business profiles, personal accounts may not be used to conduct business, commercial, or merchant transactions with other personal accounts, which includes paying or accepting payment from other personal accounts held by users you do not personally know for goods or services (for example, concert tickets, electronic equipment, sneakers, a watch, or other merchandise, deposits for apartments, dog walking, etc.).
Keep confidential any credentials you use to access your BerkShares Wallet and BerkShares services. As applicable, you must keep your phone number, email address, and other contact information current in your BerkShares Wallet profile.
Your personal wallet allows you to acquire a balance in your BerkShares Wallet, which represents the form of stored value accepted across the BerkShares program. The dollar value that you load onto your BerkShares Wallet is a prepayment for the goods and services of participating stores. We offer the BerkShares Wallet to make it easier for you to shop and transact with participating businesses and to encourage the growth of the local economy. Unless otherwise required by law or permitted by this Agreement, in the ordinary course of business, the dollar value on your personal BerkShares Wallet is nonrefundable and may not be redeemed for cash when the balance is five (5) BerkShares, equivalent to $5 USD, or more. Business BerkShares Wallets shall be eligible to redeem their BerkShares balances for their dollar values in cash irrespective of their BerkShares balance, pursuant to the terms in the “Use of BerkShares by Merchants” section of this agreement.
In the event that we cease to operate the BerkShares program, all BerkShares Wallet holders (both personal and business) would be eligible for redemption of their BerkShares Wallet balances for the dollar value in cash, paid from the funds held in the designated holding accounts at our Financial Institution Partners. You will not have any other claims for assets from us beyond the dollar value of your BerkShares Wallet balance in the event that the BerkShares program ceases to operate.
Security. You are solely responsible for keeping secret your login information and password on the BerkShares application that you use to access your BerkShares Wallet. You are responsible for all activity conducted using your BerkShares Wallet whether or not you authorized the use of your BerkShares Wallet.
When registering for your BerkShares Wallet, you are required to provide current, complete, and accurate information for all required elements on the registration page, including your full legal name. If any of this information changes, it is your obligation to update such information as soon as possible. From time to time, we may also require you to provide further information as a condition for continued use of the Services, including but not limited to a copy of your government-issued photo ID. If you wish to link a bank account or debit card to your BerkShares Wallet, you authorize BerkShares, directly or through third parties, to make any inquiries we deem necessary to validate your identity and account information. This may include requesting further information about you such as your date of birth, email address, physical address, social security number, and bank account or card information so that we can confirm your identity. We reserve the right to maintain your account registration information after you close your account for business and regulatory compliance purposes.
From time to time, we may be required to request further information regarding your transactions in order to comply with federal and state law. Failure to provide such information in a timely fashion may result in the suspension of your ability to transact until you provide such information or the closure of your BerkShares Wallet.
ACH Payments. You agree that you will provide us with sufficient information to satisfy the requirements of the Nacha Operating Rules to create instructions to make or receive a payment in the ACH network. We facilitate ACH payments through third party service providers and financial institutions to enable funding and redeeming of balances in the BerkShares Wallet. Financial institutions that facilitate ACH payments have established cutoff times for receipt of payment instructions and you understand that we cannot and do not guarantee any specific time in which ACH transactions initiated through your BerkShares Wallet will be completed.
Introduction. All value in your BerkShares Wallet is recorded as a balance in BerkShares digital tokens (“BerkShares”). BerkShares are cryptographic instruments that represent value between participants in the BerkShares program, and perform a recordkeeping and ledger function for BerkShares transactions. Each BerkShares token can only be created upon a successful transfer of one US Dollar to BerkShares, Inc. through any of the methods described below (“mint”). Subsequent transfers of BerkShares represent transactions and changes in balances of BerkShares Wallets between BerkShares Wallet holders. When one US Dollar is transferred from BerkShares, Inc. to an account holder, a BerkShares token will be retired from circulation (“burn”). The total number of BerkShares outstanding should never be greater than the total amount of US Dollars held by BerkShares, Inc. on behalf of the BerkShares program and its participants. All BerkShares transactions, including minting, burning, and transfers between BerkShares Wallets, are recorded to a public blockchain ledger (currently Celo).
Funding your BerkShares Wallet. In order to fund your BerkShares Wallet, you will need to link a checking or savings account from your financial institution (“Linked Payment Account”). This can be done through the BerkShares application and is facilitated by either us or a third party service provider. Once your financial institution has been successfully linked, you may authorize the transfer of funds from Linked Payment Account to BerkShares, Inc. in order to fund an equivalent amount of BerkShares in your BerkShares Wallet. The authorization process will validate your bank account details, status, available funds and other information to ensure that it matches what the bank has on file. Your bank or BerkShares, Inc. may attempt to contact you for additional information prior to authorizing the transaction amount.
