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Zip Anywhere Customer Agreement (WebBank-Originated Transactions)

Last update: April 25, 2022

Overview

THIS AGREEMENT DOES NOT APPLY TO ANY TRANSACTIONS BETWEEN ZIP AND RESIDENTS OF CALIFORNIA, COLORADO, NEVADA OR MASSACHUSETTS. TO BE DIRECTED TO THE CUSTOMER AGREEMENTS APPLICABLE FOR SUCH TRANSACTIONS:

IF YOU ARE A RESIDENT OF CALIFORNIA, PLEASE CLICK HERE; OR IF YOU ARE A RESIDENT OF COLORADO, NEVADA OR MASSACHUSETTS, PLEASE CLICK HERE.

PLEASE READ THIS ZIP ANYWHERE CUSTOMER AGREEMENT CAREFULLY, AS IT GOVERNS YOUR RELATIONSHIP WITH ZIP CO US INC. (“US”) WITH RESPECT TO THE ZIP ANYWHERE APPLICATION. TO THE EXTENT THAT YOU ALSO USE ANY OTHER ZIP PRODUCTS, PLEASE REFER TO THE ZIP CUSTOMER AGREEMENT TERMS FOR THOSE SERVICES HERE. THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY. ALL LOANS UNDER THIS PROGRAM ARE ORIGINATED BY WEBBANK, AN FDIC-INSURED, UTAH-CHARTERED INDUSTRIAL BANK, AND SERVICED BY US. SEE THE LOAN AGREEMENT BELOW FOR ADDITIONAL DETAILS.

General

1.1. BY SIGNING UP FOR A ZIP ACCOUNT AND/OR USING THE ZIP ANYWHERE APPLICATION, YOU ARE:

1.1.1. Representing that you are acting on your own behalf, you are an individual resident of the United States or its territories, you are at least of the age of legal majority where you live (which is currently 18 years old, in most cases), and the application you submitted to us in connection with the account is true and complete in all material respects and that there has been no Material Adverse Change not reflected on your application. If any of the foregoing is not true, you are not eligible to use any Services, and doing so will be unauthorized and a breach of this Agreement.

1.1.2. ACKNOWLEDGING THE TERMS OF AND AGREEING TO BE BOUND BY THE CURRENT (1) ZIP ANYWHERE CUSTOMER AGREEMENT (THIS “AGREEMENT”), (2) ZIP E-SIGN AGREEMENT, (3) ZIP PRIVACY POLICY, AND (4) ZIP.CO WEBSITE TERMS OF USE, INCLUDING OUR ACCEPTABLE USE POLICY. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT ACCESS THE ZIP WEBSITE OR USE ANY ZIP SERVICE, AND CONTACT US TO CANCEL YOUR ACCOUNT, IF YOU ALREADY HAVE CREATED ONE.

1.2. This Agreement was last revised on the date first shown above. A later version of this Agreement replaces any previous version.

1.3. CHANGES TO THIS AGREEMENT.

1.3.1. We reserve the right to amend this Agreement at any time, by adding, deleting, or changing provisions of this Agreement. If we amend this Agreement, then we will provide notice on our Website or as otherwise required by applicable law. Subject to any notice period that may be required by applicable law, after we provide notice of any amendment to this Agreement, if you use the Services or do not immediately close your account, then you agree to such amendments.

1.4.CERTAIN DEFINITIONS.

1.4.1. “We”, “us”, “our” or “Zip” means Zip Co US, Inc.

1.4.2. “You” and “your” refers to the individual person who creates the associated Zip account and each and all of the persons who are granted access to, accept, or use the account and any person who has guaranteed payment of the account.

1.4.3. “Service” means the “Zip Anywhere” application.

1.4.4. Your “account” means your account with Zip for the Zip Anywhere application, as described and governed by this Agreement. You may request a Loan to finance the purchase goods or services (“Goods”) from WebBank pursuant to the Service. All such Loans are governed solely by the Loan Agreement set forth below (as in effect at the time WebBank makes such Loan). In the event of any conflict between the Loan Agreement and this Agreement, the Loan Agreement shall control.

1.4.5. “Due Date” means any date by which you are required to make a payment as reflected on your Billing Statement or other communication provided to you by Zip on behalf of WebBank.

