The following terms of service are terms of a legal agreement (the “Agreement”) between you (“you”, “your”, or “user”) and ShoulderTap Technologies Inc. d/b/a Fizz, its subsidiaries, affiliates, agents and assigns (“Fizz”, “we”, “us”, or “our”) which sets forth the terms and conditions for your use of Fizz’s mobile application (“App”) and Fizz’s website, Joinfizz.com, as well as the products and services offered, operated or made available by Fizz through Joinfizz.com or the App other than those products and services offered by Patriot Bank, N.A. and Lead Bank subject to any separate agreements between you and such parties (the App, the website, and the products and services, collectively, the “Services”). The Services are owned and operated by Fizz, and are being provided to you expressly subject to this Agreement. By accessing, browsing and/or using the Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Fizz, and this Agreement governs your use of the Services.
THIS AGREEMENT ALSO INCLUDES, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. PLEASE REFER TO SECTION 15 BELOW FOR MORE INFORMATION.
1. Acceptance of agreement
Please carefully review this Agreement before using the Services, or accessing any data thereon. If you do not agree to these terms, you may not access or use the Services.
To use the Services and to accept the Agreement, you must:
1) Either
a) be a legal resident of the United States, or
b) have (i) an SSN or ITIN number and (ii) a valid address in the United States (other than a P.O. box);
2) Have a U.S.-based bank account;
3) Be at least 18 years old;
4) Not be prohibited by law from using the Services; and
5) Not have been suspended or removed from the Services.
2. Modification of this agreement
Fizz reserves the right to amend this Agreement at any time. When we make material modifications to this Agreement, we will post the revised Agreement through the Services and update the “Last Updated” date at the top of this Agreement. We will also provide you with notice of any material changes by email at least 30 days before the date they become effective. Your continued use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes. Fizz may terminate, suspend, change, or restrict access to all or any part of the Services without notice or liability.
3. User information accuracy and updates
To access Fizz’s Services, you must create a user account with Fizz (a “Fizz Account”). Each user may only open and use a single Fizz Account. This process will include creation of a Login ID and password to access the Services. When you sign up for an Fizz Account, you agree to provide accurate, current and complete information—such as your name, mailing address, phone number, and email address—as may be prompted by any registration forms available through the Services or as otherwise requested by Fizz for such information (“User Information”). You represent that you are a legal owner of, and that you are authorized to provide us with, all User Information and other information necessary to facilitate your use of the Services. You authorize us to make any inquiries we consider necessary to validate your identity, including without limitation, (i) screening you against third-party databases or other sources; (ii) requesting reports from service providers; or (iii) asking you to provide additional forms of identification. If you do not respond to such inquiries or we cannot verify your identity, we can refuse to allow you to use the Services.
Should any of your User Information change, you agree that you will update this information as soon as possible. To update your User Information, you may log into your Fizz Account, navigate to the “Account Settings,” click on “Personal Data”, and update your User Information accordingly.
Should you believe or have reason to believe that any of your User Information, including your Login ID and/or password, has been compromised, or that another person is accessing your Fizz Account through some other means, you agree to notify us as soon as possible at [email protected].
4. Your information
4.1. Fizz’s Privacy Policy
Fizz maintains a Privacy Policy, and it details how we handle and protect data. We fully incorporate our Privacy Policy into this Agreement. Note that we reserve the right to update the Privacy Policy at our discretion, and that any changes made to our Privacy Policy are effective when the updates are live on Joinfizz.com or the App.
4.2. Third-Party Account Information
To use the Services, you may direct Fizz to retrieve your bank account transaction history, balance information, and/or other information maintained by third parties with which you have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). This may include information maintained by your depository institution. Fizz works with one or more third-party service providers to access this Third-Party Account Information. We will use this information to provide you with the Services you request, which may necessitate our monitoring of your Third-Party Account Information including to track transactions, to track deposits, and to track balances. By using the Services, you authorize Fizz to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. By agreeing to this Agreement, you are also agreeing that you are responsible for keeping any passwords and usernames you provide to us so we can retrieve this Third-Party Account Information securely, and for keeping those passwords and usernames up-to-date in your Fizz Account. Fizz does not review the Third-Party Account Information for accuracy, legality or non-infringement, and Fizz is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites. You acknowledge that any Third-Party Account Information that is displayed through the Services will be the information we most recently accessed, and that this information may not reflect pending transactions or other recent activity.
