PayZen is a healthcare-focused financial technology company that partners with health care providers to make medical care more accessible to patients by offering affordable, transparent and accessible patient payment options to the provider’s patients. Patients select amongst payment plan options offered through PayZen’s technology platform. Once the patient has agreed to the plan with PayZen, PayZen then advances payment to the medical provider on behalf of patient. Thereafter the patient makes monthly payments to PayZen until the balance is satisfied. PayZen’s services allow patients to pay for health care costs with health care providers over time.
For you to be able to use a PayZen payment plan to pay your health care provider you will promise to repay the amount PayZen pays your provider, but you will be able to repay over time.
The Parties to this Agreement. These Terms of Service describe a contractual relationship ("Agreement") between you ("you" or "your") and PayZen Inc. (including its subsidiaries, affiliates, including PayZen LLC, agents, and assigns) ("PayZen," "we," "us," "our"), regarding (1) your use of this website ("Website") or any mobile application offered by or marketed by, or on behalf of PayZen, or any other technology platform offered by PayZen, (each a “PayZen Service" and collectively the “PayZen Services” or “Services”), (2) your use of the PayZen Services, or a third-party website in connection with a product or service offered directly by PayZen, as applicable, (3) your use of any other service(s) offered through the PayZen Services, as applicable, including, without limitation, loans, payment plans, and any other accounts; and (4) your access to your PayZen account information and access to any service through PayZen Services. We partner with medical providers and health care service professionals (each, a "Provider") to offer certain products and services and we offer certain products and services directly to you. If you are approved for a product or service offered through PayZen by one of these Providers, or through other partnerships with Providers, you will enter into an agreement with the Provider. Notwithstanding any other provision of this Agreement, any agreement you enter into with a Provider (and not this Agreement) will control with respect to the associated Provider and any of their products or services.
Changes to this Agreement. PayZen may unilaterally decide to change this Agreement from time to time, YOU AGREE TO ACCEPT ANY CHANGES TO THIS AGREEMENT BY USING THE PAYZEN SERVICES AFTER CHANGES TO THIS AGREEMENT HAVE BEEN POSTED.
If PayZen makes any changes to this Agreement that it deems to be material, PayZen will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted to our website from time to time to see if it has been changed.
Your Eligibility. To be eligible to use the Services, you must be at least 18 years old (19 years old if you are a ward of the state in Nebraska) and a resident of the United States or its territories. Loans originated by PayZen may not be available everywhere. You represent and warrant that you are eligible to use the Services.
ARBITRATION NOTICE: EXCEPT AS DESCRIBED IN THE “MANDATORY ARBITRATION OF DISPUTES” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AT THE ELECTION OF EITHER PARTY, AND YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS OR TO PARTICIPATE IN A CLASS, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, REPRESENTATIVE, OR COLLECTIVE ACTION IN COURT OR IN ARBITRATION, UNLESS YOU OPT-OUT AS DESCRIBED IN THE SAME SECTION BELOW.
From time to time, your health care provider that has partners with PayZen (“Provider”) any of Provider’s employees, agents, successors and assigns, including PayZen (we, us or Company) acting as Provider’s agent may be required by law to provide to you certain written notices or disclosures in writing. We may also need your signature in connection with our transactions with you. If you would like, you can agree to receive these documents and provide your signature electronically instead. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the PayZen system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by clicking ‘APPROVE’ within the PAYZEN system.
At any time, you may request a copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the PayZen system during and immediately after the signing session and, if you elect to create a PayZen account, you may access the documents with us for a limited period of time (usually 30 days) after such documents are first sent to you. You may also save the documents yourself which would allow you to access the documents at your convenience.
If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below.
If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the PayZen System to receive required notices and consents electronically from us or to sign electronically documents from us.
Your consent applies to all notices, disclosures, authorizations, acknowledgements, and other documents we provide or make available to you (“Documents”) in connection with product or service we offer, provide to you, or that you apply for, own, use, administer or access, either now or in the future.
To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Even if you provide your consent, we may still in our discretion provide you with any Documents in paper copy. We may require any information you provide to us, or any document you sign, to be delivered to us in writing. You should print or download a copy of any Documents for your own records, including this ERSD.
You may contact us to let us know of your changes as to how we may contact you electronically, to request copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows:
By mail:
PayZen Inc.