Your bank may pre-authorize a charge to your deposit or checking account and place a temporary hold on the funds before your transaction is fulfilled. Your BerkShares Wallet will only be credited when the transaction is successful and funds have been received by our Financial Institution Partners, which may take 1-3 business days. If your transaction is canceled or returned, the balance in your BerkShares Wallet will not be credited. In the event that we have credited your BerkShares Wallet and the transaction is later canceled, we will reverse the credit to your BerkShares Wallet and reduce the balance accordingly.
Limitations. For personal BerkShares Wallets, you cannot have more than 2,000 BerkShares (equivalent to $2,000 US Dollars) “associated” with your wallet in a single calendar day. This means the following: 1) Your total balance can never exceed an equivalent of $2,000 at any time; 2) Even if your balance does not exceed an equivalent of $2,000 at any time, you would still be deemed to have exceeded the $2,000 cap if you add funds to the account during the day, which combined with the highest total of that day, would exceed $2,000. For example, if your account has an equivalent value of $1,500, and you spend an equivalent of $1,000 and subsequently reload an equivalent of $600 before the end of the day, you would be deemed to have exceeded the threshold. Thus the system would not permit you to add more than an equivalent of $500 in this scenario.
The total value you are permitted to load onto all of your BerkShares Wallets, together with the value of any new BerkShares Wallets that you open, may not exceed $10,000 on any given day.
You may use your BerkShares Wallet at brick-and-mortar locations in the United States of the merchants and businesses whose logos appear in the directory. Online redemption may not be available for all merchants. Each time you use your BerkShares Wallet, you authorize us to reduce the value available on your BerkShares Wallet by the amount of the transaction. Your BerkShares Wallet cannot be: (1) redeemed for its cash value except when the balance is five (5) BerkShares or less (equivalent to $5 US Dollars or less); (2) used to obtain cash or other gift cards in any transaction; (3) used for illegal transactions; (4) used to make foreign transactions; or (5) used to pay credit card, charge card, or similar accounts with the merchants. For security reasons, we may limit the amount or number of transactions you can make with your BerkShares Wallet. We may refuse to process any transaction that we believe may violate the terms of this Agreement. YOU ARE NOT ALLOWED TO MAKE A PURCHASE TRANSACTION THAT WOULD EXCEED THE BALANCE OF THE FUNDS AVAILABLE IN YOUR WALLET. If you attempt to use the BerkShares Wallet when there are insufficient funds associated with it, the transaction will generally be declined.
Nevertheless, if a transaction that exceeds the balance of the funds available on your BerkShares Wallet occurs due to a system malfunction or otherwise, you will remain fully liable to us for the amount of the transaction. We may withdraw from your Linked Payment Account the difference in US Dollars, or pursue other avenues to collect the amount due. If you do not have enough funds available on your BerkShares Wallet, you may be able to instruct the merchant to perform a “split transaction” to charge part of the purchase through the BerkShares Wallet and pay the remaining amount with another form of payment.
Approved merchants may access a “business BerkShares wallet” upon receipt of express permission by BerkShares, Inc. Merchants operating a business BerkShares wallet certify that they meet BerkShares’ eligibility requirements (primarily being a business that is local or regional to the general geographic area) or have received express permission from BerkShares permitting the merchant to operate a business BerkShares wallet. Merchants consent to be bound by the full terms of the agreement set forth here, including terms applicable to merchants and non-merchants alike, unless otherwise exempt under this agreement or applicable law. Merchants expressly acknowledge that their use of a business BerkShares wallet is subject to certain fees upon redemption of BerkShares into US dollars.
Your business BerkShares Wallet is a digital wallet that enables you to (i) pre-fund a balance for the payment of goods and services with local businesses, (ii) transact peer-to-peer with other BerkShares account holders, (iii) redeem the dollar value of your BerkShares Wallet balance to US Dollar, subject to applicable fees discussed below, and (iv) utilize other services, features and content made available through the BerkShares application (collectively “Services”). Your BerkShares Wallet and Services can only be accessed through the BerkShares application.
General Service Requirements.
