Zap Solutions, Inc. Terms of Service
Effective Date: June 1, 2020
Please read Zap Solutions, Inc. ("Zap", "we", "us" or "our") Terms of Service (the "Agreement") carefully because it governs your use of Zap's products and services through our website located at https://strike.me/.
(the "Site") and through our mobile device application ("App"). This Agreement constitutes a binding obligation between you and Zap. To make this Agreement easier to read, the Site, App and the services that we provide through the Site and the App are collectively referred to in this Agreement as the "Services".
Agreement to Terms. By using our Services, you agree to be bound by this Agreement. If you do not agree to be bound by this Agreement, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, "you" and "your" will refer to that company or other legal entity.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS AGREEMENT YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND COMPANY THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 20 "DISPUTE RESOLUTION" FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
Acknowledgment of Limitations of Test Features. You acknowledge that: (a) the Services are not an official product and have not been thoroughly tested; (b) the Services may not operate properly, be in final form or fully functional; (c) the Services may contain errors, design flaws or other problems; (d) it may not be possible to make the Services fully functional; (e) use of the Site and Services may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; and (f) Zap has no obligation to release a fully functional commercial version of the Services. Without limiting the terms of Sections 7 and 8 below, you assume all risk arising from use of the Site and Services.
Who May Use the Services? You may use the Services only if you are 18 years or older and capable of forming a binding contract with Zap, and not otherwise barred from using the Services under applicable law.
(a) Eligibility. If you wish to access the Services, you must create an account with Zap (" Account"). When registering your Account, you must provide current, complete, and accurate information for all required elements on the registration page, including your full legal name, email address, phone number, a designated bank account (" Bank Account") if applicable to your use of the Services, and any other information we may require to open an Account. If any of this information changes, it is your obligation to update such information immediately. From time to time, we may also require you to provide further information as a condition for continued use of the Services to confirm your identity and the purpose of using our Services.
(b) Registration and Your Information. When you create an Account, we will assign you a username and password (" Credentials") that you must retain to access your Account and to use the Services. You must maintain the security of your Account by protecting your Credentials and promptly notify us if you discover or otherwise suspect any security breaches related to your Account. You may only register one Account associated with your Credentials.
(c) Accuracy of Account Information. It's important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don't, we might have to suspend or terminate your Account, or your access to certain features of the Services. We may also request, and you will provide, proof of identity and other substantiation of the accuracy of your account information. You agree that you won't disclose your Account password to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, whether or not you know about them.
(d). Blocking IDs. In order to protect the integrity of the Services, we reserve the right, at any time, in our sole discretion, to block access to the Services from certain IP addresses and unique device identifiers.
(e) Restriction Jurisdictions. You may not use the Services if you are located in, or a citizen or resident of any state, country, territory or other jurisdiction that is embargoed by the United States or where your use of the Services would violate any applicable law. You also may not use the Services if you are located in, or a citizen or resident of, any other jurisdiction where Zap has determined, at its sole discretion, to prohibit use of the Services.
(a) Non-commercial Use. You may not use the Services on behalf of a third party on a professional or commercial basis (i.e., for a fee).
(b) Wallet. Zap, in conjunction with our third-party service providers described below, facilitates your ability to make payments to merchant recipients ("Merchants"). Zap facilitates Merchant payments through a proprietary solution leveraging the Lightning Network protocol and its own trusted node ("Olympus").
(c) Gateway. Zap creates a payment gateway for you to make Merchant payments (each a "Transaction") by operating Olympus to transfer Bitcoin to Merchants on your behalf. Zap may in its sole discretion and as reasonably necessary suspend or prevent any Transaction to comply with applicable law. All proposed transfers of Bitcoin from a user to a Merchant through the Services must satisfy the requirements that we may communicate to you from time to time on the Site or in the App. You may view balance and transaction history of the BTC associated with your Account through the Services.
