Capital on Tap Business Credit Card Agreement

This is your agreement for your business credit card account. The full terms of the Agreement are set out below. They explain how your account works and other important things you need to know. Please read them carefully and keep this document safe in case you need to refer to it.

Details on how we use and protect your information and your rights in relation to the information we hold about you can be found on our website.

If you need additional information or an explanation of any of the terms of the Agreement, please contact us by phone on (833) 972-1323 or by e-mail at support@capitalontap.com.

 

[Customer Name], [Customer address]

 

Pricing Supplement

 

Interest Rates and Interest Charges

Annual Percentage Rate (APR) for Purchases

24.99% 

APR for Cash Advances

34.99%

Penalty APR and When it Applies

34.99% 

This APR will apply to your Account if you make 2 or more late payments in a 12-month cycle.
How Long Will the Penalty APR Apply? If the Penalty APR is applied, it will continue to apply until after you have made timely payments, with no returned payments, for 12 billing periods in a row.

Paying Interest

Your due date is up to 15 business days after the close of each billing period. We will not charge you interest on purchases if you pay your entire balance by the due date each month.   We begin charging interest on cash advances on the transaction date. 

Fees

Annual Fee

None

Transaction Fees

 

•         Cash Advance

 

·         Foreign Transaction

 


None

None

Penalty Fees

•         Late Payment

 

•         Returned Payment

 

$29

None

How We Will Calculate Your Balance: We use a method called “daily balance (including new transactions)”.  See the Interest Charge Calculation section of this Agreement for more details.

Additional Disclosures

 

Credit Reporting: You give us and our agents, successors, and assigns permission to access your credit report in connection with any transaction, or extension of credit, and on an ongoing basis, for the purpose of reviewing this Account, taking collection action on this Account, or for any other legitimate purposes associated with this Account. A negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfil the terms of your credit obligations.

 

INTRODUCTION

Definitions Capitalized terms that are not defined below refer to items on your Statement.

Account: your Capital on Tap Business Credit Card Account.

Agreement: this document together with your Pricing Supplement.  Any supplements or amendments are also part of the Agreement.

Business: the business entity named on the application for credit for this Account.

Card: one or more cards or other devices (including an account number) used to access your Account to obtain credit.

Cardholder: any person to whom we issue a Card, including the Guarantor and any Supplementary Cardholders.

Cash Advance: Use of your Card to get cash, including foreign currency, or for what we consider a cash-like transaction. Examples include using your Card for ATM and teller withdrawals, wire transfers, money orders, and travellers’ checks.

Credit Limit: the most you are allowed to borrow on your Account at any time

Cash Advance Limit: the portion of your Credit Limit that is devoted to Cash Advances. 

Guarantor: any individual who agrees to be jointly and severally liable with the Business for the Account, pursuant to the terms of the Guaranty.

Guaranty:  the Personal Guaranty executed by the Guarantor in favor of us in connection with the Agreement.

Purchase: use of your Card to buy goods and services. Cash Advances are not Purchases.

Representative: the person who submitted the application for credit for this Account on behalf of the Business, which may be the Guarantor or any successor person thereto, and who will be authorized to access Account information and make changes to the Account including, but not limited to, requesting credit limit increases and adding or deleting Cardhold­ers.

Statement: your billing statement.

Supplementary Cardholder: any person, other than the Guarantor, to whom we issue a Card.

You and your: the Business.

We, us, and our: WebBank.

 

Upholding the Agreement: You agree to and will abide by, the terms of this Agreement. This Agreement is binding on your successors and assigns. This Agreement takes effect once you or a Cardholder uses a Card, including for any Cash Advance. Even if you or a Cardholder does not use a Card including for a Cash Advance, this Agreement will take effect unless you contact us to cancel your Account within 30 days after we sent you this Agreement. You agree that the credit extended under your Account will be used solely for commercial or business purposes and not for personal, family or household purposes.