Merchant shall be solely responsible for:
Establishing, hosting and maintenance of its sales channels, including brick and mortar, Website(s) and its connection to the Internet (the ” Merchant Web(s) “), fulfilling all orders for products and services sold by Merchant to its users, including without limitation transmitting Merchant’s registration information and other relevant data to BerkShares, Inc. servers and the BerkShares application, ensuring that any data stored or transmitted by Merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by BerkShares, Inc., is securely collected and is not corrupted due to Merchant’s systems. Merchant is also responsible for reviewing the Transactions in its account on a regular basis and notifying BerkShares promptly of suspected unauthorized activity through its account;
Establishing and maintaining a commercial banking relationship with one or more Financial Institutions. The terms of such a relationship shall be determined solely by Merchant and the Financial Institution;
Keeping its login name and password confidential. Merchant shall notify BerkShares immediately upon learning of any unauthorized use of its user name or password. Merchant shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances, both in accordance with BerkShares requirements.
Maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Merchant shall comply with BerkShare’s requests for reasonable action on Merchant’s part, to the extent necessary, to maintain security and integrity of the Services;
Updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Merchant enrollment and payment information current and updated on the Manager website; and
Merchant agrees, and hereby represents and warrants that Merchant shall (A) use the Services in accordance with the applicable user guides and other documentation; and (B) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
FEES AND PAYMENT TERMS
As consideration for the services you purchased, you agree to abide by and pay BerkShares the applicable service(s) fees set forth on our website, or as otherwise provided by BerkShares concurrently with this Agreement, at the time of your selection, or, if applicable, upon receipt of your invoice from BerkShares. All fees are assessed upon request by a user to redeem BerkShares tokens into US dollars. Fees will be assessed on any redemption of BerkShares tokens into US dollars regardless of whether those tokens were held in a personal wallet or business BerkShares wallet. BerkShares will assess a fee of 1.5% on all redemptions, with a minimum fee of $0.50 to cover basic banking transaction cost, unless updated or changed to this Agreement. In other words, the fee will be the higher of $0.50 or 1.5% of the total redemption amount. For example, a redemption of $40 worth of BerkShares will incur a transaction fee of $0.60, equating to 1.5%. A redemption of $30 worth of BerkShares will incur the minimum fee of $0.50. You hereby consent that any value received in your business BerkShares wallet will be redeemable for US dollars only through BerkShares and will be subject to all applicable fees.
All fees are due immediately and are non-refundable, except as otherwise expressly noted herein or in one or more attached Schedules. Fees will be deducted from the total amount sought to be redeemed, and payment of all applicable fees is a requirement for continued use of the Services. Our terms and conditions may be periodically updated, and may impact your participation as a Merchant in the future by changing or adding requirements including, but not limited to, successful completion of any applicable authentication procedure. Additional payment terms may apply to the BerkShares Services you purchase. You are solely responsible for the checking or savings account information you provide to BerkShares and must promptly inform BerkShares of any changes thereto (e.g., change of account number). Changes should be communicated to BerkShares by entering the updated information through the BerkShares application or by contacting BerkShares. All payments shall be made in US dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, it will only be via the same payment method used by you to pay for the Services.
You agree to pay all sales and other taxes related to BerkShares services or payments made by you hereunder. All payments due to BerkShares shall be made without any deduction or withholding on account of any tax, duty, charge or penalty except as required by law, in which case the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, BerkShares receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Setup fees, if any, will become payable on the applicable effective date for the applicable BerkShares services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less. Merchant hereby authorizes BerkShares to debit Merchant’s account for the fees due for the Services, and Merchant shall provide to BerkShares proper debit authorization for purposes of allowing BerkShares to debit the applicable Merchant account to collect fees due under this Agreement. All fees owed by Merchant to third parties (for example, Financial Institutions, Financial Processors and merchant account providers), are Merchant’s sole responsibility and are not covered by this Agreement.
From time to time, we may in our sole discretion, run promotional programs associated with the BerkShares program (“Promotions”). Such Promotions are subject to these terms, as well as additional terms as indicated in connection with the Promotions. We reserve the right to modify the terms and conditions of any Promotion at any time, including and up to terminating the Promotion.
We do not charge any activation, service, dormancy or inactivity fees in connection with your BerkShares Wallet. For businesses that accept BerkShares for payment of goods and services, there is a redemption fee of 1.5% to cash out BerkShares for their dollar value (with a minimum fee of $0.50 USD). For personal account holders, in order to be eligible for redemption, the balance in BerkShares must be equivalent to $5.00 or less and there is a flat fee of $0.50 USD to redeem. Your BerkShares Wallet has no expiration date and you may keep your BerkShares balance indefinitely.
