CiNKO VISA Terms and Conditions

These CiNKO Spend Card Terms (the "Card Terms") are a binding agreement between you ("you", or "your"), CiNKO , and the Issuer, including its affiliates, successors and assigns ("Issuer", "we", "us", "our", or "our") governing the use of CiNKO Spend Cards, including the process of obtaining and managing CiNKO Spend Cards, access to which is provided to you by CiNKO, as a brand of Digital Finance (Bahamas) Ltd.] (hereinafter "CiNKO") (hereinafter "CiNKO").  

Important information:

Fees, commissions and other important information about your CiNKO Spend Card ("Card") are set forth in these Important Disclosures.  

Effective as of 2025/01/01

‍The Issuer and CiNKO reserve the right to implement interest in the future, for new purchases. CiNKO will advise of any changes to this agreement prior to the introduction of interest and other fees associated with your CiNKO Card.

Fees:

Foreign purchases

- Foreign exchange commission (not USD): up to 3%.

- Cross-border rate: up to 3%.

Penalty rates

 - Late payment: Up to 40

- Payment refunded: Up to 40

- Liquidation penalty: Up to 40 

BY APPLYING FOR A CARD ACCOUNT, ACTIVATING A CARD OR OTHERWISE PARTICIPATING IN THE PROGRAM, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THESE TERMS OF ISSUANCE.

Conditions:

Background:

The CiNKO Card is provided to you on behalf of CiNKO in connection with your status as a CiNKO User and pursuant to the separate user agreement between you and CiNKO (the "User Terms"). The User Terms agreed to with CiNKO include all CiNKO related policies, including, without limitation, the Digital Wallet Terms and Conditions, as well as the Privacy Policy that apply to your access to and use of the CiNKO Mobile Application and the Services. The Issuer is not a party to the CiNKO Terms of Use and disclaims all liability for the provision of the Services contemplated therein.

CiNKO has opened a CiNKO Account for the purpose of facilitating transactions you make using a Card based on a limit established by CiNKO in accordance with the User Terms. You understand that you have access to the Services and the CiNKO Card only to the extent authorized by CiNKO. You acknowledge and agree that CiNKO will satisfy the obligations created through your use of the CiNKO Card and you will reimburse CiNKO based on the terms of your User Agreement, and subject to the terms set forth below.

Details about CiNKO's collection, use and processing of your personal data are described in the Partner Privacy Policy, available at https://www.CiNKO.io/privacy-policy. Please review it carefully and contact CiNKO if you have any questions. By opening, using or maintaining a CiNKO Card, you consent and authorize the Issuer to share information relating to transactions, including receipt information or other personal data, for the purpose of providing the Services.

Emitter:

The Card program is issued by the Issuer under license from Visa. The Card cost information described in the table above is accurate as of February 2025. This information may change after that date. To find out what may have changed, please call the Administrator at support@CiNKO.io.

CiNKO and the Issuer reserve the right to modify these Card Terms or impose additional obligations or restrictions on you at any time with or without notice. By continuing to use the Services, you agree to be bound by any such modifications or additional obligations or restrictions.  

Defined terms:

"Card Schemes" means payment card schemes, including Visa or Mastercard.

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

"Chargeback" means a dispute you initiate against a merchant for an unresolved dispute with the merchant or when a Charge is not authorized.

"Fee" means the charges we impose on you for your use of the Services or for your use of a CiNKO Card.  

"Issuer" means the issuer of the card program. The issuer of this card program is Third National.

"Periodic Statement" means periodic statements reflecting the activity of all Cards issued in your name identifying charges, fees, refunds or other amounts debited or credited to your CiNKO Account during the time covered by such statement.

"Supported Blockchains" means Ethereum Blockchain, Polygon Blockchain, Optimism Blockchain, Arbitrium Blockchain and such other blockchain networks as may be added at the Issuer's sole discretion.

All words or phrases used in these Card Terms that are not defined herein shall have the meaning ascribed to them in the CiNKO Terms of Use.

