Disclaimer: ZenBusiness INC is not an attorney, a law firm, or a substitute for an attorney or a law firm and does not engage in the practice of law. ZenBusiness INC cannot and does not provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. We provide information and software and you are responsible for appropriately using this material.
1. ZENBUSINESS SERVICES
This Service must be used within the applicable laws of the State relating to the formation of businesses. This Service is intended only for use in the United States.
ZenBusiness Money. ZenBusiness Money is a payment processor that allows you to accept certain card brands (as defined below) from customers for the payment for goods and services. We are not a bank and do not offer banking services. Specifically, our Payment Services allow you to accept payments from any U.S.-issued and most non-U.S. issued credit, debit, prepaid, or gift cards (“Cards”) bearing the trademarks of American Express Travel Related Services Company, Inc., DFS Services, LLC (D/B/A “Discover”), MasterCard International Inc. and Visa Inc. (collectively, the “Card Brands” or “Networks”). You are not required to accept any card brand as a condition of receiving Payment Services. We may remove or add Cards or card brands that we accept at any time without prior notice.
2. REGISTRATION AND ACCOUNT
Account Creation. In order to use certain features of the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site, subject to early termination fees, as applicable. ZenBusiness may suspend or terminate your Account in accordance with the Term and Termination Section.
ZenBusiness Money. You must open a ZenBusiness Money Account to access any Proceeds. You confirm that you are either a legal resident of the United States, a U.S. citizen, or a business entity authorized to conduct business by the U.S. state(s) in which you operate and that you are an authorized signatory for the business you represent. You must use your or your business’ true and accurate name when opening a ZenBusiness Money Account (no “doing business as” or “D/B/A”). This name will appear on the credit or debit card statements of your customers for all payments you accept using the Payment Services.
Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify ZenBusiness of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. ZenBusiness cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. MINIMUM AGE
You must be 18 years of age or older to use or register for Services.
4. ACCESS TO THE SITE AND THE SERVICES
License. Subject to this Agreement, ZenBusiness grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site and App solely for your own personal, noncompetitive use.
Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or App, whether in whole or in part, or any content displayed on the Site or App; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or App; (c) you shall not access the Site or App in order to build a similar or competitive website, product, or service, to discover information that could be used to compete against ZenBusiness (such as the terms of its relationships with its business partners); and (d) except as expressly stated herein, no part of the Site or App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site or App shall be subject to this Agreement. All copyright and other proprietary notices on the Site or App (or on any content displayed on the Site or App) must be retained on all copies thereof.
Modification. ZenBusiness reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you, except where ZenBusiness is providing monthly or yearly services, in which case ZenBusiness will endeavor to give you notice prior to the next renewal term. You agree that ZenBusiness will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
No Support or Maintenance. You acknowledge and agree that ZenBusiness will have no obligation to provide you with any support or maintenance in connection with the Services.
Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site or App and its content are owned by ZenBusiness or ZenBusiness’ suppliers. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth herein. ZenBusiness and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
6. SERVICE FEES AND BILLING METHODS
ZenBusiness charges you for service fees and filing fees. ZenBusiness may collect these fees directly using a third-party payment service. ZenBusiness may place a $100.00 hold on your payment method until the full-service fees and filing fees are determined. ZenBusiness will charge you the fees from your applicable State associated with forming a business and filing documents with a State and for such other Services as you select while using the Site. If you do not pay on the billing date, you can correct your credit card information and pay the outstanding amounts before the one-month anniversary of your billing date. If you have not made any payments on your Subscription by the one-month anniversary of your billing date, ZenBusiness may suspend your service and terminate your Subscription. If payment cannot be charged to your credit card or your charge is returned for any reason, including through a chargeback, ZenBusiness may, at its sole and absolute discretion, suspend or terminate your access and account, which will terminate these Terms and our obligations under them. If a charge made to your credit card is declined, ZenBusiness may make up to five attempts to bill that card over a thirty-day period. If you wish to reactivate your account after a termination, there will be no setup or reactivation fees. However, if your account was terminated for nonpayment, it will be reactivated only after ZenBusiness receives the full amount past due.
ZenBusiness Money. You agree to pay the applicable fees listed on our Fee Schedule (“Fees”) for use of the Payment Services. All Fees are charged at the time we process a transaction and are deducted first from transferred or collected funds and thereafter from the Balance in your ZenBusiness Money Account. You also grant us Recovery Authorizations (as defined herein), which we may utilize to recover fees you owe us. We reserve the right to change the Fees upon reasonable advance notice. All Balances and all Fees, charges, and payments collected or paid through the Payment Services are denominated in U.S. dollars.
One-Time Payments. ZenBusiness offers services that are subject to a one-time fee. These services include filing for an EIN on your business’ behalf, requesting priority handling of your business’ formation with the State, and other services that may be offered by ZenBusiness from time to time. The one-time service payments are not subject to the automatic renewal or recurring payment schedule referenced in this section and are payable at the time of your request.
Notice of Automatic Billing. I understand that ZenBusiness may send a reminder email to the email address of record for my account before my installment billing dates. I acknowledge and agree that this notice is provided as a courtesy only, and ZenBusiness is not obligated or required to provide such notice. I acknowledge and agree that (i) my failure to read, (ii) my inability to receive, and/or (iii) the failure of ZenBusiness to send the email does not create any liability on the part of ZenBusiness or any third-party service provider.