5. Overview of services
5.1. Overview of the Spotting Services
The Spotting Service is a Service designed to assist you in building a credit history through daily purchases you make using the “Fizz Card”. The Fizz Card is issued by Patriot Bank, N.A. (“Issuing Bank”). Use of the Fizz Card is subject to the ShoulderTap Technologies Inc. d/b/a Fizz Cardholder Agreement between you, Fizz, and Issuing Bank.
If you are approved for the Spotting Service, Lead Bank, a Missouri state-chartered bank (the “Originating Bank”), will extend a line of credit to you (the “Fizz Line of Credit”) by making deposits to your Fizz Card, up to a specified limit (your “Credit Limit”), when requested. You will be required to enter into a separate Line of Credit Agreement between you and Originating Bank which will govern your use of and access to the Fizz Line of Credit.
Please note that Issuing Bank only issues Fizz Cards and provides associated banking services; Originating Bank only originates the Fizz Line of Credit and provides associated banking services. Neither Issuing Bank nor Originating Bank provides the Services.
5.2. Credit Monitoring
As part of the Services, Fizz may enable you to review a copy of your credit score or alerts derived from changes to your credit reports. You understand and agree that, by enrolling in such credit monitoring service, you have provided “written instructions” in accordance with the Fair Credit Reporting Act, as amended (“FCRA”), for Fizz and its service providers to obtain your credit report, your credit score(s), and/or other information from your personal credit profile on a recurring basis while you have a Fizz Account and are enrolled in the credit monitoring service, and such information may be obtained from one of the three national credit reporting agencies (i.e., Experian Information Solutions, Inc., TransUnion, LLC, Equifax, Inc.) or any other credit reporting company (a “Credit Bureau”). You understand and agree that, pursuant to such authorization, Fizz 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, to provide your credit information to you, [and provide you with credit monitoring and alerts]. Fizz will not obtain or use your credit information to market credit opportunities or other products or services that may be available to you through third parties or for any other purpose other than expressly set forth herein.
5.3. Disclosures
Fizz will not charge you any fees associated with your use of the Services. Any fees associated with the Fizz Card or the Fizz Line of Credit will be disclosed in the Cardholder Agreement and/or Line of Credit Agreement.
Fizz is not responsible for any overdraft fees, over-the-limit fees, insufficient fund charges, or any other bank fees that result from your failure to maintain a sufficient balance in a bank account you choose to connect to Fizz (your “Checking Account”). Fizz monitors your balance and will attempt to ensure you have sufficient funds before debiting your account, but Fizz makes no warranties that an overdraft will not occur.
You understand that any credit score provided to you through the App is obtained from a Credit Bureau by Fizz. The credit score measures the probability that a person will continue to pay their debts on time. There are many different credit scores in the marketplace based on different models with different score values, and lenders and servicers use a variety of different credit scores to make credit decisions. The credit score provided within the Service is for educational/informational purposes only and is not intended for use by lenders. Fizz does NOT undertake any responsibility to monitor your credit report for activity, identify theft, or any other actions. Fizz’s Services enable YOU to monitor your credit score.
The credit score provided through the App may not be the same score used by your lenders or other commercial users to make credit decisions about you. The credit score can only evaluate the account information that appears on your Credit Bureau consumer credit report at a specific point in time. Accounts not reported to, subsequently deleted or amended from your Credit Bureau consumer credit report will not be reflected in your score.