Agreement:

1. Acceptance of this Agreement and Eligibility

These Card Terms become effective and legally binding when you activate or create your Card by following the instructions on the CiNKO platform (the CiNKO Mobile Application). You and we agree to comply with and be bound by the entirety of this agreement, as well as the CiNKO User Terms, in particular the Digital Wallet Terms, including, in particular, the clauses detailing the additional terms applicable to the use of the Card. You should retain and carefully review these Card Terms and the CiNKO User Terms. By creating a Card, you agree to the Arbitration Clause below with respect to this Agreement, even if you do not use the Account or the Card.

By using a Card, you represent and warrant in your individual capacity that:

- You are not a blocked or sanctioned person of the U.S. Government, including those identified by the U.S. Office of Foreign Assets Control (OFAC).

- You will use the Services solely for the purposes permitted by these Card Terms.

- All information you provide to us, either directly or through CiNKO, is and will be true, correct and complete.  

- You will use the CiNKO Card for personal, family or household use.  

- Only use the CiNKO Card in accordance with the applicable legislation

- You represent that you are not a U.S. citizen and that you are registering for a card intended for persons outside the United States.

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2. Issuer's conditions

The Cards are issued by the issuer identified on the back of the CiNKO Card issued to you, as identified in these Card Terms, or any other agreement or material provided to you (in each case, the "Issuer"). The Issuer is the creditor responsible for funding your payments for the goods and services you purchase at a merchant through your CiNKO Card and based on the information provided by CiNKO. Please note that the Issuer may require you to agree to additional terms in addition to the agreements you have with CiNKO, and your use of CiNKO Cards will then also be subject to such additional terms.  

3. Collateral

Both the primary wallet linked to your CiNKO User Account Wallet and any Additional Wallet may provide collateral that will secure the Charges made by you on any CiNKO Card (the "Collateral"). The Collateral will be in the form of Digital Assets. The Issuer reserves the right to designate which forms of Digital Assets may be used as Collateral, and reserves the right to reject a form of Collateral if it does not comply with its updated policies, guidelines, or the Issuer's requirements.  

A "Settlement Event" will occur a) if you have an outstanding payment obligation to CiNKO or the Issuer, as applicable, and such payment obligation has not been paid in full by you within one (1) calendar day; OR b)the Market Value of your Collateral falls below the value of the existing charges on your CiNKO Card(s) and you do not add additional Collateral. CiNKO and the Issuer may allow an additional grace period at their discretion.

"Market Value" of the Collateral will be determined by CiNKO and/or the Issuer using the net redemption value provided by a centralized stablecoin issuer and/or the real-time price posted on a reputable and recognized exchange or price aggregator, or by reference to a price oracle, subject to CiNKO's or the Issuer's discretion. You agree that the Market Value of your Collateral is determined solely by the Issuer through the above methods. You further agree that the Market Value is determined at the time of a Settlement Event and any change or fluctuation in the value of the Collateral before or after a Settlement Event will have no bearing on the obligations owed to CiNKO and/or the Issuer.  

You, through one or more of your Linked Wallets or Additional Wallets, must provide Digital Assets that have a Market Value in U.S. Dollars ("USD") equal to each dollar that is loaded to all of your CiNKO Cards. For example, if you provide Digital Assets with a Market Value equal to $100 USD value, and that Market Value does not change, your spending limit will equal $100 USD across all of your CiNKO Cards. Once your CiNKO Cards have been charged $100 USD, you will be required to provide additional Collateral for any incremental Charges. If the Market Value of your collateral drops below $100 USD, and you have $100 USD in charges, you may be subject to a Settlement Event. If the Market Value of your Collateral is subject to a Settlement Event when the Market Value is below your existing Charges, you still owe CiNKO and the Issuer any difference between the USD value of the Charges, and the USD value of the Collateral at the time of Settlement.  

Your withdrawal of any Collateral will not terminate any outstanding payment obligations you may have on your CiNKO Cards.