 

Promise to Pay:  You promise to pay us all amounts owed under this Agreement, including all

transactions, interest charges, and fees charged to your Account.  You promise to pay: all transactions you or a Cardholder makes, even if you or a Cardholder do not present a Card or sign for the transaction; all transactions made by a Cardholder or authorized user, whether or not such transactions were authorized by you or made for your benefit; and all transactions that you or any Cardholder permits others to make.  If you want to revoke the use of your Account by a Cardholder or authorized user, you can update this access in your online portal or you can email us at support@capitalontap.com, or call us at (833) 972-1323.  The revocation will not take effect until we have a reasonable opportunity to act on it.

 

Joint and Several Liability:  The Business and Guarantor will be jointly and severally liable for all obligations under this Agreement.  We may report the status of the Account to credit reporting agencies and others who may lawfully receive such information.  We may collect from or sue you without giving up any rights against any other parties, including the Guarantor.  Without waiving any of our rights, we may, at our option, release you without notifying the Guarantor and without releasing the Guarantor from the Guarantor’s obligation to pay all amounts owing under this Agreement in full, or to otherwise perform the terms and conditions of this Agreement.

 

Cardholders:  In addition to the Card issued to the Guarantor, you may request a Card for one or more Supplementary Cardholders.  You acknowledge and agree by requesting a Card that:

  • Cards issued to Cardholders are subject to the terms of this Agreement. You must give a copy of this Agreement to each Cardholder.  It is your responsibility to ensure that each Cardholder agrees to the provisions in this Agreement applicable to Cardholders.
  • You are responsible for the use and safekeeping of each Card, not the Cardholder.
  • You are responsible for all transactions any Cardholder makes or authorizes another to make. 
  • You have asked Cardholders to review the Privacy Policy (available on the website www. capitalontap.com/us/legal/capital-on-tap-customer-privacy-policy) and informed them that we may carry out identity checks on them.
  • Cardholders must be over 18 years old and be connected to the Business (e.g. as an employee, director, business partner etc.); all spend on any Card shall be solely for business purposes and by submitting their details, you are confirming, with respect to each such Cardholder, that the Cardholder is authorized by you to undertake transactions on your Account. You accept full responsibility for all Card use.
  • For security reasons, we cannot speak to a Cardholder, other than the Guarantor and/or the Representative, about your Account, unless you have informed us that you allow us to do so.
  • Any reward points or similar which accrue on your Account are for the Account only, separate reward points or equivalent do not accrue on each Card separately.
  • An email will be sent by us to each Supplementary Cardholder – this will contain your business name. This message will contain a link.  In order to issue a Card, we need each Supplementary Cardholder to follow the link and complete the Cardholder details form. Please let them know this email is coming.

 

USING YOUR ACCOUNT

Using the Card or Account: Cards may be used for Purchases and for Cash Advances, and only for legitimate business purposes. Each Cardholder acknowledges and agrees that Cards are only permitted to be used for the Business’ commercial or business purposes.  Each Cardholder acknowledges and agrees that Cards may not be used to make Purchases from your business or your own acquiring terminal. You are liable for setting the spending limits for each Cardholder and remain liable for all charges when spending limits are changed or exceeded.  Keep the Cards safe. If a Card is lost or stolen or the Account is being used without permission, contact us right away. The Account may not be used for illegal activities.  A Card may not be used after it has expired, it has been revoked, or after a Cardholder’s relationship with the Business has terminated.

 

Your Credit Limit:  Your initial credit limit is: $____. Your Credit Limit and Cash Advance Limit are shown on each Statement. You may not exceed you Credit Limit or Cash Advance Limit, but if you do, we can still charge you for all transactions, interest and other charges without giving up any of our rights under this Agreement.  There may be instances where your outstanding balance exceeds your Credit Limit, for example, where interest or late fees are added to your existing outstanding balance. We may increase or reduce the Credit Limit and/or Cash Advance Limit at any time. We may do so even if you pay on time and the Account is not in default.

