Spend Card Terms of Use

These ZENA SPEND CARD TERMS AND CONDITIONS (these “Card Terms”) are agreed to by and between Vermouth Labs, Inc. d/b/a Zena (“Zena” or “we” or “us”) and Zena’s customer that applies for and receives Spend Card(s) (“Customer” or “you”). These Card Terms supplement the Zena Terms and Conditions or similar customer agreement that Customer has entered into with Zena (the “Service Agreement”) regarding Customer’s access to and use of Zena’s cloud-based web platform delivered and accessible through getzena.com (“Zena Platform”). These Card Terms will govern in the event of any conflict with the Service Agreement as it relates to the Cards or Program. Customer’s or its Authorized Users’ acceptance or use of any Cards or participation in the Program constitutes Customer’s and each Authorized User’s acceptance of these Card Terms and Issuer Terms.

1. DEFINITIONS

“Admin” means the individual(s) designated by Customer with the requisite power and authority to manage and operate Customer’s account on the Zena Platform and Customer’s Card Account.

“Amounts Due” means any amounts related to the Charges, fees, penalties, finance charges, and other amounts incurred through use of your Cards or posted to your Card Account.

“Authorized User” means an individual who has been granted access to your Card Account and has also been authorized to use a Card by you.

“Card” means the business charge card(s) issued by the Issuer and linked to your Card Account. A Card may be a physical or digital device. 

“Card Account” means the credit account maintained with the Issuing Bank through which you are extended credit and through which you may request the issuance of Cards. 

“Card Networks” means the payment card networks through which charges are authorized, processed and settled, including the network operated by Visa, Mastercard, American Express and Discover.

“Issuer” means Celtic Bank Corporation. Unless otherwise specified, references to “Issuer” also include Stripe, as the Program manager appointed by Issuer. 

“Issuer Terms” means terms made available by the Issuer concerning Customer’s and its Authorized Users’ use of the Cards, available at https://stripe.com/legal/celtic-spend-card, https://stripe.com/legal/issuing-accountholder, https://stripe.com/issuing/celtic/apple-payment-platform-program-manager-customer-terms-and-conditions/legal#exhibit-c-pass-through-provisions, and https://stripe.com/legal/issuing/celtic-authorized-user-terms. 

“Charge” means a payment for goods or services made on your Card to a merchant that accepts payments on the applicable Card Network.

“Chargeback” means a dispute initiated by you against a merchant for an unresolved dispute with the merchant or where you assert that a Charge is unauthorized. 

“Good Standing” means that Customer has a positive Issuing Balance, has not filed for bankruptcy, is not subject to any legal process that would materially impact its ability to pay any amount owed Zena or Issuer, and has not issued any failed payment instruments (e.g. checks) within the prior month.

“Periodic Statement” means, collectively, the various reports, whether prepared and delivered by Zena or available on-demand to Customer’s Admin through reporting tools on the Zena Platform, as well as invoices and periodic statements that reflect activity for the Cards issued to Customer, identifying therein Charges, fees, fines, refunds, or other amounts owed or credited to your Issuing Balance during the time covered by that report, invoice, or statement.

“Program” means the Card issuing services that Issuing Bank provides under the Issuer Terms, together with the services that Zena makes available to you under these Card Terms and the Service Agreement.

“Stripe” means Stripe, Inc. 

“Issuing Balance” means Customer’s balance of funds within Customer’s Zena Account.

“Zena Account” means Customer’s Stripe Connected Account maintained at Stripe, at which Customer receives payments from Customer’s clients, a transfer from Customer’s external account or other amounts Zena makes available to Customer for the purpose of making purchases using Card.

2. PAYMENT CARDS

2.1 Issuer Terms

Cards are issued by Issuer through a card program managed and supported by Stripe. These Card Terms and the Issuer Terms concurrently govern your and your Authorized Users’ use of the Cards. By using the Cards, Customer and Authorized Users hereby consent to the applicable Issuer Terms and agree to be bound by them. Please be aware that the Issuer Terms may state that (a) Stripe and the Issuer may update the Issuer Terms at any time, and (b) Customers' and Authorized Users’ continued use of the Cards constitutes Customer’s and Authorized Users’ acceptance of such updated Issuer Terms. Customers are solely responsible for reviewing and monitoring the changes to the Issuer Terms.