Abandoned or Incomplete Orders. I understand that, other than as required by applicable law, I shall have no right to cancel, request a cash refund or obtain store credit for any undelivered order after 120 days have elapsed from the purchase date unless ZenBusiness is at fault. All itemization of fees are displayed for convenience only. Abandoned orders may result in liquidated damages equal to the amount paid to ZenBusiness for reimbursement of our commitment to service this order.
Recurring Payments. ZenBusiness also offers paid services for an initial period of 12 months. The paid services are billed to you using a recurring payment system that recurs and is billed on either a monthly or yearly basis.
You authorize ZenBusiness to charge the card originally used for purchase on either the monthly or yearly anniversary of your engagement of the services as appropriate. If you have purchased the Worry Free Compliance service, you will also be billed for State compliance event filing fees at the time of any compliance event (e.g. Annual Report). If a payment fails or is expired, you will be notified by ZenBusiness and access to the Services will be suspended until payment is received. You may elect to discontinue some or all of your paid services at any time by contacting email@example.com. Should you elect to discontinue any of the paid services prior to the expiration of the initial 12-month term you may be required to pay a cancellation fee and any other expenses which have been paid or incurred by ZenBusiness, including state or third-party vendor fees.
Refund Policy. Buy with confidence knowing that your purchase is backed by our 60-day money back guarantee. If you wish to cancel a subscription or add-on service, please contact customer support within 60 days for a full refund less any state or other third-party fees. After 60 days, we can cancel your subscription or service, but no refunds will be issued.
ZenBusiness Money Refunds and Returns. By accepting Card transactions through the Payment Services, you agree to process returns of, and provide refunds and adjustments for, your goods or services through your ZenBusiness Money Account in accordance with these Terms and Network Rules. Network Rules require that you disclose your return or cancellation policy to customers at the time of purchase. The amount of the refund/adjustment must include any associated Taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. If your refund policy prohibits returns or is unsatisfactory to the customer, you may still receive a Chargeback relating to such sales. You can process a refund through your ZenBusiness Money Account up to 120 days from the day you accepted the payment. If your available ZenBusiness Money Account Balance is insufficient to cover the refund, we may exercise any of our rights set forth in this Term of Use, including withdrawing up to the requested refund amount (the sale amount minus the initial transaction fee) from a payment instrument registered with your ZenBusiness Money Account including any Reserve, and crediting it back into your customer’s Card. The Fees also are refunded by ZenBusiness Money, so the full purchase amount is always returned to your customer. ZenBusiness Money has no obligation to accept any returns of any of your goods or services on your behalf.
Registered Agent Services. If you purchased Registered Agent Services from ZenBusiness, please refer to the Registered Agent Terms.
Commercial Mail Receiving Services. If you purchased Commercial Mail Receiving Services from ZenBusiness please refer to the Commercial Mail Receiving Services Terms.
Worry Free Compliance. ZenBusiness will perform due diligence to ensure that your business is in good standing at the time of Worry Free Compliance purchase. By purchasing the Worry Free Compliance, you authorize ZenBusiness to charge your credit card on file for the State fees required to process your compliance documents. ZenBusiness is NOT responsible for disenfranchisement or lack of good standing of your entity if you did not opt into, and purchase, the Worry Free Compliance, if your entity was in bad standing PRIOR to engagement of ZenBusiness’ services, if you cease using ZenBusiness as your registered agent without notifying ZenBusiness of the change, or if ZenBusiness was unable to process the required State fees due to an unsuccessful payment attempt on your designated billing payment method. ZenBusiness requires 14 business days to perform due diligence before processing any upcoming compliance reports. All compliances and warranties offered under the Worry Free Compliance shall not be effective until 14 days after your selection and payment for the Worry Free Compliance. Once confirmed, ZenBusiness will monitor your compliance events (e.g. State annual report), notify you of compliance event(s), and ensure the timely filing of any applicable documents or fees with the State for an initial period of 12 months.
Compliance Filing Service. By purchasing our Worry Free Compliance service, the following provisions apply to you:
Eligibility. To qualify for our state-filing service, your entity must remain in good standing with the state. Failure to respond will result in a delinquency with the Secretary of State, and you may be subject to state penalties and/or having your entity’s status revoked or suspended.
Responsibility to Provide Information. In order for ZenBusiness to process your compliance filing with the State agency, you must first complete ZenBusiness’ Annual Report (or the equivalent depending on the state) questionnaire and pay the state’s required filing fees at least 15 business days before your filing due date. Failure to complete the ZenBusiness questionnaire may result in delinquency with the State agencies, late filing fees, or additional penalties not covered by the Worry Free Compliance.
California: Effective April 7th, the California Secretary of State introduced restrictions that will require all California Secretary of State filings to be submitted by logging into a user account. Only the authorized user can pull evidence or file subsequent filings. In order to purchase Worry Free Compliance, some customers will be required to grant ZenBusiness permissions to your account.
Filing Fees or Other Fees. While ZenBusiness may, from time to time, collect requisite filing fees, penalty fees, or reinstatement fees from you to advance to the proper state or local government, ultimately, you are responsible for ensuring that all such fees have been paid and received by the state, including state fees, including penalties and reinstatement fees, if applicable, or local governmental entity.
Compliance Alerts. We will attempt to contact you at the email address on record up to five times to remind you of an upcoming filing. For Registered Agent subscribers, we may also forward any notices we receive as your registered agent, including annual report reminders, delinquency notices, or other compliance-related correspondence from Secretaries of State. You are responsible for informing ZenBusiness of changes to your contact information.