1.4.6. “Billing Statement” means any communication that Zip provides to you reflecting the activity on your account, the unpaid balances on your Loan(s), and/or Due Dates. Without limiting the foregoing, this includes any account dashboard that Zip makes available to you on its Website and any statement or summary for a billing cycle that Zip provides to on behalf of WebBank.

1.4.7. “Website” means, collectively, the https://zip.co/us website and our US mobile app.

1.4.8 “WebBank” means WebBank, a Utah-chartered Industrial Bank.

1.5. PROVISIONS OF THIS AGREEMENT ARE SEVERABLE.
If any provision of this Agreement is found to be invalid, the remaining provisions will continue to be effective.

1.6. Important Disclosures.

1.6.1. Your name and address, as set forth in the application you submitted to us for this account, are incorporated by reference.

Our services

2.1. YOUR ZIP ACCOUNT AND TERMS APPLICABLE TO THE SERVICE.

2.1.1. QUALIFICATION FOR AND ACCESS TO YOUR ACCOUNT AND THE SERVICE.
You must be qualified and receive an approval from Zip to use the Service. Whether you are qualified and whether any use of the Service is approved is determined by Zip and/or WebBank in their sole discretion. Zip may close, suspend, restrict, or limit your account and/or your use of or ability to transact in connection with the Service in Zip’s sole discretion at any time for any reason without notice to you. Zip also may cancel transactions at any time before a Retailer delivers any goods or services in its sole discretion at any time for any reason without notice to you.

2.1.2. USE OF YOUR ACCOUNT AND THE SERVICE.
You may use your account and the Service only for personal, family, or household purposes, and not for any business or commercial purposes. You may not use your account or the Service to make a payment on any other obligation you have with us or our affiliates. You may not use or permit your account to be used to make any illegal transaction. Without limiting the foregoing, you may not use your account or the Service in connection with any gambling activity or permit such use.

2.1.3. THE SERVICE.
Downloading the Zip Anywhere application and qualifying for loans through the Service allows you to purchase goods or services offered by retailers who accept payment cards at the physical point of sale (“Retailers”) or online at Retailer websites. Each time you use the Service to finance a purchase, you are requesting that WebBank make a direct loan (a “Loan”) to you for the amount of the purchase from the Retailer. For each transaction using the Service, you will receive a virtual credit card number for the amount of the Loan, which is associated with a virtual credit card issued to Zip that you may use to facilitate payment for the transaction with the Retailer. Each virtual card number may be used only for a single transaction with a single Retailer. If you wish to make additional or different purchases that are financed using the Service, then you must apply for a new loan through the Service and obtain a new virtual card number for each potential purchase. You are not authorized to use any virtual card number provided in the Service for any purpose other than the purchase for which you requested the Loan. Any unauthorized use of the virtual card by you will be considered theft and/or fraud, and will be declined and or reversed and may lead to deactivation of your account, among other remedies to which Zip or WebBank may be entitled.

2.1.4. YOUR ESTIMATED SPENDING POWER.
Your Estimated Spending Power is the potential amount available to you to request Loans using the Service and is evaluated on a transaction-by-transaction basis each time you request a Loan. Any amount shown on your account dashboard or otherwise as your “Estimated Spending Power” is merely indicative and not a guarantee that any attempt to use the Service will be approved. Your Estimated Spending Power may be changed at any time and for any reason at WebBank’s and/or Zip’s sole discretion.

2.1.5. From time to time, we may offer or introduce services other than the Services, in which case, you will be notified of the terms and conditions applicable to such services (“Additional Terms”) in any associated documents or other materials provided to you from time to time by or on behalf of Zip. We may adjust, add, or delete services, including the Services, at any time and without notice to you. Zip is not offering any benefits to you hereunder other than the Services.

2.1.6. OPERATIONS.
Zip operates and controls the Services and your account from its offices in New York, New York. The services and information provided on the Services are not intended for distribution to or use by any person or entity outside of the United States. You agree that you may not open an account or use the Services if you are not located within the United States.

2.2. NO WAIVER.
We may, with or without notice to you, delay or refrain from enforcing our rights under this Agreement without losing them or limiting our ability to exercise them in the future.

