Lien Management Solutions (“LMS”) Terms and Conditions

Last Update - July 21st 2017

Welcome to LMS

Thank you for using LMS Services, which are governed by these Terms and Conditions. Please read them carefully. “LMS Services” includes all services provided by LMS, either individually or through its third party service providers, on its website at LMSPROJECT.COM (“Site”).

  1. ABOUT LMS
    1. Lien Management Solutions, LLC, is a South Dakota limited liability company (“we”, “us”, “LMS” or the “Company”). The LMS Services and related disclosures are governed by the laws of the State of South Dakota in the United States of America.

  2. SCOPE OF THESE TERMS AND CONDITIONS
    1. These Terms and Conditions govern the availability and use of the LMS Services. Together with our Privacy Policy, pricing terms, and any other related policies, terms and conditions or documents referred to herein, or otherwise provided by us to you, they constitute the legal relationship between you and LMS. By registering to use the LMS Services, you agree to these Terms and Conditions. To the extent you use additional LMS services, you may have to accept additional terms and conditions as notified to you when you register for or use such services. You are responsible for regularly reviewing these Terms and Conditions. You can always view the current Terms and Conditions online on the Site.

    2. LMS, in its sole discretion, may amend, revise or update these Terms and Conditions and any additional terms and conditions that may apply, in its sole discretion, and it will post the amended Terms and Conditions in the relevant section of the LMS websites. We shall notify you of any material changes via email within “My Account” available on the website. The changes will come into effect immediately unless otherwise specified in the notice of change. Any such change will not affect any transaction that was initiated prior to the effective date of such change. Your continued use of the LMS Services after any changes to the Terms and Conditions shall constitute your consent to such changes.

  3. LMS SERVICES
    1. The LMS Services enable you to, among other things, (a) send and receive construction documents via LMS’s document exchange program, and (b) receive and, depending upon your authorization, make business payments in accordance with the construction documents governing each construction project uploaded to the Site (“Project”) by all registered users. Your ability to send and receive payments is conditioned upon your compliance with all applicable rules in place relating to the LMS Services including but not limited to receipt and sufficiency of applicable lien waiver documents or other documents required by LMS or applicable laws and/or regulations. LMS is an independent contractor for all purposes and is not your agent or trustee, nor the agent or trustee of any payer that you receive payment from via the LMS Services. LMS does not have control of, or liability for, the products or services that are paid for with the LMS Services. We do not guarantee or ensure that a buyer or a seller, prime contractor, subcontractor, materialman, or other service or material supplier will complete a transaction or complete a transaction in a way that fulfills the necessary standard of workmanship, and we make no representation or warranty as to any products and services provided or delivery thereof. The LMS Services are provided in accordance with the laws of the State of South Dakota.

    2. The LMS Services may include some or all of the following Project-related management services, which may change from time to time:

      • Receive payments through the Automated Clearing House (ACH) network;

      • Make payments to other registered LMS users through ACH network;

      • View and manage activity online through “My Account” on the Site;

      • Send and receive construction documents from other registered LMS users through LMS’s document submission and exchange services;

      • Exchange lien waiver documents through LMS’s document submission and exchange services;

    3. The LMS Services may be subject to certain limits and availability, which may depend on your state of residence, applicable regulations and other factors used by us to determine such limits and availability from time to time at our sole discretion.

    4. LMS strictly prohibits using the LMS Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity. By using the LMS Services you also confirm that you will not accept payments in connection with any prohibited activities detailed in the Prohibited Transactions section of these Terms and Conditions. Finally, by using the LMS Services, you confirm that you will not use another payment system for the Project, or make payments on the Project, submit invoices or requests for payments, or submit lien waivers other than through the LMS Services.

  4. THE PAYMENT PROCESS
    1. The prime contractor (“PC”) on a Project, with the consent and agreement of the property owner associated with the Project (“Owner”), will be required to open one separate limited-purpose bank account per Project into which all payments owing by the Owner to the PC on a Project will be deposited and all payments owing by the PC to its subcontractors shall be paid (the “Project Account”). The Project Account will be opened by the PC through the LMS Site with one of LMS’s participating bank partners. The Project Account will be established in the name of or for the benefit of the PC and held by LMS’s participating bank partner. The Project Account may be subject to additional terms presented by the participating bank partner at the time of account opening. By using the LMS Services, each Owner and PC consent to the opening of a Project Account for each Project registered for LMS Services. The PC further consents to the participating bank partner sharing Project Account information with LMS and its service providers as necessary to provide the LMS Services and further consents to the participating bank partner and LMS sharing Project Account balance information with the Owner and participating subcontractors through the Site.