Exclusions. Local, industry-specific, licensing, and tax requirements are not included as part of this state filing service, unless specified otherwise in your package.
7. USER CONTENT
User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site or the App (e.g., content in the user’s profile, documents, including, but not limited to governmental filings and completed forms, certificates, and records, forms, messages, information submitted or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance by ZenBusiness on its accuracy, completeness or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (below). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by ZenBusiness. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. ZenBusiness is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
License. You hereby grant (and you represent and warrant that you have the right to grant) to ZenBusiness an irrevocable, nonexclusive, license to reproduce, store, and otherwise use your User Content for the purposes of including your User Content in the Services requested by you.
Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
You agree not to use the Site or App to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any applicable law, regulation, or obligations or restrictions imposed by any third party.
In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site or App any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site or App unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site or App to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or App, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site or App (or to other computer systems or networks connected to or used together with the Site or App), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site or App; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site or App, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site or App (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site or App 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, subject to the parameters set forth in our robots.txt file).
Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with the Term and Termination Section, and/or reporting you to law enforcement authorities.
Feedback. If you provide ZenBusiness with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to ZenBusiness all rights in such Feedback and agree that ZenBusiness shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. ZenBusiness will treat any Feedback you provide to ZenBusiness as non-confidential and non-proprietary. You agree that you will not submit to ZenBusiness any information or ideas that you consider to be confidential or proprietary.
8. CONSENT TO USE CERTAIN DATA
Location Data. If you opt-in to location data, ZenBusiness and its partners, licensees and third-party developers may provide certain services through ZenBusiness Software that rely upon location information. To provide these services, where available, ZenBusiness and its partners, licensees and third-party developers may transmit, collect, maintain, process and use your location data, including the real-time geographic location of your computer, and location search queries. The location data and queries collected by ZenBusiness are collected in a form that does not personally identify you and may be used by ZenBusiness and its partners, licensees and third-party developers to provide and improve location-based products and services. By using any location-based services provided by or through ZenBusiness Software, you agree and consent to ZenBusiness’ and its business partners’’ licensees’ and third-party developers’ transmission, collection, maintenance, processing and use of your location data and queries to provide and improve such products and services.
9. THIRD PARTY LINKS
Third-Party Links. The Site may contain third-party data and/or sources such as data from governmental records or links that direct you to third-party partners (for example, providers of small business accounting services, small business banking services, small business insurance services, small business lending services, or domain name or website services (collectively, “Third-Party Data & Sources”)). Such Third-Party Data & Sources are not under the control of ZenBusiness, and ZenBusiness is not responsible for any Third-Party Data & Sources. ZenBusiness provides access to these Third-Party Data & Sources only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Data & Sources. You use all Third-Party Data & Sources at your own risk and should apply a suitable level of caution and discretion in doing so.
When you click on any of the Third-Party Data & Sources, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Data & Sources.
Release. You hereby release and forever discharge ZenBusiness (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Site or App users or any Third-Party Data & Sources).
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR 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 MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
10. SERVICE PROVIDERS
ZenBusiness does not endorse and is not responsible or liable for any User Content, data, advertising, products, goods or services available or unavailable from, or through, any third-party registered agent services, third party filers or governmental agencies (collectively (collectively “Service Providers”). You agree that should you use or rely on such User Content, data, advertisement, products, goods or services, available or unavailable from, or through any Service Provider, ZenBusiness is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or representation by any Service Provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Provider exclusively and do not involve ZenBusiness. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Service Providers.
You agree that ZenBusiness is not responsible for the accessibility or unavailability of any Service Provider or for your interactions and dealings with them, waive the right to bring or assert any claim against ZenBusiness relating to any interactions or dealings with any Service Provider, and release ZenBusiness from any and all liability for or relating to any interactions or dealings with Service Providers.
11. DISCLOSURE OF INFORMATION
As ZenBusiness continues to develop its business, it might sell or buy other companies or assets or be acquired or have substantially all of its assets acquired by a third party. In such transactions, customer information generally is one of the transferred business assets. You hereby consent to the transfer of your information as one of the transferred assets and to be used for any purpose allowed under this Agreement (subject to privacy and confidentiality provisions).
12. PAYMENT SERVICES
Prohibited Industries and Business Activities. You may not use the Payment Services for the following businesses or business activities: (a) any illegal activity or goods; (b) paraphernalia that may be used for illegal activity; (c) buyers or membership clubs, including dues associated with such clubs; (d) credit counseling or credit repair agencies; (e) credit protection or identity theft protection services; (f) direct marketing or subscription offers or services; (g) infomercial sales; (h) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit, including re-importation of pharmaceuticals from foreign countries); (i) unauthorized multi-level marketing businesses; (j) inbound or outbound telemarketers; (k) prepaid phone cards or phone services; (l) rebate based businesses; (m) up-sell merchants; (n) bill payment services; (o) betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races; (p) manual or automated cash disbursements; (q) prepaid cards, checks, insurance or other financial merchandise or services; (r) sales of money-orders or foreign currency;, (s) wire transfer money orders; (t) high-risk products and services, including telemarketing sales; (u) automated fuel dispensers; (v) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material); (w) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury; (x) internet/mail order/telephone order of age restricted products (e.g., tobacco); (y) occult materials; (z) hate or harmful products; (aa) escort services; and (bb) bankruptcy attorneys or collection agencies engaged in the collection of debt.