 

Recurring Transactions:  You may arrange for certain merchants and third parties to store your Card number and expiration date, so that, for example, the merchant may charge your Account at regular intervals; or you may make transactions using that stored Card information. We may (but are not required to) tell these merchants and third parties if your expiration date or Card number changes or if your Account status is updated, including if your Account is cancelled.

 

Declining Transactions:  We may decline to authorize a transaction for any reason in our sole discretion. Reasons we may do this include (but are not limited to) suspected fraud and our assessment of your creditworthiness. This may occur even if: the transaction would not cause you to go over your Credit Limit; the transaction would not cause you to go over your Cash Advance Limit; and/or your Account is not in default.  We are not responsible for any losses you or any Cardholder incur if we do not authorize a transaction.  We are not responsible if any merchant refuses to accept the Card.

 

Payments:  You promise to pay at least the Minimum Payment (as defined below) by the Payment Due Date for each billing period, and you can pay the whole or part of your balance at any time. Your Statement shows the Minimum Payment and the applicable Payment Due Date.  The back of your Statement gives details about payment options, requirements, restrictions and crediting. We will not credit payments to your Account until the payment has cleared. All written communications concerning disputed amounts, including any check or other payment instrument marked with "payment in full" or similar language, must be sent to Capital on Tap Business Credit Card, The Yard, 85 Delancey St, New York, NY 10002.  We may accept a payment sent to any other address without losing any of our rights.  No payment shall operate as an accord and satisfaction without our prior written approval.

 

Payment Allocation:  Subject to applicable law, we reserve the right to apply payments however we see fit.

 

Minimum Payment: If your closing balance shown on your Statement is less than $100, then your Minimum Payment due will be the amount of the closing balance shown on your Statement.  If your closing balance shown on your Statement is greater than or equal to $100, but less than or equal to $1,000, then your Minimum Payment due will be $100.  If your closing balance shown on your Statement is greater than $1,000, then your Minimum Payment due will be 10% of your closing balance shown on your Statement.

 

Foreign Transactions:  If you make a transaction in a foreign currency, Visa or the foreign merchant or financial institution will convert the transaction in accordance with its operating regulations or conversion procedures in effect at the time the transaction is processed. The currency conversion rate in effect on the date the transaction is processed may differ from the rate in effect on the transaction date or posting date. This rate may differ from rates that are in effect on the date of your transaction.

Keeping your Account in Good Standing

Default:  You’ll be in default under this Agreement if:

  • You fail to make any payment when due
  • You violate any provision of this Agreement
  • The Guarantor becomes incapacitated or dies
  •  You (i) dissolve or otherwise cease to operate, (ii) are a party to a merger or other reorganization or (iii) sell or otherwise transfer all or substantially all of your assets
  • There is no Representative authorized to bind the Business to legal agreements
  • The Guarantor is no longer associated with the Business or no longer willing to be jointly and severally liable
  • You or the Guarantor become the subject of bankruptcy or insolvency proceedings
  • You or the Guarantor supply us with misleading, false, incomplete or incorrect information
  • You are unable or unwilling to perform the terms or conditions of this Agreement, or the Guarantor is unable or unwilling to perform the terms and conditions of the Guaranty
  • You or the Guarantor fail to supply us with any information we deem necessary
  • You or the Guarantor default under any other loan or agreement you have with us or any of our affiliates
  • You exceed your Credit Limit or your Cash Advance Limit
  • You or the Guarantor issue a payment that is not honored by your bank for any reason

 

If we consider your Account in default, we may take one or more of any of the following actions: suspend your ability to make transactions, cancel or suspend any feature on your Account, close your Account, require you to pay the full amount you owe immediately or take any other action permitted by law.   If applicable law requires us to do so, we'll tell you in advance and/or give you the opportunity to remedy your default.