Attn: ERSD Consent
139 Townsend Street, Suite 300
San Francisco, CA 94107
To let us know of a change in your email address where we should send notices and disclosures electronically to you, you can contact us by mail or if you created a PayZen account, you may update it with your new email address by contacting customer service.
To request delivery from us of copies of the notices and disclosures previously provided by us to you electronically, you can contact us by email, call us, or send physical mail and in such correspondence, you must state your email address, full name, mailing address, and telephone number.
To inform us that you no longer wish to receive future notices and disclosures in electronic format you may:
In order to view and retain your electronic Documents, you will need:
You must have a computer or handheld device using a current version of an operating system capable of supporting all of the requirements described above. By “current version”, we mean a version of the software currently supported by its publisher. We reserve the right to discontinue support of a current version of software if, in our sole opinion, it suffers from a security flaw or other flaw that makes it unsuitable for our use of electronic Documents.
If we change these hardware or software requirements, and that change creates a material risk that you would not be able to access or retain your electronic Documents, we will notify you of the revised hardware or software requirements.
Acknowledging your access and consent to receive and sign documents electronically
To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access.
By clicking APPROVE within the PAYZEN system, you are consenting to the use of electronic records and signatures in connection with your relationship with us, and also confirming that:
This form is for use when such authorization is required and complies with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Standards.
I authorize PayZen Inc to use or disclose the following health information:
Demographic information, billing and payment information, summarized information about my provider, services provided and dates of service
The above party may disclose this health information to the following recipients:
Credit bureaus and further credit data vendors
Decision and analytics software platforms for customization of payment plans
Vendors involved in servicing of payment plans
At the request of the Patient or Authorized Representative for payment plan enrollment, payment plan customization and ongoing servicing of the payment plan.
When my outstanding balance is paid in full
I understand that I have the right to revoke this authorization, in writing, at any time, except where uses or disclosures have already been made based upon my original permission. I may not be able to revoke this authorization if its purpose was to obtain a payment plan. In order to revoke this authorization, I must do so in writing and send it to the appropriate disclosing party.
I understand that uses and disclosures already made based upon my original permission cannot be taken back.
I understand that it is possible that information used or disclosed with my permission may be re-disclosed by the recipient and is no longer protected by the HIPAA Privacy Standards.
I understand that treatment by any party may not be conditioned upon my signing of this authorization and that I have payment options other than through a PayZen payment plan.
I will receive a copy of this authorization after I have signed it. A copy of this authorization is as valid as the original.
I authorize PayZen Inc ("PayZen") to obtain a credit report from one or more consumer credit reporting agencies. They may use the credit report for any purpose that would be authorized by applicable law in connection with a Payment Plan ("Plan") transaction involving me and including but not limited (i) determining your eligibility for, servicing of and maintaining your Plan (ii) to make decisions on term and monthly payment of my plan; (iii) to determine how much debt I currently have, in order to determine my debt-to-income ratio; (iv) to obtain my credit score and assign me a PayZen Rating based in part on that score; PayZen may obtain my credit report each time I create a Plan and in connection with Plan servicing or collection; and, (v) for PayZen’s internal use, including statistical analyses and to develop, improve, analyze, study and maintain products or services we do or may offer.
You expressly consent and agree that PayZen Inc and its subsidiaries and affiliates and/or employees, agents, successors and assigns, (collectively “PayZen”) and its partner health care providers (“Providers”) including subsidiaries and affiliates and/or employees, agents, successors and assigns, (collectively “we”, “us” or “Company”) can contact you using written, electronic, or verbal means, including by manual dialing, emails, leaving prerecorded/artificial voice messages or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you and to service your account and as the law allows, even if those phone numbers are registered by you on any federal or state Do-Not-Call/Do-Not-email registry. We will communicate with you by mail, e-mail or telephone at the addresses or phone numbers we have on file for you (if any) and send you messages through the mobile application we provide (if any).
By enrolling to receive marketing calls/texts, you agree to receive calls and/or text messages from PayZen to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such calls and texts. You acknowledge and agree that the calls and texts may be sent using an automatic telephone dialing system. Consent is not required as a condition of purchase. We are not responsible for any delays upon sending or receiving text messages. To unsubscribe from text messages at any time, reply STOP to any text message you receive from us. You consent that following such a request to unsubscribe, you may receive one final text message from us confirming your request.