2.2 Spending Limits

When Customer enters into the Service Agreement, Zena will allow Customer to establish a Zena Account at Stripe, in which Issuing Balance will be maintained to be used by Customer to pay for purchases by Customer and Customer’s Authorized Users. The then-current Issuing Balance will be Customer’s “Total Spending Limit” in connection with the Program. The Total Spending Limit will be the maximum aggregate amount that could potentially be made available by Customer’s Admin for Charges across all Cards associated with Customer’s Zena Account at any time. Zena and Issuer may decrease the Total Spending Limit at any time based on risk, credit, or compliance considerations. Your Total Spending Limit will be decreased each business day by the Amounts Due until additional funds are added to your Issuing Balance.

Subject to the Total Spending Limit, Issuer, Zena, or Customer’s Admin may set and adjust from time to time spending limits for any Card (“Card Spending Limit”), as well as overall daily spending limits for any Card (“Daily Spending Limit”). The amount available for Charges on a particular Card will be subject to the Card Spending Limit and/or Daily Spending Limit (if any) for such Card. Zena does not guarantee the accuracy of any such codes or classifications. Customers will be responsible for all Charges under its Cards regardless of any spending limits or controls.

Authorized Users must not make any Charge that would cause Customer to exceed or violate any of the limits set forth in this Section 2.2. Customers may view these limits through the Zena Platform. All transactions will be declined at the time of merchant authorization if the Charge exceeds the applicable Card Spending Limit, Daily Spending Limit or the Total Spending Limit, or if Customer is not in Good Standing. If notwithstanding the foregoing, a transaction exceeding the applicable Card Spending Limit, Daily Spending or Total Spending Limit is successfully processed, or the Charge ultimately captured by the merchant is more than the amount initially authorized (such as in the case of egregious tipping) and such Charge exceeds the applicable Card Spending Limit, Daily Spending Limit or Total Spending Limit, Customer will be liable to Issuer and Zena the excess, and Customer hereby authorizes Issuer and Zena to deduct such excess from its Issuing Balance or, if Issuing Balance is insufficient, to debit Customer’s external bank account or other payment card(s) linked to the Zena Platform (“Alternative Payment Sources”) for such excess. Zena may set off any amounts you owe Zena in connection with your participation in the Program against other funds that Zena holds or processes on your behalf or Zena owes you under any agreement between you and Zena. If your Issuing Balance is terminated for any reason or if the amount of your Issuing Balance falls to zero, or if Issuer does not receive payment from another payment source, your Total Spending Limit will be zero and you will not be permitted to initiate Charges through your Cards.

2.3 Using Cards

Customer agrees that it will only use and permit the use of the Cards by Authorized Users for Customer’s business purpose of procuring supplies and services required to fulfill Customer’s client orders, and for no other purpose. Customer represents and warranties to Zena and Issuer that the Cards will not be used for personal, household or consumer purposes. Customers understand that its Cards are deemed commercial in nature and that certain consumer protection laws, such as the Credit Card Consumer Accountability, Responsibility, and Disclosure Act of 2009, do not apply to use of the Cards. If applicable, the Customer is responsible for selecting the Authorized Users who are authorized to use Cards. Customer is responsible for all Card transactions and activities, including transactions made by its Authorized Users. Customer agrees to establish and maintain controls designed to ensure that the Cards are only used by Customer or Customer’s Authorized Users for purposes permitted by these Card Terms and by Customer and in compliance with these Card Terms, the Issuer Terms, and applicable law. A customer is responsible for charges and transactions made by any person given access to Cards even if they are not the person associated with or named on the Card. Zena, Issuer, Card Networks, or other intermediary third party service providers (including merchant acquirers) may deny or reverse Charges for any reason. Zena is not responsible for any losses, damages, or harm caused by any Charges that are denied or reversed.

2.4 Repayment of Charges

Each purchase on the Card will be paid by the Issuing Balance. You authorize Zena and Issuer to automatically debit or offset Amounts Due under these Card Terms from the Issuing Balance each time a purchase is approved. If we are unable to collect Amounts Due from the Issuing Balance, we will attempt to collect Amounts Due from the Alternative Payment Sources. If the Amounts Due exceeds the amounts or proceeds available from the Issuing Balance and the Alternative Payment Sources, we may require you to immediately repay any uncollected Amounts Due. You will pay all legal fees and other reasonable costs and expenses incurred by us or Issuer in connection with the collection of any Amounts Due.