 

Collection Costs and Claims: You waive all notices and demands and agree to pay all costs incurred in connection with (i) collecting amounts due, including reasonable attorneys’ fees incurred in legal proceedings and court costs incurred by us or another person or entity, to the extent not prohibited by applicable law; (ii) our costs for enforcing any provision of the Guaranty; and (iii) any liability, loss, judgment, or demand which we may be subjected to or which we may incur in connection with any claim arising from your or any Cardholders’ use of a Card or the Account.

 

Account Cancellation:  We may:  cancel your Account; refuse to authorize any transaction on your Account; suspend your Account; cancel or suspend your or any Cardholders’ right to use a Card; cancel or suspend any feature on your Account; notify merchants that your Account has been cancelled or suspended.  If we do any of these, you must still pay us for all amounts owed under the terms of this Agreement. We may do any of these things at our discretion, even if you pay on time and your Account is not in default. If your Account is cancelled, you must destroy all Cards. You may cancel your Account by giving us 7 days’ prior notice. You’re still obligated to pay the full amount you owe us.  The Representative may cancel any Cardholder’s Card, but the Guarantor and the Business will remain liable for any amounts owed on the Account, and any transactions made using a Card.

Ownership of Cards:  Each Card or other device that we provide to you are our property and must be returned to us or our agent immediately upon demand.  At our request, you will destroy any and all Cards or other devices by cutting them in half and certifying to us that you have destroyed such Card or device.

 

Interest, Fees and Charges

Interest Charges and Grace Period:  Interest charges begin on a transaction, fee, or interest from the day they are added to the daily balance and continue until the balance is paid in full. There is a Grace Period on Purchases. This means we will not charge interest on Purchases if you pay the closing balance showing on your Statement in full each billing period by the Payment Due Date.  However, if you did not pay the closing balance showing on your Statement on the previous Statement by the Payment Due Date, interest will accrue on Purchases until you next pay your closing balance showing on your Statement in full by that Payment Due Date. After you make full payment by your Payment Due Date, you will not be charged interest on Purchases providing you continue to pay off the full balance by the Payment Due Date.

 

There is no Grace Period on Cash Advances.

 

Interest Charge Calculation:  We calculate interest separately for each balance category (e.g., Purchases, Cash Advances, and each promotional balance) for each billing period. We use the "Daily Balance (including new transactions)" method. Our calculation method is as follows:

  • We calculate a daily balance for each day in the current billing period.  To do this, we start with the beginning balance on the category each day, including unpaid interest charges and fees.  (For the first day of a billing period, the beginning balance is the ending balance for the prior billing period.) We subtract any payments or credit adjustments applied to the category (treating any net credit balance as a zero balance) and add new transactions and debit adjustments.  We add new Purchases to the appropriate category as of the transaction date.  We add Cash Advances to the appropriate category as of the post date.  Fees are a type of debit adjustment.  Cash Advance fees are added to the Cash Advance category; all other fees are added to the Purchase category. 
  • This gives us the “Partial Daily Balance” for the day. We then multiply the Partial Daily Balance for the day by the Daily Periodic Rate. This gives us the "Daily Interest Charge" for the day.
  • At the end of the billing period, we add together each category’s Daily Interest Charge.  This gives us the total interest charge for the category for the billing period.  The total interest charged for a billing period is the sum of the interest charged on each Category, except for variations caused by rounding.
  • We may use other formulas or methods to calculate the Daily Balance and the daily interest, that produce substantially equivalent results. Also, we may choose not to charge interest on certain types of transactions.

 

Changes We Can Make to Interest Rates, Charges and Other Terms: We may change any of the terms of this Agreement, the interest rates, charges payable, or the Minimum Payment (including introducing new charges or when or how we calculate or apply interest or charges) for any reason.

 

Other Fees and Charges

Late Fee: If you don’t pay at least the Minimum Payment by the Payment Due Date, we will charge you a late fee of $29. This fee will not exceed the amount permitted by applicable law.