    2. By participating in projects as a PC or Owner, you authorize LMS, directly or through third parties, to make any inquiries we consider necessary to validate your identity at any time LMS reasonably believes there may be an increased level of risk associated with your Project Account or user account. This may include asking you for further information, requiring you to provide your date of birth, a taxpayer identification number and other information that will allow us to reasonably identify you, requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying your information against third party databases or through other sources. We may also ask to see your driver’s license or other identifying documents at any time. LMS reserves the right to close, suspend, or limit access to your Account and/or the LMS Services in the event we are unable to obtain or verify this information.

    3. Upon the opening of a Project Account, the Owner will be required to deposit the initial working capital for the Project, as agreed upon by PC and Owner, and as detailed in the construction documents submitted by the PC upon registering a Project for LMS Services. An initial deposit by the Owner into the Project Account will be deemed to be the initial working capital and LMS makes no representation or guarantee that such funds are sufficient to complete the Project or commence construction on the Project. Owner and PC shall be solely responsible for maintaining a balance in the Project Account that is sufficient to pay for the materials and services being provided for the Project at all times. The participating bank partner may, from time to time at its sole discretion, set limits on the frequency and dollar amounts of transactions that may be conducted in connection with the Project Account. LMS shall have no responsibility or liability therefor.

    4. All registered LMS business users shall be eligible to receive ACH payments to the Project Account by submitting Payment Requests through the Site, or from the Project Account by submitting invoices to the PC through the Site. Payment Requests, Invoices and associated ACH payment requests may be submitted through the LMS Site pursuant to Section 5 below. Such payments shall be made pursuant to Section 6 below. If you request to receive an ACH payment from a Project Account, it is entirely your responsibility to ensure that you submit your request to the appropriate PC, and only receive payments from persons or entities in connection with commercial transactions in compliance with any applicable laws and regulations.

    5. You release LMS (and its agents, employees, successors and assigns) from any and all claims, demands, and damages (actual and consequential) resulting from or in any way connected with the transactions between you and any other LMS user.

  5. PAYMENT REQUESTS AND INVOICES
    1. LMS partners with unaffiliated third parties to provide a platform by which pay requests and invoices can be submitted for funds to be transferred into the Project Account and for payments made directly from the Project Account to registered users of the LMS Services. Information you submit through the Site as part of an invoice will be conveyed to the applicable third parties involved in the payment process. All ACH payments will be initiated and processed by such third parties. At no time will LMS have any involvement in the transmission of ACH payments other than conveying information submitted by registered users through the Site.

    2. In order to use the payment functionality to fund a Project Account on the Site, you must open a "Access API" account provided by Dwolla, Inc. ("Dwolla") and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service. You authorize LMS to share your identity and account data with Dwolla for the purposes of opening and supporting your Dwolla account, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through the the Site, and Dwolla account notifications will be sent by LMS, not Dwolla. LMS will provide customer support for your Dwolla account activity, and can be reached at support@lmsproject.com and/or 605-610-0398.

    3. If you are a registered LMS business user, you may send a request to receive payment from a PC through an Invoice form that may be accessed from the associated Project Dashboard screen on our website (the “Invoice”). We reserve the right to limit the number of Invoices per Business Day from the same user and/or the transaction amount under any single Invoice.

    4. You may use the Invoice only for undisputed amounts that you are owed relating to the Project and that are due for payment. You are responsible for providing accurate and true information in the Invoice, including information regarding the payment to be made to you. You should not use this service more than once for the same payment you request. Invoices may not be used as a debt collection or enforcement tool. Should the PC dispute or decline an Invoice made by you through the Site, you will need to resolve such dispute directly with PC. LMS does not provide dispute resolution for payments made using the LMS Services.

    5. When submitting an Invoice through the Site, you shall be responsible for all information provided in the Invoice. You are strictly prohibited from requesting money by using the Invoice from a PC that (i) does not owe you the amount requested; or (ii) is not a registered user of the LMS Services. You are responsible for providing the PC with accurate and true information regarding the payment to be made to you. You may be required to provideadditional information or documents to us or our participating bank partners prior to requesting or receiving payments. Such additional information may include documents allowing LMS to verify the source of the funds, the destination of the funds, the nature of the services being paid for, including but not limited to invoices for services delivered for which you are being paid, applicable lien waiver documents, and payment confirmation from the PC making the payment.

    6. You must not make a request for payment to a bank account if you are not the named holder of or authorized signer for that account. We take any violation of this requirement very seriously and may treat any attempt to use an account or payment instrument of which you are not the named holder as a fraudulent act.