If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at support@payzen.com or 888-849-7647.
Message and data rates may apply for any messages sent to you from us and to us from you.
If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
If you have any questions regarding privacy, please read our Privacy Policy.
To report a security concern or bug, please email security@payzen.com.
IN NO EVENT SHALL PAYZEN OR ITS AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR PARTNERS OF PAYZEN OR ITS AFFILIATES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THE PAYZEN SERVICES, PAYZEN ACCOUNTS, THIS AGREEMENT OR THESE TERMS, WHETHER IN CONTRACT, TORT (WHETHER IN NEGLIGENCE OR STRICT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY. THE LIABILITY OF THE ABOVE-MENTIONED PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYZEN AND ITS AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND SUPPLIERS OF PAYZEN OR ITS AFFILIATES, ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD THESE PARTIES RESPONSIBLE FOR, ANY DAMAGES OR LOSSES RESULTING DIRECTLY OR INDIRECTLY FROM: (1) YOUR USE OF OR YOUR INABILITY TO USE ANY PAYZEN SERVICE OR ANY PAYZEN SITE; (2) DELAYS OR DISRUPTIONS IN ANY PAYZEN SERVICE OR ANY PAYZEN SITE; (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING ANY PAYZEN SERVICES; (4) GLITCHES, BUGS, ERRORS OR INACCURACIES OF ANY KIND IN ANY PAYZEN SERVICES; (5) THE CONTENT, ACTIONS OR INACTIONS OF THIRD PARTIES, INCLUDING ANY THIRD PARTY WEBSITE OR APPLICATION LINKED TO ANY PAYZEN SERVICES; (6) CLAIMS OF BREACH OF WARRANTY OR GUARANTEE; (7) GOODS AND SERVICES YOU PURCHASED FROM PROVIDER OR THE RETURN OF SUCH GOODS; OR (8) CHANGES TO THIS AGREEMENT.
These limitations and exclusions apply even if your remedies do not fully compensate you for any losses or if PAYZEN or its affiliates knew, or should have known, about the possibility of damages.
You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and PayZen, except as otherwise stated in this Agreement. Subject to the Mandatory Arbitration of Disputes Provision, you and we may also litigate any dispute in small claims court with jurisdiction over that dispute, if the dispute meets all requirements to be heard in the small claims court and remains in that court. You may litigate in small claims court whether or not you negotiated with PayZen informally first.
You hereby acknowledge that PayZen owns all rights, title and interest in and to the Services and to any and all proprietary and confidential information contained therein (“PayZen Information”). The Services and PayZen Information, including visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, look-and-feel, and all other elements of the Services, are protected by applicable intellectual property and other laws, including patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
PayZen and all other graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of PayZen in the U.S. and/or other countries. PayZen's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of PayZen.
If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent as set forth below, or as registered at https://dmca.copyright.gov:
Attention: Legal Department
139 Townsend Steet Suite 300
San Francisco CA, 94107
(888) 849-7647
legal@payzen.com
To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following:
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, PayZen has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, the memberships of customers who are deemed to be repeat infringers. PayZen may also at its sole discretion limit access to any Service and/or terminate the memberships of any customers who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about any Service ("Submissions"), provided by you to PayZen are non-confidential and shall become the sole property of PayZen. PayZen shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
BY USING THE SERVICES YOU AGREE NOT TO:
To the fullest extent permitted by law, you agree to indemnify, defend and hold PayZen 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 “Indemnified Parties”), harmless from and against any and all claims, liabilities, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties 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. PayZen 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 such matter without the prior written consent of PayZen.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU, ON THE ONE HAND, NOR PAYZEN AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING, OR DELIVERING THE SERVICES, ON THE OTHER HAND, WILL BE LIABLE FOR DAMAGES TO THE OTHER FOR ANY NON-PECUNIARY, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING FOR IMPAIRMENT OF REPUTATION OR STANDING IN THE COMMUNITY, HUMILIATION, MENTAL ANGUISH, AND EMOTIONAL DISTRESS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT ANY SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AND THE INDEMNIFIED PARTIES ACKNOWLEDGE THAT NEITHER WILL BE LIABLE TO THE OTHER FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY. UNLESS YOU (1) ARE SUBJECT TO THE PROTECTIONS OF THE MILITARY LENDING ACT OR (2) OPT OUT IN ACCORDANCE WITH THE PROCEDURES DESCRIBED BELOW, IT WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS, INCLUDING YOUR RIGHT TO BRING OR PARTICIPATE IN A JURY TRIAL OR A CLASS ACTION.