Information about you

3.1. USING AND SHARING YOUR INFORMATION.
When you applied for an account, you gave, and by using your account or the Services you give, us, WebBank and our other partners and program sponsors information about yourself that we could share with each other and use. We may ask you for identifying documents to help us validate your identity. Zip reserves the right to close, suspend, or limit access to your account and/or the Services in the event we are unable to obtain or verify this information. More information about how we use and share information is set forth in the privacy policy applicable to your account.

3.2. AGREEMENT TO PROVIDE ACCURATE INFORMATION.
You agree that when you provide information to Zip, you will only and at all times provide true, accurate, current, non-misleading, and complete information, and you agree not to misrepresent your identity or any of your account information or related details. You further agree to keep your account information up to date and accurate. You represent that any phone number that you provide to us belongs to you and/or that you are authorized to provide that number. You must notify us promptly when you change your address or any phone number. We may also change your address if so notified by the post office or others.

3.3. CREDIT BUREAU REPORTING.
You authorize us to investigate your creditworthiness and to obtain consumer reports about you in connection with your application for the right to use our Services and for as long as your account is open and/or this Agreement is in effect. You authorize us to use such information and consumer reports, including without limitation, to preliminarily evaluate your application on behalf of WebBank, to service and collect your account, to review whether changes should be made to the terms of your account, and to consider you for offers for other products and services.

3.4 Your Submitted Data.
You are wholly responsible for any data you transmit to the Website (“Submitted Data”), whether such data consists of pictures, art work, text, or other data types, such as audio, video, or multimedia. It is illegal to reproduce or distribute copyrighted material without the permission of the copyright owner or to use trademarks without the permission of the trademark owner. You are responsible for ensuring that no Submitted Data you transmit to the Website violates any copyright or trademark right, and that it complies with these Terms. Before transmitting Submitted Data to the Website, you should ensure that such Submitted Data is in the public domain and therefore not subject to copyright protection, or that you have the consent of the copyright or trademark owner to use the material. By uploading Submitted Data to the Website and/or by submitting Submitted Data for integration into any Zip Service or Product for processing, sharing, storage or fulfillment: (i) you grant us a limited, royalty free and non-exclusive license to use, adapt, transmit, transfer, store, copy and display the Submitted Data solely in connection with our providing products and/or services to you; and (ii) you represent and warrant to us that the Submitted Data is in the public domain; or that you have all right, title and interest in and to all copyrights in the Submitted Data, or that you have the express permission to copy and use such Submitted Data for all purposes related to the products you order through the Site. You further represent that the Submitted Data does not violate or infringe upon the proprietary rights (including privacy, moral or publicity rights) of others.

3.4.1 Submitted Data Content Policy and Acknowledgement.
You may not upload to the Website any material, whether text, images, or otherwise, that (a) infringes any copyright, trademark, right of privacy, right of publicity, or any other right of a third party, including without limitation, images of celebrities, actors, musicians, sports figures, politicians, cartoon characters or public figures of any kind; (b) is unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or offensive to the community or to any reasonable segment thereof, or (c) phone numbers, addresses, account numbers, personalized identification numbers or URL addresses (collectively, “Inappropriate Content”). The content of the Submitted Data you submit is governed by applicable laws (including laws which prohibit infringement of copyrights and trademarks, obscenity, pornography, child pornography, or child abuse). We have no obligation to monitor the Submitted Data. However, we (and our licensees, suppliers, fulfillers, or otherwise any of our Third-Party associates) reserve the right at all times to review the Submitted Data, to disclose the Submitted Data as necessary to satisfy any laws, regulations or government requests and to report any potential violations of law to law enforcement authorities, to refuse to post or transmit the Submitted Data, to remove the Submitted Data, and to refuse to perform any orders for processing or fulfillment for Submitted Data that are, in our sole judgment and discretion, (or in the sole judgment and discretion of any of the entities described above), objectionable or in violation of these Terms. Any such violation may be considered by Zip in its sole discretion as sufficient grounds to suspend or delete your Account.

3.4.2 Submitted Data Guidelines.
Zip reserves the right to determine, at its sole discretion, whether Submitted Data will be accepted for incorporation into any Zip Goods or Services. If Zip does not approve the Submitted Data, we will notify you by email that your submission has been rejected. At such time you may submit another image for consideration in a subsequent order. In the event that the Submitted Data can be supported in multimedia formats, please consider that image files can be in .JPEG, .GIF, or .PNG formats; small images will reproduce poorly when printed, increasing the scale of your image may cause it to print poorly, the bigger the image you choose, the longer it will take to upload, and the time your image takes to upload depends on your own internet connection speed.