    7. You must ensure that the payment details you enter are correct and complete. Failure to provide accurate information as part of a request for payment shall be your sole responsibility. You will be solely responsible for funds being sent to the wrong bank account or payment instrument as a result of you providing incorrect payment details. You must ensure that the account number, routing number, sort code, IBAN and/or BIC/SWIFT, and any other required information, are correct.

    8. You shall not initiate entries through the ACH system or other electronic payments system in violation of any applicable international, federal, state, or local laws and regulations, including, without limitation, laws and regulations administered by the U.S. Office of Foreign Asset Control.

    9. You acknowledge that payments made through the ACH system or other applicable electronic payments system in connection with the LMS Services may only be made to domestic bank accounts, and you therefore agree to maintain and use only domestic bank accounts to receive any payments requested by you through the Site.

    10. You acknowledge that all payments facilitated through the Site will be sent as electronic payments, and you agree to send and/or receive any such payments electronically. You are responsible for providing complete and accurate contact and payment information necessary to effect electronic payments between parties using the Site or LMS Services.

    11. LMS is not responsible for failure by any registered LMS user to accurately and completely enter contact or payment information, and LMS makes no warranties or representations as to the accuracy or completeness of such information. LMS is not responsible for any participant not receiving payment due to a failure by any user to maintain and/or update accurate contact or payment information.

    12. Unless you notify us within five (5) Business Days after receiving a confirmation from us that your payment request has been approved and initiated for ACH crediting to your account, any applicable lien waiver documents submitted as part of a payment request will be deemed released as of the end of the business day on the fifth (5th) Business Day after payment to your account is initiated.

  6. MAKE A PAYMENT
    1. Upon submission of an Invoice, and approval of same by the PC, the PC shall be entitled to release funds for payment from the Project Account to other registered users of the LMS Services. Related funds released to you as a part of an Invoice approval by a PC are then eligible for ACH payment, which must be initiated by you at your discretion. ACH payments can be initiated online by visiting the associated Project Dashboard related to the submitted invoice and payment.

    2. Making payments from the Project Account may be subject to per-transaction limits, which will be presentedon the “Payments” page, and may be adjusted from time to time. Before authorizing the release of funds related to an Invoice payment, the PC must ensure sufficient funds in the Project Account. Release of funds will not be approved if the required balance is not available in the Project Account.

    3. Making a payment may be subject to certain fees. Please see the Fees section in these Terms and Conditions for details. LMS will debit the Project Account in the amount indicated for payment, plus any applicable fees.

    4. The receiving party must be a registered LMS business user in order to receive a payment requested through the Site. The payment will be made via an ACH credit entry to the receiving party’s registered bank account.

    5. We or the third party service providers responsible for processing payment requests may decline to process a request to make a payment and require the Owner, PC or the receiving party to send additional documents verifying the Owner, PC and/or the receiving party’s respective identity, address or other information regarding the source of funds or reason for payment prior to processing the requested payment and you agree to cooperate in providing such documents and information.

    6. You must ensure that the payment details you enter for making a payment are correct and complete. Failure to provide accurate information shall be your sole responsibility. Neither LMS, nor any third party service provider will be liable for payments being made to the wrong LMS user due to inaccurate information. We will also not be responsible for payments not being made to a receiving party who is not a registered LMS user.

    7. You acknowledge that all payments facilitated through the Site will be sent as electronic payments, and you agree to send and/or receive any such payments electronically. You are responsible for providing complete and accurate contact and payment information necessary to effect electronic payments between parties using the Site.

    8. LMS is not responsible for failure by any registered user to accurately and completely enter contact or payment information, and LMS makes no warranties or representations as to the accuracy or completeness of such information. LMS is not responsible for any participant not receiving payment due to a failure by any user to maintain and/or update accurate contact or payment information.

  7. REGISTERING FOR LMS
    1. A PC and/or Owner shall be required to register each individual Project for use of LMS Services. The Owner and PC shall be solely responsible for inputting, approving and verifying that all information with respect to each Project is correct (the “Project Information”). LMS shall have no liability whatsoever for any incorrect or invalid Project Information.

    2. A PC shall also be required to open a separate Project Account for each individual Project through the Site, and each PC shall be solely responsible for the accuracy of all information provided for the opening of such Project Account.

    3. Thereafter, a business or individual engaging in commercial activity with respect to the Project may apply to use the LMS Services, subject to LMS’s approval policies in place at the time of application. In order to use the LMS Services you must first register on our website by providing certain information and details. You may only register for the LMS Services by completing the online application form. As part of the registration process, you will need to accept these Terms and Conditions, our Privacy Policy and other LMS policies that will be included in the registration process. If you order additional services, you may be asked to accept additional terms and conditions covering such services.