2.5 Fees

Customer’s and its Authorized Users’ participation in the Program (including request and use of Cards) may be subject to certain fees ( “Usage Fees”) by Zena, Issuer, and other third party providers. Usage Fees are separate and distinct from the subscription fees Zena charges Customer for its access to and use of the Zena Platform. Usage Fees may include periodic fees, fees for Card issuance or replacement, fees applicable to certain transactions, usage fees, service fees, fees for late payments, fees for failed payments or returned payments, fees for misuse of the Cards, foreign exchange fees, border transaction fees, dispute fees, or other fees we disclose to you. We will disclose Usage Fees in these Card Terms, in a separate fee schedule or through the Zena Platform. We may add new Usage Fees or increase existing Usage Fees upon thirty (30) days’ notice to you. We may also charge a new or increased Usage Fee when Customer or its Authorized Users affirmatively agree to such fee, even if that is earlier than thirty (30) days after receiving notice.

Customer is responsible for paying all Usage Fees, and Customer hereby authorizes Zena to deduct such fees from its Issuing Balance or debit the Alternative Payment Sources for such Usage Fees. In the event Customer does not have sufficient Issuing Balance to pay the Usage Fees when required and Zena is unable to collect the Usage Fees from Customer’s Alternative Payment Sources, Customer will be deemed in material breach of these Card Terms, pursuant to which Zena may declare the entire balance due immediately, regardless of the current billing cycle. Customer is responsible for all costs or expenses that we or Issuer incurs collecting amounts owed but not timely paid, including legal or collections fees and any interest at the maximum rate permitted under law. All monetary amounts owed under these Card Terms are stated in U.S. dollars (“USD”).

2.6 Requesting and Replacing Cards

Customers may request Cards for themselves and, if applicable, Authorized Users through the Zena Platform. Authorized Users are prohibited from requesting or having more than one active Card at any given time. We may decide in our sole discretion not to grant requests for Cards or limit the number of Cards provided to any Customer.

In order to request a Card for any Authorized User, we may require Admins or Authorized Users to provide the Authorized User’s full legal name, contact information, and physical address. Additional information may be required, as determined in our sole discretion. Cards may be denied or canceled due to changes in Issuer’s policies, as required by law, or for any other reasons we determine are appropriate in our sole discretion.

Customers and its Authorized Users are responsible for securing Cards, account numbers, and Card security features (including the CVV and PIN, if any). Customers will promptly notify Zena and take appropriate measures to prevent unauthorized transactions when a Card is lost, stolen, breached, or needs to be replaced. In such cases, Customer’s Admin or Authorized Users may request the issuance of replacement Cards by Issuer through the Zena Platform.

2.7 Settlement Currency and Foreign Exchange

All Charges, Usage Fees, and associated fees for Cards issued by Issuer must be paid in USD (“Settlement Currency”). Some international charges may be cleared in a currency other than the Settlement Currency and will undergo a currency conversion. For those transactions, the exchange rate will be selected by Issuer or Card Network and there may be additional transaction fees charged by Issuer or a third-party to facilitate the transaction. Customers will be responsible for all foreign exchange fees, border transaction fees or other similar transaction fees, each of which are Usage Fees, and which will be deducted against Customer’s Issuing Balance. The exchange rate applied to Customer’s transactions may vary from time to time or among customers depending on a variety of factors, such as your relationship with Issuer, the terms and policies of the Issuer or Card Network, the local currency, the type of transaction being conducted, the transaction amount, and the date and time of the currency exchange.

2.8 Disputing Charges

Customer is responsible for all Charges on Cards issued under Customer’s Card Account. Customer is responsible for reviewing its Periodic Statements promptly and identifying any Charges that Customer believes are erroneous, unauthorized, or that Customer disputes. If you believe your Card has been lost or stolen or if you believe there are fraudulent or unauthorized transactions on your Card or Card Account, you must IMMEDIATELY (a) report any unauthorized Charges to Zena via the Zena Platform, and (b) cancel any compromised Cards through the Zena Platform. Disputing a fraudulent or unauthorized Charge will not cancel a Card. Failure to cancel any compromised Cards through the Zena Platform may result in you incurring additional liability.

