Last Updated March 14, 2012
Welcome to the Zip Alpha, a limited alpha program in which certain "Kiva Zip" websites and web applications (collectively, "Zip Website") permit certain Zip Website users to connect to and provide business debt capital (such users, "Lenders") to other Zip Website users (such users, "Zip Borrowers") and to connect to Zip Website users that endorse the Zip Borrowers' participation in the Zip Alpha (such users, "Trustees").
This Agreement may be modified by Kiva in its sole discretion from time to time and such modifications shall automatically become part of this Agreement and shall be effective once posted by Kiva on the Zip Website (as indicated by the posted update date). Your participation in the Alpha Program and use of the Zip Website will be subject to any such modifications. You should review the Zip Website and this Agreement from time to time for any modifications. If you do not agree with any such modifications, please immediately terminate your registered Zip Website account ("Account"), if any, as outlined in Section 9 (Term; Termination) below, and please immediately stop participating in the Alpha Program and accessing and using the Zip Website.
This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns. Kiva has the right to delegate, assign and otherwise transfer any or all of its rights and duties under this Agreement. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. All rights not expressly granted herein are hereby reserved. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
1. Participation in the Alpha Program
In most instances, Zip Borrowers are considered "high risk" by traditional lenders for a variety of factors, including, but not limited to, the Zip Borrowers' lack of credit history, the use of the loan proceeds for entrepreneurial endeavors including investment in a "start up" business, the geographic location including the risk of financial instability and foreign exchange rate fluctuations.
By participating in the Alpha Program or otherwise accessing or using the Zip Website, you hereby acknowledge and agree that (a) Kiva makes no representation, warranty, covenant or guarantee that any funds you may lend to a Zip Borrower via the Zip Website will be repaid in whole or in part, (b) loans and other similar transactions made via the Zip Website (each, a "Loan") are unsecured and bear a high risk of non-repayment and (c) given your financial situation and objectives, you have the right to lend only those amounts on the Zip Website that you can afford to lose. Loans made via the Zip Website are philanthropic in nature with no offered rate of return and, as such, are not intended as, and cannot be considered as, an investment in a financial instrument or security.
All transactions on the Zip Website must be conducted through your Account.
1.1. Loan Posting and Disbursement.
Kiva works with Trustees to identify Zip Borrowers for the Zip Alpha. Loan requests are posted by Zip Borrowers, potentially in cooperation with such Trustees. If a Loan request is made in a foreign currency, before such Loan request is listed on the Zip Website, (a) the amount of such Loan request is converted to US Dollar values as necessary, (b) a five percent (5%) buffer is added to such Loan request amount for the benefit of the Zip Borrower in the event the local currency appreciates between the time a Loan is posted by a Zip Borrower and the time the amount of such Loan is disbursed to the Zip Borrower ("Currency Buffer Amount") and (c) then, such Loan Request amount is rounded up to the nearest US Dollar increment of 25 to help streamline the Loan transaction process ("Rounding Amount"). Funds loaned by Lender(s) (up to the Loan request amount, as valued in the local currency at the time of disbursement as necessary) will be disbursed to the Zip Borrower(s) selected by that Lender. Any amounts that are raised by Lenders on the Zip Website for a foreign currency Loan and that are in excess of the Loan request amount disbursed to the Zip Borrower, including without limitation as a result of the Currency Buffer Amount and Rounding Amount, will be repaid by Kiva to the Lenders after disbursement of the Loan request amount to the Zip Borrower. If you make a Loan on the Zip Website, you will bear any and all losses resulting from foreign exchange fluctuations with respect to your Loan. Kiva serves as a middle-man in the process and aggregates funds from multiple Lenders via the Zip Website and delivers these funds (up to the Loan request amount, as valued in the local currency at the time of disbursement as necessary) to the Zip Borrowers selected by Lenders for funding on the Zip Website. Kiva does not charge any fees or interest to the Zip Borrowers, and Trustees are not permitted to charge any fees or interest to the Zip Borrowers. Kiva expressly disclaims any responsibility to screen or select any Zip Borrower or Trustee. Kiva and the Trustees shall have no liability whatsoever to you with respect to the screening or selection of Zip Borrowers, and you shall hold Kiva and the Trustees harmless from, any and all liabilities with respect to, or resulting from such screenings and selections.