    4. You authorize LMS, directly or through third parties, to make any inquiries we consider necessary to validate your identity or the identity of your company, as applicable. This may include asking you for further information, requiring you to provide your date of birth, a taxpayer identification number and other information that will allow us to reasonably identify you or your company, requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying your information against third party databases or through other sources. We may also ask to see your driver’s license, passport or other identifying documents, as well as certain company documentation, at any time. For some LMS Services, federal law requires that LMS verify some of your details or your company’s details. LMS reserves the right to close, suspend, or limit access to the LMS Services in the event we are unable to obtain or verify this information or if the information does not satisfy our requirements.

    5. If you are an individual, you must be 18 years or older to use the LMS Services and by registering, you represent that you are 18 years or older. We may require at any time that you provide evidence of your age.

    6. If you registered for the LMS Services on behalf of a business or commercial entity, you must be legally authorized under the business entity’s formation documents and/or under applicable law to agree to these Terms and Conditions and you must be allowed to use the LMS Services by the laws and regulations of the jurisdiction governing the business entity.

    7. You may only open or maintain one active LMS business User Profile per company or organization and one individual User Profile at a time.

    8. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all User Data, and LMS shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data.

  8. MAINTAINING YOUR LMS USER PROFILE
    1. You must ensure that your information on record with LMS is always accurate and up to date and we shall not be liable for any loss arising out of your failure to do so. We may ask you at any time to confirm the accuracy of your information or to provide documents or other evidence verifying such information.

    2. We may contact you by e-mail, via your “My Account” at the LMS website or in other ways described in the How We Communicate section below, with information or notices regarding your use of the LMS Services. It is your responsibility to regularly check your “My Account” page online and the proper functioning of your e-mail account or other methods of communication that you have registered with LMS and to promptly retrieve and read messages relating to your use of the LMS Services. We shall not be liable for any loss arising out of your failure to do so. You will be liable for any loss that relates to or results from any failure to submit, or notify us of a change in, your contact details in accordance with these terms and conditions.

    3. Information regarding payments received, payments sent, purchases made, withdrawals and other LMS Services activity are displayed in the online transactions history on the LMS website together with the fees charged under the associated Project Dashboard. Each transaction is shown in the transaction history. You should check your LMS Balance and transaction history regularly. You should report any irregularities or clarify any questions you have as soon as possible by contacting LMS Customer Care.

    4. In order to file a claim for an unauthorized or incorrectly executed transaction, you must immediately notify us after becoming aware of the unauthorized or incorrect transaction and in any event no later than sixty (60) days after the debit date of the transaction.

    5. We may close, suspend, or limit your access to your use of the LMS Services and/or limit access to your funds for up to 180 days (or longer if pursuant to a court order or other legal process) if you violate these Terms and Conditions or any other agreement you enter into with LMS, or pursuant to any fraud and risk modeling used by LMS when assessing the risk associated with your use of the LMS Services. We may also limit your access to funds per the instructions of law enforcement or any applicable regulators.

    6. If you do not actively use the LMS Services we may consider you to be inactive. Once you have been deemed inactive we may disable certain features and services, up to and including terminating your use of the LMS Services. If you are deemed inactive, you may request LMS to reactivate your status at any time and LMS may reactivate your status, in its sole discretion.

  9. KEEPING YOUR LMS USER PROFILE SAFE
    1. You must take all reasonable steps to keep your LMS User Profile password safe at all times and never disclose it to anyone. LMS representatives will never ask you to provide your password to us or to a third party. Any message you receive or website you visit that asks for your password, other than the LMS website, should be reported to us. If you are in doubt whether a website is genuine, you should contact LMS Customer Care. It is advisable to change your password regularly (by following the instructions on your “My Account”) in order to reduce the risk of a security breach. We also advise you not to choose a password that is easily determined from information someone may know or gather about you.

    2. If you have any indication or suspicion of your LMS User Profile, login details, password or other security feature being lost, stolen, misappropriated, used without authorization or otherwise compromised, you must immediately change your password, and contact LMS Customer Care. Any delay in or failure to notify us may not only affect the security of your LMS User Profile but may result in you being liable for any losses as a result.

    3. We may suspend your LMS User Profile or otherwise restrict its functionality, in our sole discretion, on grounds relating to the security of the LMS User Profile or any of its security features or if we suspect that an unauthorized or fraudulent use of your LMS User Profile has occurred or that any of its security features have been compromised. We will lift the suspension and/or the restriction as soon as practicable after the circumstances for the suspension and/or restriction have ceased to exist.

