ShoulderTap Technologies Inc. d/b/a Fizz Consumer Cardholder Agreement

Your purchases may be subject to additional fees from your Funding Account provider or from individual merchants. These fees are not assessed or received by Fizz and are not included in the above list.

‍
For purposes of these disclosures, our business days are Monday through Friday. Holidays are not included.

‍
Not FDIC insured. After you have authorized a purchase on a Card, and not before, your funds will be transferred to Patriot Bank to settle your transaction. If Patriot Bank fails, you are not protected by FDIC deposit insurance and could lose some or all of your money.

No overdraft/credit feature is provided by Issuer.Fizz can be reached for contact on business days, which are Monday through Friday, excluding holidays. Contact information for Fizz is as follows:

• Website: joinfizz.com

• Telephone: (940) 260-2704

• Mailing address:  Fizz, 450 Broadway, Level 2, New York, NY 10013

4. Requirements to Use the Services

In order to access the Services, you represent and warrant that:

• You are either a legal resident of the United States or a United States citizen;

• You are at least 18 years old;

• You have not been previously banned from using the Services, and that you have not previously violated the Fizz Terms of Service; and

• You have not been barred from receiving similar services under the laws of the United States.  

By accepting these terms, you also represent that:

• You have the capacity to be bound by them;

• Any information you provide in connection with the Fizz Services accurately and truthfully represents your identity and the identity of any associated business;

• You and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you; and

• You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services.
  ‍

5. Your Agreement on Card Use

With each transaction you process through the Services you represent, warrant and agree that:

• The Card transaction represents a bonafide sale;

• The Card transaction accurately describes the goods and/or services obtained from the merchant;

• You will fulfill all of your obligations to the merchant and will resolve any dispute or complaint directly with the merchant;

• You and the Card transaction comply with all federal, state, and local laws, rules, and regulations applicable to you, including any applicable tax, wage and hour, and tip laws and regulations; and

• You will not use the service in a fraudulent, disruptive, aggressive, manipulative or any other in appropriate matter.  

6. Prohibited Uses

You may not, nor may you permit any third party, directly or indirectly, to:

• Export the Services, which may be subject to export restrictions imposed by U.S. law, including U.S. ExportAdministration Regulations (15 C.F.R. Chapter VII);

• Use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;

• Use the Service in conjunction with automated purchasing software programs;

• Use the Service to exploit new users, referral programs, promotions offered by other merchants, or otherwise use the Service to violate the terms and conditions of a merchant;

• Act as a payment facilitator or otherwise resell the Services to any third party; or

• Use the Services to handle, process or transmit funds for any third party.

In addition, you may not, nor may you permit any third party, directly or indirectly, to use the Services for the following businesses or activities:

• Any illegal activity or goods;

• Paraphernalia that may be used for illegal activity;

• Unauthorized multi-level marketing businesses;

• Rebate based businesses;

• Betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races;

• Manual or automated cash disbursements;

• Prepaid cards or checks;

• Sales of money-orders or foreign currency;

• Wire transfers or money orders; or

• High-risk products and services, including telemarketing sales.

7. Authorized Users

You are responsible for all authorized transactions initiated and fees incurred by use of your Card(s). If you permit another person to have access to a Card or Card number, this will be treated as if you authorized such use, and you will be liable for all transactions and fees incurred by those persons. You are wholly responsible for the use of each Card according to the terms and conditions of this Agreement.

8. Payment Authorizations

A. Adding a Funding Source

In order to use the Services, you must first add an eligible funding source (the "FundingAccount") to your Account via the Fizz website, mobile app, or other Services. By entering your funding source information on the Fizz website or mobile app, you will have signed the ACH authorization. You should print and save a copy for your records. You can modify your Funding Account on the Fizz website, in the Fizz mobile app, or otherwise via the Services.

• You are the owner of the Funding Account;

• You are authorized to transfer funds from that Funding Account;

• You authorize Fizz to initiate debits from your Funding Account according to your instructions; and

• You will maintain a balance or available credit limit in the specified Funding Account that is sufficient to fund all payments you initiate.

B. Your Electronic Funds and Transfer and ACH Debit Authorization

When you use the Services, you authorize the Issuer to immediately debit the funds loaded onto the Card, as applicable, by the amount of any transactions made using the Card including any applicable fees. Your authorizations will remain in full force and effect until you close a Card or your Account is closed or terminated.  Any attempt by you to revoke this authorization will result in your inability to use the Services.

