Terms and Conditions
(V.1)

Effective date: March 10, 2021

THE TERMS AND CONDITIONS HEREIN (“AGREEMENT”) APPLY TO ANY USE OF, OR ACCESS TO, THE ZIPI, INC. (“ZIPI”) PLATFORM OR ASSOCIATED PRODUCTS AND SERVICES (COLLECTIVELY, THE “SERVICES”).  THE SERVICES WILL BE AS SET FORTH IN A PURCHASE ORDER OR QUOTE EXECUTED BY THE PARTIES, OR AS SET FORTH IN ANY ZIPI-PROVIDED ONLINE REGISTRATION OR PURCHASE PROCESS (ALL OF THE FOREGOING, REFERRED TO HEREIN AS “ORDER DOCUMENT”.)  BY ACCESS OR USING THE SERVICES, YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT (COLLECTIVELY, "CUSTOMER") IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.

IN ADDITION, ANY ADDITIONAL POLICIES POSTED OR MADE AVAILABLE BY ZIPI ON ITS WEBSITE (“POLICIES”) WILL APPLY AND BE DEEMED INCORPORATED HEREIN.
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IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN ZIPI AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.

1. ACCESS AND RESTRICTIONS.
  • 1.1 Access.  Subject to Customer’s compliance with the terms and conditions of this Agreement, Customer has the right to access and use the Services during the term of the applicable Order Document for the purposes of its business operations. Customer is responsible for maintaining the security and confidentiality of its Services login credentials.
  • 1.2 Restrictions.  Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for timesharing or Services bureau purposes or otherwise for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof, or (vi) use the Services to create any other product or Services.  Customer will use the Services only in compliance with (i) the Order Document, (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations. Customer will not post to the Services, or transmit via the Services, any content that is illegal, offensive, or infringes or violates or conflicts with the rights of any third party. Customer grants Zipi a right and license to use all Customer provided information and data as appropriate for Zipi to provide the Services.
  • 1.3 Ownership.  Except for the rights expressly granted under this Section 1, Zipi retains all right, title, and interest in and to the Services (and all data, software, products, and other intellectual property created, used, or provided by Zipi for the purposes of this Agreement). To the extent Customer provides Zipi with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Customer grants Zipi an irrevocable, perpetual, transferrable, sublicensable, royalty-free, full paid-up right and license to use, reproduce, display, perform, modify, creative derivatives of, distribute, and otherwise fully exploit for any purpose all Feedback.
2. FEES AND PAYMENT.
  • Customer will pay Zipi the fees for the Services as set forth in the Order Document or, if applicable, on Zipi’s website (“Fees”).  Zipi reserves the right to modify its fees at any time for any reason upon notice to Customer through posting on Zipi’s website or notification by email – made at least ninety (90) days prior to the end of the then-current subscription period.  Any increase in fees will become effective beginning with the next subscription term.  Unless otherwise specified in the Order Document (e.g. for automatic charges to Customer’s Zipi Pay account), all Fees will be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars within fifteen (15) days from date of invoice.  
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    All Fees paid are non-refundable and not subject to set-off; provided that, if fees are paid in advance and this Agreement is terminated for Zipi’s uncured breach, Zipi will refund to Customer all fees for the portion of the term after termination.
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    Unpaid or late invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all (i) taxes associated with Services other than taxes based on Zipi’s net income, and (ii) Zipi’s costs of collection in the event of Customer’s delinquent payment (including attorneys’ fees).
3. TERM AND TERMINATION.
  • Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date and continue for the initial subscription period specified in the Order Document; thereafter this Agreement will automatically renew for consecutive periods of equal length (unless otherwise stated on the Order Document) to the initial term (unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then current period).  If no initial subscription period is set forth in an Order Document, the initial subscription period will be one (1) year. Either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) from receipt of written notice thereof (provided that, such written notice contains sufficient detail regarding the breach – and expressly states the intent to terminate). Breach notices for Customer’s failure to pay amounts owed – may be delivered via email.Upon termination of this Agreement, all rights granted herein to Customer will terminate and Customer will make no further use of the Services.  The following provisions will survive termination of this Agreement: Sections 1.2, 1.3, and 2, 3, and 5 through 10.
4. ZIPI PAY.
  • 4.1 Scope: Zipi Pay allows authorized users to transact using Wire Transfer, Bank Transfer, Credit Transfer, Electronic Funds Transfer, Automated Clearing House Networks, Digital Wallets and other accounts that they have with an organization other than Zipi and link to Zipi Pay in order to enable additional payment functionality. Bank Accounts, Digital Wallets (including the “Zipi Wallet”), Linked Third-Party Accounts (collectively known as, "Payment Instruments") may be used: (i) with participating merchants, or (ii) participating transit locations. If you use Zipi Pay, and subsequently Zipi's partner services, a fee may be deducted from your linked Payment Instruments for payments according to your agreement with Zipi. Fees incurred from normal use are based on each transaction and are disclosed in the application during payment process workflows prior to the processing or transfer of funds.