If Customer or any Authorized User and a merchant have a dispute regarding a Charge identified on Customer’s Periodic Statement, such as delivery of incorrect goods or services or being charged the wrong amount, Customer or Authorized Users, as the case may be, should first attempt to resolve the dispute with the merchant. If the dispute is not resolved to your satisfaction or if Customer or Authorized User believes the Charge is unauthorized, Customer or Authorized User, as the case may be, may contact Zena with your concern through the Zena Platform.

Customer understands that the Program is subject to Card Network rules regarding Chargebacks. The Card Networks have established procedures for resolving Chargebacks that may require you to provide details of the disputed Charge or associated documentation. Customer and Authorized Users must be sure to initiate disputes within sixty (60) days of when the Charge posts to Customer’s Card Account (or within any extended timeframe required by law or Card Network Rules), as the Card Networks may not accept or process disputed Charges reported after this time.

Charges relating to disputed Charges and Chargebacks will be collected on the payment date if they are pending resolution as of the date that payment is due for the applicable Periodic Statement. Chargebacks resolved in favor of Customer will be credited to your Issuing Balance on either the current or a future Periodic Statement. We may impose fees, reduce your spending limits, or suspend access to your Issuing Balance or Cards if you fail to pay Charges relating to Chargebacks that are pending resolution on the payment date.

You understand that your Card Account and the Cards are commercial in nature and that card-related consumer protection laws, including the Electronic Funds Transfer Act and the Credit Card Consumer Accountability, Responsibility, and Disclosure Act of 2009, do not apply to Chargeback disputes or other Card-related disputes.

2.9 Additional Customer Responsibilities

Customer must adhere to the following standards of conduct in order to use the Cards:

1. Routine review of card transactions and reporting obligations. Customers must review the Periodic Statements associated with your Cards regularly, but on no less than a monthly basis. Periodic Statements are available through the Zena Platform. Customers must promptly notify Zena of any unauthorized or fraudulent activity.
2. Deactivation of Cards and cardholder account profiles. If applicable, Customer’s Admin must routinely audit Customer’s Authorized Users in order to identify any Authorized Users that should no longer be active, including Authorized Users who resign, are terminated, and/or are no longer authorized by Customer to have a Card under its Card Account. In these cases, Customer must deactivate and delete the Authorized User’s permissions from its Card Account promptly, no later than forty-eight (48) hours from the change in such Authorized User’s status with Customer. 
3. Report lost or stolen cards in a timely manner. Customers must notify Zena regarding the loss or theft of any Cards within forty-eight (48) hours of the event. This pertains to Cards issued under your Card Account that are already received as well as Cards that are in transit and do not arrive.
4. Protect accounts, cards and card information. Customers and its Authorized Users are expected to exercise reasonable care in protecting Cards, including PIN and card information, from loss, theft and unauthorized access. In addition to the responsibilities set forth above, reasonable care include: (i) promptly reporting if you suspect account and/or card information has been exposed or is being misused, (ii) protecting accounts, cards and card information from access by any third parties who are not authorized to use cards, and (iii) practicing safe computing (e.g. using unique and complex passwords, antivirus and anti-spyware software, firewalls, and other industry-standard safeguards).
5. Respond and participate in investigations. Customer and all relevant Authorized Users must participate in any investigation conducted by Zena or Issuer related to alleged unauthorized Charges, and must be responsive to such ongoing investigations by providing any supplementary information and/or documentation that Zena or Issuer deems necessary to complete an investigation.

3. MISCELLANEOUS

3.1 Representations and Warranties

In addition to other representations and warranties provided by Customer under the Service Agreement, Customer represents and warrants that (a) if Customer is an entity, Customer is and will continuously throughout the term of these Card Terms be duly organized and in good standing under the laws of its jurisdiction of organization; (b) if Customer is a sole proprietor, Customer is over 18 years of age and any Card obtained through the Program will be for the business purpose of operating Customer’s sole proprietorship and not for Customer’s personal, household or consumer purposes; (c) all of Customer’s Admins have requisite organizational power and authority to conduct business on and manage Customer’s Card Account in all respects, including delegating access or authority to other Authorized Users; (d) Customer is opening an account on behalf of an entity organized and registered in the United States and that Customer is not opening an account as or on behalf of a consumer; (e) Customer and Authorized Users will not engage in activities prohibited by these Card Terms or any Issuer Terms; and (f) all data and information provided to Zena is and shall remain complete, accurate, and current, and Customer has all necessary rights, consents and authorizations to provide such data and information available to us for the purposes contemplated hereunder.