If you provide Fizz with the ACH routing and account information for your Funding Account, you authorize Fizz and our partner bank to initiate electronic transfers (via the Automated Clearing House ("ACH") of Nacha - The ElectronicPayment Association ("Nacha"))from your Funding Account up to your card spending limits, as applicable, on a daily (or such other applicable) basis. You agree that ACH transactions you authorize comply with all applicable laws.

When your checking account is used as your Funding Account, you are requesting that the Issuer or another of our Partner Bank initiates an electronic transfer on your behalf from your bank account. You agree that Fizz may resubmit any ACH debit you authorized that is returned for insufficient or uncollected funds, except as otherwise provided by Nacha's rules, or applicable law.  Where any amount owed by you for use of the Services is more than your card spending limits, as applicable, you authorize Fizz and our Partner Banks to debit your Funding Account for the amount owed.

For all other payment methods, such as debit card funding, you authorize Fizz to transmit payment details to a bank acting under Fizz's instructions to charge your Funding Account. You agree to maintain funds in the specified Funding Account that are sufficient to cover all of your activities with the Services.

You indemnify and hold us, Fizz, and our PartnerBanks harmless from any claims by any other owner of the bank account. You are responsible for confirming the accuracy of the information you provide about each payment.

C. Inability to Access Funds from your Funding Account

If we are unable to access funds from your specified Funding Account to complete a transaction that you request for any reason (for example, if there are insufficient funds or credit available in your FundingAccount to cover the requested transaction), the transaction may not be completed. In such case, you agree:

• You will reimburse Fizz immediately, upon demand, for the transaction amount to the extent that Fizz sent a payment to the payee on your behalf;

• You will reimburse Fizz for any fees imposed on Fizz as a result of the failed transaction; and

• You will reimburse us for any fees we incur in attempting to collect the amount of the failed transaction from you.

• We nor Fizz are responsible for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) that result from your failure to maintain a balance or available credit in the Funding Account that is sufficient to fund all payments you initiate.

D. Bank Account Information and Authorized Actions

If you choose to add a bank account as your FundingAccount for your Services, you will be asked to provide access credentials (such as a username and password) that allow you to gain online access to your account at that third-party financial institution (your "Authorized Bank Account").

Fizz works with third party services, including but not limited to Plaid Technologies, Inc. ("Plaid"), who will securely store pursuant to industry standards any Authorized Bank Account access credentials that you provide and will access your Authorized Bank Account for the purposes of providing and improving the Services. You may only provide account access credentials for and authorize Fizz to access valid bank accounts that you hold in your own name. You may not provide access credentials for a bank account that is held by a third person.

If you choose to provide your Authorized Bank Account credentials to Fizz, you authorize Fizz to use this information to provide you with the Services. This authorization will remain in effect until you notifyFizz that you wish to revoke it, which may affect your ability to receive the services. Plaid's services and use of your information, including on or through the Services, are governed by its Terms of Use and its Privacy Policy located at https://plaid.com/legal.

B. Our Rights Regarding the Services

1. Modifications to this Agreement

You agree that Fizz and the Issuer may modify this Agreement, or any other Fizz terms, policies, or guidelines at any time in our sole discretion. Any new agreement will be effective immediately, by posting a new agreement on the Fizz website and updating the "Last Updated" date at the top of these terms, except as otherwise required by law.  You agree that, even if you have not personally visited the Fizz website with the new terms of this Agreement, the newest version of the Agreement will have full force immediately. To the extent permitted by applicable law, you agree to waive any right you may have to receive additional notice of such changes.

Your continued use of the Services following the posting of changes or modifications will confirm your acceptance of such changes or modifications. You should frequently review these Terms and all applicable terms, policies and guidelines to understand the terms and conditions that apply to your use.

If you do not agree to the amended terms, you must stop using the Services. Any use of the Services in violation of these terms may result in, among other things, termination or suspension of your right to use the Services. You agree that your use of the Services will always be subject to the most current version of these terms at the time of such use.

2. Limits on Your Use of the Services

You acknowledge that Fizz or our Partner Banks may impose limits on your use of the Services. Fizz may not allow payment from all types of funding sources and may otherwise limit payments, and/or payees atFizz’s discretion.  You cannot use the Cards in any way beyond their intended purpose.