  • 4.2 Using Zipi Pay: 
  • (i) Basic Use Requirements. To use Zipi Pay, Customer must have an active Zipi Pay Account and compatible software.
  • (ii) Zipi's Role. While Zipi Pay enables users to store their payment instructions (“Payment Instructions”) and transmit their information to merchants or transit providers, Zipi does not process Zipi Pay transactions with such Payment Instruments, and does not exercise control over: the availability or accuracy of payment cards, funds, payments, refunds, or chargebacks; the provisioning (or addition) of Payment Instruments to Zipi Pay, or addition of funds to payment instrument balances; or other commercial activity relating to any users use of Zipi Pay. Customer acknowledges and agrees that Customer’s transactions through Zipi Pay are transactions between Customer and the applicable merchant and not with Zipi or any of its affiliates. For disputes relating to payment transactions conducted using Zipi Pay, Customer must contact its payment instrument's issuer or the appropriate merchant. Zipi is not a party to Customer’s registered payment instruments' cardholder agreements or other terms of use, and is not involved in issuing credit or determining eligibility for credit. Zipi does not make any representation or verify that any of Customer’s payment instruments is in good standing or that the issuer of Customer’s payment instrument will authorize or approve any transaction with a merchant or transit provider when Customer uses Zipi Pay for that transaction.
  • (iii) Dwolla Account. In order to use the payment functionality of Zipi and Zipi Pay applications, Customer must open a "Dwolla Platform" account provided by Dwolla, Inc. and Customer must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service. Customer understands that it will access and manage its Dwolla account through Zipi and Zipi Pay applications, and Dwolla account notifications will be sent by Zipi and Zipi Pay, not Dwolla. Zipi and Zipi Pay will provide customer support for Dwolla account activity, and can be reached at https://www.zipi.app. Any user that identifies as a Broker, Agent, Home Buyer, Home Seller, or other Real Estate Professional authorizes Zipi and Zipi Pay to share Customer’s identity and account data with Dwolla for the purposes of opening and supporting Customer’s Dwolla account, and Customer is responsible for the accuracy and completeness of that data. Vendors and Escrow users expressly authorize Zipi service provider, Dwolla, Inc. to originate credit transfers to their financial institution account.
  • (iv) IMPORTANT DISCLAIMER. Neither Zipi nor Zipi Pay has any obligation to ensure that the funds required to complete a payment will be available in their bank account to cover a transfer at the time it is initiated. Any payment may be reversed if: (a) a customer contacts Zipi or Zipi Pay and requests a cancellation of the payment; (b) a customer’s bank or credit union contacts Zipi or Zipi Pay and requests a reversal of the payment; (c) Zipi or Zipi Pay reverses a payment based on its own dispute resolution and/or risk policies; or (d) required by applicable law, including, without limitation, the NACHA Rules (each a “Reversal”). Except for any Reversal made in error by Zipi or Zipi Pay, Customer is liable to Zipi’s financial institution partners for the full amount of any Reversal, as applicable. Customer is also liable to Zipi, Zipi’s financial institution partners and Zipi Pay for all of Customer’s account activity initiated by the API enabled services, whether or not authorized by Customer. If a customer account, Zipi, Zipi’s Financial Institution Partners or Zipi Pay incur any losses based on unauthorized or erroneous activity initiated by Customer of Customer’s use of the Services, whether through misconduct, negligence, error, or otherwise, Customer will be liable for such losses. Except for any Reversal made in error by Zipi or Zipi Pay, Customer authorizes Zipi to recover any amounts due to Zipi and/or the financial institution partners by debiting the available balance in Customer's Zipi account. If the available balance in Customer’s Zipi account is insufficient, Customer authorizes Zipi, Zipi Pay, and the financial institution partners to take any of the following actions to recover the remaining amounts from Customer: a) Charge the credit card linked to Customer’s Zipi account or Zipi Pay account, b) Debit the bank or credit union account(s) linked to Customer’s Zipi account or Zipi Pay Account; c) Request immediate payment from Customer, and, if payment is not received within three (3) days, engage in collection efforts; d) Pursue any rights or remedies available under this Agreement for failure to pay amounts owed to Zipi, including, without limitation, termination for nonpayment. Customer will be responsible for any fees incurred by Zipi in pursuing the balance owed to Zipi.