CiNKO and the Issuer will in no event have custody of your Collateral. The Issuer is not a custodian or owner of your Collateral. If a Liquidation Event occurs, only the amount necessary to repay your outstanding financial obligations to the Issuer will be liquidated from your Collateral. Unencumbered Collateral balances will remain freely available. You authorize and consent to CiNKO or the Issuer liquidating the Collateral in a Liquidation Event through a third party or by other means for the purpose of satisfying your payment obligations to CiNKO, the Issuer or other third party, as applicable.

4. Spending limits

Your spending limit is generally set by CiNKO in accordance with the terms of the CiNKO Digital Wallet Services, as well as the amount of collateral in your linked wallet. The Issuer may additionally establish spending limits on each CiNKO Card or an aggregate spending limit on all CiNKO Cards, at its sole discretion. CiNKO User Account spending limits are dynamic and may be changed at any time with or without notice, including temporary increases or decreases or reduction of spending limits to $0. Any Authorized Charge or fee on a CiNKO Card may reduce your spending limit by a corresponding amount.

When you use your CiNKO Card to initiate a transaction at certain merchants where the final transaction amount is unknown at the time of authorization, the Issuer may assign a value to such Charge in an amount that is higher or lower than the final Charges. The initial "held" Charge will reduce your spending limit until the final Charge is determined.

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5. Purchases and restrictions

CiNKO and the Issuer reserve the right to block and terminate transactions and suspend access to your Account, unless prohibited by applicable law, for transactions and activity that exhibit patterns inconsistent with consumer purposes. You may use your Account to purchase or rent goods or services (each, a "purchase") by presenting your Card or by providing participating merchants and establishments that accept the Card with your Card number and additional information by any other means (for example, by telephone, online or through a mobile application). We will not be liable to you (or anyone else) if a merchant or other person is unable or unwilling to process a purchase permitted under these Card Terms. Except as prohibited by applicable law, we may from time to time limit the type, number and dollar amount of any purchase, including any transaction similar to a cash transaction, even if you have sufficient credit to complete the purchase. Cash transactions include, but are not limited to, the following transactions to the extent accepted:

- purchase of traveler's checks, foreign currency, money orders, wire transfers, cryptocurrency, other similar digital or virtual currency and other similar transactions;

- purchase of lottery tickets, casino gaming chips, racetrack wagering and similar online and offline gambling transactions;

- person-to-person money transfers and account funding transactions that transfer foreign currency; and

- make a payment using a third-party service, including bill payment transactions not made directly with the merchant or its service provider.

We reserve the right to refuse any purchase for any reason, such as non-payment of the Account, suspected fraudulent or illegal activity, Internet gambling, or any indication of increased risk related to the purchase. We may terminate or suspend your use of the Card or Account, with or without notice, before or at the time we take such action.

Cash advances and balance transfers are not available under these Card Terms.

You acknowledge and agree that you have read and understand Rain's list of prohibited activities and that you will not engage in any such activities when using the Services or the Rain Card.  

You acknowledge and agree that you will not use the CiNKO Card (1)for any expense other than an expense incurred by you; (2) for any purpose prohibited by these Card Terms; (3) for, with, or for the benefit of any individual or entity that is blocked or sanctioned by the United States, including those identified by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury; for personal, family or household use.  

You will use all reasonable means to protect your CiNKO Cards and your CiNKO Account login credentials from unauthorized use. You will not allow any other person or third party to use the Services or the CiNKO Card on your behalf. You will notify us immediately when you know or suspect that access to your CiNKO Account has been compromised or that your CiNKO Card has been lost, stolen or otherwise compromised.  

6. Payments

6.1 Promise to pay  

Although you will generally pay CiNKO for amounts transacted with your Card, you also agree to pay the Issuer or its assignees for all amounts charged to the Account not reimbursed by the Member, including all purchases, interest and fees charged to your Account. You are obligated to reimburse CiNKO or its assignees for all transactions made with your Card by persons you have authorized to use the Card, even if their use of the Card exceeds the authorization you gave them,

6.2 Periodic declarations

You are responsible for payment in full of all Fees and Charges. Your CiNKO User Account may include Periodic Statements identifying Fees, Charges, Fees, refunds, the amount of your Guarantee, any other Card transactions, or other amounts due or credited to your CiNKO Account. Periodic Statements may be made available to you in your CiNKO Account daily, monthly, or in any other manner prescribed by the Issuer. You must notify us immediately if you believe there is any error on your Periodic Statement, and file any dispute or Chargeback in accordance with these Card Terms. We are not required to send you a monthly statement if we deem your Account to be uncollectible or applicable law does not require us to send you a monthly statement for other reasons. Your failure to receive a statement will not affect your obligations and CiNKO and the Issuer may liquidate your collateral in accordance with Section 3 of this Agreement.