For security and fraud protection, Fizz may impose limits on the dollar amount that you can authorize in a transaction, and over a period of time. In addition to these set limits, Fizz and our Partner Banks retain the right to impose additional limits at their discretion. Limits are subject to increase or decrease at Fizz’s and our Partner Banks’ discretion based on manual or algorithmic review processes. Except as required by applicable law, other limits may apply, as may be described on or in Fizz 's website, mobile app, dashboard, and/or Terms of Service.

3. Investigations, Account Suspensions and Termination

Fizz and our Partner Banks reserve the right to investigate your use of the Service for compliance with this Agreement, and in order to comply with law, regulation, legal process or government request.

We may refuse to process any transaction that we believe violates the terms of this Agreement, the Terms of Service, any other agreements between you and Fizz or any applicable network rule or law.

The Card is the property of the Issuer and must be surrendered upon demand. The Card is non-transferable, and it may be canceled, repossessed, or revoked at any time without prior notice.

If we suspect you of violating any applicable Terms of Service, network rule or law, Fizz or Issuer may suspend or terminate your ability to access the Services under any or all of your Accounts. We and Fizz reserve the right to determine whether or not you have access to these services.

4. Identity Verification

‍
To help the government fight the funding of terrorism and money laundering activities, federal law requires us to obtain, verify, and record information that identifies each person who requests to use the Services.

When you register for the Services, Fizz will ask you for your name, address, date of birth, Social Security number, and other information that will allow us to identify you. You authorize us, Fizz, and our partners to make inquiries that we consider appropriate and use third party services to help us verify your identity and determine if we should open, maintain, collect or close your Account.

We and/or Fizz may make additional requests for information at any time. We and/or Fizz may require you to provide all of a taxpayer identification number, take steps to confirm ownership of your email address or financial instruments, provide a copy of a government-issued identification card such as a driver's license or passport, and verify information you provide against third-party databases or through other sources.

We, Fizz, and our Partner Banks, may also report the status, history and/or closure of your Account to third-party services.

If you do not provide this information or we cannot verify your identity, we can refuse to allow you to use the Services, or suspend or terminate your Account. If you allow someone else to use your Account, you are responsible and liable for all transactions, withdrawals, deposits and fees that arise out of such use.

C. History, Refunds, Errors, Disputes, and Registration

1. Payment History

When you use your Card, a record of the transaction will subsequently be recorded in the "When a user opens the app, they can access their transaction history on the home screen of the Fizz App" section of the Fizz mobile app. You should also receive a receipt directly from the Merchant.

Except as required by law, you are responsible for:

• Compiling and retaining permanent records of all transactions and other data associated with your Account and your use of the Services, and

• Reconciling all transactional information that is associated with your Account.

You may obtain information about the amount of money you have remaining in your Account by calling Fizz at (940) 260-2704. This information, along with a twelve (12) month history of Account transactions, is also available online athttps://www.joinfizz.com.If you believe that there is an error or unauthorized transaction activity is associated with your Account, you must contact us immediately.

2. Refunds and Returns

If you are entitled to a refund for any reason for goods or services obtained with your Card, the return and refund will be handled by the merchant. If the merchant credits your Card, the credit may not be immediately available. While merchant refunds post as soon as they are received, please note that neither we nor Fizz have control over when a merchant sends a credit transaction and the refund may not be available for a number of days after the date the refund transaction occurs. Refunds will be recorded along with your transactions in the "When a user opens the app, they can access their transaction history on the home screen of the Fizz App" section of the Fizz mobile app.

3. Processing Errors

In case of errors or questions about your Account, contact Fizz by phone at (940) 260-2704, in writing at WeWork C/O Fizz, 450 Broadway, Level 2, New York, NY 10013, or by email at [email protected] as soon as you can, if you think an error has occurred in your Account. We must allow you to report an error until sixty (60) days after the earlier of the date you electronically access your Account, if the error could be viewed in your electronic history, or the date we sent the FIRST written history on which the error appeared. You may request a written history of your transactions at any time using the contact methods above. You will need to provide:

• Your name and Account number;    

• Why you believe there is an error, and the dollar amount involved; and

• Approximately when the error took place.