FOR INFORMATION ABOUT OPTING OUT, PLEASE SEE SECTION 11.d) BELOW.
This dispute resolution section by binding arbitration is referred to in this Agreement as the “Arbitration Agreement.” As used in Section 11, the terms “PayZen,” “we,” and “us” mean PayZen Inc., and its past, present, and future parents, subsidiaries, and affiliate entities. The following terms are applicable to all products and Services you receive from or through PayZen, and to any interaction you have with PayZen. You and PayZen agree that any dispute, claim, controversy, or disagreement between you and PayZen arising out of or relating in any way to this Agreement, your relationship or interaction with us, or these products or Services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below. “Dispute” will also include disputes that were not noticed at the time you first became subject to this Agreement but arose or involve facts occurring before the existence of this or any prior versions of this Agreement, as well as claims that may arise after the termination of this Agreement. This Arbitration Agreement is expressly intended to bind not only you and PayZen but also any third-party beneficiary of this Agreement. In particular, any person or entity who is not a direct party to this Arbitration Agreement but who seeks to assert rights or enforce obligations arising from or relating to this Arbitration Agreement, including partner financial Institutions, shall be deemed to have accepted and agreed to this Arbitration Agreement and shall be bound by its terms. Notwithstanding Section 11.(m) below, should you or we bring claims in arbitration against any such third-party(ies) that arise out of or relate to substantially similar facts or events giving rise to a Dispute with PayZen that we are unable to resolve through the informal dispute resolution process described in Section 11.(b) below, you and we agree that such claims shall be consolidated with the Dispute to proceed as a single arbitration involving you and PayZen and the relevant third-party(ies) according to the arbitration procedures provided in this Arbitration Agreement.
(a) Governing Law. Except as otherwise required by applicable law, the Agreement and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflict of laws principles. These laws will apply no matter where in the world you live, but if you live outside of the United States, you may be entitled to the protection of the mandatory consumer-protection provisions of your local consumer-protection law.
The Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) applies to the Dispute Resolution provisions in this Agreement, unless mandatory arbitration is expressly forbidden by the Military Lending Act as applied to your specific circumstances. For the avoidance of doubt, to the extent state law is relevant under the Federal Arbitration Act, the law of the State of Delaware shall be applied without regard to conflict of laws principles.
(b) Claim Notice and Informal Dispute Resolution. We want to address your or PayZen’s concerns without needing a formal legal case. Before you initiate a lawsuit or arbitration against PayZen, and before PayZen initiates a lawsuit or arbitration against you, the initiating party must give the other party written notice describing in reasonable detail the Dispute and the supporting facts (the “Claim Notice”). Your Claim Notice must be emailed to PayZen at claimnotice@payzen.com and include your PayZen Account number, email address on file, and phone number where you (or, if you have an attorney, your attorney) can be reached. PayZen’s Claim Notice to you or response to your Claim Notice will be sent to the email address we have on file for you or, if applicable, to your attorney. It is your responsibility to keep your contact information up to date. Except as otherwise required by applicable law, once a Claim Notice is sent, you and PayZen shall have a reasonable opportunity over the next 60 days to resolve the Dispute on an individual basis. During this 60-day period, if requested by either party, a PayZen representative and you must individually meet, in person or remotely, or speak by telephone, and make an effort to resolve the Dispute. No lawsuit or arbitration may be commenced during this 60-day period. Filing a complaint against a nonparty to this Agreement does not suffice as a Claim Notice. Unless otherwise stated in this Arbitration Agreement, any unresolved Dispute(s) must be resolved finally and exclusively by binding arbitration as described below.
Completion of this informal dispute resolution is a condition precedent to filing any demand for arbitration or small-claims court action. Filing any lawsuit or demand for arbitration before completing this informal dispute resolution is a breach of this Agreement. The limitations period will be tolled while you and PayZen engage in this informal dispute-resolution process. In addition, unless prohibited by law, the arbitration administrator will not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without submission of a certification of completion of the procedures in this “Claim Notice and Informal Dispute Resolution” section, which certification must be submitted as described in Section 11.(e) below. If the arbitration is already pending, it shall be administratively closed.