6.3 Refunds

Where applicable, you may make a refund of a balance on one or more of your CiNKO Cards by any means permitted by CiNKO and as provided for in your CiNKO Account.

Any failure to pay the full amount due to CiNKO or the Issuer, as applicable, when required, is a breach of these Card Terms. You are responsible for all costs or expenses we may incur to collect amounts due but not timely paid, including legal or collection fees and any interest at the maximum rate permitted by law.

6.4 Prepayment

At any time and when appropriate, you may pay all or any portion of the outstanding balance on your Account without penalty. Payment of more than the amount due in one billing cycle will not relieve you of the obligation to pay the full amount due in subsequent billing cycles.

7. Fees

Subject to applicable law, you agree to pay the following fees:

We will communicate the Fees to you when you are approved for a CiNKO Card through your CiNKO User Account, by updating these Card Terms, or through our website. We may update, add or change the Fees with 30 days' notice. The Fees we charge may include interest or other finance-related fees, recurring fees, Card issuance or replacement fees, fees applicable to certain transactions, foreign transaction fees, usage fees, service fees, cash advance fees, late payment fees, fees for missed payments or returned payments, fees for misuse of the Services, fees for Settlement Events, or other fees we disclose to you. You are responsible for Fees in addition to Charges.

7.1 Penalty rates

(a) Settlement rate

(b) Whenever a payment on your Account is returned or reversed for any reason or we are required to return any check, instrument or transaction you send us because it is incomplete or defective, we will charge you a returned payment fee of up to $40.00. However, we will not charge a returned payment fee if we are charging a late fee with respect to the same minimum payment due and we will never charge a returned payment fee in excess of the minimum payment due immediately prior to the date the payment was returned to us.

(c) Additional Fees. We may charge you fees for special services you request in accordance with applicable law. 

7.2 Foreign currency transactions

If you make a transaction using your Account in a foreign currency (including, for example, online purchases from a merchant located outside the U.S.), the credit card association will convert any foreign currency transaction to U.S. dollars using an exchange rate for the applicable central processing date that (1) is selected by the association from the range of rates available in the wholesale currency markets, which rate may vary from the rate the association receives, or (2) the rate imposed by the government. The conversion rate you obtain may differ from the rate on the transaction date or posting date, and from the rate the credit card association obtains. A merchant or other third party may convert a transaction into U.S. dollars or another currency, using a rate they select, before sending it to the credit card association.

Foreign transaction commissions of up to 3%
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8. Management of your CiNKO cards

8.1 Requesting and replacing cards

CiNKO, we or the Issuer may decide not to grant applications for CiNKO Cards or limit the number of physical or virtual CiNKO Cards provided to you.

You are responsible for securing CiNKO Cards, account numbers and CiNKO Card security features. You will promptly notify us and take appropriate steps to prevent unauthorized transactions when a CiNKO Card is lost, stolen, breached, or needs to be replaced. In such cases, you may request the issuance of replacement CiNKO Cards through your CiNKO Account. Replacement Cards may have new account numbers that may require you to update the CiNKO Card on file for any scheduled or recurring payments. You are solely responsible for updating the CiNKO Card information stored with merchants where account numbers have been changed.

8.2 Permitted and unauthorized use

You agree to establish and maintain controls designed to ensure that CiNKO Cards are only used by you and your permitted authorized users for bona fide purposes and in accordance with these Card Terms, any Issuer terms, and applicable law. You are responsible for Charges and transactions made by anyone who has been given access to the CiNKO Cards, even if they are not the person associated with or named on the CiNKO Card.

