Terms of service.
From 11th April 2023 (Version 1.0.3)
These Terms of Service (these “Terms”) set forth the legal obligation of the parties when accessing and using the Zilch App (as defined below), its companion website, currently available at https://www.zilch.com/ (the “Site”) (separately or together the “Zilch Platform”), and any and all related software and services (collectively, including the Zilch Reward Service (as defined below), the “Service”) offered by Zilch USA, Inc. (“Zilch,” “we,” “our,” or “us”). These Terms apply to all visitors, users, and others who access or use the Service (“User”, Users,” “you” or “your”). By accessing or using the Service, or by clicking a button or checking a box marked “I Agree,” “Continue,” “Let’s get started,” or something similar, you have agreed to do business with us electronically pursuant to the ESIGN ACT DISCLOSURE AND CONSENT - Consent to Use Electronic Records and Disclosures (the “ESIGN Consent[A1] ”) and you signify that you have read, understood, and agree to be bound by these Terms and any other terms incorporated by reference herein, whether or not you are a registered user of the Service. Zilch reserves the right to modify these Terms and will provide notice of these changes as described below.
Please read these Terms carefully to ensure that you understand each provision. These Terms contain a mandatory mutual individual arbitration provision in Section 15.2 (the “Arbitration Agreement”) and a mutual class action/jury trial waiver provision in Section 15.3 (the “Class Action/Jury Trial Waiver”) that require, subject only to the specified exceptions in Sections 15.2 and 15.3 or unless you opt out pursuant to the instructions in Section 16.2, the exclusive use of final and binding arbitration on an individual basis only to resolve disputes, rather than jury trials or class, collective, or representative actions or proceedings. We may make changes to the content available on the Zilch Platform at any time. Additionally, we can change, update, add or remove provisions of these Terms, at any time, by posting the updated Terms on the Zilch Platform. By using the Zilch Platform, or expressly consenting as provided above, after we have updated these Terms, you are agreeing to all the updated Terms. If you do not agree with any of the updated Terms, you must stop using the Zilch Platform.
1. The Service
These Terms represent a legally binding contract between you and Zilch governing the Service provided by Zilch. You must read and agree to these Terms before using the Service. If you do not agree to these Terms, you may not use the Service. You may use the Service only if you (i) can form a legally binding contract with Zilch, (ii) reside in and are a resident of the United States or its territories, and (iii) comply with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any access to or use of the Service by anyone under 18 or under the age of majority to enter into a contract in the state in which they reside, whichever is older, is strictly prohibited and in violation of these Terms. The Service is not available to any Users previously removed from the Service by Zilch. Therefore, you represent and warrant that you are eligible to use the Service.
1.2 Limited License
Subject to these Terms, Zilch grants you a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal (noncommercial) use, and as permitted by the features of the Service. Zilch reserves all rights not expressly granted herein in and to the Service and the Zilch Content (as defined below). Zilch may terminate the license granted in this section at any time for any reason or no reason.
1.3 User Accounts
In order to use the Service, you must register and create an account with us (your “User Account”) to gain access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. By connecting to the Service via a third-party service, you give us permission to access and use your information from that third-party service as permitted by that third-party service, and to store your log-in credentials for that third-party service. Only you may use your User Account, and you shall only make purchases on your own behalf, and not on behalf of, or for the benefit of, any other person(s). You shall not use another person’s User Account without obtaining prior permission from Zilch in writing. You must provide us with certain personal information, such as your name, address, date of birth, Social Security Number or Tax Identification Number, and other information that will allow us to identify you as part of your registering for a User Account. We may also ask to see your driver’s license or other identifying documents. All information you provide must be accurate and complete, and you must keep this information up to date. To update your personal information, please make any desired changes by going to the “Profile” section of the ‘Settings’ page from your User Account or call us at 1-855-909-4524 (1-855-90ZILCH). You are solely responsible for all activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) to protect your User Account. For security or other reasons, we may require you to change your password or other information which facilitates access to your User Account. You must notify Zilch immediately of any breach of security or unauthorized use of your User Account. To the extent permitted by law, Zilch will not be liable for any losses caused by any unauthorized use of your User Account. You may control your User Account and how you interact with the Service by going to the ‘Settings’ page of your User Account. We may use your email address and telephone number to send you Service-related communications. You agree to maintain with us your valid email address and telephone number which we may use to send to you these Service-related communications (which may include Loan (as defined below) disclosures, notices, agreements (including any Loan Agreement (as defined below)), privacy policies, statements, records, documents, and other information that may be required or that we otherwise provide during the business relationship between you and us or the Bank (as defined below) in connection with the Services. We may also use your email address to send you other non-Service related communications, such as marketing messages and special offers. If you do not want to receive such non-Service related communications, you may opt out of receiving such email communications by clicking on the “unsubscribe” link in the email communications. Opting out may prevent you from receiving email messages regarding future offers.
1.4 Purchases and Credit
(a) General. The Service offers a technology platform that (i) allows Users the ability to purchase goods or services offered by merchants using the Zilch Card (as defined below), and (ii) in some cases, allows access to financial products provided by Zilch’s partner bank, Cross River Bank, (the “Bank”), including loans originated by Bank (each, a “Loan,” and, collectively, the “Loans”), used to facilitate the purchase of goods or services. using the Zilch Card. Loans may not be available in all states. Purchases made with a Loan are referred to as “Pay in 4” transactions. Additionally, the Zilch Card may be used to purchase goods and services which you may pay for immediately. This is referred to as a “Pay in 1” transaction.