(d) Funding Transactions. Transactions require that you fund your Account using US Dollars. To do so, Zap, either directly or through its Third-Party Partners as described below, debit your Bank Account, accept card payments, accept wire transfers, or other acceptable payment sources (" Payment Methods") to your Account. You represent and warrant that you have the legal right to use all Payment Method(s). You agree to be responsible for paying any applicable sales and use taxes, and any applicable shipping and handling fees that may apply to your Transaction.
(e) DISCLAIMER. YOU WILL NOT BE ABLE TO REVERSE OR CANCEL A TRANSACTION ONCE YOU HAVE CONFIRMED THAT YOU WISH TO PROCEED WITH THE TRANSACTION, AND THE SERVICES CANNOT ASSIST YOU TO REVERSE OR MODIFY ANY TRANSACTIONS.
(a) Payment acceptance on behalf of Merchants. When you initiate a Transaction, you authorize us to provide your Payment Method to Third-Party Partners so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). Once you initiate a Transaction and funds are transferred to or already present in your Account, your obligation to the Merchant is satisfied. For each Transaction, a transfer of funds to Zap will satisfy your payment obligation to the Merchant, and Zap will promptly notify Merchants once such transfer occurs on your Account. The Merchant will receive notification of such payment as part of its participation in the Lightning Network Protocol. If you use the Services to facilitate a Transaction, this Transaction will be between you and the Merchant only.
(b) Payment Limit. We will establish and may change certain limits for Transactions based on the risk assessment, provided, however, that we will have the right to establish and change certain reasonable limits for transactions in accordance with laws and regulations.
(c) Transactions. All Transactions from a user to a Merchant through the Services must satisfy the requirements that we may communicate to you from time to time on the Site or in the App. You will not be able to reverse or cancel a transaction once you have confirmed that you wish to proceed with the Transaction, and the Services cannot assist you to reverse or modify any transactions. You may view balance and Transaction history associated with your Account through the Services.
(d) Accuracy of Information. You represent and warrant that any information you provide via the Services is accurate and complete. You accept and acknowledge that Zap is not responsible for any errors or omissions that you make in connection with any transaction initiated via the Services, for instance, if you mistype a recipient's username or otherwise provide incorrect information. You agree to review your transactions carefully before completing them via the Services.
(e) No Cancellations or Modifications. Once Transaction details have been submitted through the Services, the Services cannot assist you to cancel or otherwise modify your transaction details. Zap will not facilitate any cancellation or modification requests.
(f) Conversion. When you execute a Transaction, Zap directly or through its Third-Party Partner may convert one currency into another currency or asset by completing a deposit to your Account or by changing the currency that denominates your Account. You acknowledge that the price or value of any currency may fluctuate and that the conversion rate ("Conversion Rate") for converting one currency into another may not be the same Conversion Rate that applies when converting back into that first currency in the event of a refund. You will always be shown the applicable Conversion Rate for a transaction prior to consummating the transaction. We are not responsible for any losses that might be incurred as a result of the Conversion Rate that applies to a given transaction.
(g) Representations. You are strictly prohibited from utilizing the Services or initiating any Transactions that are subject to our Prohibited Use Policy identified below. In addition to the Prohibited Uses described above, business practices, and sale items are barred from the Services ("Prohibited Businesses") as identified below.
(a) Creation of an Account. Creating an Account is free. We do not currently charge fees for any Services, however we reserve the right to do so in future, and in such case any applicable fees will be displayed prior to you using any Service to which a fee applies.
(b) Merchant Fees. The cost associated with the underlying Transactions between you and the Merchant are solely established by the Merchant.
(c) Transaction Fees. In consideration for Zap providing the Services, you will pay us a transaction fee per Transaction completed via the Services in accordance with the fee schedules accessible on the Site ("Fees").
(d) Taxes. It is your responsibility to determine what, if any, taxes apply to the Transactions, and it is your responsibility to report and remit the correct tax to the appropriate tax authority. You agree that Zap is not responsible for determining whether taxes apply to your Transactions or for collecting, reporting, withholding or remitting any taxes arising from any Transactions.