CiNKO, Issuers, Card Networks or other intermediary service providers (including merchant acquirers) may deny or void Charges for any reason. The Issuer is not liable for any loss, damage or harm caused by any Charge that is denied or reversed.

8.3 Lost or stolen cards  

If your Card is lost or stolen or if you believe that someone may be using your Card or your Account without your permission, you must notify us immediately by emailing us at support@CiNKO.io. You will not be liable for any unauthorized use that occurs after you notify us. However, you may be liable for unauthorized use that occurs before we receive your notice. You have an obligation to assist us in our investigation if your CiNKO Card is lost or stolen or if you believe someone is using your CiNKO Card or CiNKO Account without your permission. 

9. Chargebacks

You are responsible for promptly reviewing your periodic statements and identifying any charges that you believe are unauthorized or that you dispute.

If you and a merchant have a dispute regarding a Charge identified on your Periodic Statement, such as the delivery of incorrect goods or services or the charging of the wrong amount, you should first attempt to resolve the dispute with the merchant. If the dispute is not resolved to your satisfaction or if you believe the Charge is unauthorized, you may initiate a Chargeback through your CiNKO Account. You must report any disputed Chargeback or error no more than 30 days after the disputed Chargeback is posted to your Periodic Statement. We may require additional details about the transaction and our review of your Disputed Charge will be conditioned on you providing all information we may require to review the Disputed Charge.  

You understand that the CiNKO Card is subject to the Card Network's rules regarding chargebacks. The Card Networks have additional procedures in place to resolve chargebacks that may require you to provide further details of the disputed Charge or associated documentation.

You understand that initiating a Chargeback procedure may incur charges between you and CiNKO, which charges will be industry standard and at CiNKO's sole discretion. Recovery of these charges will be in line with the CiNKO Digital Wallet Terms and Conditions.

Charges related to Disputed Charges and Chargebacks that are pending resolution may still be due and owing as of the date payment is due as provided in the applicable Periodic Statement. Chargebacks resolved in your favor will be credited to your CiNKO Account on the current or a future Periodic Statement. We may impose Charges, reduce your spending limits, or suspend access to your CiNKO Account or the Services if you fail to pay Charges related to Chargebacks that are unsettled on the payment date.

10. Termination

Subject to applicable law, we may suspend, revoke or cancel your Account privileges, your right to use the Card or decline any transaction, in our sole discretion, at any time, with or without cause and with or without notice. Any cancellation of credit privileges, whether initiated by us or by you, will not affect any of our rights or your obligations under these Card Terms, including your obligation to repay any amounts you owe us in accordance with the terms of these Card Terms. Upon our request or upon termination of credit rights, you agree to surrender or destroy the Card to us. If you attempt to use the Card after termination of credit privileges (whether or not we have notified you of such termination), the Card may be retained by the merchant, ATM or financial institution where you attempt to use the Card.

11. Change of conditions

Subject to applicable law, we may at any time modify, add or remove terms and conditions of these Card Terms, including interest rates and this Modification of Terms clause. Such changes may be based on our anti-fraud policies and procedures, your level of compliance with these Card Terms, prevailing economic conditions and/or any other factors. We will notify you of any changes, additions or deletions as required by applicable law. As of the effective date, the modified terms, at our option, will apply to new purchases and outstanding balances on your Account, to the extent permitted by applicable law.

12. Remedios

In the event of a breach by you of these Card Terms, we may, subject to applicable law (including any applicable notice requirements) (a) immediately declare all or any portion of the outstanding balance on your Account due; (b) permit you, in lieu thereof, to repay your Account balance by paying the minimum payment due each billing cycle, without waiving any of the rights under (a); and/or (c) bring a collection action against you and collect court costs and/or reasonable attorneys' fees and expenses charged to us in connection with such action by any attorney other than our salaried employee. Following a default, interest will continue to accrue until the entire balance of your Account, including accrued interest, is paid in full, subject to applicable law. Any remedial action taken under this clause shall be at the sole discretion of CiNKO and the Issuer. In addition, all rights and remedies available to CiNKO under the CiNKO Terms of Use remain fully enforceable and may be exercised in addition to any action taken under these Card Terms.