If you contact Fizz orally, Fizz may require that you provide your complaint or question in writing within ten (10) business days.

Fizz will determine whether an error occurred within 10 business days after hearing from you and will correct any error promptly. If Fizz needs more time, however, Fizz may take up to forty-five (45)days to investigate your complaint or question. If Fizz decides to do this, Fizz will credit your account within ten (10) business days for the amount you think is in error, so that you will have the money during the time it takes to complete Fizz’s investigation. If Fizz asks you to put your complaint or question in writing and Fizz does not receive it within 10 business days, Fizz may not credit your account.

For errors involving new Accounts, or point-of-sale or foreign-initiated transactions, Fizz may take up to ninety(90) days to investigate your complaint or question. For new accounts, Fizz may take up to twenty (20) business days to credit your account for the amount you think is in error.

Fizz will tell you the results within three business days after completing our investigation. If Fizz decides that there was no error, Fizz will send you a written explanation.

You may ask for copies of the documents that Fizz used in its investigation.

If you need more information about Fizz’s error-resolution procedures, email Fizz at [email protected], call Fizz at (940) 260-2704, or visit joinfizz.com.

4. Your Liability for Unauthorized Transfers
 

If you believe your Card has been lost or stolen, you believe a transaction has been made without your permission using information from your Card or Account, or you believe your Account credentials have been used without your permission, tell Fizz AT ONCE, and FREEZE the relevant card(s) via the card screen in the Fizz mobile app. Reporting (i) your Card as lost or stolen, and (ii) any unauthorized or unexpected activity [email protected] as soon as possible is the best way of keeping your possible losses down.         

Fizz may suspend or cancel your Card and corresponding Account in the event of excessive reports of Card loss or theft .You agree that any unauthorized use does not include use by a person to whom you have given authority to use the Card or PIN and that you will be liable for any and all such uses by such person. For example, if you have given your Card or Card information to another person to use, such as a friend or relative, you are responsible for that person's transactions with your Card, and if you have given your Card information to a merchant for a transaction, you have given authority to that merchant to debit the Card for that transaction. 

If you tell Fizz within two (2) business days after you learn of the loss or theft of your Card, you can lose no more than$50 if someone used your Card without your permission. If you do NOT tell Fizz within two (2) business days after you learn of the loss or theft of your Card ,and Fizz can prove that it could have stopped someone from using your Card without your permission if you had told Fizz, you could lose as much as $500.

Additionally, if you become aware of and/or your periodic statement (if applicable) or transaction history (if applicable)shows transactions you did not make, notify Fizz at once following the procedures stated in Section C.3 of this Agreement titled "ProcessingErrors." If you do not notify S Fizz within sixty (60) days after you become aware of the transaction and/or after the transaction information was made available to you, you may not get back any value you lost after the sixty(60) days if Fizz can prove that we could have stopped someone from taking the value if you had notified Fizz in time. If a good reason (such as a long trip or hospital stay) kept you from telling Fizz, Fizz may extend the time periods.If the Card has been lost or stolen, the Card will be blocked to keep losses down and/or, if there is a physical Card associated with the account, are placement may be sent to you.

You agree to cooperate reasonably with Fizz and the Issuer in any attempts to recover funds from, and to assist in the prosecution of, any unauthorized users of your Card.

5. Additional Limits on Liability Under Mastercard Rules

Under Mastercard rules, you will not be liable for any unauthorized transactions using your Card if you can demonstrate that you have exercised reasonable care in safeguarding your Card from risk of loss or theft. You must notify Fizz within two (2) days after the electronic statement was made available to you showing unauthorized transaction(s) in order to take advantage of any such limited liability provisions.

C. Other Terms

1. Electronic Delivery of Notices

As part of your use of the Services provided by Fizz and the Issuer, you are entitled by law to receive certain information in writing. The federal ESIGN Act allows us to provide this information to you electronically, instead, with your prior consent. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications")that Fizz and the Issuer provide in connection with your Account and your use of the Services. Fizz or the Issuer will provide these Communications to you by posting them on joinfizz.com, pushing notifications through the Services, or by emailing them to you at the email address registered to your Account.

Electronic disclosures and notices have the same meaning and effect as if they had been provided to you as paper copies. Such disclosures and notices are considered received by you within twenty-four (24)hours of the time posted to the Fizz website, or within twenty-four (24) hours of the time emailed to you unless Fizz or the Issuer receives notice that the email was not delivered.