Processing Errors. We will attempt to resolve any processing errors we discover. If an error results in your receipt of fewer funds than you are entitled, we will credit your ZenBusiness Money Account for the difference. You grant us Recovery Authorizations concerning processing errors. If an error results in your receipt of more funds than you are entitled, ZenBusiness Money may recover the extra funds from you. We will only correct transactions that you process incorrectly if you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
Underwriting and Identity Verification. ZenBusiness Money will review the information you submit while signing up for the Payment Services. You authorize ZenBusines Money to request identity verifying information about you, including a consumer report that contains your name and address. ZenBusiness Money may periodically obtain additional reports to determine whether you continue to meet the requirements for a ZenBusiness Money Account. You permit ZenBusiness Money to share information about you and your application (including whether you are approved or declined), and your ZenBusiness Money Account with your bank or other financial institution, or as otherwise specified in the Privacy Notice. ZenBusiness Money or its processor and/or acquiring bank may conclude that you will not be permitted to use the Payment Services. Your consumer report will be limited to identity verification purposes only and will not be used for any credit or background checks.
Requests for Additional Information. ZenBusiness Money may request additional information from you at any time. For example, ZenBusiness Money may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s license, a business license, or other information. If you refuse any of these requests, your ZenBusiness Money Account may be suspended or terminated.
Access to Proceeds. We will settle Proceeds to your verified bank account or other account approved by ZenBusiness Money, subject to the payout schedule described below. If ZenBusiness Money is not able to debit or credit the bank account you link to your ZenBusiness Money Account, that bank account will be de-linked from your ZenBusiness Money Account. You must link an ACH-enabled bank account to your ZenBusiness Money Account in order to receive your Proceeds. ZenBusiness Money will not automatically initiate payouts of your Proceeds. To initiate a payout of Proceeds to your valid, linked US bank account you must do so by initiating an account transfer in the ZenBusiness Money Account. We may defer payout or restrict access to your Proceeds if we need to conduct an investigation or resolve any pending dispute related to your use of the Services. We also may defer payout or restrict access to your Proceeds as necessary to comply with applicable law or court order, or if requested by any governmental entity.
Transaction History. When a payment is made to your ZenBusiness Money Account, we will update your Account activity on the Payment Services and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your Account activity are available on the Payment Services for up to one year of account activity. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your ZenBusiness Money Account and your use of the Payment Services, and (b) reconciling all transactional information that is associated with your ZenBusiness Money Account. If you believe that there is an error or unauthorized transaction activity is associated with your ZenBusiness Money Account, you must contact us immediately.
Reserve for Withholding Funds. We may withhold funds by temporarily suspending or delaying payouts of Proceeds to you and/or designate an amount of funds that you must maintain in your ZenBusiness Money Account or in a separate reserve account (a “Reserve”) to secure the performance of your obligations under any agreement between you and ZenBusiness Money. The Reserve also may be used to satisfy ZenBusiness Money’s obligations to hold or remit funds as required by any creditor or governmental authority, including levies, liens, or garnishments. We may require a Reserve for any reason related to your use of the Payment Services. The Reserve will be in an amount as reasonably determined by us to cover potential losses to ZenBusiness Money. The Reserve may be raised, reduced or removed at any time by ZenBusiness Money, in its sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in ZenBusiness Money’s favor, or otherwise as ZenBusiness Money or its processor may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your ZenBusiness Money Account, including any funds (a) transferred by you, (b) due to you, or (c) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve or any bank account linked to any of your ZenBusiness Money Account, without prior notice to you, to collect amounts that you owe us. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for as long as we hold funds in your Reserve.
ZenBusiness Money Account Balance. While you have funds in your ZenBusiness Money Account (your “Balance”), your Balance will be commingled and held with other participants’ funds in one or more pooled accounts at one or more banks by us on your behalf and for the benefit of you and others holding balances (each a “Pooled Account”). We have sole discretion over the establishment and maintenance of any Pooled Account. We will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose. You will not receive interest or any other earnings on any funds that we handle for you. As consideration for using the Payment Services, you irrevocably assign to us all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to our holding of your Balance in a Pooled Account or Reserve. Both the Pooled Account and Reserve Accounts will be titled in a way, for the avoidance of doubt, to make sure that these funds are not subject to any bankruptcy or other liens that may be imposed.
Right of Setoff and Security Interest. You hereby grant us a security interest in, as well as a right of setoff against, and assign, convey, deliver, pledge and transfer to us, as security for repayment of any obligations due under these Payment Terms and any other agreement you have with us, all of your right, title, and interest in and to all of your accounts with us. You grant us Recovery Authorizations concerning funds you are obligated to repay us. You authorize us to administratively freeze or direct any third-party bank holding the account to freeze all such accounts to allow us to protect our security interest, collection, charge and setoff rights as provided for in this section.
Your failure to fully pay amounts that you owe us on demand will be a breach of these terms. You are liable for any of our costs associated with collection in addition to any amounts owed, including attorneys’ fees and expenses, collection agency fees, and any applicable interest.
Dormant ZenBusiness Money Accounts. If you do not process payments through your ZenBusiness Money Account for an extended period of time or have not linked a valid bank account, you may have a Balance that is deemed “unclaimed” or “abandoned” under your state’s law, as applicable. If this occurs, ZenBusiness Money will provide you with notice as required by applicable law and instructions for how to transfer your Balance. If funds still remain in your ZenBusiness Money Account, ZenBusiness Money will escheat such funds as required by applicable law or, as permitted, to ZenBusiness Money.