13. Delay in implementation

We may, at any time and in our sole discretion, delay or waive assertion of any of our rights or remedies under these Card Terms or applicable law without forfeiting any of those or any other rights or remedies. Even if we do not assert our rights or remedies at a given time, we may assert them at a later time. For example, we may accept late payments without losing any of our rights under these Card Terms.

14. Communications and call recording

You authorize CiNKO, the Issuer and its partners (each of them and each of the Issuer's joint or independent affiliates, agents, assignees and service providers (collectively, the "Messaging Parties") to use automated telephone dialing systems, artificial or prerecorded voice messaging systems, text messaging systems and automated email systems, or any system capable of storing and dialing telephone numbers to deliver messages relating to these Card Terms, your Account, or your relationship with the Messaging Parties generally (including but not limited to: messages about , upcoming payment due dates, missed payments, and returned payments) to any telephone number you provide to the Messaging Parties. You also agree that these messages may broadcast prerecorded and/or artificial voice messages. You understand that telephone messages may be played by a machine automatically when the telephone is answered, whether answered by you or another person, and that these messages may also be recorded by your answering machine. You also authorize the Messaging Parties to send messages to you by postal mail or e-mail to any address you provide to them or that they obtain by any lawful means.

You understand that anyone with access to your mail, phone or email account may listen to or read messages that the Messaging Parties leave or send to you, and you agree that the Messaging Parties shall have no liability for anyone accessing such messages. You further understand that, when you receive a telephone call, text message or email, you may incur a charge from the company providing telecommunications, wireless and/or Internet services to you, and you agree that the Messaging Parties shall have no liability for any such charges, except to the extent required by applicable law. You expressly authorize the Messaging Parties to monitor and record your calls with the Messaging Parties. If any telephone number you have provided to the Messaging Parties changes, or if you cease to be the owner, subscriber or primary user of any such telephone number, you agree to immediately notify the Messaging Party that delivered the messages of such facts so that the Messaging Party may update its records.

This authorization is part of our agreement to these Card Terms, and we do not intend it to be revocable. However, to the extent that you have the right to revoke your consent to communications via automated calls and text messages to your mobile number under applicable law, you may exercise this right by contacting the applicable Messaging Party directly or by sending an email request to support@CiNKO.io with the subject line "TERMINATE COMMUNICATIONS." You may stop receiving most of these messages at any time by sending us a request to support@CiNKO.io or by replying "STOP" to any text message. To stop receiving only email messages, you can follow the opt-out instructions included at the bottom of email messages from the Messaging Parties.

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15. Applicable Law

These Card Terms will be construed in accordance with the laws of Puerto Rico, without regard to its conflict of law provisions. Court proceedings (other than small claims) that are excluded from the Arbitration section above must be brought in a state or federal court in Puerto Rico, unless we both agree on another location, and you hereby consent to the personal jurisdiction and venue of such court.

16. Dispute resolution and arbitration

READ THIS "DISPUTE RESOLUTION AND ARBITRATION" PROVISION CAREFULLY. LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND THE ISSUER.

Binding arbitration:

(a) You and the Issuer agree that any and all past, present and future Disputes (defined below) shall be determined by arbitration, unless your Dispute is subject to an exception to this arbitration agreement set forth below. You and the Issuer further agree that any arbitration under this section shall not proceed as a class, collective or representative action. The arbitration award may be entered in any court of competent jurisdiction. "Dispute" means any dispute, claim or controversy between you and the Issuer arising out of or relating to (i) these Card Terms (including any addenda thereto or other terms incorporated herein by reference), (ii) the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or enforceability of the arbitration agreement below, or (iii) any Service (including, without limitation, the CiNKO Card).

(b) This agreement to arbitrate shall be construed in accordance with and subject to the Federal Arbitration Act, notwithstanding any other choice of law set forth in these Card Conditions.