3.2 Changes to Program and Terms; Term and Termination

We reserve the right, in our sole discretion, to suspend, cancel, or modify the Program at any time and for any reason and without prior notice. Administrative services may be provided by third-party service providers. We reserve the right, in our sole discretion, to add, delete, change, or revise these Card Terms, including, but not limited to, revising or adding qualifications for participation in the Program; Program features or procedures; the imposition or discontinuance of special promotions or offers, additions, deletions, revisions, or additional Program terms. We may temporarily or permanently disqualify Customer from participating in the Program as a result of any abusive behavior, fraud, misrepresentation, any violation of law, or any other violation of any of the terms or conditions set forth herein, in each case as determined by us in our sole discretion.

If we amend or modify these Card Terms, the amended version will be effective at the time we post it, unless otherwise noted in such amendment or modification. If any amendments materially reduce your rights or increase your responsibilities and if required by law, we will provide you with at least thirty (30) days’ advance notice of the amended terms before the amended terms become effective to you. Continued use of or access to the Program or any Cards, through the actions of any Customer’s Admin or Authorized User, after any amended terms becomes effective as to you constitutes acceptance of the amended terms. If you do not agree with the amended terms, you must cease your participation in the Program and close your Card Account before they become effective.

Zena or Issuer may suspend or close your Card Account or any Card, or terminate these Card Terms, at any time if Zena or Issuer, in their sole discretion, that:

• you breached any law, any Card Network rules, or any obligation, term, condition, representation, warranty, or covenant in these Card Terms;
• you fail to pay any amounts you owe in connection with the Program;
• you initiate a Card transaction that would exceed or violate any limits established for your use of the Cards;
• you file for dissolution or bankruptcy;
• you use inaccurate or false information in your application;
• you pose an unacceptable regulatory, reputational, or financial risk to us or Issuer; or
• such action is necessary or in our or Issuer’s best interest.

All provisions of these Card Terms that give rise to a party’s ongoing obligation or that by their nature are intended to survive termination will survive termination of these Card Terms.

You can request the closure of your Card Account or any of the Cards by contacting Zena through the Zena Platform. You must pay all Amounts Due prior to closure.

3.3 Data and Privacy

Customer acknowledges, understands and agrees that Zena, Issuer, Card Networks and other third party partners may collect, process and share certain data and information through Customer’s and each Authorized User’s use of Cards and otherwise in connection with the Program. We may use and disclose Customer’s data and information (a) for identity verification and underwriting, establishment and adjustment of spend limits, spend and transaction analysis, fraud and loss prevention, and reporting; (b) to provide, maintain and improve the Program; (c) as required by law or Card Network rules; and (d) to enforce and protect our rights, including as needed in dispute resolution. We may also provide your personal data to Issuer and Stripe. By opening a Card Account and using the Cards, Customer agrees to, and will cause each Authorized User to agree to, Zena’s privacy policy at https://www.zena.com/privacy and the privacy policies of Issuer and Stripe at https://www.celticbank.com/privacy, and https://stripe.com/privacy .

3.4 Apple Pay

If Apple Pay is enabled for the Cards, Customer agrees to the terms set forth in Exhibit 1 to these Card Terms.

3.5 Indemnification

Customer agrees to indemnify and hold Zena and our third-party service providers and each of such party’s respective affiliates, directors, officers, employees, agents, and contractors harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) arising from your or any Authorized User’s: (i) participation in the Program; (ii) gross negligence, intentional misconduct, fraud or misuse of the Program or any Cards; (iii) violation of these Card Terms, Issuer Terms or the rules of any Card Networks; or (iv) violation of any applicable law or the rights of any third party. This Section 3.4 does not and will not limit your responsibility and liability for any other amounts for which you are responsible pursuant to any other provisions of these Card Terms.