(c) Agreement to Arbitrate. Except as set forth under Exceptions to Agreement to Arbitrate (Section 11.(l)) below, you and PayZen agree that any Dispute shall be resolved through final and binding arbitration to be administered by National Arbitration and Mediation (“NAM”). The parties agree that an arbitrator, and not any court, shall have the exclusive authority to resolve any dispute relating to the validity, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or part of this Arbitration Agreement is void or voidable, except that all Disputes regarding Section 11.(m) entitled “Class Action and Representative Action Waiver,” including any claim that all or part of that section is unenforceable, illegal, void or voidable, or that such section has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. You and PayZen further agree that any Dispute must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time-barred. Likewise, you and PayZen agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction. Any award of the arbitrator (as defined below in Section 11.(e) is final and binding and may be entered as a judgment in any court having jurisdiction. This Arbitration Agreement continues to apply even after you have stopped receiving Services from us.
(d) Opt-out of Agreement to Arbitrate. You can decline this Arbitration Agreement by contacting optout@payzen.com within 30 days of enrollment or of your receipt of electronic notice of this Arbitration Agreement and stating that you (include your first and last name) opt out of this Arbitration Agreement. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. If you opt out of the Arbitration Agreement and a Dispute arises between you and PayZen at any time thereafter, before starting a lawsuit or arbitration, the complaining party must give the other party written notice describing in reasonable detail the Dispute and the supporting facts (the “Claim Notice”). Your Claim Notice must be consistent with Section 11.(b) and emailed to PayZen at claimnotice@payzen.com. You are required to include your PayZen Account number, then-current email address on your PayZen profile, and phone number where you (or, if you have an attorney, your attorney) can be reached. We will email or mail any PayZen Claim Notice to you at the email address and physical address we have on file for you. Once a Claim Notice is sent, the complaining party must give the other party a reasonable opportunity over the next 60 days to resolve the Dispute on an individual basis. Filing a complaint with a nonparty to this Agreement does not suffice as a Claim Notice. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed and did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.
(e) Arbitration Process and Procedure. NAM will administer arbitrations under its Comprehensive Dispute Resolution Rules and Procedures then in effect (NAM’s Rules, Fees, and Forms are available at https://www.namadr.com/resources/rules-fees-forms/). If this link does not work or if you are unable to review NAM’s Rules, Fees, and Forms, please contact NAM at commercial@namadr.com or through contact information available on NAM’s website at www.namadr.com. In addition, to the extent applicable, NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures shall also apply (together with the Comprehensive Dispute Resolution Rules and Procedures, the “NAM Rules”). If NAM is not available to administer the arbitration, the parties will select an alternative arbitral forum. The arbitration shall occur through the submission of documents to one Arbitrator. If the Arbitrator determines that a hearing is necessary, the hearing shall be conducted remotely by telephone or video conference. If the Arbitrator determines that an in-person hearing is necessary, the hearing will take place in the United States county where you live or work or such other location agreed upon by both parties. Subject to the applicable NAM Rules, the parties agree that the Arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. You must submit a certification that you have complied with and completed the Claim Notice and Informal Dispute Resolution procedures requirements referenced in Section 11.(b) when initiating arbitration. The demand for arbitration and certification must be personally signed by you and, if represented, by your legal counsel, and submitted to NAM.
If you have a question about the arbitration process or to obtain a current copy of the NAM Rules, including but not limited to Comprehensive Dispute Resolution Rules and Procedures, Mass Filing Supplemental Dispute Resolution Rules and Procedures, and/or fee schedule, NAM’s Commercial Department can be contacted at commercial@namadr.com or through NAM’s website at www.namadr.com.
(f) Arbitration Fees. The payment of all fees shall be governed by applicable NAM Rules and fee schedules, including the “Fees For Disputes When One of the Parties is a Consumer” then in effect, except to the extent that the NAM fees and costs (including Arbitrator fees) paid by either party are reallocated upon order of the Arbitrator following a determination that (a) either party breached this Arbitration Agreement, (b) such reallocation is called for under this Agreement, or (c) reallocation is otherwise permitted under applicable law. Payment of fees will be made in accordance with the applicable NAM Rules and fee schedules, unless the Arbitrator finds that either the substance of the Dispute or the relief sought was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If PayZen initiates an arbitration against you, we shall pay all fees. The applicable section of the NAM Rules and fee schedules will govern if the case is a part of a “Mass Filing” (as defined below in Section 11.(j)).