    4. You must take all reasonable care to ensure that your e-mail account(s) are secure and only accessed by you, as your e-mail address is one of the ways used to reset passwords or to communicate with you about the security of your LMS User Profile. If the e-mail address registered with your LMS User Profile is compromised, you should immediately contact LMS Customer Care.

    5. Regardless of whether you are using a public, a shared or your own computer to access your LMS User Profile, you must always ensure that your login details are not stored by the browser or cached or otherwise recorded. You should never use any functionality that allows login details or passwords to be stored by the computer you are using.

    6. Additional LMS products or services you use may have additional security requirements as specified in their applicable terms and conditions.

    7. Only the individual named in LMS records is authorized to use the LMS Services. You may not appoint or authorize additional persons to use the LMS Services. You are responsible for all transactions initiated and fees incurred by use of the LMS Services. If you allow another person to have access, we will treat this as if you have authorized such use, and you will be liable for all transactions and fees incurred by such use. You are wholly responsible for the use of the LMS Services according to these Terms and Conditions.

  10. CLOSING YOUR LMS USER PROFILE
    1. You may request the closure of your LMS User Profile at any time by contacting LMS Customer Care. You will be required to continue using the LMS System until the completion of any pending Project associated with your LMS User Profile unless the assignments to the associated projects can be reassigned to another user within your organization. If not re-assigned, upon the completion of those pending Project(s), your LMS User Profile will be closed.

  11. PROHIBITED TRANSACTIONS
    1. You will not use the LMS Services or website for any illegal, fraudulent or other prohibited activity or any activity not directly related to a Project. If LMS suspects that you may be engaging in or have engaged in a fraudulent, illegal or prohibited activity, including any violation of these Terms and Conditions, your access to the LMS Services and Site may be suspended or terminated. Additionally, depending on the severity of the violations, we may contact law enforcement.

    2. We reserve the right to suspend or terminate your use of the LMS Services at any time if we reasonably believe to be required to do so by law or in order to comply with recommendations issued by a relevant government authority or recognized body for the prevention of financial crime.

  12. FEES
    1. All pricing and fees are set forth in the Pricing and Fees page on the LMS website (the “Pricing and Fees”). The Pricing and Fees are incorporated herein by reference and form part of these Terms and Conditions. Pricing and Fees are subject to change in LMS’s sole discretion.

    2. You agree to pay all Pricing and Fees and your continued use of the LMS Services indicates your continued acceptance of the Pricing and Fees. We will publish any updated fees online and post a message to your “My Account” section of the LMS website. If you are unclear as to any applicable fee, you should contact LMS Customer Care.

    3. Fees payable by you will be deducted from any payments made to you or from the Project Account, as applicable, and you hereby authorize us to so deduct such fees. Transaction fees (if applicable) will be charged when the transaction is executed.

    4. You may be charged an inactivity fee if you have not used the LMS Services for a certain period of time as determined by LMS in its reasonable discretion. Active projects with no activity may be assessed additional monthly fees in order to recover costs incurred by LMS from our bank partners, payment processors, or other 3rd party partners providing services in support of the Site.

    5. You acknowledge and consent to the payment of certain fees directly to LMS in exchange for use of the LMS Services, such fees may be based upon the total cost of the Project registered for LMS Services. These fees may be documented by the PC in the construction documents submitted when registering a Project for LMS Services. You recognize that a PC may list LMS’s fees as an individual line item of the Project costs, or as a percentage of each request for payment you make. The method in which these fees are billed to you is at the sole discretion of the PC and LMS shall have no control or liability over the same.

  13. YOUR DATA
    1. We will ensure that all your personal information is held in accordance with the data privacy and security provisions of applicable law and our published Privacy Policy. Your use of the LMS Services is subject to the Privacy Policy, which you agree to as part of these Terms and Conditions. Please make yourself familiar with the Privacy Policy by visiting it on our website, LMSPROJECT.COM. LMS in its sole discretion may amend the Privacy Policy by an update on the Privacy Policy page of the LMS website. You may review the Privacy Policy at any time by clicking on the Privacy Policy section on the LMS website.

    2. You will receive notifications on “My Account” or by email that will inform you about new product features, promotions, etc. By accepting these Terms and Conditions, you agree to receive such notifications on a regular basis. If you do not wish to receive any notifications from us, please contact LMS Customer Care.

    3. With respect to any User Data submitted, provided or posted using LMS Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, and sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the User Data, in any media known now or in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights in the User Data and promise not to assert such rights against LMS, its sublicensees or its assignees. You represent and warrant that none of the following infringe any intellectual property or publicity right: your provision of content to LMS, your posting of content using the LMS Services, and LMS’s use of such content (including of works derived from it) in connection with the LMS Services.