 

Reporting to Credit Reporting Agencies

Credit Reports:  The Business authorizes us to investigate the creditworthiness of the Business by obtaining credit reports and making other inquiries from time to time.  Upon request, we will tell you the name and address of any credit reporting agency that furnished a report on you.  We may report your liability, payment history, and the status of your Account to credit reporting agencies and to others who may lawfully receive such information. We will tell a credit reporting agency if you fail to comply with any term of this Agreement. This may have a negative impact on your credit report. If you believe the information we have given to a credit reporting agency is incorrect, write to us at: support@capitalontap.com. When you write to us, tell us the specific information you believe is incorrect.

 

Communications

Communicating to You About Your Account:  If we need to contact you to service your Account or to collect amounts you owe to us, you authorize us, as well as servicers, agents, independent contractors, contractors, debt collectors or collection agencies, and to anyone to whom we may sell your Account, to communicate with you in any way, such as calling, texting, or email via: (1) Your cell, landline, text number or any number you provide, use to contact us,  or any number which you may utilize, or to any other device or service for which you may be charged for the call, including, but not limited to, voice over internet protocol; (2) Any email address you provide to us or any other person or company that provides any services in connection with this Agreement; (3) Automated telephone dialling systems; (4) Pre-recorded or artificial voice messages and any other form of communication.  You also agree that these communications aren’t unsolicited for purposes of any state or federal law and you understand that communications may result in the additional mobile, text message, data charges or other charges.

 

Call Monitoring: We may monitor and record any calls between you and us.   Please inform all Cardholders and authorized users of this provision, including anyone acting on your behalf or making payments on this Account.

 

Notices: We send any notices by email to the address you gave us. We consider an electronic notice sent as soon as we email it, unless we receive notification that the email was undeliverable. All Arbitration Opt-Out, bankruptcy notices and related correspondence should be sent to the following “Notice Address”: support@capitalontap.com or Capital on Tap Business Credit Card, The Yard, 85 Delancey St, New York, NY 10002

 

Other important information

 

Agents: We may use one or more third parties, including (but not limited to) New Wave Card Inc, to service your Account on our behalf

 

Changes: We may add, change, or delete the terms of your Account at any time in our sole discretion. If required by applicable law, we will give you advance written notice of the change(s) and a right to reject the change(s).  We may apply any changed or new terms to any existing and future balances on the Account, subject to applicable law. This written Agreement is a final expression of the agreement governing the Account. The written Agreement may not be contradicted by any alleged oral agreement.

 

Changes to Your Information:  You agree to notify us immediately of any changes to your principal place of business or billing address, electronic mail address or telephone number(s). Until we are notified that your address is changed, we will continue to send Statements and other notices to the last address we maintained on your Account.  You agree to notify us within 10 days (i) if the Business dissolves or otherwise ceases to operate, (ii) if the Business is a party to a merger or other reorganization, (iii) if the Business sells or otherwise transfers all or substantially all its assets, (iv) if the Business become the subject of bankruptcy or insolvency proceedings or (v) if there is no Representative authorized to bind the Business to legal agreements. You agree to notify us within 10 days if the Guarantor (i) is incapacitated or dies, (ii) is no longer associated with the Business or no longer willing to be jointly and severally liable, or (iii) is the subject of bankruptcy or insolvency proceedings. 

 

No Offset:  All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

Governing Law:  This Agreement and your Account are governed by federal law and, to the extent state law applies, the laws of the State of Utah without regard to internal principles of conflicts of law.

 

Privacy Policy:  You authorize us to share information about you and your Account as permitted by law and pursuant to the Capital on Tap Privacy Policy.

 

Assignment:  Your rights under this Agreement can’t be transferred or assigned by you, by operation of law or otherwise, but your obligations will be binding upon your successors. Without prior notice to you or your consent, we may transfer or assign your Account and/or this Agreement, or any of our rights under this Agreement, to another person or entity at any time, and such other person or entity shall have and be entitled to exercise the rights granted to us with respect your Account and/or this Agreement.  In the event of any such transfer or assignment by us, you acknowledge and agree that information relating to your Account will be shared with the relevant transferee.