(g) The Arbitrator. The arbitration shall be conducted by a single neutral (the “Merits Arbitrator”). An administrative arbitrator may separately be appointed under NAM Rules. The term “Arbitrator” applies to both the Merits Arbitrator and the administrative arbitrator.
(h) Confidentiality of Arbitration and/or Mediation. All documents and materials submitted to or filed with NAM, and all communications concerning any Dispute, whether oral or written, and all testimony shall not be publicly disclosed and shall remain confidential and inadmissible in any other judicial or alternative dispute resolution proceeding, except as necessary in a proceeding to confirm or vacate the arbitration award under 9 U.S.C. §§ 9-10, as permitted under this Arbitration Agreement, or unless otherwise required by law or judicial decision or order. Any such appeal would then be subject to NAM’s Appellate Dispute Resolution Rules and Procedures. With respect to mediations, the NAM administrator, the mediator, and the parties shall keep all matters relating to the mediation proceeding, including the terms of the settlement agreement, confidential unless the parties mutually agree otherwise.
For additional protection, upon either party’s request, the Arbitrator shall issue an order requiring that confidential information (including decisions or awards) of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in the arbitration or a proceeding to enforce the arbitration award, and that any permitted court filing of confidential information must follow the court’s procedures for filing under seal.
(i) Arbitration Award. The arbitration award is binding only between the parties named in the arbitration award and will not have any effect in another arbitration or proceeding that involves a different party. The Arbitrator may award fees and costs as provided by the NAM Rules or to the extent fees and costs could be awarded in court on similar bases. This includes, but is not limited to, the ability of the Arbitrator to award fees and costs if the Arbitrator determines that a claim or defense is frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), for the purpose of harassment, or in bad faith.
(j) Mass Filing. If, at any time, 25 or more similar demands for arbitration are asserted against PayZen or related parties (including PayZen’s partner financial institutions) by the same or coordinated counsel or related parties (a “Mass Filing”), NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures shall apply; provided, however, that if NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures conflict with this Agreement, this Agreement controls. If your case is part of a Mass Filing, any applicable contractual or statutory limitations period applicable to the claims and relief (as well as to any applicable defenses or counterclaims) must be tolled until your case is selected for adjudication, withdrawn, or otherwise resolved.
NAM shall (1) administer the arbitration demands in batches of 100 demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual demands are filed, a single batch of all those demands, and, to the extent there are fewer than 100 demands remaining after the batching described above, a final batch consisting of the remaining demands); (2) appoint one Merits Arbitrator for each batch; and (3) provide for the resolution of each batch on a consolidated basis with, once batched, one set of fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible. All parties agree that demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing administrative arbitrator according to NAM Rules to determine the applicability of the Batch Arbitration process. In an effort to expedite resolution of any such dispute by the administrative arbitrator, the parties agree the administrative arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The administrative arbitrator’s fees shall be paid by PayZen. You and PayZen agree to cooperate in good faith with NAM to implement the Batch Arbitration process, including the payment of single filing and administrative fees for batches of demands, as well as any steps to minimize the time and costs of arbitration, which may include (1) the appointment of a discovery special master to assist the Arbitrator in the resolution of discovery disputes and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.