1.2 Loan Collection and Repayment.
Loans are repaid directly by the Zip Borrower(s) to Kiva. As Zip Borrowers repay the Loans, Kiva will post a record on the Zip Website of such repayments actually received by Kiva from the Borrowers. Repayments may be made in periodic installments, depending on the terms of the applicable Loan. Except as may be provided in Section 1.5 ("Principal Loss Scenarios"), any amounts actually received by Kiva from a Zip Borrower as repayment by the applicable Zip Borrower(s) will be distributed among the Lenders on a pro rata basis in accordance with the amounts loaned by such Lenders to such Zip Borrower(s). These distributions may, in Kiva's sole discretion, be made periodically or in one lump sum once 100% of all Loan proceeds for a particular Loan have been received by Kiva. Furthermore, please note that timing of distributions to Lenders of any collected repayment may vary and may be materially impacted because of circumstances that, in Kiva's judgment, require Kiva to conduct further reviews with respect to the collected repayments. If, for any reason, Kiva is unable to collect Loan repayments directly from the Zip Borrowers or if Kiva, for any reason, is unable to collect Loan repayments directly from the Zip Borrower(s), repayment of Loan amounts to Lenders could be at risk of partial or total delay or non-repayment and a loss of some or all of a Lender's principal could occur. Neither Trustee(s) nor the Zip Borrower(s) will have direct contractual obligation or liability to pay any Lender any principal, and Kiva is obligated to repay only such Loan principal to the extent actually received by Kiva from a Zip Borrower (subject to the conditions noted above). None of Kiva or any Trustee or Zip Borrower will have any obligation to pay interest on the Loan or other fees or amounts (other than as expressly set forth above) to any Lender in connection with any Loan made on the Zip Website. You understand that you have no right or authority to seek any payments directly from either a Trustee or Zip Borrower.
1.3 Tax Deductibility.
You understand that Kiva is a non-profit public benefit corporation. Kiva has received exemption with the Internal Revenue Service as an organization that qualifies as a public charity under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended from time to time. You acknowledge, however, that because Loans are not donations to Kiva, Lenders are not eligible to receive a tax deduction as might otherwise be available in connection with a charitable contribution to a tax-exempt public charity. You also understand that you are solely responsible for determining the proper tax treatment for any transactions you conduct through the Zip Website and the Alpha Program. Kiva has not and will not provide any tax or legal advice to you in connection with any Loan. This Agreement does not attempt to define the tax implications of participating in the Alpha Program. If you participate in the Alpha Program, you should consult with your own accountants, tax advisors and legal advisors.
1.4. Loan Records.
Records of each Loan that you make (including this Agreement and any repayment history) are kept by Kiva for a reasonable period of time and, if you have an Account and upon your written request, such records will be made available to you at any time throughout the term of the Loan. The amount of funds you have available in your Account that is available to be lent ("Zip Credit") can be accessed via your Account created upon registering as a Lender on the Zip Website. If you make a Loan through the Alpha Program, you are instructing Kiva to apply your Zip Credit to fund the specific Loan you have designated on the Zip Website.
1.5 Principal Loss Scenarios.
You understand and hereby consent (without any prior notice thereof) to any restructuring of the repayment plan for any Loan you make and/or, in Kiva's sole discretion, any extension of the length of the term of such Loan in order to increase the chances that such Loan is repaid or that amounts of such Loan are repaid. Kiva will generally deem a Loan to be in default if Kiva determines that collection of funds from a Borrower for such Loan is doubtful or a repayment on the Loan is six (6) months past the originally scheduled repayment date (for any expected repayment, including interim repayments), although case by case differences may exist based on pending prospects for repayment of the Loan. In cases where a Loan is in default, and subject to the distribution timing provisions noted in Section 1.2 (Loan Collection and Repayment) above, each applicable Lender will have the option to recover whatever principal has been repaid by the applicable Zip Borrower up to that point. If for any reason less than 100% of any Loan you make is repaid, you agree that Kiva and the Trustees shall have no liability to you therefor, and you hereby release and forever hold harmless Kiva and the Trustees for any loss you may incur. You should consult with your accountant and/or tax advisors to determine the appropriate tax treatment of such a loss.