You understand that neither Fizz nor any of the Services is a credit repair tool or a form of credit counselling service, and that Fizz makes no representation or promise that it will improve your credit score or profile or provide you with any assistance in that regard. None of our Services, including your ability to check your credit report and/or score through the App, is offered or provided with respect to the extension of credit by third parties. Fizz and its affiliates are not credit repair organizations, and are not offering to sell, provide or perform any service to you for the express or implied purpose of either improving your credit record, credit history or credit rating or providing advice or assistance to you with regard to improving your credit record, credit history or credit rating.
5.4. Dwolla Account
In order to use the Spotting Service, you must open a “Dwolla Platform” account provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. We use Dwolla to facilitate payments to and from your Checking Account, including repayments of your Fizz Line of Credit, refunds and Reward Points (as defined in the Fizz Promotional Program Terms and Conditions). Any funds held in or transferred through the Dwolla account are held or transferred by Dwolla’s financial institution partners as described in the Dwolla Terms of Service. You authorize Fizz to collect and share with Dwolla your personal information including full name, email address and your Checking Account and routing number, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through the Fizz Services, and Dwolla account notifications will be sent by Fizz, not Dwolla. Fizz will provide customer support for your Dwolla account activity, and can be reached at [email protected].
6. SMS messaging and telephone calls
You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information such as alerts, or questions about your use of the Services. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Fizz and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this Section 6 even if you will incur costs to receive such phone messages, text messages, e-mails or other means.
Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
7. Limitations of use
You agree to use the Services only for lawful purposes. You are prohibited from any use of the Services that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. Any unauthorized use of the Services, including but not limited to unauthorized entry into Fizz’s systems, misuse of passwords, or misuse of any information posted on through the Services is strictly prohibited. Fizz makes no claims concerning whether use of the Services is appropriate outside of the United States. If you access the Services from outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree you will not 1) try to reverse engineer, disassemble, decompile, or decipher the Services or software making up the Services, 2) navigate or search the Services with any tool, software, agent, engine or other means (including bots, avatars, intelligent agents, or spiders), 3) use a means other than Fizz’s provided interface to access the Services, 4) use the Services in a way that could impair, overburden, damage, or disable any portion of the Services, or 5) mirror any material contained on the Services.
Fizz reserves the right to take various actions against you if we believe you have engaged in activities restricted by this Agreement or by laws or regulations, and Fizz also reserves the right to take action to protect Fizz, other users, and other third parties from any liability, fees, fines, or penalties. We make take actions including, but not limited to: 1) updating information you have provided to us so that it is accurate, 2) limiting or completely closing your access to the Services, 3) suspending or terminating your ability to use the Services on an ongoing basis, 4) taking legal action against you, 5) holding you liable for the amount of Fizz’s damages caused by your violation of this Agreement.
8. Intellectual property rights
The Services are owned and operated by Fizz. All content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, text, data, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever and the selection and arrangement thereof (collectively, the “Fizz Materials”) are owned exclusively by Fizz or the licensors or suppliers of Fizz and are protected by U.S. copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Fizz Materials displayed on the Services, without our prior written permission in each instance. You may not use, copy, display, distribute, modify or reproduce any of Fizz Materials found on the Services unless in accordance with written authorization by us. Fizz prohibits use of any of the Fizz Materials as part of a link to or from the Services unless establishment of such a link is approved in writing by us in advance. Any questions concerning any Fizz Materials, or whether any mark or logo is a Fizz Material, should be referred to Fizz. All rights related to the Fizz Materials are hereby reserved. You agree that the Fizz Materials may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the express prior written consent of Fizz. You acknowledge that the Fizz Materials are and shall remain the property of Fizz. You may not modify, participate in the sale or transfer of, or create derivative works based on any Fizz Materials, in whole or in part.
9. Termination
Fizz may terminate this Agreement at any time without notice, or suspend or terminate your access and use of the Services at any time, with or without cause, in Fizz’s absolute discretion and without notice. You may terminate your access and use of the Services by contacting us at [email protected]. The following provisions of this Agreement shall survive termination of your use or access to the Services: the sections concerning Indemnification, Disclaimer of Warranties, Limitation of Liability, Waiver, Dispute Resolution by Binding Arbitration, and General Provisions, and any other provision that by its terms survives termination of your use or access to the Services.