Your Liability for Chargebacks. There may be times when your customer may not be the authorized user of the Card or your customer may otherwise contest the transaction. In these instances, the amount of a transaction may be reversed or charged back to your ZenBusiness Money Accounts (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor, or a customer or its financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the Terms or these Payment Terms. You agree to comply with the Chargeback process and to the liability associated with such Chargebacks.
Our Collection Rights for Chargebacks. For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. You grant us Recovery Authorizations concerning Chargebacks pursuant to which we may recover the amount of any Chargeback and any associated Fees, fines, or penalties listed in the Fee Schedule or assessed by a Network or our processor. If you have pending Chargebacks, we may delay payouts from your ZenBusiness Money Account. Further, if we reasonably believe that a Chargeback is likely, with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you until such time that (a) a Chargeback is assessed due to a customer complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which your customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you agree to pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including attorneys’ fees and other legal expenses, incurred by us for the collection of all amounts unpaid by you.
Excessive Chargebacks. If we believe you might incur, or you are incurring, an excessive amount of Chargebacks, we may establish additional conditions governing your ZenBusiness Money Account, including (a) establishing new processing fees; (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees; (c) delaying payouts, or (d) terminating or suspending the Payment Services.
Contesting Chargebacks. You will assist us when requested, at your expense, to investigate any of your transactions processed through the Payment Services. To that end, you permit us to share information about a Chargeback with the customer, the customer’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. We may also use any Content you upload through the Services to respond to Chargebacks on your behalf. If the Chargeback is contested successfully, we will release corresponding reserved funds to your ZenBusiness Money Account. If a Chargeback dispute is not resolved in your favor by the Network or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in these terms. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
Restricted Use. You will not act as a payment facilitator or otherwise resell the Payment Services to any third party. You will not use the Payment Services to handle, process or transmit funds for any third party. You also may not use the Payment Services to process cash advances.
Unauthorized or Illegal Use. You will only accept Cards for transactions that are allowed by applicable law. We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of these terms or any other agreement with ZenBusiness Money, or that it exposes you, your customers, other ZenBusiness Money users, our processors or ZenBusiness Money to harm. Harm includes fraud and other criminal acts. If we suspect that your ZenBusiness Money Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your ZenBusiness Money Account, and any of your transactions with law enforcement and, as deemed necessary by ZenBusiness Money, our payment processing and financial institution partners.
Assignment of Receivables. With the exception of your participation in a ZenBusiness Money related service, you will not assign Card receivables or proceeds due to you under these terms to any third party.
Applicable Network Rules. By using the Payment Services, you agree to comply with all applicable bylaws, rules, and regulations set forth by the Network Rules. The Networks amend their rules and regulations from time to time. ZenBusiness Money may be required to change these terms in connection with amendments to the Network Rules. Significant portions of the Network Rules are available to the public at usa.visa.com/merchants/operations/op_regulations.html, www.mastercardmerchant.com, and www.americanexpress.com/merchantopguide. In the event of inconsistency between a Network Rule and these Payment Terms, and except as otherwise agreed between ZenBusiness Money and the Network, the Network Rule shall control. You also agree to be bound by any applicable NACHA Rules. Copies of the NACHA Operating Rules and Guidelines are available for review online at www.achrulesonline.org.
Taxes. You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Payment Services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. ZenBusiness Money specifically disclaims any liability for Taxes. If in a given calendar year you process (a) more than the applicable reporting threshold according to the Internal Revenue Service (“IRS”) and/or state and local governments in gross amount of payments and/or (b) more than the applicable number of payments threshold according to the IRS and/or state and local governments, ZenBusiness Money will be required by law to report information about you and your use of the Payment Services to the IRS. For purposes of determining whether you have met the IRS and/or state and local government reporting threshold, the gross amount does not include any adjustments for credits, cash equivalents, discount amounts, fees, refunded amounts or any other amounts. Whether you reach the applicable gross amount in payments or more than the applicable number of payments, this will be determined by looking at the taxpayer identification number associated with your ZenBusiness Money Account.
Network Logos and Marks. Your use of Network logos and marks (“Network Marks”) is governed by the Network Rules; you must familiarize yourself with and comply with these requirements. The Networks are the sole and exclusive owners of their respective Network Marks. You will not contest the ownership of the Network Marks, and any Network may prohibit you from using its Network Marks for any reason and at any time. ZenBusiness Money may require you to make modifications to your Website or other advertising and signage in order to comply with Network Rules related to the Network Marks.
PCI Compliance. If you store, process or transmit cardholder data, you will comply with the data security applicable Payment Card Industry Data Security Standards (PCI-DSS), as well as any requirements under the Network Rules. You will cooperate in forensic investigations as required by ZenBusiness Money or its partners. For additional information, including tools to help you assess your compliance, see http://www.visa.com/cisp and https://www.mastercard.com/sdp.
Non-Compliance of Network Rules or Security Standards. Notwithstanding anything in the Payment Terms or the Terms, you understand that your failure to comply with the Network Rules or the PCI-DSS security standards, including the compromise of any Card information, may result in fines or other losses to ZenBusiness Money. You will indemnify us and reimburse us immediately for any fines or losses directly or indirectly caused by your and your agents’ actions.
Customer Service. You are solely responsible for all customer service notices, policies and issues relating to your goods or services, including pricing, order fulfillment, cancellations or no shows by you or a customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to any ZenBusiness Money Account, payment, Card processing, debiting or crediting.