1.6 Insufficient Lender Funds.
In the event that you make a Loan and your payment does not clear (e.g., an eCheck does not validly deliver to Kiva the full amount of the intended Loan, or your payment provider reverses a payment originally intended for Kiva), you agree that Kiva may, in its sole discretion, (i) offset the amount of the insufficiently funded Loan against your Zip Credit or (ii) withdraw and cancel your insufficiently-funded Loan from your account as not paid in full.
1.7 Consent for Electronic Disclosures.
Whether you choose to participate in the Alpha Program as a Zip Borrower, Lender, Trustee or other User, from time to time you will receive disclosures, notices, documents and information (collectively, "Communications") from Kiva. Kiva can only allow participation in the Alpha Program through the internet, and consequently, Kiva needs your consent to our giving you Communications electronically. By registering on the Zip Website, you agree that all Communications from Kiva relating to your use of the Zip Website and participation in the Alpha Program may be provided or made available to you electronically by e-mail or at the Zip Website. To access the Communications electronically, you will need to use a computer with Internet Explorer 8.0 or above, Chrome 4.0 or above, Safari 4.0 or above, Opera 10.0 or above or Firefox internet browsers and with hardware capable of running these internet browsers. You may withdraw your consent to receive Communications electronically by contacting Kiva in the manner described below. However, if you withdraw your consent, you cannot fund or be funded through any additional Loans or refer any additional Zip Borrowers. The withdrawal of your consent will not affect the legal validity and enforceability of electronic Communications provided by or on behalf of Kiva in connection with any of your Loans that have not been fully paid, or any electronic Communications provided by or on behalf of Kiva in connection with your participation in the Alpha Program prior to the time you withdraw your consent. It is your responsibility to keep Kiva informed of any changes in your email address so that you continue to receive all Communications without interruption. By registering on the Zip Website, you acknowledge that you can access the electronic Communications, and you consent to having all Communications provided or made available to you in electronic form and to participate in the Alpha Program electronically.
1.8 Lender and Zip borrower funds.
Kiva will hold amounts due and payable to Lenders and Zip Borrowers separate from Kiva's general funds and will not use such amounts for Kiva's general operating expenses. Kiva reserves the right to retain (a) interest on funds while such funds are held in a deposit account established by Kiva to hold funds for the benefit of Lenders and Zip Borrowers in connection with the operation of the Zip Website and (b) foreign exchange gains from Zip Borrower repayments. Kiva reserves the rights to use such interest and gains in support of Kiva's general operating expenses.
2. Proprietary Rights
2.1 Kiva Content
"Kiva", the "Kiva" logo and other Kiva graphics, logos, designs, page headers, button icons, scripts, names and branding are trademarks, service marks or trade dress of Kiva (collectively, "Kiva Marks"). Without the express, prior written permission of Kiva, you are not permitted to use (in whole or in part), copy or imitate any of the Kiva Marks, including, without limitation, as part of trademarks or domain names, or in connection with any product or service in any manner. Kiva or its licensors own and retain all proprietary rights in the Alpha Program, the Zip Website and all content, material and information posted, uploaded, transmitted or otherwise shared by Kiva thereon (collectively, "Content"). The Zip Website contains the copyrighted material, trademarks and other proprietary information of Kiva and its licensors. You may display and make limited copies of the Content (other than the Kiva Marks) for your personal, non-commercial use in connection with your participation in the Alpha Program (except as provided herein), but you may not alter, modify, publish, distribute, publicly display or sell any Content or other such proprietary information, or otherwise copy, transmit or use any Content or other such proprietary information without the express, prior written permission of Kiva. In addition, to the extent you receive information from Kiva, the Trustees or the Zip Borrower with respect to any Zip Borrower, and that information is later removed from the Zip Website (including, without limitation, due to the Loan delinquency or default of a particular Zip Borrower or the sensitive nature of particular Zip Borrower profiles), you may not further disclose or otherwise provide such information to another party in a way that allows a personal identification of such Zip Borrower, if such Zip Borrower (either directly or through the corresponding Trustee or Kiva) has opted to have his or her identity withheld on the Zip Website.