Third Party Service Provider. To offer some of the Services, Zap has partnered with third parties to facilitate certain parts of the Transaction (" Third-Party Partners"). Your use of the Services may be subject to such third party's terms or additional conditions as detailed further below.
Third Party Account. Depending on the functions that you seek to utilize with respect to transactions associated with your Account, and Zap's risk determination, Zap may, in its sole discretion, require identity verification, screening procedures, or enhanced verification using our Third-Party Partner (" Enhanced Account Verification"). As a result, you may be required to provide our Third Party Partner with certain personal information, including, but not limited to, your name, address, telephone number, email address, date of birth, taxpayer identification number, government identification number, photograph of your government-issued ID or other photographic proof of your identity, and information regarding your bank account. You hereby authorize zap, directly or through our Third Party Partner, to make any inquiries necessary to verify your identity and/or protect against fraud, including but not limited to: (a) query identity information contained in public reports (e.g., your name, address, past addresses, or date of birth); (b) query account information associated with your linked bank account (e.g., name or account balance); and (c) take reasonably necessary actions to comply with applicable law. You further authorize any and all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests. Zap will have no liability or responsibility for any permanent or temporary inability to access or use any Services, including your inability to withdraw the balance of your account or execute Transactions, as a result of any identity verification or other screening procedures.
Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services ("Feedback"). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
General Prohibitions and Zap's Enforcement Rights. You agree not to do any of the following:
(a) Any violations of Zap's Prohibited Use Policy as provided below.
(b) Use, display, mirror or frame the Services or any individual element within the Services, Zap's name, any Zap trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Zap's express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Zap's computer systems, or the technical delivery systems of Zap's providers;
(d) attempt to probe, scan or test the vulnerability of any Zap system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Zap or any of Zap's providers or any other third party (including another user) to protect the Services;
(f) Attempt to access or search the Services or download any information from the Services, through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Zap or other generally available third-party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use any meta tags or other hidden text or metadata utilizing a Zap trademark, logo URL or product name without Zap's express written consent;
(i) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
(k). Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Impersonate or misrepresent your affiliation with any person or entity;
(o) Violate any applicable law or regulation; or
(p) Encourage or enable any other individual to do any of the foregoing.
(q) Although we are not obligated to monitor access to or use of the Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with this Agreement and to comply with applicable law or other legal requirements. We have the right to investigate violations of this Agreement or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources. The Services (including the Site and the App) may make available to you content provided by third parties, including links to third-party websites or resources (collectively, "Third Party Content"). We do not control, endorse or adopt any Third-Party Content and will have no responsibility for Third Party Content including, without limitation, material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You acknowledge that we provide the Third Party Content to you only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You further acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources and all your interactions with such third-party websites or resources.
Cancellation, Suspension or Termination of Services.
(a) We may, in our sole discretion and without any cost or liability to you, with or without prior notice and at any time, suspend, modify or terminate, temporarily or permanently, all or any portion of our Services, with or without reason, including, without limitation, for any of the following reasons: (i) you create risk or possible legal exposure for us; (ii) our provision of the Services to you is no longer commercially viable; (iii) due to insolvency, bankruptcy, or termination or removal of the App by the App Provider; and (iv) if you breach any terms of this Agreement.
(b) Upon any cancellation, suspension or termination of the Services, the following Sections of this Agreement will survive: 1, 2, 3 to 14, 15(b) and 16 to 21.
(a) We may require you to meet certain requirements for passwords and multi-factor authentication and we may change the requirements with or without prior notice. But, no matter how strong your password is, you must ensure that your Credentials are secure. If they are not, people may compromise and take action on your Account. You should always use two-factor authentication when available, always avoid copying scripts into your browser address bar, and avoid clicking on links, opening attachments or visiting Internet resources you do not trust. You are responsible for maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), or any other codes that you use to access or in relation to the Services. We assume no responsibility for any losses resulting from the compromise of your Account.