    4. YOU ACKNOWLEDGE AND AGREE THAT LMS RESERVES THE RIGHT TO ACCESS AND DISCLOSE PERSONAL DATA RELATING TO YOU TO COMPLY WITH ALL APPLICABLE LAWS AND LAWFUL REQUESTS FROM GOVERNMENT AND/OR OTHER REGULATORY AUTHORITIES, AND/OR TO PROTECT LMS, ITS CUSTOMERS AND OTHER USERS; AND TO DISCLOSE PERSONAL DATA TO THIRD PARTIES IF LMS HAS REASONABLE REASON TO BELIEVE YOUR USE OF THE ACCOUNT IS IN VIOLATION OF THESE TERMS OR IF LMS IS OTHERWISE OBLIGED OR NEEDS TO DISCLOSE SUCH INFORMATION TO ANY RELEVANT AUTHORITY.

    5. If you receive information about another user through the LMS Services, you must keep the information confidential and only use it in connection with the service. You may not disclose or distribute a user's information to a third party or use the information for marketing purposes unless you receive the user's express consent to do so.

  14. LIABILITY
    1. It is entirely your responsibility to ensure that you only make payments to or receive payments from persons or entities in connection with commercial transactions in compliance with any applicable laws and regulations. The mere fact that a person or entity accepts payments through us is not an indication of the legality of the supply or provision of their goods and services. If you are in doubt as to the legality of a supply or purchase, you should not continue with your payment. LMS makes no representation or warranty as to any products and services provided by any LMS participant.

    2. In case of a (i) bona fide unauthorized payment or (ii) payment that was incorrectly executed due to an error by us, we shall at your request promptly refund the payment amount including all fees deducted therefrom. This shall not apply:

      1. where the unauthorized payment arises from your failure to keep the personalized security features of your LMS User Profile safe in accordance with the provisions of Keeping Your LMS User Profile Safe above;

      2. if you fail to notify us immediately of any loss of your password or other event that could reasonably be expected to have compromised the security of your LMS User Profile after you have gained knowledge of such event in which case you shall remain liable for losses incurred up to your notification to us;

      3. in case the transaction was unauthorized but you have compromised the security of your LMS User Profile through intentional acts or gross negligence; or

      4. if you fail to dispute and bring the unauthorized or incorrectly executed transaction to our attention within sixty (60) days from the date of the transaction.

    3. You should check your transactions history regularly and frequently on the Site and should contact LMS Customer Care immediately if you have any questions or concerns. To the extent the security of the email account used to register for the LMS Services has been compromised, LMS shall not be liable for any funds lost, or any unauthorized payments made, as a result of such compromise.

    4. In case of any incorrect or misdirected payment, we shall take reasonable measures to assist you with tracing and, if reasonably possible, recovering such payments, but we shall not be liable for any payments that cannot be recovered nor fees incurred as a result of recovery.

    5. We shall not be liable for any disruption or impairment of our service or for disruptions or impairments of intermediary services on which we rely for the performance of our obligations hereunder, provided that such disruption or impairment is due to abnormal and unforeseeable circumstances beyond our reasonable control or the control of the intermediary affected.

    6. We shall not be liable for any losses arising from our compliance with legal and regulatory requirements.

    7. Nothing in these Terms and Conditions shall operate to exclude liability for gross negligence, fraud or fraudulent misrepresentation or for any statutory liability that cannot be excluded or amended by agreement between the parties.

    8. Our obligation under these Terms and Conditions is limited to providing you with the LMS Services and does not create any responsibility for, nor make any statement in relation to or endorsement of the quality, safety or legality of any goods or services provided by a LMS user.

    9. You are solely responsible for reporting to all applicable government tax authorities all payments made or received, and for the payment of any applicable taxes that apply to such payments, as well as any other applicable reporting requirements, including but not limited to, any customs or foreign currency controls. LMS does not assume any responsibility for any tax reporting or 1099K filing obligations.

    10. You agree to defend, reimburse or compensate us and hold us, our other companies in our corporate group and any third parties on which we rely or partner with to deliver products and service harmless from any claim, demand, expenses or costs (including legal fees, fines or penalties) that we incur or suffer due to or arising out of your or your agents' breach of these Terms and Conditions, breach of any applicable law or regulation and/or use of the LMS Services. This provision shall survive termination of the relationship between you and us.