3.6 Limitations of Liability; Disclaimers

Neither we nor our service providers are responsible for any disputes between you and a merchant relating to a transaction or goods or services. To the maximum extent permitted by law, neither we nor any of our third-party service providers, including each of such party’s respective employees, officers, affiliates, or agents, assume any responsibility for, and will not be liable for, any financial loss, personal injury, property loss or damage, other loss, accident, delay, inconvenience, or irregularity which you may suffer by reason of any act, default, non-performance, or wrongful, careless, negligent, or unauthorized act or omission of us or any supplier, including each of such party’s respective employees, officers, affiliates, or agents, or any other third-party. In no event shall we or any of our affiliates or agents be responsible or liable to you, or anyone claiming through you or on your behalf, for any indirect, special, exemplary, punitive, or consequential damages, including, without limitation, lost revenue, lost profits, or lost opportunity arising out of or relating to any of the acts or omissions of Zena or any of our respective affiliates or agents, or otherwise in connection with or relating to the Program or our administration, or that result from the use of or inability to use the Program, even if we have been made aware of the possibility of such damages. Neither we nor any of our third-party service providers, including each of such party’s respective employees, officers, affiliates, or agents, will be responsible for any damage, loss or expense of any nature resulting from the usage of any goods or services purchased using the Cards. In addition, we make no warranty or representation either expressed or implied, and expressly disclaim any and all liability and damages with respect to type, quality, or fitness for use of goods or services provided through this Program or otherwise obtained by you in connection with the Program or through the use of any Cards. IN NO EVENT SHALL WE OR OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, LICENSORS, OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE LESSER OF (A) YOUR AVERAGE ISSUING BALANCE IN THE PAST TWELVE MONTHS, AND (B) FIVE THOUSAND DOLLARS.

3.7 Compliance with Court Orders and Legal Process

If we are notified of or become aware of a court order or other legal process or request (e.g., subpoenas, garnishments, levies, warrants) or if we otherwise believe we are required to do so in order to comply with applicable law or regulatory requirements, we may take certain actions, including without limitation providing information in our possession, custody, or control; holding payments to/from Cards; or suspending, terminating, closing, or limiting access to your Cards. We will decide, in our sole discretion, which action is required or appropriate. We do not have an obligation to contest or appeal any court order or legal process involving you or your Cards. We are not responsible to you or the Authorized User for any losses or consequences sustained due to actions we may take to comply with a legal order, legal process or request, or applicable law. We may, but are not required to, provide notice of any court order, legal process or requests, or actions we may take in conjunction with them or in an effort to comply with applicable law.

3.8 Event of Default

The following will constitute an “Event of Default” under these Card Terms:

• Customer breaches any provision, representation, warranty or covenant set forth in these Card Terms or any warranty, representation or covenant is not true, accurate or correct in any respect, or Customer fails to perform any duty under these Card Terms;
• Customer fails to respond to communications initiated by Zena within three (3) business days of the response deadline specified by Zena;
• Customer becomes subject to any debtor-relief proceedings or other insolvency proceedings or is unable to meet debts as they mature;
• Any injunction, attachment, judgment or lien is filed, occurs, arises or attaches to any asset of Customer, or Customer fails to pay any federal or state tax or fails to timely file any tax forms when due; 
• Customer discontinues or suspends of its present business operations, or a material adverse change occurs in Customer’s financial condition, business or operations, or there is a change in the control of the ownership or management of Customer; or 
• Customer fails to pay Zena any fee or other amount under these Card Terms when due.

Upon the occurrence of an Event of Default, and in addition to any other rights and remedies Zena has, Zena may, in its sole discretion: (a) declare all amounts owed to Zena be immediately due and payable; (b) charge a penalty (the “Default Fee”) of the lesser of ten percent (10%) on the outstanding unpaid amount owed under these Terms and the maximum amount permitted by applicable law, which Default Fee shall be in addition to any other fees due to Zena under these Card Terms; (c) terminate your access to the Card services; (d) debit any Alternative Payment Source in the amount Customer owes Zena; and (e) set off any amount Customer owes Zena against other funds that Zena holds or processes on Customer’s behalf or Zena owes Customer under any other agreement between Customer and Zena. Customers shall reimburse Zena on demand for all fees, expenses and costs incurred by Zena in enforcing its rights under these Card Terms, including any attorney fees and collection costs.