(b) YOU ACCEPT AND ACKNOWLEDGE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED ACCOUNT SERVICE INCLUDING, BUT NOT LIMITED TO, THE RISK OF FAILURE OF HARDWARE, SOFTWARE AND INTERNET CONNECTIONS, THE RISK OF MALICIOUS SOFTWARE INTRODUCTION, AND THE RISK THAT THIRD PARTIES MAY OBTAIN UNAUTHORIZED ACCESS TO INFORMATION STORED WITHIN YOUR ACCOUNT, INCLUDING, BUT NOT LIMITED TO YOUR CREDENTIALS. YOU ACCEPT AND ACKNOWLEDGE THAT COMPANY WILL NOT BE RESPONSIBLE FOR ANY COMMUNICATION FAILURES, DISRUPTIONS, ERRORS, DISTORTIONS OR DELAYS YOU MAY EXPERIENCE WHEN USING THE SERVICES, HOWEVER CAUSED.
(c) YOU ACCEPT AND ACKNOWLEDGE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING ANY CRYPTOCURRENCY NETWORK, INCLUDING, BUT NOT LIMITED TO, THE RISK OF UNKNOWN VULNERABILITIES IN OR UNANTICIPATED CHANGES TO THE LIGHTNING NETWORK DAEMON PROTOCOL OR BITCOIN PROTOCOL. YOU ACKNOWLEDGE AND ACCEPT THAT COMPANY HAS NO CONTROL OVER TO THE LIGHTNING NETWORK DAEMON PROTOCOL OR BITCOIN PROTOCOL AND WILL NOT BE RESPONSIBLE FOR ANY HARM OCCURRING AS A RESULT OF SUCH RISKS. You have a sufficient understanding of the cryptocurrency network (including, without limitation, functionality, usage, storage, transmission mechanisms, and other material characteristics of cryptographic tokens, distributed ledger technology, and decentralized software systems) to understand the terms of this program, and to appreciate related risks and implications.
(d) YOU ACCEPT AND ACKNOWLEDGE THAT THERE ARE RISKS ASSOCIATED WITH PARTICIPATING IN AND UTILIZING THE Services INCLUDING, BUT NOT LIMITED TO, THE RISK OF UNKNOWN VULNERABILITIES IN OR UNANTICIPATED CHANGES TO THE PROGRAM AND UNDERLYING NETWORK, Olympus, or the LND. YOU ACKNOWLEDGE AND ACCEPT THAT COMPANY WILL NOT BE RESPONSIBLE FOR ANY HARM OCCURRING AS A RESULT OF SUCH RISKS.
(e) WE WILL USE REASONABLE EFFORTS TO VERIFY THE ACCURACY OF ANY INFORMATION PROVIDED BY THE SERVICES BUT WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, INFORMATION AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES, ANY HYPERLINKS TO THIRD PARTY WEBSITES, OR THE SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE SERVICES.
(f) WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR AND WILL NOT BE LIABLE TO YOU FOR ANY USE OF OUR SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE; (C) UNAUTHORIZED ACCESS TO APPLICATIONS; (D) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICES; OR (F) FAILURE OF ANY TRANSACTIONS FOR ANY REASON.
(g) WE MAKE NO WARRANTY THAT THE SERVICES INCLUDING THE SERVER THAT MAKES THE SERVICES AVAILABLE, ARE FREE OF VIRUSES OR ERRORS, THAT ANY INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SERVICES IS ACCURATE, THAT IT WILL BE UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OF ANY KIND, FROM ACTION TAKEN, OR TAKEN IN RELIANCE ON MATERIAL, OR INFORMATION, CONTAINED OR MADE AVAILABLE THROUGH THE SERVICES.
(h) THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content made available through the Services.
(i) You acknowledge and agree that: (i) you are solely responsible for storing, outside of the Services, a backup of any Credentials; and (ii) if you do not maintain a backup of your Credentials outside of the Services, you may not be able to access the Services associated with any Account after cancellation, suspension or termination of the Services.
Indemnity. You will indemnify and hold harmless Zap and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services; and (ii) your violation of this Agreement.