If you wish to withdraw your consent to receive Communications electronically, you may do so by sending a writing to Fizz at Fizz, 450 Broadway, Level 2, New York, NY 10013.

Please note, however, that if you withdraw your electronic consent, you may no longer use the Services.

YOU MUST KEEP YOUR EMAIL OR ELECTRONIC ADDRESS CURRENT WITH FIZZ in order for Fizz to be able to provide you with important notices and other information from time to time, and you must ensure that the contact information, including the email address registered to your account, is current.

2. Telephone Communication

We, Fizz, or our program partners may record and/or monitor any telephone conversations with you. If telephone conversations with you are recorded, the recordings are not required to be kept unless applicable law says that they must. When you give Fizz your mobile number, we, Fizz, and our program partners have your permission to contact you at that number about your account. Your consent allows us, Fizz, and our program partners or service providers to use text messaging, artificial or prerecorded voice messages, and automatic dialing technology for informational and service calls, but not for telemarketing or sales calls. This communication may include contact from companies working on our or Fizz’s behalf to service your account. Message and data rates may apply. You may change these texting and messaging preferences by emailing [email protected].

3. Address or Name Changes

You are responsible for notifying Fizz of any change in your name, physical address, mailing address, email address, or phone number. Requests for address or name changes may be subject to additional verification requirements.

Fizz will attempt to communicate with you only by use of the most recent contact information you have provided. You agree that any notice or communication sent to you at an address noted in Fizz’s records shall be effective unless Fizz has received an address change notice from you.

We cannot accept responsibility for any email messages not received by you or for any delay in the receipt or delivery of any email notification. If you make your email account available to any other individual, you agree that you are responsible for any release of any Account information to such individual.

4. Confidentiality

You acknowledge and agree that the Issuer and Fizz may, subject to applicable law, share information regarding you, your Card, your Account, your Card request and Card transaction activity as necessary to provide customer service, service the Card or your Account, investigate and act on the Card or your Account and/or your Card- or Account-related claims and as necessary to comply with applicable law. Information about the Card, yourAccount, or the transactions you make with any of them may be disclosed to third parties:

• Where it is necessary for completing transactions;

• In order to verify the existence and condition of the Card for a third party, such as a
  merchant;

• In order to comply with government agency, court order, or other legal, regulatory or
  administrative reporting requirements;

• In order to prevent, investigate or report possible illegal activity;

• In order to issue authorizations for transactions on the Card;

• If you consent by giving us your written permission;

• To service providers who help us and Fizz administer and provide the Card and related Services;

• To our and Fizz’s employees, auditors, affiliates, service providers, or attorneys as needed;

• As permitted by applicable law;

• As necessary to fulfill our obligations under this Agreement; or

• As set forth in the Fizz Privacy Policy and Issuer's privacy policy.

5. No Warranty Regarding Goods or Services as Applicable

Fizz and the Issuer are not responsible for the quality, safety, legality, or any other aspect of any goods or services you purchase with a Card. If you have a problem with a purchase you made with the Card, or if you have a dispute with the merchant, you must handle it directly with the merchant.

6. No Warranty of Availability or Uninterrupted Use

From time to time the Services may be inoperative, and when this happens, you may be unable to use your Card or obtain information from your Card, including your Account. Please notify Fizz immediately at [email protected] if you have any problems using your Card. You agree that the Issuer, Fizz, and their respective affiliates, employees, or agents are not responsible for any interruption of service.

7. Miscellaneous

a) ASSIGNMENT: TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAY ASSIGN THIS AGREEMENT WITHOUT OBTAINING YOUR     CONSENT. YOU MAY NOT ASSIGN OR TRANSFER YOUR CARD, OR YOUR RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, WITHOUT OUR PRIOR WRITTEN CONSENT.

b) Severability: This Agreement will been forced to the fullest extent permitted under applicable law. If any provision of the Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect. Neither the Issuer nor Fizz waives its rights by delaying or failing to exercise them at any time. This Agreement will be governed by the laws of the State of Connecticut except to the extent governed by federal law.

c) Language: This Agreement was drafted in English. In the event that this Agreement, or any part thereof, is translated to a language other than English, the English-language version shall control in the event of a conflict. 