Additional Representations, Warranties, and Covenants. In addition to the indemnification provision listed in the Terms, with each Card transaction you process through the Payment Services, you represent, warrant and covenant to us that: (a) the Card transaction represents a bona fide sale; (b) the Card transaction accurately describes the goods and/or services provided to the customer; (c) you will fulfill all of your obligations to the customer and will resolve any dispute or complaint directly with the customer; (d) you and the Card transaction comply with all federal, state, and local laws, rules, and regulations applicable to you and your business, including any applicable tax, wage and hour, and tip laws and regulations; (e) except in the ordinary course of business, you are not submitting a transaction that represents a sale to any principal, partner, proprietor, or owner of your entity; and (f) you are not submitting a transaction involving your own Cards (except for reasonable test swipes).
13. TERM AND TERMINATION
Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Site or App (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. We will attempt to notify you of termination where we have advance notice so that you can download your User Content. Upon termination of your rights under these Terms, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. ZenBusiness will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content.
ZenBusiness Money. We may Terminate your use of the Payment Services at any time for any reason. Any termination of these terms does not relieve you of obligations to pay Fees or costs accrued prior to the termination, Chargebacks, and any other amounts owed to us as provided in these Terms. If your access to Payment Services has been terminated, you may still be permitted to use ZenBusiness’ other products, subject to our discretion.
Closure of your ZenBusiness Money Account will cancel any pending transactions. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out according to your payout schedule, subject to the other conditions in these Terms. If an investigation is pending at the time you close your ZenBusiness Money Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds, we will release those funds to you.
14. MODIFICATION OF TERMS AND CONDITIONS
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current email address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective (i) immediately upon the next time you login to the Site or App, (ii) upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you (if applicable) or (iii) thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. The Service also may be subject to governmental shutdowns, delays and other problems associated with State governmental agencies. ZenBusiness is not responsible for any delays, failures or other damage resulting from such problems.
The Site or App may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from ZenBusiness, or any products utilizing such data, in violation of the United States export laws or regulations.
17. WARRANTY DISCLAIMER
You understand and agree that THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT ZENBUSINESS ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TIMELINESS, DELETION OF CONTENT OR FAILURE BY THE SERVICE. ZENBUSINESS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) ANY CONTENT OR INFORMATION YOU PROVIDE OR ZENBUSINESS COLLECTS WILL NOT BE DISCLOSED OR (E) ANY ERRORS IN ANY SERVICE WILL BE CORRECTED. YOU AGREE THAT USE OF THE SERVICE AND THE WEBSITE IS AT YOUR OWN RISK. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. In some jurisdictions, disclaimers of implied warranties are not permitted. In such jurisdictions, some of the foregoing disclaimers may not apply to you as they relate to implied warranties.
18. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ZENBUSINESS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (COLLECTIVELY, “DAMAGES”), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICE; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SERVICE; (E) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY THROUGH THE SERVICE; (F) ANY OTHER MATTER RELATING TO THE SERVICE; (G) ANY BREACH OF THIS AGREEMENT BY ZENBUSINESS OR THE FAILURE OF ZENBUSINESS TO PROVIDE THE SERVICE UNDER THIS AGREEMENT OR (H) ANY OTHER DEALINGS OR INTERACTIONS YOU HAVE WITH ANY SERVICE PROVIDERS (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER AMOUNT OF $500 OR THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you.
If you use our third-party partner, Duda, to build your website you agree that Duda will not be responsible for, or have any liability in connection with, any unauthorized use or misuse of your data or website.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ZENBUSINESS CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF FEES TO ZENBUSINESS THROUGH THE USE OF A CREDIT CARD (A “CREDIT CARD PROCESSOR”). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR ZENBUSINESS INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE “RELEASED PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN AND SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION SUFFERED BY YOU AS A RESULT OF THE FAILURE OF ZENBUSINESS TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY ZENBUSINESS. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF ZENBUSINESS TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY ZENBUSINESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS SECTION. YOU HEREBY UNDERSTAND AND AGREE THAT ZENBUSINESS SHALL BE SOLELY LIABLE FOR THE PAYMENT OF ANY DAMAGES TO YOU UNDER THIS AGREEMENT.
You agree to indemnify, defend and hold harmless ZenBusiness, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from: (a) any violation of this Agreement by you; (b) the inaccurate or untruthful Content or other information provided by you to ZenBusiness or that you submit, transmit or otherwise make available through the Service; or (c) any intentional or willful violation of any rights of another or harm you may have caused to another. ZenBusiness will have sole control of the defense of any such damage or claim.
ZenBusiness Money. In addition to this indemnification provision, you will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, Tax assessments, penalties, interest, and expenses (including reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to any transaction submitted by you through the Payment Services (including the accuracy of any content or product, service, or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you).
20. DISPUTE RESOLUTION
Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with ZenBusiness and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by ZenBusiness that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and ZenBusiness, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to ZenBusiness should be sent to: 5511 Parkcrest Dr., Suite 103, Austin, TX 78731, Attention: Dispute Resolution. After the Notice is received, you and ZenBusiness may attempt to resolve the claim or dispute informally. If you and ZenBusiness do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that ZenBusiness made to you prior to the initiation of arbitration, ZenBusiness will pay you the greater of the award or $1,000.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If you or ZenBusiness pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and ZenBusiness, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and ZenBusiness.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and ZenBusiness in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with ZenBusiness.
Small Claims Court. Notwithstanding the foregoing, either you or ZenBusiness may bring an individual action in small claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Travis County, Texas, for such purpose.