2.2 User Generated Content
If you post, upload, submit, transmit or otherwise share any messages or other content, information, images, photographs, pictures or other materials on the Zip Website or to Kiva in connection with or arising from your participation in the Alpha Program, including without limitation as part of any forum on the Zip Website (collectively, "User Generated Content"), you agree to grant, and hereby grant to Kiva an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to: (a) use, copy, perform, display and distribute the User Generated Content; (b) modify, alter, prepare derivative works of, and/or incorporate into other works, the User Generated Content; and (c) grant and authorize sublicenses of the foregoing. You represent and warrant that you have the right, power and authority to grant the foregoing license. In addition, you agree to release, discharge and agree to hold harmless Kiva from any and all claims or liability, whether known or unknown, including any and all claims in connection with the publication, production, processing, distribution or exploitation of the User Generated Content, including, without limitation, any claims of infringement or violation of any intellectual property, moral, publicity, privacy or proprietary rights.
2.3 Disclosure of Your Information
2.4 Digital Millennium Copyright Act Notice
To file a notice of infringing material on the Zip Website, please provide a notification containing the following details:
- Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);
- Reasonably sufficient details to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);
- Your contact information so that Kiva can contact you (for example, your address, telephone number, email address);
- A statement that you have a good faith belief that the use of the material identified by you is not authorized by the copyright owner, its agent, or the law;
- A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed; and
- Your physical or electronic signature.
Then send this notice to:
By Mail: Kiva Microfunds DMCA Agent 875 Howard Street, Suite 340 San Francisco, CA 94103
By Fax: Attn: DMCA Agent, Kiva (415) 552-5780
By Email: email@example.com
If material that you have posted to the Zip Website has been taken down, you may file a counter-notification that contains the following details:
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material in question;
- Your name, address and telephone number;
- A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located or, if your address is outside of the USA, for any judicial district in which Kiva is located and that you will accept service of process from the person who submitted a notice in compliance with Section (c)(1)(C) of the DMCA, as generally described above; and
- Your physical or electronic signature.
Then send this notice to Kiva's DMCA Agent based on the contact information provided above in this Section.
2.5 Third Party Sites and Content
The Zip Website contains (or you may be sent through the Zip Website) links to other web sites ("Third Party Sites"), as well as content, information, images, photographs, pictures and materials (including, without limitation, text, graphics, designs, music, sound, video, information and software) belonging to or originating from third parties ("Third Party Content"). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Kiva, and Kiva is not responsible for any Third Party Sites accessed through the Zip Website or any Third Party Content posted, uploaded, transmitted or otherwise shared on the Zip Website, including without limitation the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sites or the Third Party Content. Inclusion of or linking to any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by Kiva. If you decide to leave the Zip Website and access a Third Party Site, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Zip Website.
3. Acceptable Use
3.1 Personal Non-Commercial Use
3.2 Additional Restrictions
Although Kiva assumes no obligation to monitor the conduct of any User on or off the Zip Website, it is a violation of this Agreement to use the Zip Website or Alpha Program or any information obtained from the Zip Website or Alpha Program in order to: (i) harass, abuse, or harm another person (including, but not limited to, using profanity), (ii) prevent or exclude others, who are using the Zip Website in compliance with this Agreement, from accessing or using the Zip Website or otherwise interfering with other Users' access or use of the Zip Website, (iii) promote or enable illegal activities, (iv) defraud or deceive any person, or (v) promote or solicit involvement in support of any political platform, legislation or campaign activity for or against political candidates. Although Kiva assumes no obligation to monitor the content (including without limitation User Generated Content and Third Party Content) on the Zip Website , it is a violation of this Agreement to post, upload, submit, transmit or otherwise share any content that, in Kiva's sole discretion, (a) is or may be hateful or offensive on racial, ethnic, sexual or any other grounds; (b) is or may be obscene, vulgar or distasteful; (c) contains graphic or gratuitous violence; (d) is or may be defamatory, libelous, or invades another person's privacy or proprietary rights; or (e) contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful or disruptive codes, components or devices. It is a violation of this Agreement to access and use the Zip Website by scripts, bots or other automated technology.