When you use your BerkShares Wallet, you will automatically receive transaction receipts, which are accessible through your Transaction History under the Menu. The receipt will indicate that the purchase was made using a BerkShares Wallet, the name of the counterparty, the amount of BerkShares transacted, a time and date stamp, and a transaction confirmation number known as a “hash,” which enables you to independently verify the validity of the transaction on the public blockchain ledger. You can always see the remaining balance of your BerkShares Wallet in the BerkShares application. Please check your Transaction History regularly to ensure that your Transaction History and wallet balance are correct. We will not send you statements of activity on your BerkShares Wallet.
We offer the BerkShares Wallet to make it easier for you to shop with participating merchants and to encourage the growth of the local economy. BerkShares are only redeemable at eligible businesses in Berkshire County, Massachusetts that are part of the BerkShares program. Participating businesses can be found under the Where to Spend section (under Menu) in your BerkShares application and on the online directory at https://berkshares.org/directory/. Participating businesses may also be identified by the BerkShares logo on their storefronts or at the cash register.
Please note that the stores currently listed at this link will not necessarily accept BerkShares. Businesses may experience technical difficulties or discontinue their participation in the BerkShares program at any time.
We will not accept any BerkShares Wallet, or will limit use of any BerkShares Wallet, if we reasonably believe that the use is unauthorized, fraudulent or otherwise unlawful, and we consider such action appropriate to limit our risk. BerkShares users are authorized to engage in User-to-User exchanges of BerkShares; however, we cannot guarantee these transactions. Consequently, BerkShares has no liability to you for any third-party fraud or unlawful activity associated with any BerkShares Wallet balance. If BerkShares discovers any BerkShares Wallet or BerkShares Wallet balance was sourced or derived from fraud or other unlawful means, we may in our sole discretion, cancel all impacted BerkShares Wallets and retain all related BerkShares Wallet balances without notice to you. We may use retained BerkShares Wallet balances to help offset our liability to financial institutions and payment processors used to load or redeem BerkShares Wallet balances.
Full liability for unauthorized transactions. You should treat your BerkShares Wallet balance like cash and not disclose your BerkShares Wallet information to anyone. If your BerkShares Wallet information is lost or stolen, anyone who obtains possession of either may use your BerkShares Wallet. You are responsible for all transactions with your BerkShares Wallet, including unauthorized transactions.
Notice of security breach or Error. If your Wallet credentials become lost, stolen, or forgotten, or you believe your BerkShares Wallet has been accessed without your authorization, report it as soon as possible by emailing info@berkshares.org. We will freeze the remaining balance on your BerkShares Wallet at the time you notify us and will load that remaining balance on a replacement BerkShares Wallet.
Please also contact us at info@berkshares.org if you believe that a transaction has been processed incorrectly to or from your BerkShares Wallet and your Linked Payment Account, or your BerkShares Wallet transaction history contains an error (“Error”). For clarity, if you give a third party access to your BerkShares Wallet and that person conducts transactions you did not anticipate, these transactions are not Errors. You must notify us within sixty (60) days after the Error first appeared in your transaction history.
Required Information for Error Notice. When you notify us of the Error, you must provide: (i) Your name and contact; (ii) the nature of the suspected Error and why you believe it is an Error; and (iii) the dollar amount of the Error.
Investigation of Errors. We will generally determine whether an Error occurred within ten (10) business days after you: 1) notify us and 2) provide all required information. If we need more time, we may take up to 45 days to investigate, except that for Errors involving new BerkShares Wallets, we may take up to 90 days to investigate. We will tell you the results of our investigation within 3 business days after completing our investigation. If we determine there was no Error, we will provide you with a written explanation. You may ask for copies of the documents that we used in our investigation.
Corrections and reversals. We will correct the balance of your BerkShares Wallet if we believe that a clerical, billing, or accounting error occurred. As an example, if we credit your BerkShares Wallet and the funding transaction later fails (“Reversal”), we will correct your balance. If you have questions regarding your Transaction History or any correction, or if you wish to dispute any Transaction or correction that has been applied to your BerkShares Wallet, please email info@berkshares.org. Assuming you provide sufficient details, we will review your claim and tell you what we find. We will correct any errors promptly after we finish our review. If we do not find any errors, we will explain what we found. We have no obligation to review or correct any billing error unless you provide us sufficient notice for us to review your claim within sixty (60) days of the date of the transaction in question.