(b) Application and Payment Method. To use the Service, you must apply for the Service, apply for any requested Loan from Bank, meet certain underwriting requirements, and receive approval to make Approved Transactions (as defined below). Furthermore, you must also link your debit card (or any other acceptable payment method) to your User Account (the “Payment Method”). Please follow the onscreen prompts to apply. After you submit your application for your User Account, you may receive an email from us acknowledging that we have received your application and are reviewing it. Please note that this does not mean that you are approved to use the Zilch Card (as defined below) for a purchase, or for any Loan from Bank to facilitate a purchase using such card.
(c) Verification, Credit Reports and Credit Reporting. In applying for the Service, and agreeing to these Terms, you agree that the Bank, and we as the Bank’s service provider, will perform identification, credit and verification checks, which include the use of third-party databases, and verification of the Payment Method. Further, by applying for the Service, you acknowledge that you are making an explicit request for use of the Zilch Card, including any features related to credit that it may permit you to take advantage of. You authorize us and Bank to obtain consumer reports in order to evaluate your application for the Service and Loans, and to administer your account including collecting from you any amounts owing to Bank. You authorize us and Bank to obtain subsequent consumer reports as it relates to your application and as long as you have a User Account with us without further notice, including but not limited to each time you subsequently apply for an Approved Transaction. If you agree to provide us with limited access to your bank account via a third-party service partner, you acknowledge that you are permitting us and/or Bank to access, view, and analyze your transaction history on an on-going basis as it relates to the provision of the Services. You authorize the reporting of all credit history relating to all consumer reporting agencies including credit bureaus and specialty agencies as allowed by law for any Loan you obtain using the Service.
(d) Approval. After underwriting your application for the Service, you will be notified of the decision whether your application was denied or approved. If denied, please review the denial notice for additional information. If approved, you will be permitted to use your User Account and view, on your Zilch dashboard, an available conditional amount for Loans (the “Conditional Amount”). You may enter into Loans from Bank totaling up to the Conditional Amount in order to complete Approved Transactions utilizing Pay in 4 (as defined below) payment. The Conditional Amount is not a Loan, does not represent a sum of money held by us on a User’s behalf, and is not the property of User.
(e) Transactions Generally. Subject to the terms herein, we may provide you with access to a Zilch payment card (the “Zilch Card”) as an authorized user to facilitate the funding of your purchase of goods or services from Merchants, as approved by Zilch (an “Approved Transactions”). The Zilch Card is issued by Bank. You may use the Zilch Card only for Approved Transactions. Before making any Approved Transaction, you will have the option to pay the Approved Transaction immediately by selecting “Pay In 1” (as defined below) or financing the purchase by obtaining a Loan from Bank allowing you to pay over time by selecting “Pay In 4” (as defined below). After making your payment selection, you can enable the Zilch Card to make a purchase of goods and services. The total amount of the service or goods purchased from Merchant by your use of the Zilch Card will be known as the “Purchase Price.” The minimum Purchase Price for a Pay in 4 transaction is $10.00 (exclusive of any applied Zilch Reward Points, as defined herein) (“Pay in 4 Minimum”), while the maximum is $1,000.00. To the extent that you utilize the Zilch Card for any transaction above the Pay in 4 Minimum without electing a transaction type before making the purchase, the default method will be a Pay in 4 on the terms set forth in the most recent Loan Agreement provided to you. We may make available a feature for you to set your transaction type preference that will override this default.
(f) Pay In 1. If you select Pay In 1, you authorize Bank to initiate an immediate one-time charge against your Payment Method for the amount of the Purchase Price (including any subsequent modification to the Purchase Price) reduced by the sum of the amount of any applied Zilch Reward Points.
If you use the Zilch Card within a digital wallet or other virtual card management service managed or owned by a third-party (“Digital Wallet”) (including, but not limited to, placing your mobile device near a point-of-sale terminal equipped with contactless payment technology while the Zilch Card selected), any such transaction (each a “Digital Wallet Transaction”) after selecting Pay in 1 as your transaction type, will be treated as provided above.
(g) Pay In 4. To complete a Pay In 4 transaction, you must sign the most recent Loan agreement with Bank (“Loan Agreement”) that is provided to you in accordance with the ESIGN Consent, which will require payment to be made in 4 installments. The amount of the Loan (“Loan Amount”) will be Purchase Price reduced by the sum of the amount of any applied Zilch Reward Points (as defined below). The User will be required to repay the Loan in 4 installment payments as provided on your Loan Agreement (with a final payment rounded as necessary). At the time of making the Loan, you will authorize Bank to place a hold on funds (in your bank account associated with your Payment Method) equal to the first payment amount. The amount of the hold, and the amount of the subsequent withdrawal, will increase by any amounts that may become necessary to complete a transaction as authorized by you. The first payment owed to the Bank will be due and withdrawn from the bank account associated with your Payment Method on the day following the purchase. The remaining 3 payments will be due beginning biweekly from the date of your purchase, which is the loan funding date. The specific terms of your Loan Agreement with the Bank will govern your obligations. If you use the Zilch Card within a Digital Wallet, any such Digital Wallet Transaction after selecting “Pay in 4” as your transaction type, or as provided in Section 1.4 (h), will be treated as a Pay in 4 transaction, subject to the Pay in 4 Minimum being met. Accordingly, the specific terms of the most recent Loan Agreement provided to you, in accordance with the ESIGN CONSENT, will govern each such transaction. In connection with these Pay in 4 Digital Wallet Transactions, you acknowledge and agree that such use: (i) manifests your intent to be bound to the most recent Loan Agreement we provided to you in accordance with the ESIGN Consent; (ii) constitutes your electronic signature to such Loan Agreement; and (iii) occurred after you had the opportunity to review that Loan Agreement with all disclosures.