(k) Offer of Settlement For Mass Arbitration. During a “Mass Filing,” a party may make an offer of settlement not less than 10 days prior to commencement of the arbitral hearing by serving an offer in writing upon any other party to the action to allow an award to be entered in accordance with the terms and conditions stated at that time. Any acceptance of the offer of settlement shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party. If the offer of settlement is not accepted prior to arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn and cannot be given in evidence upon arbitration. For purposes of this subdivision, the arbitral hearing shall be deemed to be commenced at the beginning of the opening statement of the claimant or claimant’s counsel, or, if there is no opening statement, at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence. The offer of settlement shall be served on the other party in the same manner in which other papers are served in the arbitral proceeding. The offer of settlement shall not be served on the Arbitrator, except that, if the offer is accepted, either party may then file with the Arbitrator the offer of settlement and notice of acceptance together with proof of service thereof. The Arbitrator shall dismiss and close the case upon settlement between the parties under this paragraph, and the arbitration proceedings shall then be terminated. If the offer of settlement is not accepted, the offer of settlement shall not be used as evidence in the arbitration proceedings. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. The Arbitrator can hear evidence of offers of settlement and any offering party’s request for costs and fees (e.g., filing fees, administrative fees, Arbitrator fees, and hearing fees), which shall exclude attorneys’ fees. If an offer of settlement under this subsection is rejected, and if the final award that the offeree obtains is not more favorable than the unaccepted offer, the Arbitrator may, as part of the final award, award the offeror the costs and fees, excluding attorneys’ fees, incurred after the offer of settlement was made, to be paid by the offeree. The offeree’s costs and fees liability under this subsection is capped at $5,000.00 per claimant.
(l) Exceptions to Agreement to Arbitrate. Either party can elect to have an individual Dispute resolved in small-claims court of your state or municipality if the action is within that court’s jurisdiction. Either party may also bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
(m) CLASS ACTION AND REPRESENTATIVE ACTION WAIVER. TO THE EXTENT PERMISSIBLE BY LAW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED OR LITIGATED AS A CLASS ACTION, REPRESENTATIVE ACTION, COLLECTIVE ACTION, OR PRIVATE ATTORNEY GENERAL ACTION (“CLASS ACTION WAIVER”). THIS MEANS THAT YOU MAY NOT SEEK RELIEF ON BEHALF OF ANY OTHER PARTIES IN ARBITRATION, INCLUDING BUT NOT LIMITED TO SIMILARLY AGGRIEVED CLAIMANTS. THE ARBITRATOR’S AUTHORITY TO RESOLVE ANY DISPUTE AND TO MAKE WRITTEN AWARDS WILL BE LIMITED TO YOUR INDIVIDUAL CLAIMS. YOU MAY ONLY RESOLVE DISPUTES WITH PAYZEN ON AN INDIVIDUAL BASIS, AND YOU MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT ALLOWED UNDER OUR AGREEMENT. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Sections 11.(j) entitled “Mass Filing” and Section 11.(k) entitled “Offer of Settlement for Mass Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this section, “Class Action and Representative Action Waiver,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and PayZen agree that such claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in New Castle County, Delaware. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all Disputes between the parties that remain in arbitration are finally resolved. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or PayZen from participating in a class-wide or mass settlement of claims.
(n) Judicial Forum for Disputes. Except as otherwise required by applicable law, in the event that the Arbitration Agreement is found not to apply to you or your claims, you and PayZen agree that any judicial proceeding (other than small-claims actions) will be brought in New Castle County, Delaware. Both you and PayZen consent to venue and personal jurisdiction there.
(o) WAIVER OF JURY TRIAL. To the fullest extent permitted by law, we both agree to waive our right to a jury trial. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(p) Severability Except as provided in Section 11.(m) entitled “Class Action and Representative Action Waiver,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect. However, if either Section 11.(j) entitled “Mass Filing” or Section 11.(m) entitled “Class Action and Representative Action Waiver” of this Arbitration Agreement is found under the law to be invalid or unenforceable, then the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in New Castle County, Delaware.
(q) Modification Notwithstanding any provision in this Agreement to the contrary, we agree that if PayZen makes any future material change to this Arbitration Agreement, it will notify you. Your continued use of the PayZen websites, applications, and/or Services, including the acceptance of products and services offered on the websites and/or applications following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of this Agreement with an arbitration agreement and you did not validly opt out of arbitration, then changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of your previous agreement to arbitrate. PayZen will continue to honor any valid opt-outs of the Arbitration Agreement that you made to a prior version of this Agreement.
This Agreement, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and PayZen regarding your use of and access to the Services, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties. 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. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of paragraph headers in this Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions.
In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. In the event of termination of this Agreement or the Services, the terms in this Agreement that by their nature are continuing shall survive such termination, including but not limited to the indemnification and hold harmless obligations, disclaimers and limitations of liabilities.
If you have any questions regarding PayZen, the products or Services, or this Agreement please contact us at 1-888-849-7647.