 

No Waiver of Rights: We may at any time and in our sole discretion delay or waive enforcing any of our rights or remedies under this Agreement or under applicable law without losing any of those or any other rights or remedies. Even if we do not enforce our rights or remedies at any one time, we may enforce them at a later date.

 

Severability:  If any provision of this Agreement conflicts with applicable law, that provision will be considered to be modified to conform with applicable law and shall not affect the validity of any other provision.

 

Unauthorized Use Liability:  The Business agrees, in accordance with Section 135 of the federal Truth in Lending Act, that if at any time we have issued ten (10) or more Cards for use by the Business’ employees at the Business’ request, then the Business waives any and all limitations on its liability for unauthorized use of such Cards that it may have under the Truth in Lending Act.

 

Disputes:  If you dispute a transaction with a merchant, we may credit the Account for all or part of the disputed transaction. If we do so, you assign and transfer to us all rights and claims (excluding tort claims) against the merchant. You and any Cardholders agree not to pursue any claim against the merchant for the credited amount. And you and any Cardholders must cooperate with us if we decide to do so.

 

Arbitration and Class Action Waiver

We have put this Arbitration Clause in question and answer form to make it easier to understand. However, this Arbitration Clause is part of your Agreement and is legally binding. All capitalized terms not otherwise defined in this Clause are defined in the Agreement.

PURSUANT TO 10 U.S.C § 987 AND ITS IMPLEMENTING REGULATIONS, IT IS UNLAWFUL FOR A CREDITOR TO REQUIRE A "COVERED BORROWER" AS THAT TERM IS DEFINED BY FEDERAL LAW TO SUBMIT DISPUTES TO ARBITRATION. THEREFORE, THE TERMS OF THE ARBITRATION CLAUSE (BELOW), INCLUDING BUT NOT LIMITED TO THE (1) REQUIREMENT TO ARBITRATE DISPUTES, (2) WAIVER OF A JURY TRIAL, AND (3) WAIVER OF RIGHT TO PARTICIPATE IN A CLASS ACTION, DO NOT APPLY TO COVERED BORROWERS.

 

For all persons other than Covered Borrowers, by signing below, you agree to this Arbitration Clause, unless you opt-out by the process described below:

 

BACKGROUND AND SCOPE

QUESTION

SHORT ANSWER

FURTHER DETAIL

What is
arbitration?

An alternative to court

In arbitration, a neutral third-party arbitrator (“Arbitrator”) solves Disputes in an informal hearing on an individual basis.

Is it different from court and jury trials?

Yes

The hearing is private. There is no jury. It is usually less formal, faster and less expensive than a court lawsuit. Pre-hearing fact-finding is limited. Appeals are limited. Courts rarely overturn arbitration awards.

Can you opt-out of this Arbitration Clause?

Yes, within 60 days

If you do not want this Arbitration Clause to apply, you must send us a signed notice within 60 calendar days after you sign your Agreement. You must send the notice in writing (and not electronically) to our Notice Address, Attn: Arbitration Opt-Out. Provide your name, address and account number. State that you “opt out” of the Arbitration Clause. Opting out will not affect the other provisions of this Agreement. If you opt out, it will only apply to the agreement associated with the account number identified by you in your opt-out notice.

What is this Arbitration Clause about?

The parties' agreement to arbitrate Disputes

Unless prohibited by applicable law and unless you opt out, you and we agree that you or we may elect to arbitrate individually or require individual arbitration of any "Dispute" as defined below.

 

 

 

 

Who does the Arbitration Clause cover?

You, us and certain "Related Parties"

This Arbitration Clause governs you and us, your heirs and our agents. It also covers certain "Related Parties": (1) our parents, subsidiaries, affiliates and their successors and assigns; (2) our employees, directors, officers, shareholders, members and representatives; and (3) any person or company that is involved in a Dispute you pursue at the same time you pursue a related Dispute with us.