You agree that ZenBusiness may communicate any notices to you under this Agreement, through electronic mail, regular mail or posting the notices on the Website. All notices to ZenBusiness will be provided by either sending: (i) an email to firstname.lastname@example.org or (ii) a letter, first class certified mail, to ZenBusiness INC., 5511 Parkcrest Dr., Suite 103, Austin, TX 78731. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.
The communications between you and ZenBusiness use electronic means, whether you use the Site or App or send us emails, or whether ZenBusiness posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from ZenBusiness in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ZenBusiness provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
22. ENTIRE AGREEMENT
This Agreement governs your use of the Service and constitutes the entire agreement between you and ZenBusiness. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and ZenBusiness regarding the subject matter contained in this Agreement. Additional terms and conditions may exist between you and third parties, including but not limited to, Service Providers and others. You represent and warrant that those third-party agreements do not interfere with your obligations and duties to ZenBusiness under this Agreement.
23. GOVERNING LAW; VENUE
This Agreement and the relationship between you and ZenBusiness will be governed by the laws of the State of Texas, notwithstanding the choice of law provisions of the venue where any action is brought, where the violation occurred, where you may be located or any other jurisdiction. Subject to the Arbitration provision above, you agree and consent to the exclusive jurisdiction of the state or federal courts located in Travis County, Texas and waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court, except that ZenBusiness may elect, in its sole discretion, to litigate the action in the county or state where any breach by you occurred or where you can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to your use of the Service or this Agreement shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
24. PROVISIONS REMAINING IN EFFECT
In the event your use of the Services is terminated or lapses or you are no longer a user of ZenBusiness, certain provisions of this Agreement will continue to remain in effect, including, but not limited to, Section 4, 7-13, and 16-23.
This Agreement may not be re-sold or assigned by you. If you assign, or try to assign, this Agreement, such assignment or attempted assignment will be void and unenforceable. It will not be considered a waiver of ZenBusiness’ rights if ZenBusiness fails to enforce any of the terms or conditions of this Agreement against you. In the event a court finds a provision in this Agreement to not be valid, you and ZenBusiness agree that such court should incorporate a similar provision that would be considered valid, with all other provisions remaining valid in the Agreement. No joint venture, partnership, employment or agency relationship exists between you and ZenBusiness as a result of this Agreement or use of the Service. You acknowledge and agree that each of the Released Parties shall be an intended third-party beneficiary of this Agreement.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
I need some help understanding all of this!
1. FOR CREDIT EDUCATION SERVICES.
WHO MAY USE – (a) You agree that you will use ZenBusiness only for your own behalf. You will be responsible for all use of your membership number and must notify ZenBusiness immediately of any unauthorized use of your membership number, or the theft or misplacement of your membership number.
(b) You understand that by enrolling in the Payment Services, you are providing “written instructions” in accordance with the federal Fair Credit Reporting Act, as amended (“FCRA”), for ZenBusiness and its service providers, which may include CSIdentity Corporation (“CSID”), to obtain information from your personal credit profile from Experian, Equifax, and Transunion, the three major credit reporting agencies. You authorize ZenBusiness and its service providers to use your Social Security number to access your personal credit profile, to verify your identity, and to provide credit monitoring, reporting and scoring products.
2. FOR SMALL BUSINESS CREDIT SERVICES.
You understand and agree that, by establishing an account with ZenBusiness, or submitting or enrolling in the Payment Services, you have provided “written instructions” in accordance with the Fair Credit Reporting Act, as amended (“FCRA”), for ZenBusiness to obtain your credit report and/or credit score(s) on a recurring basis to provide them to you while you have an account with ZenBusiness, and such information may be obtained from Experian Information Solutions, Inc., and/or Dun & Bradstreet, Inc. (“Credit Bureaus”) or any other credit reporting company. You understand and agree that, pursuant to such authorization, ZenBusiness may access your credit profile, including without limitation, your credit report, credit score(s) and other related information, to, among other things, verify your identity and to provide credit monitoring, credit scoring, credit score monitoring and tracking, or alerts for, among other things, new accounts, inquiries, other changes to information contained in your credit report. You understand and agree that, by establishing an account with ZenBusiness, you have provided express consent to receive credit monitoring, credit scoring, credit score monitoring and tracking and/or alerts. You understand and agree that ZenBusiness may, from time to time, provide additional products, services, features, and/or functionality to you, and that they shall be offered pursuant to the same authorization that you provided to ZenBusiness for ZenBusiness to obtain your credit report and/or credit score(s) on a recurring basis to provide them to you to review while you have an account with ZenBusiness.
DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER’S SATISFACTION BY CALLING CUSTOMER SERVICE AT (844) 493-6249 or VIA EMAIL AT SUPPORT@ZENBUSINESS.COM. IN THE UNLIKELY EVENT THAT CUSTOMER SERVICE IS UNABLE TO RESOLVE A COMPLAINT YOU MAY HAVE WITH CLIENT OR CLIENT’S SERVICE PROVIDER(S) TO YOUR SATISFACTION (OR IF CLIENT AND/OR CLIENT’S SERVICE PROVIDER(S) HAVE NOT BEEN ABLE TO RESOLVE A DISPUTE WITH YOU AFTER ATTEMPTING TO DO SO INFORMALLY), YOU, ON THE ONE HAND, AND CLIENT AND/OR CLIENT’S SERVICE PROVIDER(S), ON THE OTHER, EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW. 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. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. WE WILL PAY ALL COSTS OF ARBITRATION, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS. HOWEVER, IN ARBITRATION, YOU, ON THE ONE HAND, AND CLIENT AND/OR CLIENT’S SERVICE PROVIDER(S), ON THE OTHER, WOULD BE ENTITLED TO RECOVER ATTORNEYS’ FEES FROM EACH OTHER PARTY TO THE SAME EXTENT AS YOU AND THEY WOULD BE IN COURT.