3.3 Reservation of Rights
You will promptly report to Kiva any violation of this Agreement by others. In addition to all other rights and remedies available to Kiva under this Agreement and all applicable laws, Kiva reserves the right (but will not have an obligation) to (a) remove or refuse to post or distribute any content from the Zip Website that, in Kiva's sole discretion, violates acceptable use or this Agreement, (b) restrict, in Kiva's sole discretion, the number of emails or messages that a User may send to others through the Zip Website, including any forum on the Zip Website, in any 24-hour or other period to a number that Kiva deems appropriate, and (c) to restrict, suspend or terminate the participation of any User from the Zip Website and all Alpha Programs at any time, with or without prior notice.
3.4 Account Integrity and Security
In consideration of your use of the Zip Website, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Zip Website ("Registration Data"); (b) maintain the confidentiality and security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Kiva, to keep it accurate, current and complete; and (d) be fully responsible for all use of your Account and for any actions that take place using your Account. You agree not to impersonate any person or entity.
3.5 Interaction Precautions and Guidelines
To protect your own safety and well-being, you agree to take prudent safeguards and precautions in your participation in the Alpha Program, including without limitation in your interaction with Users of the Zip Website, whether offline or online. In order to enhance and enrich the Zip Website and Alpha Program for all Users, you agree to be respectful and not to engage in off-topic, meaningless or annoying interactions or communications through the Zip Website and Alpha Program. Although Kiva assumes no obligation to monitor the interactions or communications of any User on or off the Zip Website, Kiva strongly recommends that you do not post any personal contact information (for example, personal email addresses, personal phone numbers or home addresses) and use your discretion if any person (a) requests to communicate outside of the Zip Website (for example, by email, phone or in-person), (b) requests money, goods or any similar type of assistance other than through an official Zip Website Loan request, (c) asks for assistance with personal transactions (for example, depositing funds and shipping merchandise), (d) reports a sudden personal crisis and pressures you to provide financial assistance, (e) requests your personal contact information or financial information. You agree NEVER to share (i) your credit card number or bank information, (ii) Social Security Number or government-issued identification numbers (for example, driver's license number) or (iii) mother's maiden name or other private information that can be used to access your financial information. As with any interaction, keep in mind that it is always possible for people to misrepresent themselves.
Kiva is not responsible, and shall have no liability, for any incorrect or inaccurate content posted on the Zip Website or any liability, cost or expense you may incur in connection with the Alpha Program, whether caused by any User or other person or by any of the equipment or programming associated with or utilized in the Alpha Program. You also acknowledge and agree that Trustees are not liable to you for content created and posted on the Zip Website, and Trustees do not guarantee repayments by any Zip Borrowers referred by the Trustees. Kiva is not responsible for the conduct, whether online or offline, of any User of the Zip Website or any other person. With respect to the Zip Website, Kiva assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communications.
Under no circumstances will Kiva be responsible for any loss or damage, including, without limitation, personal injury or death, resulting from any use of the Zip Website or participation in the Alpha Program, including without limitation any content posted, uploaded, submitted, transmitted or otherwise shared on the Zip Website or any interactions between any Users of the Zip Website, whether online or offline. Kiva does not represent, warrant, covenant guarantee or promise any specific results from use of the Zip Website or the Alpha Program. Kiva makes no guarantee as to (a) the number, frequency or quality of any communications or interactions between Users of the Zip Website or (b) any User's ability, desire or criteria to communicate or interact on the Zip Website.