Your other agreements/obligations

4.1. ACCESS TO YOUR ACCOUNT.
You are responsible for maintaining the secrecy of the login credentials to your Zip account. You agree to establish reasonable security procedures and controls to limit access to your password or other identifying information to authorized individuals, which includes choosing passwords and other credentials in a manner that will protect the security of your information. Your credentials include your username and password to your Zip account and to any third-party account you have used to log in to your Zip account.
Please notify us immediately of the loss, theft, or possible unauthorized use of your account at [email protected].

If you permit any person to use your account information, login, or other details with the authorization to obtain credit on your account, you will be liable for all transactions made by that person including transactions for which you may not have intended to be liable, even if the amount of those transactions causes your Estimated Spending Power to be exceeded. Further, you acknowledge and agree that you will not hold Zip responsible for, and will indemnify Zip from, any liability arising from the actions or inactions of this third party in connection with the permissions you grant.

4.2. COMMUNICATION & NOTIFICATION.
You agree that Zip may provide you communications about your account and the Zip services electronically or through phone calls or in writing. Standard mobile, message, or data rates may apply and you are responsible for any such fees. Zip reserves the right to close or limit access to your account and immediately collect all due amounts if you withdraw your consent to receive electronic or other communications. Any electronic communications will be considered to be received by you within 24 hours of the time we email it to you or otherwise send it to your attention (such as via text message or other online notification). We may assume you have received any communications sent to you by postal mail 3 business days after we send them.

4.3. CONSENTS TO COMMUNICATE.
If we need to contact you, you give direct consent to us that we, as well as servicers, agents, contractors, and collectors of your account, may communicate with you in any way, such as calling, texting, or e-mail via:

  • a mobile phone or landline you provide to us or use to contact us,
  • any email address you provide to us or one of our merchants,
  • automated dialer systems and automatic telephone dialing systems,
  • pre-recorded or artificial voice messages and other forms of communications.

Where you have provided a mobile phone number directly to us, you consent and agree to accept servicing calls and text messages to your mobile phone from us. For example, we may place calls to you about fraud alerts. For any telephone or mobile phone calls/communications, we place to you, you consent and agree that those calls may be automatically dialed including pre-recorded messages or texts.

Without limiting the foregoing, you consent to us, as well as any successor, assignee, or service provider, contacting you through any channel of communication and for any purpose, as permitted by applicable law. For informational, servicing, or collection-related communications, you agree that we may use the phone numbers that you provide to us to contact your cellular phone or wireless device with text messages, artificial or prerecorded voice calls, and calls made by an automatic telephone dialing system. This consent applies even if you are charged for the call under your plan. You are responsible for any charges that may be billed to you by your communications carrier when we contact you.

You also agree that these communications are not unsolicited for purposes of any state or federal law, and you understand that this may result in additional mobile, text message, or data charges. You may revoke any of your consents above, to the extent required by applicable law, by contacting us. Notwithstanding this provision, Zip’s delivery of any Disclosures governed by the Zip E-Sign Consent shall be governed by your consent or withdrawal of consent to receiving such Disclosures in electronic form.

4.4. MONITORING AND RECORDING.
You understand and agree that Zip, any of its affiliates, or its marketing associates, or service providers may, without further notice or warning (unless required by applicable law) and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Zip or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with Zip may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Zip, and Zip does not guarantee that recordings of any particular telephone calls will be retained or retrievable.

4.5. You may not sell, assign or transfer any of your rights or duties under this Agreement or your account. If your account is closed, you must stop using it. You must still pay the full amount you owe and this Agreement will remain in effect until you do.

Our rights

5.1. You will be in default of this Agreement if you (i) default under any Loan Agreement, including by failing to make any required payment under a Loan in full by its Due Date; (ii) file or have instituted against you any bankruptcy or insolvency proceedings or make any assignment for the benefit of creditors; (iii) make any representation to us that is misleading, fraudulent, deceptive, or false; (iv) experience any MAC; or (v) you fail to abide by any term of this Agreement. In the event of a default, we may exercise all remedies available under applicable law.