What Disputes does the Arbitration Clause cover?

All Disputes (except certain Disputes about this Arbitration Clause)

This Arbitration Clause governs all “Disputes” that would usually be decided in court and are between us (or any Related Party) and you. In this Arbitration Clause, the word “Disputes” has the broadest reasonable meaning. It includes all claims even indirectly related to your Account or this Agreement (including, without limitation, your application, your Account balance, past agreements, information you previously gave us, extensions, renewals, refinancings, payment plans, collections and privacy and customer information) or the relationships between you and us and/or “Related Parties” resulting therefrom. “Disputes” includes, but is not limited to, initial claims, counterclaims, cross-claims and third-party claims, and claims based on any constitution, statute, regulation, ordinance, common law rule (including rules relating to contracts, torts, negligence, fraud or other intentional wrongs) and equity. It includes claims that seek relief of any type, including damages and/or injunctive, declaratory or other equitable relief. It includes claims related to the validity in general of this Agreement. However, it does not include disputes about the validity, coverage or scope of this Arbitration Clause or any part of this Arbitration Clause. (This includes a Dispute about the rules against class arbitration and against an Arbitrator issuing relief to anyone except you, us and Related Parties.) All such disputes are for a court and not an Arbitrator to decide. But a Dispute about this Agreement as a whole is for an Arbitrator, not a court, to decide.

Who handles the arbitration?

Usually AAA or JAMS

Arbitrations are conducted under this Arbitration Clause and the rules of the arbitration administrator in effect when the arbitration is started. The arbitration administrator will be either:

 

The American Arbitration Association ("AAA"), 120 Broadway, 21st Floor, New York, NY 10271, www.adr.org.

 

JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com

 

Any other company picked by agreement of the parties.

If all the above options are unavailable, a court with jurisdiction will pick the administrator. No arbitration may be administered without our consent by any administrator that would permit a class arbitration under this Arbitration Clause. The Arbitrator will be selected under the administrator's rules. However, the Arbitrator must be a lawyer with at least ten years of experience or a retired judge unless you and we otherwise agree.

Can Disputes be litigated?

Sometimes

Either party may bring a lawsuit if the other party does not demand arbitration. We will not demand arbitration of any lawsuit you bring as an individual action in small-claims court or an equivalent court, so long as the Dispute is pending only in that court. Both parties may use lawful self-help remedies. Both parties may seek remedies which don't claim money damages. This includes injunctions or equitable relief. Even if all parties have opted to litigate a Dispute in court, you or we may elect arbitration with respect to any Dispute made by a new party or any Dispute later asserted by a party in that or any related or unrelated lawsuit (including a Dispute initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Clause.



 

Are you and we giving up any rights?

Yes

For Disputes that are arbitrated under this Arbitration Clause, you and we give up our rights to:

Have juries decide Disputes.

Have courts, other than small-claims courts, decide Disputes.

Serve as a private attorney general or in a representative capacity in court or in arbitration.

Join a Dispute that you, we or Related Parties have with a dispute that others have.

Bring or be a class member in a class action in court or in class arbitration.

The arbitrator shall have no authority to conduct any arbitration inconsistent with this section or to issue any relief that applies to any person or entity except you or us or Related Parties individually.

Can you or another consumer start a class arbitration?

No

The Arbitrator is not allowed to handle any Dispute on a class or representative basis. All Disputes subject to this Arbitration Clause must be decided in an individual arbitration or an individual small-claims action. You may not pursue any type of collective action or class action against us in arbitration.

 

What law applies?

The Federal Arbitration Act (“FAA”)

This Agreement and your Account involve interstate commerce. Thus, the FAA governs this Arbitration Clause. The Arbitrator must apply substantive law consistent with the FAA. The Arbitrator must honor statutes of limitation and privilege rights. The Arbitrator is authorized to award all remedies permitted by applicable substantive law, including, without limitation, compensatory and statutory (subject to constitutional limits that would apply in court), declaratory, injunctive and other equitable relief, and attorneys’ fees and costs. In the event of any conflict or inconsistency between this Arbitration Clause and the administrator’s rules or the Agreement, this Arbitration Clause will govern.