3.9 Headings and Interpretation

Headings in these Card Terms are for reference only. Except where otherwise specified, all references to sections or provisions refer to these Card Terms or the applicable incorporated terms. The phrases including, for example, or such as do not limit the generality of the preceding provision; the word “or” will be read to mean “either… or…” or any combination of the proceeding items; words in the singular include the plural and words in the plural include the singular; and provisions listing items and using and require all listed items.

3.10 Assignment; Waiver

You may not transfer or assign (by operation of law or otherwise) these Card Terms, any of your rights or obligations hereunder, or in connection with the Program, without Zena’s prior express written consent. Zena may assign, pledge, or otherwise transfer these Card Terms or any of its rights and powers under these Card Terms without restriction and without providing notice to you. Any waiver or modification that Zena provides to Customer, of any kind or at any time, applies only to the specific instance involved and will not act as a general waiver or a waiver or modification under these Card Terms for any other or future acts, events, or conditions. Further, any delay by Zena in enforcing our rights under these Card Terms does not constitute forfeiture or waiver of such rights.

3.11 Entire Agreement

These Card Terms (including any terms references herein) and the Service Agreement constitute the entire understanding between Customer and Zena with respect to the subject matter described herein and supersede all other proposals or previous understandings, written or oral, between the parties. No other agreements, representations, or warranties other than those provided in these Card Terms, and any terms, agreements or policies incorporated by reference, will be binding unless in writing and signed by Zena and Customer. Unless provided otherwise in these Card Terms, if any provision of these Card Terms are held by a court or arbitrator to be invalid or unenforceable, that provision will be fully severable, such provision shall be construed and enforced in a manner that reflects the original intentions of the parties as closely as possible and is consistent with applicable law, and the remaining provisions of these Card Terms shall remain in full force and effect.

3.12 Governing Law; Dispute Resolution

All disputes, claims or controversies arising out of or related to this Program, whether based on contract, tort, or any other legal or equitable theory, shall in all respects be governed by, and construed in accordance with, the laws of the United States of America and the State of Utah, without reference to conflict of laws principles. The section entitled “Dispute Resolution By Binding Arbitration” in the Zena Terms of Service applies to all disputes or claims that have arisen or may arise between you and Zena, whether arising out of or relating to these Card Terms or the Program, mutatis mutandis, as if it had been fully set forth in these Card Terms. With respect to any disputes or claims not subject to arbitration as set forth above, you irrevocably submit to the exclusive personal jurisdiction, and will bring all suits and actions under or in connection with these Card Terms exclusively, in the state or federal courts located in the State of Utah and hereby waive all objections to this jurisdiction and venue.

Exhibit 1 - Apple Pay Supplemental Terms

By using the Apple Pay function with the Cards, each Customer and, if applicable, its Authorized Users acknowledge and agree to the following provisions. All capitalized terms have the meanings as set forth in Exhibit 1.