You acknowledge and agree that any and all decisions made by you with respect to the Alpha Program (including without limitation, decisions made regarding which Loans, if any, to fund) are yours alone and made independently by you. You acknowledge and agree that Kiva is not acting as your fiduciary, and Kiva assumes no advisory or fiduciary responsibility with respect to you in connection with the Zip Website or your participation in the Alpha Program (including without limitation, regarding your funding of Loans). Kiva may offer an endorsement, feedback or other ranking system to assist Users in evaluating Lenders, Trustees and Zip Borrowers. You acknowledge that any such system represents solely the opinion of third parties, and is not an opinion, representation or warranty by Kiva.
THE ZIP WEBSITE AND ALPHA PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE OR ADVICE PROVIDED IN CONNECTION WITH THE ALPHA PROGRAM, IS PROVIDED "AS IS" WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE ZIP WEBSITE AND PARTICIPATION IN THE ALPHA PROGRAM, INCLUDING BUT NOT LIMITED TO ALL OF THE RISKS ASSOCIATED WITH ANY ONLINE AND OFFLINE INTERACTIONS WITH ANY PERSON.
Kiva cannot and does not verify the accuracy of information from Trustees, other Users or Zip Borrowers. Kiva makes no representation or warranty, express or implied, with respect to any third party data provided to Kiva or its transmission, timeliness, accuracy or completeness, including but not limited to implied warranties or warranties of merchantability or fitness for a particular purpose. Kiva will not be liable in any way to you or to any other person for any inaccuracy, error or delay in or omission of any third party data or the transmission or delivery of any such third party data and any loss or damage arising from (a) any such inaccuracy, error, delay or omission, (b) non-performance or (c) interruption in any such third party data due either to any negligent act or omission by Kiva or "force majeure" or any other cause beyond the control of Kiva.
5. Limitation of Liability
KIVA SHALL NOT BE RESPONSIBLE, OR HAVE ANY DUTY OR OBLIGATION TO, OR LIABILITY FOR: (A) DECISIONS OR INTERACTIONS RESULTING (DIRECTLY OR INDIRECTLY) FROM PARTICIPATION IN THE ALPHA PROGRAM; OR (B) ANY DAMAGES, COSTS, LOSSES OR EXPENSES A USER INCURS AS A RESULT (DIRECTLY OR INDIRECTLY) OF MAKING A LOAN TO A ZIP BORROWER OR AS A RESULT (DIRECTLY OR INDIRECTLY) OF UTILIZING THE ALPHA PROGRAM OR INFORMATION RECEIVED IN CONNECTION WITH THE ALPHA PROGRAM. IN ADDITION, IN NO EVENT WILL KIVA BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY DAMAGES, COSTS, LOSSES OR EXPENSES, INCLUDING ANY LOST CAPITAL, LOST PROFITS OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE ZIP WEBSITE OR PARTICIPATION IN THE ALPHA PROGRAM, EVEN IF KIVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS, LOSSES OR EXPENSES.
6. Disputes with Trustees, Users, Zip Borrowers
Kiva is not responsible for your interactions with any Trustees, Users or any Zip Borrowers (even to the extent prohibited by this Agreement) and any disputes or damages that may result from such interactions. Kiva reserves the right, but has no obligation, to monitor disputes between you and such persons. You are not a third party beneficiary of, and you have no rights as a third party beneficiary, under any agreements between Kiva and other Trustees, Users and Zip Borrowers.