    11. YOUR USE OF THE LMS SERVICES IS AT YOUR OWN RISK. THE LMS SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND. LMS HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

    12. IN NO EVENT SHALL LMS, ITS AGENTS, REPRESENTATIVES, DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR INJURY OR ANY DAMAGES, EITHER DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO LOST PROFITS, REPUTATION OR LOST SAVINGS) RESULTING FROM OR IN ANY WAY CONNECTED TO YOUR USE OF THE LMS SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIM ASSERTED IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL LMS'S LIABILITY TO YOU AT ANY TIME EXCEED THE AMOUNT OF THE TOTAL FEES YOU PAID BY YOU TO LMS. IN NO EVENT SHALL LMS, ITS AFFILIATES, AGENTS, REPRESENTATIVES, DIRECTORS, OFFICERS, OR EMPLOYEES BE LIABLE FOR ANY ACT OR OMISSION RESULTING FROM CIRCUMSTANCE BEYOND THEIR REASONABLE CONTROL. YOU HEREBY WAIVE ANY AND ALL RIGHTS TO BRING ANY CLAIM OR ACTION RELATED TO YOUR USE OF THE LMS SERVICES BEYOND ONE (1) YEAR FROM THE FIRST OCCURRENCE OF THE ACT, EVENT, CONDITION OR OMISSION ON WHICH SUCH CLAIM OR ACTION IS BASED.

    13. You acknowledge that LMS will provide the LMS Services using facilities provided by banks, payment service providers, clearing networks and other third party service providers, including third party payment processing services (collectively, “Service Providers”). No commercial agreement exists between the Service Providers and yourself and each of the service providers will accordingly have no direct liability to you.

    14. You acknowledge that these Service Providers may require LMS to collect certain information from you and other registered users on the Service Provider’s behalf. You acknowledge that LMS shall have no responsibility or liability for verifying that any information provided to LMS by any registered user is correct. LMS is solely collecting this data on behalf of the Service Providers, and shall have no liability for the invalidity or falsification of any such data.

  15. TERMINATION AND SUSPENSION
    1. We may terminate or suspend your use of the LMS Services at any time. You may terminate your use of the LMS Services with us at any time in accordance with the Closing Your LMS User Profile provisions above. Grounds for termination or suspension, including access to funds, include but are not limited to, (a) your violation of these Terms and Conditions, (b) your provision of any false, incomplete, inaccurate, or misleading information, (c) you are engaged in fraudulent, money laundering, terrorism financing or illegal activity or we reasonably suspect the same, (d) we reasonably believe that your LMS User Profile has been compromised or for other security reasons, or (f) if we are required to do so under any applicable law or regulation, or at the direction of any regulatory, law enforcement or other competent authority. We shall notify you either prior to the suspension or termination or, if prior notification is not possible under the circumstances, promptly after the suspension or termination, unless we are prohibited by law to notify you.

    2. Together with a termination notice or at any time thereafter we may give you instructions on how to withdraw any remaining funds held in the LMS system that are either payments reserved for you, or project funding contributed to a Project Account.

    3. Termination of your use of the LMS Services will not affect our right to make deductions for any outstanding or unpaid fees.

  16. HOW WE COMMUNICATE
    1. To the fullest extent permitted by law, these Terms and Conditions and any other agreements, notices or other communications from LMS to you regarding our services being offered ("Communications") may be provided to you electronically, and you consent and agree to receive Communications in an electronic form. Electronic Communications may be posted on the pages within the LMS website and/or delivered to your email address. You can print a paper copy of or download any electronic Communication and retain it for your records. All Communications in electronic format will be considered to be “in writing,” and to have been received no later than five (5) Business Days after posting or dissemination, whether or not you have received or retrieved the Communication. LMS reserves the right to provide Communications in paper format. Your consent to receive Communications electronically is valid until you revoke your consent by notifying us in writing. If you revoke your consent to receive Communications electronically, we may terminate your right to use the LMS website or LMS Services, and you accept sole liability for any consequence resulting from suspension or termination of the LMS Services, to the extent permitted by law.

    2. We usually communicate to you via e-mail or by posting messages to the LMS website. For this purpose you must at all times maintain at least one valid e-mail address. You are required to check for incoming messages regularly and frequently. Messages may contain links to further communication on our website. Any communication or notice sent by e-mail will be deemed received by you on the same day if it is received in your e-mail inbox or is posted to the Site before 4:30 pm Central Standard Time on a Business Day. If it is received after 4:30 pm Central Standard Time on a Business Day or at any other time, it will be deemed received on the next Business Day.

    3. Where legislation requires us to provide information to you on a durable medium, we will either send you an e-mail (with or without attachment) or send you a notification pointing you to information on our website in a way that enables you to print and retain the information or another format that can be retained by you permanently for future reference. You are required to keep copies of all communications we send or make available to you.