Fizz further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Services at any time with or without notice.
10. Disclaimer of warranties
THE APP, JOINFIZZ.COM AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, FIZZ AND ALL OF ITS SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “FIZZ PARTIES”) EXPRESSLY MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO THE CONTENT OR OPERATION OF THE APP, JOINFIZZ.COM OR THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE APP, JOINFIZZ.COM OR THE SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
THE FIZZ PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE INFORMATION OR CONTENT ON THE APP, JOINFIZZ.COM, OR THE SERVICES, AND EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. THE FIZZ PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE APP, JOINFIZZ.COM OR SERVICES ARE FREE OF VIRUSES, BUGS, DEFECTS, ERRORS, OR OTHER COMPUTING ROUTINES THAT CONTAIN DAMAGING OR OTHERWISE CONTAMINATING PROPERTIES, OR PROGRAMS INTENDED TO INTERCEPT OR STEAL PERSONAL OR SYSTEM DATA.
Please note, the ability to exclude warranties varies in different jurisdictions. To the extent that a jurisdiction places limits on the ability for a party to exclude warranties, these exclusions exist to the extent permitted by law. Because of this jurisdictional variance, some of the above exclusions may not apply to you.
11. No legal, tax, or financial advice; alerts
YOU ACKNOWLEDGE AND AGREE THAT FIZZ HAS NOT AND DOES NOT PROVIDE YOU WITH ANY LEGAL, TAX, OR FINANCIAL ADVICE THROUGH THE APP, JOINFIZZ.COM, OR THE SERVICES, AND THAT THE APP, JOINFIZZ.COM, AND THE SERVICES ARE NOT DESIGNED TO INTENDED TO PROVIDE ANY SUCH ADVICE. FIZZ IS NOT A LAWYER, TAX ADVISOR, BROKER, OR FINANCIAL PLANNER. FIZZ ENCOURAGES YOU TO CONSIDER CONSULTING AN ACCOUNTANT OR OTHER FINANCIAL ADVISOR AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES BEFORE IMPLEMENTING ANY FINANCIAL STRATEGY OR MAKING OTHER FINANCIAL DECISION. FIZZ WILL MAKE REASONABLE EFFORTS TO PROVIDE TIMELY AND ACCURATE ALERTS TO YOU, BUT YOU ACKNOWLEDGE AND UNDERSTAND THAT ALERTS MAY BE DELAYED OR PREVENTED FOR VARIOUS REASONS. FIZZ DOES NOT GUARANTEE THE DELIVERY, ACCURACY, OR TIMELINESS OF ALERTS. FURTHER, FIZZ IS NOT LIABLE FOR ANY ERRORS IN THE DELIVERY OR CONTENT OF AN ALERT, AND FIZZ IS NOT LIABLE FOR ACTIONS YOU TAKE, OR DO NOT TAKE, IN RELIANCE ON ALERTS. FIZZ IS NOT LIABLE FOR ANY THIRD PARTY RELIANCE ON ALERTS.
12. Limitation of liability
THE FIZZ PARTIES WILL NOT BE RESPONSIBLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, INCLUDING DAMAGES UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER CLAIMS, ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES, THE FIZZ MATERIALS, OR ANY CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF FIZZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FIZZ PARTIES WILL ALSO NOT BE LIABLE TO YOU FOR ANY USE OF INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED VIA THE SERVICES, OR FOR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING FROM, INCLUDING LOSS OF PROFIT, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO, OR USE OF, THE APP, JOINFIZZ.COM OR THE SERVICES. IN NO EVENT WILL THE FIZZ PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED USD $1,000 (ONE THOUSAND UNITED STATES DOLLARS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SERVICES.