(B) ARBITRATION – You, on the one hand, and ZenBusiness, on the other, agree that any claim or dispute (“Claim”) between us shall, at the election of any one of us, be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its rules for consumer arbitrations. It is the parties’ intent that this arbitration provision be construed broadly, including that this arbitration agreement include any Claims by you against ZenBusiness as well as their respective corporate affiliates for claims arising out of this Agreement directly related to the services or product/service websites. However, any disputes or claims you may have which relate to your credit report, or any claims arising out of or relating to the Fair Credit Reporting Act (“FCRA”) and/or the FCRA’s state law equivalent(s), are not subject to or governed by this agreement to arbitrate. You agree that, by entering into this Agreement, you and ZenBusiness are each waiving the right to a trial by jury or to participate in a class action. At your request, we will promptly reimburse you for your payment of your arbitration filing fee. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, we will pay it directly after receiving a written request). The arbitrator 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. YOU, ON ONE HAND, AND ZENBUSINESS, ON THE OTHER, 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, unless both you and ZenBusiness agree otherwise, the arbitrator may not consolidate more than one person’s Claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision in the preceding sentence is found to be unenforceable, then the entirety of this arbitration provision in this Section [_] shall be null and void. Notwithstanding any of the foregoing provisions, any party may bring an individual action in small claims court. The parties to this Agreement acknowledge that this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”). Judgment upon any arbitration award may be entered in any court having jurisdiction. The arbitrator shall follow substantive law to the extent consistent with the FAA and shall honor any claims or privileges recognized by law. The terms of this Section [_] shall survive any termination, cancellation or expiration of this Agreement.
LIABILITY – NEITHER ZENBUSINESS, CSID, NOR ANY OF THEIR RESPECTIVE AFFILIATES SHALL HAVE ANY LIABILITY TO YOU AS AN AGENT IN OBTAINING COPIES OF: YOUR PERSONAL CREDIT REPORT, CREDIT ALERT REPORT, QUARTERLY UPDATE, OR CREDIT SCORE. NEITHER CLIENT, CSID, NOR ANY OF THEIR RESPECTIVE AFFILIATES OR CREDIT INFORMATION SUBCONTRACTORS MAKE ANY WARRANTY, EXPRESS OR IMPLIED, FOR THE ACCURACY OF THE INFORMATION CONTAINED IN OR PROVIDED IN CONJUNCTION WITH ZENBUSINESS. NEITHER CLIENT, CSID, NOR ANY OF THEIR RESPECTIVE AFFILIATES ASSUME ANY LIABILITY FOR DAMAGES, DIRECT OR INDIRECT, CONSEQUENTIAL OR INCIDENTAL, IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES OR YOUR REQUEST, USE OR ATTEMPTED USE OF THE SERVICES. NEITHER CLIENT, NOR ANY OF THEIR RESPECTIVE AFFILIATES OR CREDIT INFORMATION SUBCONTRACTORS ARE RESPONSIBLE FOR NEGATIVE FACTUAL INFORMATION CONTAINED IN ANY REPORTS YOU RECEIVE AS PART OF THE SERVICE. THE AGGREGATE LIABILITY OF ALL SUCH PARTIES TO YOU IN ANY EVENT IS LIMITED TO THE AMOUNT WHICH YOU HAVE PAID ZENBUSINESS FOR YOUR MEMBERSHIP. ZENBUSINESS IS NOT A CREDIT COUNSELING SERVICE AND DOES NOT PROMISE TO HELP YOU OBTAIN A LOAN OR IMPROVE YOUR CREDIT RECORD, HISTORY, OR RATING. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION, CANCELLATION, OR EXPIRATION OF THIS AGREEMENT.
3. SCORE DISCLOSURES
VANTAGESCORE 3.0 CREDIT SCORE
VantageScore 3.0, with scores ranging from 300 to 850, is a user-friendly credit score model developed by the three major nationwide credit reporting agencies, Experian®, TransUnion®, and Equifax®. VantageScore 3.0 is used by some but not all lenders. Higher scores represent a greater likelihood that you’ll pay back your debts so you are viewed as being a lower credit risk to lenders. A lower score indicates to lenders that you may be a higher credit risk.
There are three different major credit reporting agencies, Experian, TransUnion, and Equifax that maintain a record of your credit history known as your credit file. Credit scores are based on the information in your credit file at the time it is requested. Your credit file information can vary from agency to agency because some lenders report your credit history to only one or two of the agencies. So your credit scores can vary if the information they have on file for you is different. Since the information in your file can change over time, your credit scores also may be different from day-to-day. Different credit scoring models can also give a different assessment of the credit risk (risk of default) for the same consumer and same credit file.
There are different credit scoring models which may be used by lenders and insurers. Your lender may not use VantageScore 3.0, so don’t be surprised if your lender gives you a score that’s different from your VantageScore. (And your VantageScore 3.0 may differ from your score under other types of VantageScores). Just remember that your associated risk level is often the same even if the number is not. For some consumers, however, the risk assessment of VantageScore 3.0 could vary, sometimes substantially, from a lender’s score. If the lender’s score is lower than your VantageScore 3.0, it is possible that this difference can lead to higher interest rates and sometimes credit denial.