    4. You can request a copy of the current Terms and Conditions or any other contractual document relevant to you by contacting LMS Customer Care.

    5. In order to view emails you need a computer with e-mail software that can display e-mails in HTML format. We may also send you attachments in Adobe Systems Inc.’s Portable Document Format (PDF), for which you need Adobe’s Acrobat Reader, which can be downloaded for free at www.adobe.com.

    6. If you are unsure whether a communication is originating from us, please contact LMS Customer Care.

    7. We reserve the right to communicate with you in English and you will always accept communications made to you in English. Documents or communications in any other languages are for convenience only and shall not constitute an obligation on us to conduct any further communication in that language.

    8. Apart from communicating via e-mail, we may contact you via letter, telephone, SMS or mobile phone, where appropriate, and we may require communication via SMS in order to authenticate payments or other activity. Any communication or notice sent by post will be deemed received three (3) days from the date of posting. Any communication or notice sent by SMS will be deemed received the same day.

    9. You may contact us at any time by sending a message to LMS Customer Care via the LMS “Support Center” links on our website or by calling 605-610-0398.

  17. COMPLAINTS
    1. Any complaints about us or the services we provide should be addressed to us in the first instance by contacting LMS Customer Care. You should clearly indicate that you wish to make a complaint to us. This helps us to distinguish a complaint from a typical query. We may send an acknowledgement of complaint or request additional information form you regarding your complaint.

    2. Our goal is to provide you with a prompt answer or resolution to your complaint where possible. Nothing contained herein, however, constitutes a commitment by LMS to resolve your complaint.

    3. LMS Customer Care can be reached at the following address and phone number:

      1. LMS Customer Care
        200 N Ebenezer Ave
        Sioux Falls, SD 57107

      2. Phone: 605-610-0398
        Email: support@lmsproject.com

  18. MISCELLANEOUS
    1. No person other than you shall have any rights under these Terms and Conditions.

    2. Your use of the LMS Services is personal to you and you may not assign any rights under the Terms and Conditions to any third party.

    3. LMS User Profiles that are inactive for two (2) years or more may be considered dormant and are subject to escheat. Each state has varying laws as to when the account is subject to escheat, and LMS may be required to send the funds to the state of your last known address. We will make all reasonable efforts to contact you before transferring escheatable funds to an applicable state.

    4. The LMS Services are operated from the United States and these Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of South Dakota. Any dispute under these Terms and Conditions or otherwise in connection with your use of the LMS Services shall be brought exclusively in the courts of the State of South Dakota except where prohibited by US law.

    5. If any part of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of the Terms and Conditions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

  19. DEFINITIONS
    1. Various terms in these Terms and Conditions have a defined meaning as follows:

      1. “Business Day” means any day other than a Saturday or a Sunday or a public or bank holiday in the United States.

      2. “Company” “us” and/or “we” means Lien Management Solutions, LLC.

      3. “Fees” means the charges payable by you to us for using our services.

      4. “PC” means the prime contractor on each Project registered for LMS Services.

      5. “Project Account” means the bank account established for each prime contractor on each individual Project registered for the ongoing use of the LMS Services via LMS or any third-party service provider affiliated with LMS, and for which all payments for a Project are withdrawn.

      6. “LMS” means Lien Management Solutions, LLC and its subsidiaries and affiliates.

      7. “LMS User Profile” means the account established for each user of LMS Services to effect the registration for, and enable the ongoing use of, the LMS Services and does not constitute a bank account or other financial instrument. Such LMS User Profile includes customer information, payment history and other information related to such customer’s use of the LMS Services.

      8. “LMS Customer Care” means our customer service, which you can reach by sending a message through the “Contact Us” facility on the website or by calling 605-610-0398.

      9. “LMS Services” means all of our products and services and any other features, technologies and functionalities offered by us on our website or through other means.

      10. “LMS website” or “website” means the website available at https://LMSPROJECT.COM.

      11. “Owner” means the owner of the real property on which the Project is being constructed.

      12. “Invoice” means the way in which a registered user may request payment from the Project Account for services, goods or materials provided to a Project.

      13. “Privacy Policy” means LMS's policy governing the processing of personal data which is available on the website, as may be amended from time to time.

      14. “Project” means any construction project for which an Owner and PC have been defined and are engaged in a business transaction to complete.

      15. “Project Information” means all information required to register each individual Project for LMS Services.

      16. “Terms and Conditions” means these LMS Terms and Conditions, published on the website and as may be amended from time.

      17. “User Data” means all data, information, documents, and materials submitted by a registered user of LMS Services.

      18. “You” and “your” means you, the natural person or legal entity in whose name the LMS Services are registered.