Actions We May Take. To recover any amounts lost due to a Reversal, you authorize BerkShares to debit your BerkShares Wallet or your Linked Payment Account for such amount. Additionally, at BerkShare’s option, BerkShares may suspend your BerkShares Wallet or engage in collection activities. For all other liabilities or if BerkShares determines, in our sole discretion, that you have breached these Terms and Conditions or that your BerkShares Wallet presents a risk or other threat to other BerkShares account holders, the BerkShares application and the BerkShares program, or if we are unable to verify your identity, we may take any of the following actions (without limiting or foregoing any other remedies available to us under the law or the terms of this TOS):
Suspending your access to your BerkShares Wallet and any balance held thereof;
Closing your BerkShares Wallet;
Contacting your bank or credit union, contacting law enforcement or other third parties impacted by your activities; and
Taking legal action against you.
Once a transaction has been initiated in your BerkShares Wallet, it cannot be reversed by BerkShares, Inc. Except as set forth in the BerkShares Terms and Conditions, all transactions processed through the BerkShares Services are non-refundable and non-reversible. You may have additional refund or chargeback rights under your agreement with the recipient of such funds (i.e. merchants), your bank, or applicable law. If the business where you made the transaction has a return policy that applies to you, you may use the BerkShares application to facilitate a return to credit your BerkShares Wallet balance. Search for the transaction receipt in your Transaction History, select “I want to make a return,” and the cashier will scan your transaction QR code to effectuate the return. The cashier cannot refund you more than the total transaction amount. Once the return is authorized and the transaction is complete, your BerkShares Wallet balance will be credited.
You should periodically review statements from your bank, which should reflect all applicable transactions made using that payment method, for example, to fund your BerkShares Wallet. You can also access the record of your transactions under Transaction History in your BerkShares application.
If a payment made to tokenize U.S. Dollars for BerkShares is reversed by your bank or our Financial Institution partners or third party service providers after a tokenization of U.S. Dollars for BerkShares is completed, then BerkShares, Inc. reserves the right to (i) retroactively cancel such tokenization of U.S. Dollars for BerkShares and deduct such BerkShares from your Account, (ii) deduct such amounts from future tokenizations to your BerkShares Wallet or otherwise received into your BerkShares Wallet, (iii) suspend your BerkShares Wallet and access to the services until resolved, (iv) if you maintain more than one BerkShares Wallet, set off the negative amount of BerkShares in one Wallet by applying the amount of BerkShares you hold in your other Wallets(s) against the negative amount, and (v) pursue legal action or any other means of recovery legally available. To secure your performance of this Agreement, you grant to BerkShares, Inc. the right to (a) block transfers of BerkShares from your account, (b) set off any fees or other amounts owed by you against funds BerkShares, Inc. holds on your behalf.
In the event that BerkShares, Inc. is forced to engage a third party to assist with the recovery of any funds owed by you to BerkShares, Inc., you will be charged any fees or expenses that are incurred by BerkShares, Inc. in connection with such recovery efforts, including, but not limited to, collection fees, legal fees, and convenience fees charged by third parties. You hereby explicitly agree that all communication in relation to funds owed by you to BerkShares, Inc. or a delinquent account will be made by electronic mail or phone. Such communication may be made by BerkShares, Inc. or by any third party acting on its behalf, including but not limited to a third-party collection agent. Note that if BerkShares, Inc. is forced to engage such third parties in connection with recovering amounts that you owe BerkShares, Inc., your consumer credit report and credit score may be negatively impacted.
We may, in our sole and absolute discretion, without liability to you or any third party, refuse to let you open a BerkShares Wallet, suspend your BerkShares Wallet, consolidate BerkShares Wallets if you have more than one, or terminate your BerkShares Wallet or your use of one or more of the Services. Such actions may be taken as a result of a number of factors, including without limitation, account inactivity, failure to respond to customer support requests, failure to positively identify you, a court order, or your violation of the terms of this Agreement. BerkShares, Inc. may also temporarily suspend access to your BerkShares Wallet in the event that a technical problem causes system outage or errors until the problem is resolved.
You may terminate this Agreement at any time by closing your BerkShares Wallet in accordance with this Agreement. In order to do so, you should contact info@berkshares.org who will assist you in closing your BerkShares Wallet. You should also contact info@berkshares.org if you are seeking to close a BerkShares Wallet on behalf of a deceased User. You may not close a BerkShares Wallet if we determine, in our sole discretion, that such closure is being performed in an effort to evade a legal or regulatory investigation or avoid paying any amounts otherwise due to us.