(h) Digital Wallet Transactions. To complete a Digital Wallet Transaction, you will be required to sign the Terms for Adding the Zilch Card to a Third Party Wallet (“Digital Wallet Terms”) and add the Zilch Card to a Digital Wallet. These transactions are subject to there Terms and are subject to any applicable Loan Agreements.
(i) Use Restrictions. Each transaction made with the Zilch Card is subject to the terms set forth herein. You cannot use the Zilch Card (1) to make cash withdrawals from any ATM, bank, or Merchant location; (2) to transfer money to any person, bank account, or payment account; (3) to make “postsecondary educational expenses” as defined in Regulation Z, 12 C.F.R. § 1026.46 (b)(3), (4) for any home purchase or refinance, (5) for the purpose of buying or carrying margin securities, (6) for purchase or investment in cryptocurrency, (7) for purchase or investment in securities such as stocks, mutual funds, etc., (8) for business purposes, (9) gambling, (10) to fund any illegal activity, or (9) to enter into any other transactions which we may prohibit. All transactions are subject to our approval. We may further restrict your use of the Zilch Card, in our discretion, subject to applicable law. There may be additional retailer-specific restrictions that we may impose, which may result in your use of the Zilch Card being denied. We retain all rights in respect of the Zilch Card, and you have no rights in respect of the Zilch Card, other than as expressly set forth herein.
(j) Subsequent Uses. Each time you would like to use the Service to make a purchase using the Zilch Card, you can follow the onscreen prompts and/or the procedures described herein. Each Pay in 4 transaction will reduce your Conditional Amount. You may engage in multiple Pay in 4 transactions concurrently (in an amount as reflected on your User Account dashboard that is representative of the maximum loan amount you are offered at that time), however the value of all outstanding Pay in 4 transactions will never exceed your Conditional Amount available at that time.
(k) Refunds. If you return goods and request a refund, or seek a refund in connection with services provided by a retailer, which were paid for with the Zilch Card, it will be your responsibility to arrange the return and refund directly with the retailer, in accordance with the retailer’s requirements, the retailer’s return policy, and all other applicable laws. If the refunded amount is received from the retailer: (i) for a Pay in 4 transaction, Bank will promptly apply it to the remaining Loan balance as a partial prepayment, however if the merchant remits funds in an amount which exceeds the remaining Loan balance, we will return any remaining funds to your Payment Method within sixty (60) days; or (ii) for a Pay in 1 transaction, Bank will remit the refunded amount to your Payment Method. However, if the retailer issues store credit or any other form of credit instead of sending a monetary refund, there shall be no such credit to your Loan (in a Pay in 4 transaction) or no monetary refund to your Payment Method (in either a Pay in 4 or Pay in 1 transaction).
(l) Retailer. We are not the seller or supplier of the goods or services that you purchase using the Zilch Card and (i) do not endorse the quality, safety, or legality of, such goods or services; and (ii) do not ensure that the retailer can or will supply and pass good title to any such goods or services. You should exercise no lesser degree of caution in entering into transactions with retailers than you would when entering into a cash transaction or similar transaction elsewhere.
(m) Terminating Access. You may request, through the Zilch Platform, to deactivate your User Account. Your request may take up to thirty (30) business days to process. Your request to terminate your participation or access to the Service will not terminate any pending transactions, unless we otherwise approve such terminations. Termination does not affect any outstanding Loans. You may not terminate participation in the Service to evade an investigation. We will retain your information in accordance with our Privacy Policies and any applicable laws and regulations.
(n) Zilch Reward Service. Zilch may provide incentives for making Pay in 1 transactions, and may partner with merchants (and/or merchant networks) to offer rewards to Users (“Zilch Reward Service”). If you register for or otherwise use the Services in a manner that implicate the Zilch Reward Service, the terms set forth in Schedule 1 hereto (which are hereby incorporated by reference herein) will apply to your use of the Zilch Reward Service and you consent to enrollment in rewards services provided by, and sharing information (in accordance with our Privacy Notice and E-Sign Consent) with, those merchant and/or merchant networks. In the event of any conflict between Schedule 1 and the rest of these Terms, Schedule 1 will prevail only so far as they relate to the Zilch Reward Service.
(o) Servicing the Loan. You understand that Bank has engaged us and/or other entities to initially service Loans, but acknowledge that Bank may assign all right, title and interest in the Loans to us or a third-party, and either us or the third-party may service the Loan. These collection efforts may involve us or the third-party contacting you directly or taking legal action. You agree that any communication consents (including the E-Sign Consent you gave and as provided in Section 7) cover such debt collection activities to the extent permitted by law.
(p) Unauthorized Pay in 4 Transactions If you notice the loss, theft, or a possible unauthorized use of the Zilch card, you should write to us immediately at:
Mail us at: Attn: Unauthorized Use, Zilch USA, Inc., 1111 Brickell Avenue, Suite 1870, Miami, FL 33131; or Email us at: [email protected] Call us at: (1-855-909-4524 (1-855-90ZILCH)) You, as an authorized user of the Zilch Card, will have no responsibility for unauthorized use of the Zilch Card in connection with Pay in 4 transactions.
(q) Your Billing Rights: Keep This Information For Future Use.
What To Do If You Find A Mistake Regarding A Pay in 4 Transaction
If you think there is an error regarding any of Pay in 4 Transaction, please contact us, within 60 days, as follows: Mail us at: Attn: Billing Error, Zilch USA, Inc., 1111 Brickell Avenue, Suite 1870, Miami, FL 33131; or Email us at: [email protected]
In your communication, give us the following information:
- Account information: Your name, and email address and phone number associated with your User Account.
- Dollar amount: The dollar amount of the suspected error.
- Description of problem: If you think there is an error regarding a Pay in 4 Transaction, describe what you believe is wrong and why you believe it is a mistake.