1. To the maximum extent permitted under Applicable Law, in no event will Apple be liable to Customer for indirect, consequential, incidental, special, punitive or exemplary damages, whether in contract, tort (whether in negligence or strict liability) or other legal or equitable theory, or any loss of profits or revenue, regardless of whether Apple knew or should have known of the possibility of such damages.
2. Apple shall not be liable for any unauthorized transactions made using Provisioned Cards.
3. Customers will not discriminate against the Apple Pay Program, Apple Pay transactions and/or the Apple Payment Platform relative to other transactions and/or platforms of similar kind.
4. Customers will comply with all Applicable Laws related to the performance of its obligations under the Card Terms.
5. Customers will not pass fees attributable to Apple Pay on to Authorized Users or other individual holders of Cards issued to Customer.
6. Customer will protect the Apple Confidential Information obtained pursuant to the Card Terms from unauthorized dissemination and use with the same degree of care that it uses to protect its own like information. Except as expressly set forth herein, Customer will not use the Apple Confidential Information for purposes other than those necessary to directly further the purposes of the Card Terms. Except as expressly permitted under the Card Terms, Customer will not disclose to third parties the Apple Confidential Information without the prior written consent of Apple, including (i) the public disclosure of any metrics related to the Apple Pay Program and (ii) Customer’s planned participation in the Apple Pay Program prior to the public launch of Customer’s participation in the Apple Pay Program.
7. To the extent Customer or any Authorized User provides any ideas, requests, feedback, reports, suggestions or recommendations to Apple, in writing, orally, by demonstration or otherwise, regarding the Apple Confidential Information, Issuer hereby grants to Apple a non-exclusive, fully paid-up, perpetual, irrevocable, worldwide license to make, use, reproduce, incorporate, modify, display, perform, sell, make or have made derivative works of, distribute (directly or indirectly) and sublicense, such feedback in connection with Apple’s products and services.
8. Customer hereby grants to Apple and its affiliates (and their agents and contractors acting on their behalf), during their participation in the Apple Pay Program, a non-exclusive, non-transferable, worldwide, royalty-free, license to use, reproduce, and display the Customer Marks as follows: (i) in connection with the use and display of the Apple Payment Platform in Apple products, including the right to embed and display Customer Marks within such Apple products; (ii) in the marketing, advertising and promotion of the availability of the Apple Payment Platform in Apple products in any medium, including the right to use screen shots and images of the Customer Marks as they may be used in the Apple Payment Platform, including but not limited to use in instructional materials, training materials, marketing materials, and standard advertising in any medium; and (iii) in a publicly disclosed list of Customers participating in the Apple Pay Program. Any such use of Customer Marks as set forth in items (i) – (iii) will be at Apple’s discretion (i.e., Apple shall have no obligation to display or use any Customer Marks, commercial designations or slogans on any Apple products or services or Apple marketing materials for such products and services).
9. Apple makes no representations or warranties, express or implied, regarding the Apple Payment Platform or any related products and services, including any implied warranty of merchantability or implied warranty of fitness for a particular purpose, all such warranties being expressly disclaimed. Without limiting the foregoing, Apple does not warrant that the use of the Apple Payment Platform or any related products and services will be error free or uninterrupted.
10. Apple reserves the right to change, discontinue, or suspend (for any period of time) any or all functionality, cardholder interface, or any other aspect of the Apple Payment Platform (whether software, hardware, or any part of the Apple Pay Platform service) at any time, including suspension of provisioning and transaction usage.

Capitalized terms used in this Exhibit 1 have the following definitions:

• “Affiliate” means any person that controls, is controlled by, or is under common control with a party. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. For the avoidance of doubt, but not by way of limitation, the direct and indirect ownership of more than 50% of (a) the voting securities or (b) an interest in the assets, profits, or earnings of a person shall be deemed to constitute “control” of the person.
• “Apple” means Apple Inc.
• “Apple Confidential Information” means (i) product plans and roadmaps of Apple and its Affiliates; (ii) these Terms and Conditions; (iii) any and all information related to customers or potential customers of Apple or its Affiliates that is obtained, generated or created by or on behalf of Apple or its Affiliates, including any and all information related to the Apple Payment Platform and the Program; and (iv) any other information that could reasonably be determined to be confidential, whether or not identified in writing as confidential.
• “Apple Pay Program” means the availability of the Apple Payment Platform in the United States for use by Zena, Issuer, Stripe and Card holders with Cards, for the purposes of enabling Card holders to (i) provision their Cards to their Enabled Devices and (ii) use their Provisioned Cards on such devices (in lieu of physical cards) to make payments in connection with the Apple Pay Program.
• “Apple Payment Platform” means the payment platform that utilizes Apple Technology to enable users to make payments using credit, debit, and prepaid cards and other physical, digital or virtual payment cards, credentials or account access devices and access other related services using Apple products designated by Apple or its affiliates (or any successor or substitute thereof).
• “Apple Technology” means technology (and all intellectual property therein or thereto) that Apple or any Apple affiliate owned, conceived, reduced to practice, authored, or otherwise created or developed separately and independently of Zena and its affiliates.
• “Customer Marks” mean Customer’s trademark(s), logo(s), and other card art reasonably requested by Apple and/or Issuer that is displayed on the Cards.
• “Enabled Device” means any Apple product that has been enabled to store and/or transmit the Card credentials of a Card holder.
• “Provisioned Card” means a Card that has been provisioned to an Enabled Device so that the Enabled Device may be used to make payments using such a Provisioned Card.

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