Limitation of Liability. (a) NEITHER COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) IN NO EVENT WILL COMPANY'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ONE HUNDRED DOLLARS ($100).
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
Governing Law and Forum Choice. This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 20 "Dispute Resolution", the exclusive jurisdiction for all Disputes (defined below) that you and Zap are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Zap each waive any objection to jurisdiction and venue in such courts.
Dispute Resolution. Zap believes that most disagreements can be resolved informally and efficiently by contacting Zap's customer support. If the dispute is not resolved through Zap customer support, you and Zap agree that any such dispute, claim or controversy arising out of or relating in any way to the Services or this Agreement (each, a " Claim"), will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction, in accordance with the following (including the procedure to opt out of arbitration), except that each party retains the right: (i) to bring an individual action in small claims court as further described in Section 20(b) below; and (ii) to seek injunctive or other equitable relief in a 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 (an "IP Protection Action") as further described in Section 20(c) below.
(a) Arbitration: Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and Zap are each waiving the right to a trial by jury or to participate in a class action.
(i) Opt-out. You may opt out of arbitration entirely and litigate any Claim if you provide us with written notice of your desire to do so by email at [email protected] within thirty (30) days following the date you first agree to this Agreement.
(ii) Notice of Claim. If you elect to seek arbitration, you must first send to Zap, by email, a written notice of your Claim (the "Notice of Claim"). The Notice of Claim to Zap should be send to [email protected] and should be prominently captioned "NOTICE OF CLAIM". The Notice of Claim should include both the mailing address and email address you would like Zap to use to contact you. If Zap elects to seek arbitration, it will send, by certified mail, a written Notice of Claim to your billing address on file. A Notice of Claim, whether sent by you or by Zap, must (a) describe the nature and basis of the claim or dispute; (b) set forth the specific amount of damages or other relief sought (the " Demand"); and (c) whether you reject any subsequent modification of the Dispute Resolution section by Zap.
(iii) Arbitration Proceedings. If you and Zap do not reach an agreement to resolve the claim within thirty (30) days after the Notice of Claim is received, you or Zap may commence an arbitration proceeding (or, alternatively, file a claim in small claims court or an IP Protection Action). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org. The arbitration will be governed by the Consumer or Commercial Arbitration Rules, as appropriate, of the American Arbitration Association (" AAA") (collectively, the " AAA Rules"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.
(iv) Arbitration Location and Procedure. Unless Zap and you agree otherwise, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim. If your claim is for U.S. $10,000 or less, Zap agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(v) Unjunctive and Declaratory Relief. Except as set forth in Sections 20(b) and 20(c) the arbitrator will determine all issues of liability on the merits of any Claim asserted by you or Zap, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or Zap prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief will be stayed pending the outcome of the merits of any individual claims in arbitration.
(vi) Arbitration Fees. If your claim for damages does not exceed $10,000, Zap will pay all fees imposed by the AAA to conduct the arbitration, including reimbursement of your initial filing fee, unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If your claim for damages exceeds $10,000, standard AAA Rules will govern the payment of all AAA fees, including filing, administration and arbitrator fees.
(vii) Class Action Waiver. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if you have elected arbitration, unless both you and Zap agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section will be null and void.
(viii) Modification of Dispute Resolution Section. Notwithstanding Section 3 if Zap changes this "Dispute Resolution" section after the date you first accepted this Agreement, and you have not otherwise affirmatively agreed to such changes, you may reject any such change by so stating within your Notice of Claim. By failing to reject any changes to this "Dispute Resolution" section in your Notice of Claim, you agree to resolve any Claim between you and Zap in accordance with the terms of the Dispute Resolution section in effect as of the date of your Notice of Claim.
(ix) Severability. With the exception of any of the provisions in Section 20(a)(vii) of this Agreement (Class Action Waiver), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
(b) Small Claims Court. Notwithstanding Section 20(a) you may elect to litigate your Claim in small claims court if all the requirements of the small claims court are satisfied, including any limitations on jurisdiction and the amount at issue in the dispute. You agree to bring a Claim in small claims court in your county of residence.