You must contact us within 60 days after the error appeared in your account transaction list. You must notify us of any potential errors in writing as provided above. You may call us (1-855-909-4524 (1-855-90ZILCH)) but if you do we are not required to investigate any potential errors and you may have to pay the amount in question. What Will Happen After We Receive Your Letter
When we receive your letter, we must do two things:
- Within 30 days of receiving your billing error notice, we must tell you that we received your letter. We will also tell you if we have already corrected the error.
- Within 90 days of receiving your billing error notice, we must either correct the error or explain to you why we believe the bill is correct.
While we investigate whether or not there has been an error:
- We cannot try to collect the amount in question, or report you as delinquent on that amount.
- The charge in question may remain on in your account transaction list.
- While you do not have to pay the amount in question, you are responsible for repaying your other non-disputed transactions.
- We can apply any unpaid amount against your Conditional Amount.
- After we finish our investigation, one of two things will happen:
- If we made a mistake: You will not have to pay the amount in question or other fees related to that amount.
- If we do not believe there was a mistake: You will have to pay the amount in question, along with applicable fees. We will notify you of the amount you owe and the date payment is due. We may then report you as delinquent if you do not pay the amount we think you owe.
If you receive our explanation but still believe your bill is wrong, you must write to us within 10 days telling us that you still refuse to pay. If you do so, we cannot report you as delinquent without also reporting that you are questioning your bill. We must tell you the name of anyone to whom we reported you as delinquent, and we must let those organizations know when the matter has been settled between us. If we do not follow all of the rules above, you do not have to pay the first $50 of the amount you question even if your bill is correct.
(r) Dissatisfied With Your Zilch Card Purchases Your Rights If You Are Dissatisfied With Your Pay in 4 Zilch Card Purchases: If you are dissatisfied with the goods or services that you have purchased via Pay in 4 with your Zilch Card, and you have tried in good faith to correct the problem with the merchant, you may have the right not to pay the remaining amount due on the purchase.
To use this right, all of the following must be true:
- The Pay in 4 purchase must have been made in your home state or within 100 miles of your current mailing address, and the Purchase Price must have been more than $50.
- You must have used the Zilch Card for the purchase.
- You must not yet have fully paid for the purchase.
If all of the criteria above are met and you are still dissatisfied with the purchase, contact us in writing as follows below: Mail us at: Attn: Purchase Issue, Zilch USA, Inc., 1111 Brickell Avenue, Suite 1870, Miami, FL 33131; or Email us at: [email protected]
While we investigate, the same rules (as provided above regarding Your Biling Rights during an investigation) apply to the disputed amount as discussed above. After we finish our investigation, we will tell you our decision. At that point, if we think you owe an amount and you do not pay, we may report you as delinquent.
1.5 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service, or features or components of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service, or features or components of the Service, without notice and without liability, for any reason, including if, in our sole determination, you violate any provision of these Terms, or for no reason. Not all features may be available at all times. Upon termination for any reason or no reason, you continue to be bound by these Terms, and these Terms will apply to any Approved Transaction entered into prior to any such termination.
1.6 Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Zilch shall have no liability for your interactions with other Users, or for any User’s action or inaction.
1.7 Service Location
The Service is controlled from facilities in the United States. Zilch makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals located in the United States.
1.8 Zilch Network Merchants
Certain merchants appear on the homepage and/or search results on the Zilch Site. These merchants (“Zilch Network Merchants”) may change from time to time and without notice of any kind. Please search the Zilch Site to confirm whether that the merchant you wish to purchase from is a Zilch Network Merchant at the time you complete a purchase.
1.9 Applicable Fees for Purchases
No fee will apply for purchase transactions (Pay in 1 or Pay in 4) made in-store (such as using contactless payment technology within a retail store) or purchase transactions made online at a Zilch Network Merchant after successfully enabling your card within the Zilch App for use at that Zilch Network Merchant immediately prior to your purchase. Also, no fee will apply to any Pay in 1 transaction less than $10 (excluding any applied Zilch Rewards Points).
A $3 fee (each a “Platform Fee”) will apply if any of the following are true for any Pay in 1 or Pay in 4 transaction:
(i) your online transaction is made at a merchant this not a Zilch Network Merchant; or (ii) your online transaction is made at a Zilch Network Merchant without successfully enabling the Zilch Card for that same Zilch Network Merchant.
Any applicable fees will be collected from your Payment Method. You authorize us to collect these fees from your Payment Method concurrently with your first payment for Pay in 4 transactions or with your full payment for Pay in 1 transactions. These fees are non-refundable.
2. Mobile Application
We may make available software to access the Service via a mobile device (the “Zilch App”). To use the Zilch App, you must have a mobile device that is compatible with the Zilch App. Zilch does not warrant that the Zilch App will be compatible with your mobile device. You may use mobile data in connection with the Zilch App and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Zilch hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Zilch App for one User Account on one mobile device owned or leased solely by you, for your personal use or internal business use only. You may not: (i) modify, disassemble, decompile or reverse engineer the Zilch App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Zilch App to any third party or use the Zilch App to provide time sharing or similar services for any third party; (iii) make any copies of the Zilch App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Zilch App, features that prevent or restrict use or copying of any content accessible through the Zilch App, or features that enforce limitations on the use of the Zilch App; or (v) delete the copyright and/or other proprietary rights notices on the Zilch App. You acknowledge that Zilch may from time to time issue upgraded versions of the Zilch App, and may automatically electronically upgrade the version of the Zilch App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Zilch App is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Zilch App or any copy thereof, and Zilch or its third-party partners or suppliers retain all right, title, and interest in and to the Zilch App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Zilch reserves all rights not expressly granted under these Terms. If the Zilch App is being acquired on behalf of the United States Government, then the following provision applies. The Zilch App will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Zilch App originates in the United States, and is subject to United States export laws and regulations. The Zilch App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Zilch App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Zilch App and the Service.