5.2. WHAT WE MAY DO IF YOU ATTEMPT TO EXCEED YOUR ESTIMATED SPENDING POWER.
Your Estimated Spending Power is the potential amount available to you to request Loans using the Service and is evaluated on a transaction-by-transaction basis each time you request a Loan. Any amount shown on your account dashboard or otherwise as your “Estimated Spending Power” is merely indicative and not a guarantee that any attempt to use the Service will be approved. Loan requests must not exceed your Estimated Spending Power plus any outstanding Loan balances. Any Loan request which exceeds your Estimated Spending Power plus any previous Loan balances will not be permitted.

5.3. SUSPENSION OR CLOSURE OF YOUR ACCOUNT.
We may suspend or close your account or otherwise terminate your right to use your account. We may do this at any time and for any reason. You may close your account at any time by contacting us at [email protected]. Upon account closure, we will cancel any pending transactions unless otherwise legally prohibited. If you owe any payment, Zip will not close your account until that payment has been made, but we may limit your ability to make additional transactions using your account. You may not close your account to evade an investigation. You will remain liable for all obligations related to your account even after the account is closed. Zip will retain your information in accordance with our Privacy Policy.

5.4. DORMANT ACCOUNTS.
Zip may close your account if you do not log in to the Website or use the Services for two or more years. Zip will retain your information in accordance with our Privacy Policy.

5.5. REFUSAL TO HONOR YOUR ACCOUNT.
We may deny any transactions for any reason at our discretion. We are not liable for any refusal to honor your account.

5.6. ASSIGNMENT OR SALE.
We may at any time, and without notice to you, sell, assign or transfer your account, this Agreement, or our rights or obligations under your account or this Agreement to any person or entity. The person or entity to whom we make any such sale, assignment, or transfer shall be entitled to all of our rights and shall assume our obligations under this Agreement, to the extent sold, assigned, or transferred.

How Zip will resolve disputes

6.1. DISPUTES WITH ZIP.
If a dispute arises between you and Zip about your account, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute, we encourage you first to contact Zip at [email protected] to try resolving your problem directly with us.

RESOLVING A DISPUTE WITH ARBITRATION PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. What claims are subject to arbitration: 1. If either you or we elect to use arbitration and make a demand for arbitration, then you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents, and/or dealers/merchants/Retailers that accept payment using any Service or the virtual card, except as noted below. 2. We will not require you to arbitrate any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court. However, if you respond to the collection lawsuit by claiming any wrongdoing for which a small claims court or your state’s equivalent court would not have jurisdiction, we may require the arbitration of both your claim and ours. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage, or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

6.2. NO CLASS ACTIONS.
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS OR COUNTERCLAIMS AGAINST US ON BEHALF OF ANY ACCOUNT HOLDER WHO IS NOT AN ACCOUNT HOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNT HOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE. If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.

6.3. HOW TO START AN ARBITRATION, AND THE ARBITRATION PROCESS.
The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Zip, Inc., Legal Operation, 228 Park Ave S, PMB 59872, New York, New York 10003-1502, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in a court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control. The arbitration will take place by phone, video conference, or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges. We will always pay your costs, to the extent you prevail on claims you assert against us in an arbitration proceeding.

6.4. GOVERNING LAW FOR ARBITRATION.
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). New York law shall apply to the extent state law is not preempted and otherwise relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

6.5. EXCEPTIONS TO INFORMAL NEGOTIATIONS AND ARBITRATION.
You and Zip agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or Zip’s intellectual property rights; and (2) any claim for injunctive relief.

6.6. RIGHT TO REJECT ARBITRATION.
You may reject this arbitration provision by mailing a special rejection notice to Zip at [email protected]. You must sign the rejection notice, affirmatively state that you do not want arbitration to apply to this Agreement and provide your name, address, telephone number, and account number. We must receive your rejection notice within 60 days after the date that you first consent to this Agreement. You may not reject arbitration by phone or by any method other than the method described above. If you reject this arbitration provision, it will not affect any other provision of the Agreement.

