Last Updated: 01/11/2023
1. What are you agreeing to?
The following Terms of Service are between you and Backpack Payment Technologies, Inc. (“Backpack”, “we” or “us”) and constitute a legal agreement that governs your use of all Backpack websites (the “Website”) and all technology platforms offered by Backpack (the “Platform”) and Backpack’s application program interfaces and related materials (collectively, the “Services”). You must agree to these Terms before you can use the Services. You can agree to these Terms by: (a) actually using the Services, including, without limitation, accessing any Backpack website, or (b) clicking a box that indicates you agree to the Service, where such a box is made available to you. If you do not agree to any of the following Terms, you may not use the Services and must leave any Backpack website. We may partner with banks (each, a "Bank Partner") to offer certain products and services to you. If you are approved for a product offered through Backpack by one of these Bank Partners, or through other partnerships with Bank Partners, you will enter into an agreement with the Bank Partner (“Bank Partner Terms”). Notwithstanding any other provision of this Agreement, any agreement you enter into with a Bank Partner (and not this Agreement) will control with respect to the associated Bank Partner product, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Bank Partner Terms.
To be eligible to use the Services, you must be at least 18 years old and be a resident of the United States or its territories. You represent and warrant that you are an individual of legal age to form a binding contract. You must also be the owner of a direct-sold 529 Plan Account, or an authorized user for a direct-sold 529 Plan Account. A business, organization or other legal entity cannot register for the Services.
We are constantly looking for ways to innovate and improve our Services to better serve our customers. As a result, the Terms and our Services may change over time. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at www.backpack529.com, send you an email, and/or notify you by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
2. How can you use Backpack?
529 funds must be used in compliance with your 529 plan rules and regulations as well as IRS requirements. 529 funds can only be used for tuition payments made to Title IV eligible education institutions. You can find a list of qualified education institutions here, on the website of the Federal Student Aid, an office of the U.S. Department of Education. Backpack will only allow for tuition payments to be made to eligible education institutions. If a tuition payment is made using the Services, Backpack will protect you as the customer against any penalties imposed by the IRS by refunding you the amount of that penalty. Backpack will require proof of those penalties in the form of authenticated IRS notices and correspondence clearly stating that the penalty is a direct result of a transaction made using the Services.
What restrictions apply in using Backpack?
You represent, warrant and agree that you will not provide or contribute anything to the Services, or otherwise use or interact with the Services, in a manner that:infringes or violates the intellectual property rights or any other rights of anyone else including Backpack; violates any applicable law, statute, regulation, or ordinance, including, without limitation, any applicable export control laws, privacy laws, or otherwise breaches this Agreement or any other agreement or policy you have with Backpack; provides false, inaccurate or misleading information, or is otherwise dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or objectionable; provides information belonging to any person other than yourself or uses an account that belongs to another person for yourself or on behalf of another person; attempts, in any manner, to obtain the password, account, or other security information from any other user of the Services; jeopardizes the security of your Backpack account or anyone else’s (such as allowing someone else to log in to the Services as you);aids you in the purchase of (i) ammunition, firearms, certain firearm parts or accessories, and certain weapons or knives regulated under applicable law; (ii) narcotics, steroids, controlled substances, quasi-pharmaceuticals, or drug paraphernalia; (iii) currency in any form, including virtual and digital currency; or (iv) any goods or services deemed unacceptable by Backpack or its Bank Partner(s), in their sole discretion; uses any device, software, routine, file or other tool or technology, including, but not limited to, any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Services or to surreptitiously intercept or expropriate any system, data or personal information from the Services; uses the Services to accomplish a cash advance, wire or money transfer;“crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services (through use of manual or automated means);decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; makes unauthorized use of Backpack's Services including but not limited to unauthorized entry into Backpack's systems, misuse of passwords, or misuse of any information posted to a site; and involves any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, "spam" or any other such unsolicited overload technique.A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What else should I know?
Backpack and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Backpack and all such parties together, the “Backpack Parties”) make no representations or warranties concerning the Services, including without limitation regarding any content contained in or accessed through the Services, and the Backpack Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Backpack Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY BACKPACK(AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE BACKPACK PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO BACKPACK IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold the Backpack Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and related banking or other financial products and services provided by Bank Partners (or other financial institutions) through the Services, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Backpack’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
All technology, content, designs, graphics, compilation, magnetic translation, digital conversion, templates, materials, algorithms, code, or software used to provide the Services and any other matter related to the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and are owned by Backpack or one of its affiliates. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Backpack and limits the manner in which you can seek relief from Backpack. Both you and Backpack acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Backpack's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof. Arbitration Rules. Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Costs of Arbitration. The Rules will govern payment of all arbitration fees. Backpack will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Backpack will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.Small Claims Court; Infringement. Either you or Backpack may assert claims, if they qualify, in small claims court in New York City, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. Waiver of Jury Trial. YOU AND BACKPACK WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY. You and Backpack are instead choosing to have claims and disputes resolved by arbitration. In any litigation between you and Backpack over whether to vacate or enforce an arbitration award, YOU AND BACKPACK WAIVE ALL RIGHTS TO A JURY TRIAL.Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MEMBER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER MEMBER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Backpack is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 169 Madison Ave #2477, New York, NY, 10016 postmarked within thirty (30) days of first accepting these Terms. You must include: (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Backpack to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Backpack agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York City, New York, or the federal district in which that county falls.Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement Section will be null and void. This arbitration agreement will survive the termination of your relationship with Backpack.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Backpack may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Backpack agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Backpack, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Backpack, and you do not have any authority of any kind to bind Backpack in any respect whatsoever.Except as expressly set forth in the Sections above regarding the arbitration agreement, you and Backpack agree there are no third-party beneficiaries intended under these Terms.