(c) IP Protection Action. Notwithstanding Sections 20(a) or 20(b) the exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
(a) Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between Zap and you regarding the Services, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Zap and you regarding the Services. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. You may not assign or transfer this Agreement, by operation of law or otherwise, without Zap's prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. Zap may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. Any notices or other communications provided by Zap under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Zap's failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Zap. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
Contact Information. If you have any questions about this Agreement or the Services, please contact Zap at [email protected].
APPENDIX A: PROHIBITED USE, PROHIBITED BUSINESSES AND CONDITIONAL USE
You may not use the Services to engage in the following categories of activity ("Prohibited Uses"). The specific types of use listed below are representative, but not exhaustive. If you are uncertain as to whether or not your use of the Services involves a Prohibited Use, or have questions about how these requirements apply to you, please contact us at [email protected]. By opening an Account, you confirm that you will not use your Account to do any of the following:
Prohibited Jurisdictions : Activity which would enable access to the Services from any Prohibited Jurisdiction.
Unlawful Activity : Activity which would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions programs administered in the countries where ZAP conducts business, including the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC"), or which would involve proceeds of any unlawful activity; publish, distribute or disseminate any unlawful material or information;
Abuse Other Users : Interfere with another individual's or entity's access to or use of any Services; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others; harvest or otherwise collect information through the Services about others, including email addresses, without proper consent;
Fraud : Activity which operates to defraud Zap, Zap's users, or any other person; provide any false, inaccurate, or misleading information to Zap;
Gambling : Lotteries; bidding fee auctions; sports forecasting or odds making; fantasy sports leagues with cash prizes; Internet gaming; contests; sweepstakes; games of chance; an
Intellectual Property Infringement : Engage in transactions or post, upload, publish, submit or transmit any User Content involving items that infringe or violate any copyright, trademark, trade secret, moral rights, right of publicity or privacy or any other proprietary right under the law, including sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without appropriate authorization from the rights holder; use of Zap intellectual property, name, or logo, including any Mark, without written consent from Zap, or in a manner that otherwise harms Zap or the Zap brand; any action that implies an untrue endorsement by or affiliation with Zap; or
Encouraging or Enabling Others to Commit any Prohibited Use: Activity that may encourage or enable any other individual to do any of the foregoing.
The specific types of use listed below are representative, but not exhaustive. By opening an Account, you confirm that you will not use the Services in connection with any of following businesses, activities, practices, or items:
Restricted Financial Services: Check cashing, bail bonds; collections agencies;
Intellectual Property or Proprietary Rights Infringement: Sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder;
Counterfeit or Unauthorized Goods: Unauthorized sale or resale of brand name or designer products or services; sale of goods or services that are illegally imported or exported or which are stolen;
Regulated Products and Services: Marijuana dispensaries and related businesses; sale of tobacco, e-cigarettes, and e-liquid; online prescription or pharmaceutical services; age restricted goods or services; weapons and munitions; gunpowder and other explosives; fireworks and related goods; toxic, flammable, and radioactive materials; products and services with varying legal status on a state-by-state basis;
Drugs and Drug Paraphernalia: Sale of narcotics, controlled substances, and any equipment designed for making or using drugs;
Pseudo-Pharmaceuticals: Pharmaceuticals and other products that make health claims that have not been approved or verified by the applicable local and/or national regulatory body;
Substances designed to mimic illegal drugs: Sale of a legal substance that provides the same effect as an illegal drug;
Adult Content and Services: Pornography and other obscene materials (including literature, imagery and other media); sites offering any sexually-related services such as prostitution, escorts, pay-per view, adult live chat features;
Multi-level Marketing: Pyramid schemes, network marketing, and referral marketing programs;
Unfair, predatory or deceptive practices: Investment opportunities or other services that promise high rewards; sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; sites that we determine in our sole discretion to be unfair, deceptive, or predatory towards consumers; and
High risk businesses: any businesses that we believe poses elevated financial risk, legal liability, or violates card network or bank policies (to the extent applicable).