Miscellaneous

7.1. ENFORCEABILITY AND GOVERNING LAW.
The failure or delay of Zip to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision and does not prevent Zip from later exercising such right or provision. This Agreement sets forth the entire understanding between you and Zip with respect to the Services. If any provision of this Agreement is held to be unenforceable, the unenforceable term or provision shall be replaced by an enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision and the remaining provisions shall be enforced. To the extent that anything in or associated with the Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

The loans made by WebBank in connection with your use of the Service are governed by the Loan Agreement, not this Agreement, All other aspects of your access to, and use of, the Services (including the terms of this Agreement), as between you and Zip, are governed by the laws of the State of New York (without regard to conflicts of laws principles).

7.2. INTELLECTUAL PROPERTY.
All content, design, graphics, compilation, magnetic translation, digital conversion, and other matters relating to the Services are protected under applicable copyrights, trademarks, and other proprietary rights (including but not limited to intellectual property rights) and owned by Zip or one of its affiliates. The copying, redistribution, use, or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents, or other materials you access. The sharing or posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.

7.3. TRADEMARK.
“Zip” is the marketing name for certain activities provided by Zip Co US, Inc. as operator of the Services. In the United States, the registered trademarks associated with the Services are owned by Zip Co US, Inc.’s parent company Zip Co Ltd. “Zip” and “Buy with Zip” are trademarks of Zip Co Ltd., as are all other names, logos, and slogans associated with Zip products and services. Other featured words or symbols may be the trademarks of their respective owners.

7.4. INDEMNIFICATION.
You agree to indemnify, defend and hold harmless Zip, their respective affiliates, and their and their affiliates’ respective officers, directors, employees, agents, representatives, successors, and assigns from any and all claims, debts, losses, liabilities, demands, obligations, costs, expenses (including reasonable attorneys’ fees), fines, penalties, actions and causes of action, judgments (collectively, “Losses”) and threatened Losses arising from or in connection with your use of the Services or violation of this Agreement.

7.5. WARRANTY.
NONE OF ZIP OR ANY OF THEIR AFFILIATES MAKE ANY COMMITMENTS OR WARRANTIES ABOUT THE CONTENT, RELIABILITY, OR AVAILABILITY OF THE SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES. EACH OF WEBBANK, ZIP AND THEIR AFFILIATES DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY REGARDING NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NONE OF , ZIP OR THEIR AFFILIATES SHALL BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SERVICES.

7.6. LIMITATION OF LIABILITY.
ZIP AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY PRODUCT AVAILABLE FROM OR THROUGH THE WEBSITE OR ANYONE’S (INCLUDING YOUR) USE OF THE SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, ZIP AND ITS AFFILIATES ARE NOT LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE; NOR ARE THEY LIABLE.

FOR ANY THIRD PARTY CLAIMS OF ANY NATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROM US FROM OR THROUGH THE WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. NEITHER ZIP NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY.

7.7. LIMITATIONS PERIOD.
You and Zip both agree unless prohibited by law, that regardless of any statute of limitations period providing for a longer period, any claim or cause of action arising out of or related to use of the Services, Terms of Use, or Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose, regardless of when discovered or be forever barred.

7.8. THIRD-PARTY BENEFICIARIES.
This Agreement is between you and Zip. No user has any right to force Zip to enforce any rights it may have against you or any other user. There are no third-party beneficiaries aside from the terms expressly referencing WebBank in this Agreement.

7.9. COVERED BORROWERS UNDER THE MILITARY LENDING ACT.
If you are a “covered borrower” as defined under 32 C.F.R. § 232.3(g) and you have received “consumer credit” as defined under 32 C.F.R. § 232.3(f) in connection with your account, then the following applies:
Important Disclosure: Federal law provides important protections to members of the Armed Forces and their dependents relating to extensions of consumer credit. In general, the cost of consumer credit to a member of the Armed Forces and his or her dependent may not exceed an annual percentage rate of 36 percent. This rate must include, as applicable to the credit transaction or account: The costs associated with credit insurance premiums; fees for ancillary products sold in connection with the credit transaction; any application fee charged (other than certain application fees for specified credit transactions or accounts); and any participation fee charged (other than certain participation fees for a credit card account). To obtain an oral statement regarding the Military Annual Percentage Rate and a description of the payment obligation, Military Lending Act covered borrowers may call: 1-888-215-2785. Note that this line is pre-recorded and does not accept voicemail.
Compliance with the Military Lending Act: Notwithstanding any other provision of this Agreement, if you are a “covered borrower”, then nothing in this Agreement shall be construed as applying to you to the extent inconsistent with the Military Lending Act, including without limitation any fees or limitations on your rights that would not be consistent with the Military Lending Act. Without limiting the foregoing, as applied to a covered borrower: (1) any charges or fees in excess of the permitted limit shall be reduced by the amount necessary to satisfy that limit and any amounts collected in excess of the permitted limit shall be refunded by crediting the covered borrower’s account or by making a direct payment to the covered borrower; (2) the arbitration terms in sections 6.1-6.6 shall not apply; and (3) all waivers of legal recourse in this Agreement shall not apply.