We encourage you to withdraw any remaining balance of BerkShares by spending it or transacting with participating BerkShares businesses prior to issuing a request to close your BerkShares Wallet. Personal account holders may only redeem to cash when their BerkShares Wallet balance is five (5) BerkShares or less, or $5 USD. We will be unable to close your BerkShares Wallet at your request unless you have withdrawn your remaining balance of BerkShares. We reserve the right to restrict or refuse to permit withdrawals from your BerkShares Wallet if (i) your BerkShares Wallet has otherwise been suspended or closed by us in accordance with this Agreement; (ii) to do so would be prohibited by law or a court order or we have determined that the BerkShares were obtained fraudulently; or (iii) you have not undergone the required identity verification procedure such that your identity has been verified, as indicated by your BerkShares Wallet.
Upon closure or suspension of your BerkShares Wallet, you authorize us to cancel or suspend pending transactions.
In the event that you or BerkShares, Inc. terminates this Agreement or your access to the Services, or deactivates or cancels your BerkShares Wallet, you remain liable for all activity conducted with or in connection with your BerkShares Wallet while it was open and for all amounts due hereunder.
In the event that the BerkShares program ceases to exist, and you do not request redemption of your outstanding BerkShares Wallet balance for their dollar equivalent in cash, and/or we are unable to successfully transfer the underlying US Dollar funds to your Linked Payment Account, our Financial Institution partners may be required by law to deem the funds to be abandoned after a certain period of inactivity (a “Dormant Account”). Where required by law, we will attempt to notify you if we believe your account is a Dormant Account. If you do not respond to such attempts to notify you by providing instructions as to how to handle your remaining BerkShares Wallet Balance, our Financial Institution Partners will deliver the underlying US Dollar funds to the appropriate government authority. If we do not have sufficient information from you to determine your state of residence, we will deliver your funds to the Massachusetts State Treasury. You may subsequently claim such funds with the Unclaimed Property Division of the Massachusetts State Treasury.
The Celo blockchain may experience backlogs, higher than normal transaction fees, changes to the network, failure, or a fork in the protocol. We do not own or control the Celo blockchain and you agree we are not responsible for the operation of the Celo network and agree that we are not liable for any harms, whether direct or consequential, caused by problems with the network’s security, functionality, or availability. In general, the underlying blockchain protocols are open source, and anyone can use, copy, modify, and distribute them. We are not responsible for the operation of the underlying network protocols, and we make no guarantees regarding their security, functionality, or availability.
Your BerkShares Wallet may provide access to third-party services, and in the event that you gain access to such third-party services, we do not guarantee the security or functionality of any third-party software or technology, and we are not responsible for any losses of BerkShares due to the failure of third-party software or technology.
The software protocols that underlie digital tokens such as BerkShares are typically open source projects, which means that (i) the development and control of such digital tokens is outside of our control and (ii) such software protocols are subject to sudden and dramatic changes that might have a significant impact on the availability, usability or value of a given digital token. BerkShares may experience sophisticated cyber attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to the Services. You understand that the Services may experience operational issues that lead to delays.
BerkShares, Inc., both directly and through its service providers and licensors will endeavor to mitigate these risks and have put in place security measures. For example, in the event of a hack or malfunction of the underlying software protocols, BerkShares, Inc. may take a range of actions as appropriate to remediate the situation, such as pausing or freezing outstanding BerkShares tokens and redeploying correct balances to a different ledger, and/or preventing stolen BerkShares from being redeemed for their cash value (which can only be done with our local Financial Institution Partners).
Notwithstanding the above mitigation and risk management strategies, you are aware of and accept the risk of operational and technical challenges. Operational challenges include the risk of legislative and regulatory changes or actions at the state, federal, national or international level may adversely affect the use, transfer, exchange, and value of digital tokens. You agree to accept the risk of transaction failures resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks. You agree not to hold BerkShares, Inc. accountable for any related losses, whether direct or consequential.
BERKSHARES, INC., ITS AFFILIATES, AND THIRD PARTY SERVICE PROVIDERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE BERKSHARES WALLET, BERKSHARES TOKENS OR ANY BERKSHARE PRODUCT OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE SOFTWARE IS PROVIDED “AS IS.” IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
BERKSHARES, INC. DOES NOT REPRESENT OR WARRANT THAT YOUR BERKSHARES WALLET WILL ALWAYS BE ACCESSIBLE OR ACCEPTED.