Arbitration proceedings:

(a) Prior to filing a claim against the Issuer, you agree to attempt to resolve the Dispute informally by notifying the Issuer in writing of the actual or potential Dispute. Similarly, the Issuer will notify you in writing of any actual or potential Dispute to attempt to resolve informally any claim we may have before taking any formal action. The party giving notice of the actual or potential dispute (the "Notifying Party") shall include in such notice (a "Dispute Notice") its name, the Notifying Party's contact information for any communication regarding such Dispute, and sufficient details about such Dispute to enable the other party (the "Notified Party") to understand the basis for and evaluate the concerns raised. If the Notified Party responds within ten (10) business days after receipt of the Notice of Dispute that it is prepared and willing to engage in good faith discussions in an effort to resolve the Dispute informally, each party shall promptly engage in such good faith discussions.

(b) If, despite compliance by the Notifying Party with all of its obligations under the preceding paragraph, a Dispute is not resolved within thirty (30) days of the dispatch of the Dispute Notice (or if the Notifying Party fails to respond to the Dispute Notice within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If a party intends to commence an arbitration proceeding without first having sent a Notice of Dispute and without having fulfilled all of its obligations under the preceding paragraph, and notwithstanding any other provision of these Card Terms, the arbitrator(s) shall promptly dismiss the claim without prejudice and award to the other party all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection with such dispute.

(c) You and the Issuer agree to resolve any Dispute that is not resolved informally as described above by final and binding arbitration as provided herein, except as provided in Section 12.3 below. You and the Issuer agree that the American Arbitration Association ("AAA") will administer the arbitration under its Commercial Arbitration Rules (the "Rules"). The Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party wishing to initiate arbitration must submit to the other party a written request for arbitration as specified in the AAA Rules (the AAA provides a general request for arbitration). ) The arbitration shall be conducted on an individual basis by a sole arbitrator. The sole arbitrator will be a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree on an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, the AAA will appoint the arbitrator(s) in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any relief, including injunctive relief, that would be available to you in an individual lawsuit, subject to any limitation of liability or exclusion of effective and enforceable relief set forth herein. Notwithstanding anything to the contrary in this paragraph, if a party requests injunctive relief that could significantly affect other users of the Issuer, as reasonably determined by either party, the parties agree that such arbitration shall be conducted on an individual basis, but shall be conducted by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two arbitrators selected by the parties shall select the third arbitrator, who shall serve as chairman of the arbitration panel. Such chairperson shall be a retired judge or an attorney licensed to practice law and experienced in arbitration or dispute mediation. In the event of disagreement as to whether the threshold for a three-arbitrator arbitration panel has been met, the sole arbitrator appointed pursuant to this Section shall make such determination. If the arbitrator determines that a three-person panel is appropriate, the arbitrator may participate on the arbitration panel, if selected by either party or as chairperson by the two arbitrators selected by the parties. Except as and to the extent otherwise required by law, the arbitration proceedings and any award shall be confidential.

(d) You and the Issuer further agree that the arbitration shall be conducted in the English language in New York, New York, or, if you so elect, all proceedings may be conducted by videoconference, telephonically or through other remote electronic means.  

(e) Filing costs and administrative fees shall be paid in accordance with the AAA Rules; provided that the prevailing party shall be entitled to recover reasonable attorneys' fees, expert witness fees and expenses incurred in connection with the arbitration proceeding, in addition to any other relief that may be awarded.  

(f) You and the Issuer agree that, notwithstanding anything to the contrary contained in the Rules, the arbitration of any Dispute shall be conducted on an individual basis, and neither you nor the Issuer may submit a claim as part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a "Class Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against the Issuer shall be deemed a Class Arbitration if (i) two (2) or more similar arbitration claims are filed simultaneously by or on behalf of one or more claimants; and (ii) the claimants' counsel are the same, share fees or coordinate across arbitrations. "Simultaneously" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR THE ISSUER SHALL HAVE ANY RIGHT TO CONSOLIDATE, JOIN OR COORDINATE LITIGATION BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR TO ARBITRATE OR LITIGATE ANY LITIGATION IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY LITIGATION, ANY AND ALL SUCH RIGHTS ARE EXPRESSLY AND UNCONDITIONALLY WAIVED. Notwithstanding the foregoing, any challenge to the validity of this paragraph shall be resolved exclusively by the arbitrator.