7. Governing Law; Resolution of Disputes; Arbitration and Waivers
This Agreement is governed by the laws of the State of California, USA, without regard to its choice of law or conflict of law provisions. If any dispute arises between you and Kiva, including, without limitation, any dispute arising from or relating to the Zip Website or the Alpha Program, you agree that all such disputes will be determined exclusively by final and binding arbitration, in accordance with the then existing commercial rules of the American Arbitration Association in San Francisco if the amount claimed is greater than $100 and otherwise over the telephone or in another city in which Kiva is located. The arbitration shall be heard and adjudicated by one arbitrator to be selected by you and Kiva. Any award will be final, binding and conclusive upon the parties, subject only to judicial review provided by California statute, and a judgment rendered on the arbitration award can be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either you or Kiva may seek any injunctive relief in a state or federal court in San Francisco, California, as may be necessary to preserve rights pending the completion of arbitration and Kiva may seek any injunctive relief in a state or federal court in San Francisco, California, or another court of competent jurisdiction, at any time against any violations of Section 2 (Proprietary Rights) or Section 3 (Acceptable Use) of this Agreement.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BY AGREEING TO SUBMIT ALL DISPUTES TO BINDING ARBITRATION, YOU AND KIVA HEREBY WAIVE YOUR RIGHT TO A JURY OR COURT TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY CONTEMPLATED USE HEREIN, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS, EXCEPT AS SPECIFICALLY PROVIDED ABOVE.
You waive, to the maximum extent not prohibited by law, any right you may have to claim or recover, in any legal action or proceeding, any special, exemplary, punitive or consequential damages.
You agree to indemnify and hold Kiva harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made or incurred by any third party due to or arising (directly or indirectly) out of your use of the Zip Website or participation in the Alpha Program or arising from your breach of this Agreement.
9. Term; Termination
This Agreement will remain in full force and effect while you access or use the Zip Website or participate in the Alpha Program as a User and, notwithstanding anything herein to the contrary, this Agreement will remain in effect after your participation in the Alpha Program and Account is terminated. From time to time, Kiva may make features available to Users as part of the Alpha Program. Kiva reserves the right, in its sole discretion, to include or cease providing these features or the Alpha Program at any time. Whether or not you are and remain eligible to participate in the Alpha Program or use the Zip Website may be determined by Kiva in its sole discretion. You may terminate your participation in the Alpha Program and Account at any time and for any reason by sending a written notice of termination to Kiva along with instructions for the disposition of your then-available Zip Credit and any additional credits that you may receive in the future (e.g., based on repayments of then-outstanding and active Loans), such notice to be effective within three (3) days of receipt by Kiva. Kiva may also terminate your participation in the Alpha Program and Account at any time and for any reason, effective upon transmission of notice to you at the email address you provide to Kiva. Upon such a Kiva-initiated termination, your available Zip Credits shall be returned to you within thirty (30) days of Account termination and any Zip Credit you may receive in the future shall also be returned to you in due course. If your participation in the Alpha Program and Account is terminated by Kiva, you agree not to access or use the Zip Website. If you violate this Agreement or if your participation in the Alpha Program or Account is terminated, Kiva has the right to delete your profile and remove your User Generated Content. Notwithstanding the expiration or termination of this Agreement, you acknowledge that those rights and obligations that by their nature are intended to survive such expiration or earlier termination will survive, including, without limitation Sections 2 and 4 through 10.
10. Entire Agreement; Severability
If you are a Trustee or Zip Borrower, this Agreement, accepted upon your access and use of the Zip Website and further affirmed by becoming a User, together with your respective Trustee or Zip Borrower agreement with Kiva form the entire agreement between you and Kiva regarding the use of the Zip Website and your participation in the Alpha Program. In the event of any irreconcilable conflict between your Trustee or Zip Borrower agreement, as applicable, and this Agreement, the provisions of your Trustee or Zip Borrower agreement, as applicable, shall govern. If you are a User that is not a Trustee or Zip Borrower (including, without limitation, a Lender), this Agreement, accepted upon your access and use of the Zip Website and further affirmed by becoming a User, contains the entire agreement between you and Kiva regarding the use of the Zip Website and participation in the Alpha Program. This Agreement may not be orally amended. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.
If you have any questions regarding this Agreement, you can contact Kiva by email at firstname.lastname@example.org or by calling Kiva and leaving a voicemail at (828) 479-5482 or by writing to us at Kiva Microfunds, 875 Howard Street, Suite 340, San Francisco, CA 94103, Attn: Zip Alpha.