13. Indemnification
To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless the Fizz Parties from and against any and all claims, losses, expenses, demands or liabilities, including reasonable attorneys’ fees arising out of or relating to (i) your access to, use of or alleged use of the Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. Fizz reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of Fizz.
14. Dispute resolution by binding arbitration
YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN Section 14.3 BELOW.
14.1. Election to Arbitrate
You and Fizz agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 14 (the “Arbitration Provision”), unless you opt out as provided in Section 14.3 below or your Claim is subject to an explicit exception to in this Arbitration Provision. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of Section 14.6 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise, except that both you and Fizz retain the right: (a) to bring an individual action in small claims court (a “Small Claims Action”); or (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
14.2. Opt-Out of Arbitration Provision
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to [email protected], within thirty (30) days of the date of your electronic acceptance of the terms of this Agreement (such notice, an “Arbitration Opt-Out Notice”). The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. If you don’t provide Fizz with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth above.
14.3. Judicial Forum for Disputes
In the event that (i) you or we bring an IP Protection Action; (ii) you timely provide Fizz with an Arbitration Opt-out Notice; or (iii) this Section 15 is found not to apply, the exclusive jurisdiction and venue of any Claim will be the state and federal courts located in Delaware and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
14.4. Informal Dispute Resolution
If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will try to resolve the Claim informally by contacting [email protected]. Similarly, Fizz will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Claim is not resolved within 30 days after the email noting the Claim is sent, you or Fizz may initiate an arbitration proceeding as described below.
14.5. WAIVER OF RIGHT TO LITIGATE
Unless you timely provide Fizz with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION PROVISION.
14.6. NO CLASS ACTIONS
You and Fizz agree that the arbitration of any Claim shall proceed on an individual basis, and neither you nor Fizz may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Claim against Fizz will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR FIZZ SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY CLAIM (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 15.6 SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
14.7. Arbitration Procedures
The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Claims involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’ roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then JAMS will appoint the arbitrator in accordance with the JAMS Rules. The arbitrator(s) shall be authorized to award any remedies, including public injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 14.7, if a party seeks injunctive relief that would significantly impact other Fizz users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 14.7 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
14.8. Arbitration Location
Unless you and Fizz otherwise agree, the arbitration will be conducted in the county where you reside, or if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Fizz submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
14.9. Arbitration Fees
If Fizz elects arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the administrator rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law.
14.10. Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
14.11. Survival and Severability of Arbitration Provision
This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 14.6 above, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 14.6 above to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Claim must be litigated in court pursuant to Section 14.3 above.
14.12. Changes
Notwithstanding the provisions of Section 2 above, if Fizz changes this Section 14 after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to [email protected]) within thirty (30) days of the date such change became effective, as indicated in the “Last revised” date above or in the date of Fizz’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Claim between you and Fizz in accordance with the provisions of this Section 15 as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
15. Governing law
This Agreement shall be governed by, and any Claim shall be resolved in accordance with, the laws of the State of Delaware.
16. Severability
If any provision of this Agreement is found to be invalid, unlawful, void, or unenforceable by either an arbitrator or a court of competent jurisdiction, this Agreement’s remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions of the Agreement shall remain in full force and effect.
17. Waiver
You agree that if Fizz does not enforce any of its legal rights or remedies under this Agreement, or other legal rights or remedies Fizz has under applicable laws, this shall not be construed as a formal waiver of those rights or remedies or any other rights in any way whatsoever.
18. General provisions
This Agreement is the entire understanding and agreement between you and Fizz. This Agreement supersedes any previous Terms of Use agreement or other agreement to which you and Fizz may have been bound. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Neither the course of conduct between parties nor trade practice shall act to modify any provision of the Agreement. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement or any of our rights or obligations under this Agreement at any time without notice. All rights not expressly granted herein are hereby reserved. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
19. Contacting us
If you have questions regarding the Agreement or the practices of Fizz, please contact us by e-mail at [email protected] or by regular mail at ShoulderTap Technologies Inc. d/b/a Fizz at 450 Broadway, Level 2, New York, NY 10013.