d) Section Headings: Section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any provision of this Agreement.

e) Cancellation: The Issuer or Fizz may cancel or suspend the Card or this Agreement at any time. You may cancel this Agreement by returning the Card to the Issuer, or contacting [email protected]. Your termination of this Agreement will not affect any of the Issuer's or  Fizz's rights or your obligations arising under this Agreement prior to termination. In the event your Card is canceled, closed or terminated for any reason, any remaining available funds and/or credits associated with the Card would revert to your Funding Account. 

f) Entire Agreement: This Agreement comprises the entire agreement between you and the Issuer with respect to the above subject matter and supersedes and merges all prior proposals, understandings and contemporaneous communications.

8. Indemnification

You agree to defend, indemnify, and hold harmless Fizz, Issuer, our program partners, the parties with whom we contract to offer the Cards, the Account, and related services, and any parents, subsidiaries, and other affiliated companies of any of the foregoing (collectively, the"Indemnified Parties"), and all Indemnified Parties' employees, contractors, officers, and directors against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys' fees) that arise from your violation of this Agreement, applicable law, or any third-party rights or your fraud or willful misconduct. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.

9. Limitation of Liability

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, NONE OF FIZZ, ISSUER, OUR PROGRAM PARTNERS, THE PARTIES WITH WHOM WE CONTRACT TO OFFER THE CARDS, YOUR ACCOUNT, AND RELATED SERVICES, AND ANY PARENTS, SUBSIDIARIES, AND OTHER AFFILIATES OF ANY OF THE FOREGOING (THE "LIMITED PARTIES"), AND ALL LIMITED PARTIES' EMPLOYEES, CONTRACTORS, OFFICERS, AND DIRECTORS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE CARDS, THE SERVICES, ANY PRODUCTS OR SERVICES PURCHASED USING A CARD, OR THIS AGREEMENT (AS WELL AS ANY RELATED OR PRIOR AGREEMENT THAT YOU MAY HAVE HAD WITH US).

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE LIMITED PARTIES IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY FIZZ IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY OR (B) $10.

10. Survival

The provisions related to indemnification, limitation of liability, arbitration and any other provisions necessary to give effect to a party's rights shall survive the termination of the Agreement, the bankruptcy of any party, any transfer, sale or assignment of the Card, or expiration of the Card.

E. Arbitration

1. Agreement to Arbitrate

You, Fizz, and Issuer agree to arbitrate any and all disputes arising from your attempted or actual use of the Services ("Dispute") before a neutral arbitrator who has the power to award the same damages and relief that a court can. For purposes of this section "Issuer" includes any program partners, affiliates, and parties with whom we contract in order to offer the Cards.

ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST FIZZ AND ISSUER.  

If any section of these arbitration provisions is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).

ARBITRATION OF YOUR CLAIM IS MANDATORY AND BINDING.NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE AAA CODE OF PROCEDURE.

Your agreement to arbitrate and these related terms are made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (9 U.S.C. 1-16), and not any state arbitration law.

2. Limitation on Time to Initiate a Dispute

Any action or proceeding by your elating to any Dispute must commence within ninety (90) days after the cause of action accrues.

3. Process for Arbitration of Disputes

All disputes shall be FINALLY and EXCLUSIVELY resolved by binding individual arbitration conducted by the American Arbitration Association ("AAA")under its Consumer Arbitration Rules in your state of residence at a location that is reasonably convenient for both parties. For a copy of the procedures, to file a claim or for other information about the AAA, contact: AAA, 335 Madison Avenue, New York, NY 10017 or at www.adr.org.

Fizz will pay the initial filing fee to commence arbitration.  If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county where you reside. Otherwise, any arbitration hearing will occur in New York County, New York, or another mutually agreeable location.

Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators' decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

All determinations as to the scope, interpretation, enforceability and validity of this Agreement shall be made final exclusively by the arbitrator, which award shall be binding and final. Judgment on the arbitration award may be entered in any court having jurisdiction.

IF YOU DO NOT AGREE TO THE TERMS OF THESE ARBITRATION PROVISIONS, DO NOT ACTIVATE OR USE THE CARD, OR IF IT HAS ALREADY BEEN ACTIVATED, CANCEL IT.

YOU MAY CANCEL THE CARD BY CONTACTING CUSTOMER SERVICE AT [email protected].