2.2 Zilch App via the Apple App Store.
The following applies to any Zilch App you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Zilch, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the Apple Media Services Terms and Conditions and any other applicable Apple terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Zilch as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Zilch as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Zilch, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Zilch acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
2.3 Zilch App via the Google Play Store.
The following applies to any Zilch App you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms are between you and Zilch only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Zilch, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to Zilch’s Google-Sourced Software.
3. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information and reviews, comments, questions, and other content or information about, among other things, the Service (any such materials a User submits, posts, displays, provides, or otherwise makes available on or through the Service are referred to herein as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours. However, you understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your User Content. By submitting, posting, displaying, providing, or otherwise making available User Content on or through the Service, you agree to allow others to view, edit, share, and/or otherwise interact with your User Content in accordance with the Service’s functionality and these Terms. Zilch has the right (but not the obligation), in its sole discretion, to remove any User Content. By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you hereby grant, and you represent and warrant that you have all rights necessary to grant, to Zilch a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service (and/or any other services through which we or our sub-licensees may make the Service (or a service based on the Service) available) and Zilch’s (and its successors’ and affiliates’) business(es), including, without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and/or under these Terms. For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
- you have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and these Terms, and each such person has released you from any liability that may arise in relation to such use;
- you have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties;
- your User Content and Zilch's use thereof as contemplated by these Terms and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights;
- Zilch may exercise the rights to your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise; and
- to the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Zilch takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Zilch shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, needless annoyance, inconvenience, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct, current, and, with respect to a retailer, fair.
For the purposes of these Terms, “Feedback” means composite or compiled feedback about the Service and/or retailers, generated from User Content, including but not limited to, User comments, User ratings, indicators of User satisfaction, and other feedback left by other Users. You acknowledge, agree and understand that Feedback does not constitute and will not be construed as an introduction to, or endorsement or recommendation of, any retailer by Zilch, and that Zilch provides Feedback solely for the convenience of Users. You further acknowledge, agree and understand that Zilch will make Feedback available to other Users on or through the Service. Zilch provides Feedback as a means through which Users can share their opinions of the Service and/or retailers, and Zilch does not monitor, contribute to or censor these opinions. You agree not to use the Feedback to make any employment, credit, credit valuation, underwriting, or other similar decision. Zilch does not make any representations about, or guarantee the truth or accuracy of, any User Content or Feedback.
4. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Zilch Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Zilch and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Zilch Content. Use of the Zilch Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including, without limitation, about how to improve the Service or our products (“Ideas”). By submitting any Idea, you hereby assign to Zilch all right, title and interest in and to such Idea. To the extent that the foregoing assignment cannot, as a matter of law, be accomplished, you agree to grant, and hereby grant, to Zilch an exclusive, perpetual, irrevocable, royalty free, sub-licensable (through multiple tiers of sublicensees), transferable, worldwide license to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Ideas. You acknowledge that, in all cases, Zilch will be entitled to use the Ideas or any portion thereof for any purpose, without restriction or remuneration of any kind. You further acknowledge that, by acceptance of your submission, Zilch does not waive any rights to use similar or related ideas previously known to Zilch, or developed by its employees, or obtained from sources other than you.
5. No Professional Advice
Any financial information that may be provided through or in connection with the Service is provided for informational purposes only, should not be construed as professional advice, and is not a substitute for individualized professional advice. We are not a credit repair or credit services organization as defined under federal or state law, including any credit repair or credit services organization acts. We do not provide “credit services” or “credit repair” services. We do not advise or assist you with “rebuilding” or “improving” your credit. We make no representation that we will improve or attempt to improve your credit record, history or rating. The Service is not intended to provide financial, legal or tax advice, and we are not a financial planner, broker or tax advisor. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
6. Technical Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including, without limitation, by any automated or non-automated “scraping”; (ii) using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Zilch servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Zilch grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email or otherwise violating any anti-spam, consumer protection or privacy law, rule or regulation by using another User’s email address; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personal information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xii) bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on the use of the Service or the content therein; (xiii) accessing any audiovisual content that may be available on the Service in any manner other than that permitted by the functionality of the Service; or (xiv) contravening any applicable law or regulation (including, but not limited to, laws governing consumer protection, unfair competition, anti-discrimination, and false advertising). Please notify us if you believe any other User or other third party is engaging in any of the activities enumerated above.
7. Consent to be Contacted
7.1 Account Transaction Communications.
By accepting these Terms, you expressly consent to be contacted by us, our successors and/or our assigns, for any and all account information and servicing purposes, at any telephone number or physical or electronic address you provide. You agree we may contact you in any way, including SMS messages (including text messages to your mobile device), calls using prerecorded messages or artificial voice, and calls and messages delivered using an auto telephone dialing system or an automatic texting system, Calls, email messages and texts may be made using an automatic dialing or email system technology and/or involve prerecorded and/or artificial voice messaging. Automated messages may be played when the telephone is answered, whether by you or someone else. We may also leave a message on your answering machine / voice mail, or send a message via text. You acknowledge and understand that your cellular or mobile telephone provider will charge you according to the type of plan you carry.
7.2 Your Responsibilities.
You certify, warrant and represent that the telephone numbers that you have provided to us are your numbers and not someone else's. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You will alert us whenever you stop using a particular telephone number. You certify that your provided cell phone or mobile number is true and accurate and that you are authorized to enroll the designated mobile number to receive SMS messages.