5. CONFIDENTIALITY.
  • During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential information (“Confidential Information”). Zipi’s Confidential Information includes all pricing related information and the terms and conditions of this Agreement. All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Services and terms of this Agreement and the Order Document are Confidential Information of Zipi.  Receiving Party shall (i) maintain the confidentiality of the Confidential Information, (ii) not disclose such information to any third party without the prior written consent of Disclosing Party, and (iii) only use the Confidential Information internally for the purposes contemplated hereunder.  The obligations in this Section 5 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party.  Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure.  At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof (but Receiving Party may retain a copy for archival and legal purposes). Zipi will make available to Customer for download, for a period of ninety (90) days after termination, all of Customer’s documents and data (in a read only format). After such ninety (90) day period, Zipi shall have no obligation to maintain or provide any such documents and shall thereafter, unless legally prohibited, delete all such documents and data in Zipi systems or otherwise in Zipi possession or control (provided that, Zipi may retain anonymized data and other information).
6. WARRANTY; DISCLAIMER.
  • Zipi warrants that it will use commercially reasonable efforts to: (i) ensure the Services is available on a 24/7 basis (subject to downtime for matters beyond Zipi’s control, emergency maintenance, and scheduled maintenance up to 10 hours a month) and (ii) correct all verifiable, material defects in the Services of which Zipi is aware (all corrections will be in accordance with Zipi’s standard practices and procedures – including fix queues and release cycles). A “defect” means a failure to comply with any written specification or documentation provided by Zipi (for clarity, not including marketing materials). Subsection (ii) states Customer’s sole remedy, and Zipi’s exclusive liability, with respect to any defects in the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, ZIPI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ZIPI DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  
7. LIMITATION OF LIABILITY.
  • NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A)  INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (B)  AMOUNTS, IN THE AGGREGATE, THAT EXCEED THE FEES PAID BY CUSTOMER TO ZIPI DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE PAID, SUCH AMOUNTS SHALL BE LIMITED TO US $100.00). THE FOREGOING LIMITATION ALSO APPLY TO ZIPI’S INDEMNITY OBLIGATIONS BELOW. IN ADDITION, ZIPI WILL NOT BE LIABLE FOR ANY ERROR OR INTERRUPTION OF USE, THE LOSS OR INACCURACY OR CORRUPTION OF DATA, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY. THIS SECTION WILL NOT APPLY TO CUSTOMER'S BREACH OF ITS PAYMENT OBLIGATIONS OR INTENTIONAL MISUSE OF THE SERVICES. IN ADDITION, ZIPI WILL NOT BE LIABLE FOR ANY EMAIL ISSUES, SUCH AS ERRORS, DELWAYS, MISSED, DELETED, OR LATE RECEIVED MESSAGES.
8. INDEMNITY.
  • Customer will indemnify Zipi from and against all claims, actions, demands, losses, damages, penalties, costs and expenses (including attorneys' fees) arising from or in connection with (i) Customer’s breach of this Agreement or misuse of the Services, (ii) any data or other information provided or managed by Customer using the Services (including, without limitation, any data or information of any third party customers or partners of Customer), (iii) the acts and omission of any third party that Customer provides with access to the Services, or (iv) any payments or transactions Customer initiates or otherwise enables through Zipi Pay.
9. FORCE MAJEURE.
  • Zipi shall not be liable to Customer for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of Zipi, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency, or other licensing, certification, standards, or approval organization.
10. MARK USAGE.
  • Customer agrees that Zipi may, during the term of this Agreement and for a reasonably wind-down thereafter, use Customer’s name and logo on Zipi’s website and in Zipi's promotional materials as part of a general list of customers – or individually as part of a case study.
11. MISCELLANEOUS.
  • The parties will comply with all terms and conditions set forth in the Order Document. To the extent an Order Document conflicts with this Agreement, the Order Document will control. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement (including the Order Document) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any additional or different terms or conditions provided by Customer (such as any additional, boilerplate terms in a Customer-issued purchase order) will not apply (even if accepted by, or performed on by, Zipi. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Any notices in connection with this Agreement will be via email. Customer’s email address will be as provided by Customer in an Ordering Document or during the Services registration process. Zipi’s email address is legal@zipi.app. Notwithstanding the foregoing, any legal notice sent by Customer to Zipi must also be sent by certified mail to 101 Creekside Ridge Ct. Suite 210 Roseville, CA 95678 Attn: Legal (legal notices will only be deemed effective when physically received by Zipi – regardless of earlier receipt of email). This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). To the extent the JAMS Streamlined Arbitration Rules & Procedures are available, they will be used. The arbitration shall take place in Sacramento, California, USA, in the English language and the arbitral decision may be enforced in any court. If a claim cannot legally be arbitrated (as determined by an arbitrator), it will be subject to the exclusive jurisdiction of the courts located in Sacramento, California. Notwithstanding the foregoing, Zipi may elect, in its sole discretion, to pursue delinquent payments in any court.