In the event that BerkShares or its affiliates are found liable to you, you shall only be entitled to recover actual and direct damages and such damages shall not exceed the last balance held on your BerkShares Wallet. BerkShares and its affiliates shall have no liability for any incidental, indirect or consequential damages (including without limitation loss of profit, revenue or use), or any punitive or exemplary damages arising out of or in any way connected with this Agreement, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, even if we or our authorized representatives have been advised of the possibility of such damages. In no event shall BerkShares, Inc., its affiliates or service providers have any liability for unauthorized access to, or alteration, theft or destruction of a BerkShares Wallet through accident, misuse or fraudulent means or devices by you or any third party, or as a result of any delay or mistake resulting from any circumstances beyond our control.
The laws of certain states or other jurisdictions do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have rights in addition to those contained in this Agreement. In such jurisdictions, our liability is limited to the greatest extent permitted by law.
Compliance with Laws. You shall only use your BerkShares Wallet and Services for lawful and legitimate purposes and you will at all times comply with all applicable federal, state, and local laws, rules, regulations, and guidance.
By your use of any of the Site, the Products and Application, or the Services, you represent that such use is legal in your local jurisdiction, and you agree that you will not use the Site, Products, or the Services if such use is prohibited or otherwise violates the laws of the country, state, province, or other jurisdiction in which you reside or of which you are a citizen.
Prohibited Activities. You shall not use your BerkShares Wallet and Services to: (i) engage in illegal or fraudulent activities; (ii) benefit any country, organization, entity, or person embargoed or blocked by any government, including those on the sanctions lists maintained by the U.S. Office of Foreign Asset Control (OFAC); or (iii) engage in transactions related to or in furtherance of the following activities (“Prohibited Activities”):
Sale or purchase of illegal goods, including but not limited to stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety;
Marijuana-related businesses (including but not limited to manufacturers, dispensaries, and those engaged in the business of marketing, buying, growing, selling, or otherwise promoting medical or recreational marijuana);
Illegal services, including but not limited to counterfeit services, illegal gambling, Ponzi or pyramid schemes, and money laundering;
Adult entertainment, including but not limited to escort services, encounter clubs, and pornographic products and services;
Debt collection, relief, or counseling;
Gun sellers and firearm or ammunition sales;
Unlicensed or unregistered Money Services Businesses, as that term is defined at 31 C.F.R. 1010.100(ff) and under corresponding state regulations;
White label ATM services; and
Promotion of hate, violence, harassment, or abuse.
Infringe our or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
In addition to the above Prohibited Activities, we, our Financial Institution partners and third-party service providers reserve the right to suspend your BerkShares Wallet or terminate this Agreement in the event that you are using your BerkShares Wallet and Services to conduct any activity we determine to be high risk or to expose us or other BerkShares users or customers to an unacceptable level of risk. If we learn or suspect that you are using your BerkShares Wallet and Services for any illegal or fraudulent purpose, we may share your information with any government or regulatory authority, financial institution, or law enforcement agency we deem necessary to fulfill our obligations to comply with applicable laws.
BerkShares Wallet and Services are owned by BerkShares, its licensors, or other providers, and are protected by copyright, trademark, and other intellectual property or proprietary rights laws in various jurisdictions. All rights not expressly granted to you in these Terms are reserved by BerkShares. Except as expressly authorized by BerkShares or its licensors, you will not (a) license, sublicense, rent, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the BerkShares Wallet or Services in any way; (b) copy, modify, republish, distribute, or make derivative works based upon BerkShares Wallet or Services; (c) “frame” or “mirror” BerkShares Wallet or Services on any other server or wireless or Internet-based device; or (d) reverse engineer or access BerkShares Wallet or Services in order to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions, or graphics of BerkShares Wallet or Services, or (iii) copy any ideas, features, functions, or graphics of BerkShares Wallet or Services.
Our trademarks. “Berkshares.org,” “BerkShares,” and all logos related to the BerkShares Services, Wallet, and application are either trademarks or registered trademarks of BerkShares. You may not copy, imitate, modify or use them without our prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of BerkShares. You may not copy, imitate, modify or use them without our prior written consent. You may use HTML logos provided by us for the purpose of directing web traffic to the BerkShares Services. You may not alter, modify or change these HTML logos in any way, use them in a manner that mischaracterizes BerkShares or the BerkShares Services or display them in any manner that implies BerkShares’ sponsorship or endorsement. All right, title and interest in and to the BerkShares websites, any content thereon, the BerkShares Services, the technology related to the BerkShares Services, and any and all technology and any content created or derived from any of the foregoing is the exclusive property of Berkshares and its licensors.