To unsubscribe from text messages at any time, reply STOP to any text message you receive from us. You consent that, following such a request to unsubscribe, you may receive one final text message from us confirming your request. For help contact us at [email protected]
7.4 Opt-Out. You can revoke the consent provided pursuant to Section 7 by contacting us via email at [email protected]
7.5 Call Recording and Monitoring.
You consent to the recording and monitoring, for quality assurance, training, risk management and/or collection purposes, of any call that you place with us or that we place to you.
7.6 Responsibility for Fees.
You acknowledge and understand that you are responsible for any fees or other amounts that your phone service provider may charges, such as fees for SMS and data services.
9. DMCA Notice
It is Zilch's policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Zilch’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- an electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- identification of the copyrighted work that you claim has been infringed;
- identification of the material that is claimed to be infringing and where it is located on the Service;
- information reasonably sufficient to permit Zilch to contact you, such as your address, telephone number, and, e-mail address;
- a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- a statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
Pursuant to 17 U.S.C. 512 (c), Zilch USA, Inc. designates the following Copyright Agent: Name: Edward Ibeh, Esq. Address: Zilch USA, Inc. Attn: DMCA Notice 1111 Brickell Avenue, Suite 1870, Miami, FL 33131 USA Telephone: (786) 598-7003 Email: [email protected] subject line “Copyright Policy - DMCA” Notification
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees. Please note that this procedure is exclusively for notifying Zilch and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Zilch’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Zilch has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Zilch may also at its sole discretion limit access to the Service and/or deactivate the User Accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
10. Third-Party Links and Information
If requested, you agree to diligently assist Zilch in responding to requests and inquiries with respect to your User Account, User Content, and/or material or transactions associated with you or your User Account, including, without limitation, by providing us with all information and assistance we may reasonably require, and/or responding promptly and accurately to any such requests and inquiries, should we connect between you and the inquirer.
12. Release and Indemnity
To the extent permitted by applicable law, you hereby release Zilch from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users) in connection with the Service. In addition, you waive any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE RELEASED PARTY.”
You agree to defend, indemnify and hold harmless Zilch and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including, without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including, without limitation, any right of privacy or Intellectual Property Rights; (iv) your interactions with other Users; (v) your violation of any applicable law, rule or regulation; (vi) User Content or any other content that is submitted via your User Account, including, without limitation, misleading, false, or inaccurate information; (vii) your negligence, recklessness or willful misconduct; or (viii) any other party’s access and/or use of the Service with your unique username, password, or other appropriate security code.
13. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Zilch or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Zilch, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
Further, Zilch does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Zilch will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under these Terms will not apply to the extent prohibited by applicable law.
14. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Zilch, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including, without limitation, damages for loss of anticipated savings or profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. Under no circumstances will Zilch be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein. To the maximum extent permitted by applicable law, Zilch assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Service; (iii) any interruption or cessation of transmission to or from the Service; (iv) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service by any third party; (v) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vi) User Content, Feedback, or the defamatory, offensive, or illegal conduct of any third party. In no event shall Zilch, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding $100.00. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Zilch has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.
15. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
15.1 Governing Law.
You agree that: (i) the Service shall be deemed solely based in Delaware; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware. These Terms shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. (Loans, however, are governed by the laws of the State of New Jersey. Please see your Loan Agreement for additional details.) The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of the State of Delaware. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Sussex County, Delaware for any actions for which we retain the right 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 our copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights or proprietary rights, as set forth in the Arbitration Agreement, including any provisional relief required to prevent irreparable harm. You agree that Sussex County, Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration Agreement is found to be unenforceable. You agree that Onfido LTD is a third-party beneficiary entitled to enforce the individual arbitration agreement set forth herein at its election.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Zilch. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and Zilch that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) the Service, including access to or use of the Service, as well as receipt of any advertising, marketing, or other communications from Zilch; (c) any transactions through, by, or using the Service (other than Loan services); or (d) any other aspect of your relationship or transactions with Zilch (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your acceptance of these Terms. The Bank has no obligations or liability under these Terms, and your relationship with the Bank, including arbitration obligations, are subject to the Loan Agreement. If you are a new User, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing Zilch at [email protected] with your full name and stating your intent to opt-out of this Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding governing law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at [email protected] and to attempt to resolve the Claim with us informally. In the event that Zilch has not been able to resolve a Claim it has with you within sixty (60) days, we each agree to resolve such Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under the Consumer Arbitration Rules then in effect for AAA (the “Consumer Rules”), except as otherwise provided herein, or as otherwise determined by the Arbitrator. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. The AAA may be contacted, and a copy of the Consumer Rules is available, at www.adr.org. The arbitration will be conducted in Sussex County, Delaware, unless you and Zilch agree otherwise. Please note the following: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the Arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction, on an individual basis only, without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and Zilch agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable, or relating to any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to contract formation and whether the Terms, or any provision of the Terms, are unconscionable or illusory.
Notwithstanding anything to the contrary, nothing in this Arbitration Agreement shall be deemed as preventing Zilch from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, Intellectual Property Rights or other proprietary rights; or as preventing you from asserting claims in a small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis. All private attorney general causes of action may be brought in court. However, no other dispute, claim, or cause of action shall be joined with such private attorney general action. The parties agree that litigation of any dispute regarding causes of action that may be brought as a private attorney general and causes of action regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
15.3 Class Action/Jury Trial Waiver.
With respect to all persons and entities, all claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class action, collective action, or other representative proceeding. This mutual waiver applies to class arbitration, and, unless we agree otherwise, the Arbitrator may not consolidate more than one person’s Claims. You and Zilch mutually agree that the Arbitrator may award relief only to an individual claimant and only to the extent necessary to provide relief on your individual claim(s). Any relief awarded may not affect other Users. You and Zilch further agree that, by entering into these Terms, you and Zilch are each waiving the right to a trial by jury or to bring, join, or participate in a class action, collective action, or other representative proceeding of any kind as a plaintiff or class member. Notwithstanding anything provided herein, you may maintain a private attorney general action in court as provided in section 15.2.