Small claims:

Notwithstanding your agreement and the Issuer's agreement to arbitrate the Disputes, You and the Issuer retain the right to bring an individual action in small claims court.

Class waiver:  

To the extent permitted by applicable law, any dispute arising out of or relating to these Card Terms, whether in arbitration or in court, shall be brought only on an individual basis and not in a class, consolidated or representative action. Notwithstanding any other provision of these Card Terms or the AAA Rules, disputes concerning the interpretation, applicability or enforceability of this class waiver may only be resolved by a court and not by an arbitrator. If this class or consolidated class action waiver is held invalid or unenforceable, neither party will be entitled to arbitration.

No jury trial:

If, for any reason, a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to these Card Terms.

Venue and jurisdiction for legal proceedings:

Except as otherwise provided by applicable law or these Card Terms, in the event that the arbitration agreement is determined to be unenforceable against you or your Dispute, you and the Issuer agree that any judicial proceeding may only be commenced in a court of competent jurisdiction in Puerto Rico. Both you and the Issuer irrevocably consent to personal jurisdiction and venue there; provided that either party may bring any action to confirm an arbitration award in any court having jurisdiction.

Confidentiality:

The existence of and all information relating to any Dispute shall be held in strict confidence by the parties and shall not be disclosed by either party except as reasonably necessary in connection with the conduct of the arbitration or the confirmation or enforcement of any arbitration award. Any permitted disclosure shall, so far as reasonably possible, be made subject to confidentiality obligations at least as stringent as the provisions of this paragraph. In the event that applicable law requires disclosure of information relating to any dispute, the parties shall reasonably cooperate with each other in obtaining protective orders or in preserving the confidentiality of such information.

Survival:

This arbitration agreement shall survive termination or expiration of these Card Terms. With the exception of the provisions of this arbitration agreement that prohibit Class Arbitration, if a court decides that any portion of this arbitration agreement is invalid or unenforceable, the remaining portions of this arbitration agreement shall remain valid and enforceable. In the event that a court decides that the prohibition on Class Arbitration is invalid or unenforceable, then the entirety of this arbitration agreement shall be deemed void (but no provision of these Card Terms not related to arbitration shall be void), and any remaining Dispute shall be litigated in court in accordance with the preceding paragraph.

Indemnification:

You will indemnify and defend each CiNKO and Issuer, and their affiliates, and their respective partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives (each an "Indemnitee") against, and hold each Indemnitee harmless from, any and all claims, suits, investigations, proceedings, losses, damages, fines, penalties, sanctions, liabilities, settlements, costs, fees and expenses incurred by any Indemnitee or asserted against any Indemnitee by any person: (1) arising out of, in connection with, relating to, or resulting from, a breach by you or any Company Administrator or Company User of any of the representations, warranties, covenants or agreements contained in these Card Terms, the User Terms, any terms applicable to any Third Party Provider or any other agreements with any Issuing Partner or otherwise relating to the Services or the use of the CiNKO Card; (ii) for amounts owed by the Company to third parties; (iii) for acts or omissions of the Company's Directors, Company Users, or other employees or agents of the Company; (iv) for the Company's use of the Services; or (v) for fee disputes between the Company and merchants. CiNKO and the Issuer may defend any claim subject to indemnification hereunder using counsel of your choice, and you shall promptly pay or reimburse the Issuer for such counsel's reasonable fees and all related costs and reasonable expenses.  

If you are a user in a jurisdiction that does not permit certain indemnification obligations, you agree that the section above entitled "Indemnification" is intended to be as broad as permitted by the laws of such jurisdiction. If any part of this section is held invalid under the laws of such jurisdiction, the invalidity of such part shall not affect the validity of the remaining portions of the applicable sections.

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