Copyright. Unless otherwise indicated, you acknowledge that all rights, title and interest to our software and application are owned by BerkShares or BerkShares’ licensors and any third party materials integrated therein are owned by our third party service providers. Any other third party software application you use on the BerkShares websites or application is subject to the license you agreed to with the third party that provides you with this software. You acknowledge that BerkShares does not own, control nor have any responsibility or liability for any such third-party software application you elect to use on any of our websites, software and/or in connection with BerkShares Services.
Proprietary Rights of Merchants. Merchants agree to make no claim of interest in or ownership of any BerkShares Intellectual Property Rights. Merchants shall retain all right, title, and interest in any of their respective logos or trademarks that are displayed in BerkShares Services or BerkShares Wallet.
Communications. By opening a BerkShares Wallet and using the Services, you consent to receive all communications, terms, disclosures, notices, and statements (“Communications”) from us electronically and you confirm that you can access, receive and retain such Communications. We will provide Communications by posting them on berkshares.org or by emailing them to you at the email address you provided when opening or updating your BerkShares Wallet.
Receipt of Notices. A Communication to you will be deemed to have been received twenty-four hours after we have posted it to our website or emailed it to you.
Delivery Requirements. In order to access and retain our Communications you will need: a computer or mobile device that is Internet-enabled, a valid email address, Internet connectivity, and a web browser which includes 128-bit encryption, with cookies enabled.
Withdrawing Consent. You may withdraw your consent to receive Communications electronically by contacting us at info@berkshares.org.
Please read BerkShares Privacy Policy at https://berkshares.org/about/privacy-policy/ carefully to understand how BerkShares collects, uses, and discloses information about customers, how to update or change your personal information, and how we communicate with you.
We reserve the right to change, suspend, or discontinue any aspect of the BerkShares Services at any time, including hours of operation or availability of any feature, without notice and without liability. We may decline to process any tokenization or redemption without prior notice and may limit or suspend your use of one or more BerkShares Services at any time, in our sole discretion. Suspension of your use of any of the BerkShares Services will not affect your rights and obligations pursuant to this Agreement or the Berkshares Terms and Conditions. We may, in our sole discretion, delay tokenizations or redemptions if we believe the transaction is suspicious, may involve fraud or misconduct, violates applicable laws, or violates the terms of this Agreement or the BerkShares Terms and Conditions.
We may suspend or terminate this Agreement and revoke or limit any or all of the rights and privileges granted to you at any time without notice or liability. Termination may result from your fraudulent or unauthorized use of the BerkShares Wallet including your failure to provide valid information. For example, transferring balances between different BerkShares Wallets solely for the purpose of obtaining cash back is an unauthorized use of the BerkShares Wallet and if we deem it appropriate to limit our losses we will cancel any such BerkShares Wallet and retain any balances associated with those BerkShares Wallets. If we terminate this Agreement without cause, we will refund your BerkShares equal to the balance on your cancelled BerkShares Wallet, less any amounts that you may owe us.
The failure of BerkShares to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
This Agreement is the complete and exclusive statement of agreement between you and BerkShares, Inc., and supersedes and merges all prior proposals and all other agreements governing your BerkShares Wallet (not including BerkShares Privacy Policy). If any provision of this Agreement, other than the Class Action Waiver in the Arbitration provision above, is determined to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
We may assign all or part of this Agreement without notice to you. We are then released from all liability. You may not assign this Agreement without our prior written consent and any attempted assignment will be void.
This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts notwithstanding any conflict of law rules.
Please read this section carefully. It affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause shall survive termination of this Agreement.
Binding Arbitration. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to this BerkShares Wallet Agreement, your BerkShares Wallet and your relationship with us. Any dispute or claim arising out of or relating to this Agreement or use of the BerkShares Wallet and your relationship with BerkShares or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that either of us may take claims to small claims court if they qualify for hearing by such a court.
Arbitration Procedures. For all disputes, whether pursued in court or arbitration, you must first send a written description of your claim to us at info@berkshares.org to allow us an opportunity to resolve the dispute. You and we each agree to negotiate your claim in good faith. You may request arbitration if your claim or dispute cannot be resolved within 60 days.
The arbitration of any dispute or claim shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement. The AAA Rules and information about arbitration and fees are available online at www.adr.org. You and we agree that this Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and will not be governed by state law. Any arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce this Agreement as a court would. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
Costs of Arbitration. Each party will bear the fees and expense of its filing and administrative costs, own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. Except for claims determined to be frivolous, neither party seeks an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law.
Class Action Waiver and Jury Waiver. You and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, the arbitration agreement will be void as to you. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
If you have any questions regarding this Agreement or your BerkShares Wallet, please visit our website at https://berkshares.org/