16.4 Entire Agreement/Severability.
These Terms, together with any amendments and any additional agreements you may enter into with Zilch in connection with the Service, shall constitute the entire agreement between you and Zilch concerning the Service. If any provision of these Terms is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of these Terms, which shall remain in force.
16.5 No Waiver.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Zilch's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Please contact us at [email protected] with any questions regarding these Terms.
Schedule 1 – Zilch Rewards Service Terms
All capitalized terms used but not defined in this Schedule 1 (this “Schedule”), as well as “we,” “our,” “us,” “you” and “your,” shall have the meanings set forth in the Terms of Service (the “Terms”).
1. Zilch Rewards Service
1.1. The terms in this Schedule apply only where you (for the purposes of this Schedule, “Account Holder”) register for or otherwise use the Zilch Rewards Service.
1.2. The Zilch Rewards Service allows Account Holders to qualify for rewards points (“Zilch Reward Points”) in connection with eligible purchases from retailers (i.e., sellers and suppliers of goods or services) that are made through the Service (each, a “Zilch Transaction Reward”). Zilch Reward Points amount to a “Zilch Reward Balance”. Zilch Reward Points from your Zilch Reward Balance may be redeemed to reduce the amount you pay in relation to a transaction on the Zilch App or Zilch Site, at a conversion rate of 1 Zilch Reward Point per penny ($0.01). For the avoidance of doubt, the Zilch Reward Balance and any Zilch Reward Points do not represent a sum of money held by us on an Account Holder’s behalf and is not the property of Account Holder until redeemed by Account Holder.
1.3. Zilch Rewards Points may be earned in one of two ways:
1.3.1. Method One: Account Holders who have entered into a Pay in 1 transaction will receive Zilch Reward Points depending upon the then-current advertised reward percentage (“Reward Rate”). The Amount of Zilch Reward Points earned as a Zilch Transaction Reward shall determined as follows: Purchase Price x Reward Rate x 100, rounded up to the next whole number. (For example: ((Purchase Price of $500) multiplied by (Advertisted Reward Rate of 2%)) x 100 = 1,000 Zilch Rewards Points, which may be converted for the equivalent use of $10 in connection with a future Zilch transaction.)
1.3.2. Method Two: Account Holders who have entered into qualifying purchases from retailers, where those retailers have confirmed the purchase (each, a “Qualifying Transaction”), may receive related rewards reflected in their User Accounts A Qualifying Transactions may be entered into by an Account Holder through the Zilch Platform with a retailer for an offer the retailer makes through the Zilch Platform, should such offers be presented. Each retailer offer is additionally subject to such terms and conditions as the retailer applies to the offer. Zilch assumes no responsibility for the retailers failure to or delay in providing any related rewards.
1.4. Notwithstanding anything stated above, Account Holders shall not earn Zilch Rewards Points on any portion of any Zilch transaction that was made in connection with Zilch Rewards Points. (For example, if an Account Holder enters into a Zilch Pay in 1 transaction with a Purchase Price of $100, while utilizing 2000 Zilch Reward Points (the equivalent of $20.00), the Account Holder will only earn Zilch Reward Points on $80 of the purchase. In this transaction scenario, the Account Holder would earn 160 Zilch Reward Points).
2. Zilch Reward Balance
2.1. Notwithstanding the foregoing, there are various circumstances in which sums will be forefitted and will not appear in an Account Holder’s Zilch Reward Balance:
2.1.1. where the transaction associated with any earned Zilch Transaction Reward is cancelled after it was processed and reflected by the Zilch App or Zilch Site. (For example, where a purchased product is returned or a right to cancel the transaction is exercised, any associated Zilch Transaction Reward will be forefitted);
2.1.2. where a User Account becomes deactivated for any of the reasons below:
184.108.40.206. suspended by us;
220.127.116.11. associated with any fraudulent activity or any breach of the Terms; or
18.104.22.168. used to make purchases on behalf of, or for the benefit of, any other person; or
2.1.3. where a User Account has not been logged into Zilch for more than six (6) months.
3. How to Use Your Zilch Rewards Points
If you have previously earned Zilch Rewards Points, you may apply them to reduce te amount you pay in relation to a transaction on the Zilch App or Zilch Site by enabling the Zilch Reward Balance toggle that presented to before enabling the Zilch Card for a purchase.
4. Misuse of the Zilch Reward Service
Account Holders must not enter into, or attempt to enter into, any transaction with a retailer, and must not endeavor to gain Zilch Reward Points: (a) by providing personal information of someone else, or a payment method which they are not entitled to use, (b) by deceptively or unfairly exploiting a retailer’s offering, (c) in breach of any terms and conditions applied by us or the retailer to that transaction, or (d) in breach of any applicable law.
5. Additional Services
We or our partners may offer new or additional services through the Zilch Reward Service from time to time. Your use of those services may be subject to additional terms and conditions, which you must comply with. Provided that we notify you of those terms in one of the manners specified in the Terms or in another appropriate manner, any failure by you to comply with a material provision of the terms governing those services will amount to a breach of the Terms.