Will this Clause continue to govern?

Yes, unless
otherwise
agreed.

The Arbitration Clause stays effective unless the parties sign an agreement stating it doesn't or you timely opt-out by the process described herein. The Clause governs if you rescind the transaction. It governs if you default, renew, prepay, or pay. It governs if your contract is discharged through bankruptcy. The Arbitration Clause remains effective, despite a transaction's termination, amendment, expiration, or performance.

PROCESS

What must a party do before starting a lawsuit or arbitration?

Send a written Dispute notice and work to resolve the Dispute

We can try to resolve Disputes if you call us at (833) 972-1323. If this doesn't resolve the Dispute, before starting a lawsuit or arbitration, the complaining party must give the other party written notice of the Dispute. The notice must explain in reasonable detail the nature of the Dispute and any supporting facts. If you are the complaining party, you must send the notice in writing (and not electronically) to our Notice Address, Attn: Arbitration Opt-Out . You or an attorney you have personally hired must sign the notice and must provide the account number and a phone number where you (or your attorney) can be reached. A letter from us to you will serve as our written notice of a Dispute. Once a Dispute notice is sent, the complaining party must give the other party a reasonable opportunity over the next 30 days to resolve the Dispute on an individual basis.

How does an arbitration start?

Mailing a notice

If the parties do not reach an agreement to resolve the Dispute within 30 days after notice of the Dispute is received, the complaining party may commence a lawsuit or an arbitration, subject to the terms of this Arbitration Clause. To start an arbitration, the complaining party picks the administrator and follows the administrator's rules. If one party begins or threatens a lawsuit, the other party can demand arbitration. This demand can be made in court papers, such as a motion to compel arbitration. Once an arbitration demand is made, no lawsuit can be brought and any existing lawsuit must stop unless a court rules otherwise.

 

 

Will any hearing
be held nearby?

Yes

The Arbitrator may decide that an in-person hearing is unnecessary and that he or she can resolve a Dispute based on written filings and/or a conference call. However, any in-person arbitration hearing shall take place in your county and state of residence.

What about appeals?

Very limited

Appeal rights under the FAA are very limited. The Arbitrator’s award will be final and binding. Any appropriate court may enter judgment upon the Arbitrator's award.

ARBITRATION FEES AND AWARDS

Who bears arbitration fees?

It depends

We will always pay amounts required under applicable law or the administrator's rules or if payment is required to enforce this Arbitration Clause.

When will we cover your legal fees and costs?

In some cases

We will pay the reasonable fees and costs for your attorneys, experts and witnesses if required under applicable law or the administrator's rules or if payment is required to enforce this Arbitration Clause. The Arbitrator shall not limit his or her award of these amounts because your Dispute is for a small amount.

Will you ever owe us for arbitration or attorneys' fees?

Only for bad
faith

The Arbitrator can require you to pay our fees if (and only if): (1) the Arbitrator finds that you have acted in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); and (2) this power does not make this Arbitration Clause invalid.

Can an award be explained?

Yes

A party may request details from the Arbitrator within 14 days of the ruling. The Arbitrator will determine whether to grant such a request.

What happens if a part of this Arbitration Clause cannot be enforced?

It depends

If any portion of this Arbitration Clause cannot be enforced, the rest of the Arbitration Clause will continue to apply, except that (A) this Arbitration Clause (except for this sentence) will be void if a court rules that the Arbitrator can decide a Dispute on a class basis and the court's ruling is not reversed on appeal, and (B) if a claim is brought seeking public injunctive relief and a court determines that the restrictions in this Arbitration Clause prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated.

 

 

 

Signed for and on behalf of …………………………………

Signature of Business Representative             ……………………………………

Dated: [Date]