Zilch Reward Points you receive may qualify as taxable income to you. You are responsible for determining your tax situation and we encourage you to consult with your tax advisor. When laws require us to do so, we will report your Zilch Rewards Points as income to the Internal Revenue Service, as well as state and local tax authorities. You are responsible for paying any federal, state, or local taxes you owe, or other connected fees or gratuities. Should we be required to report taxes, tax reporting, if any, will be made to the tax ID number of the Account Holder, based on our records. It is your responsibility to determine what, if any, taxes apply to any gains or losses or to the payments you make or receive, and to collect, report, and remit the correct tax to the appropriate tax authority. You are responsible for complying with all applicable law, whether federal, state, local, or non-U.S. You agree that neither we nor any of its affiliates is responsible for determining whether or which laws may apply to your transactions, including tax law. You are solely responsible for paying any taxes arising from Zilch Reward Points and filing any reports that you are required to file.
7.1. The Zilch Reward Balance is not your property and have no cash value, surrender value, transfer value nor any other value of any kind until and to the extent they are actually redeemed. You cannot assign, transfer or move the Zilch Reward Balance except as expressly provided in these Terms. Further, you cannot combine your Zilch Reward Balance with the Zilch Reward Balance accrued by any other person. The Zilch Reward Balance is not intended as a gift or for gift-giving purposes and shall not be used as a “gift certificate.” The Zilch Reward Balance is not your property and may not be assigned or transferred to any person (including upon death or as a part of a domestic relations matter). The Zilch Reward Balance cannot be used to offset any amount due from you on the Loan. The Zilch Reward Balance used by you for redemption will be the unredeemed Zilch Reward Balance amount that has been on the User Account the longest time. All redemptions are final. The sale or barter of the Zilch Reward Balance, other than by us, is expressly prohibited. There are no credits, exchanges or refunds on unused Zilch Reward Balance. Any unredeemed Zilch Reward Balance will, on the day of User Account closure, be forfeited if your User Account is closed for any reason.
7.2. We have the right to suspend redemption rights of your Zilch Reward Balance in the event there is a dispute between us and you. You will forfeit your Zilch Reward Balance immediately if you are in default under or violate these Terms or the Loan Agreement, if we determine that you have violated the redemption rules of these Terms, if you are in any way involved in fraud, theft, or other illegal activity, if we determine that you used our Service in any way for manufactured spending, or if your User Account is closed, terminated or suspended for any reason, which we may do without cause and without notice, unless required by law.
7.3. We reserve the right, in its sole discretion, to suspend, cancel or modify the Zilch Reward Service at any time and for any reason and without prior notice. Administrative services may be provided by third party service providers.
7.4. We may temporarily or permanently suspend your ability to earn Zilch Reward Points under these Terms at any time, with or without cause. Without limiting the generality of the foregoing, we reserve the right, in our sole discretion, to disqualify you from participation in the Zilch Reward Service and to cancel or invalidate any Zilch Reward Balance in the following events: (i) in cases of actual or suspected abuse, fraud, violations of the Terms or any actual or suspected abuse or fraud with respect to Zilch Reward Service, or we otherwise suspect or believe you are or have engaged in activity that we deem to be abusive or “gaming” conduct in connection with the Zilch Reward Service, as determined in our sole discretion; or (iii) your participation in the Zilch Reward Service poses a risk to us or any third party, as determined by us in our sole discretion.
7.5. It is your responsibility to ensure that your Zilch Reward Balance is properly accrued and credited in accordance with these Terms. If you think you were eligible for Zilch Reward Points that was not properly credited to you or on your behalf, we can require that you submit documentary evidence to support your claim that is satisfactory to us. You must send your claim for an improperly credited Zilch Reward Balance within sixty (60) days after the date upon which the credit was applied or you claim such crediting was supposed to have occurred but did not. If you do not file your claim within sixty (60) days, the Zilch Reward Balance earned and posted to your User Account will be deemed accurate and you will have waived any claim for adjustment. We reserve the right (but are not required) to correct inaccurate Zilch Reward Balance amounts, and to adjust the Zilch Reward Balance at our sole discretion. If we do not credit, or improperly deny, the Zilch Reward Balance to which you were otherwise entitled, then your exclusive remedy will be the issuance of the improperly denied Zilch Reward Balance, if available, or such other alternative benefit as we in our sole discretion may determine.
7.6. In the event you redeem your Zilch Reward Balance and thereafter any related transaction is either refunded, credited or otherwise rescinded, in whole or in part, we may, at our discretion, withhold the subsequent awarding of any Zilch Reward Balance, or collect any amount(s) you owe, in any appropriate manner, including, but not limited to, the posting of an equivalent dollar debit for the value of the Zilch Reward Balance you obtained in the form of a debit transaction to your Payment Method.
7.7. You agree to indemnify and hold us and our third-party service providers and their respective affiliates, directors, officers, employees, agents and contractors harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) arising from: (i) use of the Zilch Reward Service; (ii) any fraud or misuse of the Zilch Reward Service; (iii) actions or omissions in connection with the Zilch Reward Service; (iv) any disputes or issues between you and any third party in connection with the Zilch Reward Service; and/or (vii) violation of any applicable law or the rights of any third party in connection with the Zilch Reward Service, as it pertains to your User Account.
THE ZILCH REWARD SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR THIRD-PARTY SERVICE PROVIDERS AND ALL OF THEIR SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “ZILCH PARTIES”) EXPRESSLY MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO THE CONTENT OR OPERATION OF THE ZILCH REWARD SERVICE. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE ZILCH REWARD SERVICE IS AT YOUR SOLE RISK. THE ZILCH PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE INFORMATION OR CONTENT IN THE ZILCH REWARD SERVICE, AND EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. THE ZILCH PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE ZILCH REWARD SERVICE ARE FREE OF VIRUSES, BUGS, DEFECTS, ERRORS, OR OTHER COMPUTING ROUTINES THAT CONTAIN DAMAGING OR OTHERWISE CONTAMINATING PROPERTIES, OR PROGRAMS INTENDED TO INTERCEPT OR STEAL PERSONAL OR SYSTEM DATA.