7.10. FEEDBACK YOU PROVIDE.
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. If we accept your submission, we do not waive any rights to use similar or related ideas or feedback previously known to us, developed by our employees, or obtained from sources other than you.

7.11. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods. This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Service-related materials obtained from the Service, Zip, or any other website or source and paying all amounts you owe (including any fees or expenses incurred or imposed by Zip) in full. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from Zip if, in our sole discretion, you fail to comply with any term or provision of this Agreement. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. This Agreement contains the entire understanding between you and Zip, and supersedes all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you except by Zip as provided herein. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon Zip’s request, you will furnish Zip any documentation, substantiation, or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Zip by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.

7.12. Material Adverse Changes.
“Material Adverse Change,” or “MAC,” shall mean any circumstance, change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, (a) has had, or may reasonably be expected to have, a material adverse effect on your assets, liabilities, properties, operations, or results of operations, or those of similarly situated individuals (b) has prevented, impaired or materially delayed, or would reasonably be expected to prevent, impair or materially delay your ability, or that of similarly situated individuals, to perform your obligations under this Agreement, including (without limitation) due to any of the following occurring in the United States or any other country or region in the world:

  • global, national or regional economic, regulatory or political conditions (or changes in such conditions), or conditions in the economy generally;
  • general conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets, including changes in interest rates, changes in exchange rates for the currencies of any countries, and changes in price levels or trading volumes;
  • acts of war, sabotage or terrorism (whether or not declared);
  • earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wildfires or other natural disasters, weather conditions and other such events;
  • any epidemic, pandemic or other outbreak of illness or public health event; or
  • changes in accounting requirements or law or the enforcement or interpretation of such changes in accounting requirements or law.

Loan Agreement

Last update: April 25, 2022

 

By requesting a loan (a “Loan”) from WebBank to finance the purchase of goods or services (“Goods”) offered by retailers who accept payment cards at the physical point of sale (“Retailers”) through the Application, you are agreeing to the terms and conditions of this Loan Agreement (the “Loan Agreement”) for such Loan. This Loan Agreement incorporates by reference the Truth in Lending Disclosures (the “Disclosure”) provided to you when you requested the Loan through the Application. If you satisfy the following conditions, we will make a loan to you to purchase these Goods if: (1) we have approved your request for credit, (2) you take any further steps we require to confirm your identity, (3) you are not in default under this Loan Agreement or under any other agreement with us or the Program Sponsor, and (4) you successfully make any required first payment reflected in the Disclosure. In the event you do not satisfy these conditions, we will not disburse Loan proceeds. We will disburse the proceeds of the Loan directly to Retailer on your behalf. In requesting the Loan from us, you promise that every statement made to us in seeking credit is true, complete and correct and that you have reached the age of majority in your state of residence.

1. Definitions.

“You,” “your,” and “Borrower” refer to the individual who is consenting to this Loan Agreement. “We,” “us,”, “our”, and “WebBank” refer to WebBank, a Utah-chartered Industrial Bank, and any successor or assignee. “Program Sponsor” means Zip Co US, Inc. “Business Day” means any Monday through Friday, except any legal holiday on which a Utah-chartered or New York-chartered bank is closed for business. “Application” means that mobile application provided by Program Sponsor through which you requested this Loan.

2. Promise to Pay.

By executing this Loan Agreement, you agree to pay the principal amount of your Loan, together with any fees, charges or other amounts owed in connection with the Loan, by making payments on or before the due dates and in the amounts set forth in the Disclosure or as otherwise required by this Loan Agreement (each due date a “Payment Due Date”). We may apply payments to amounts you owe in any manner we choose in our sole discretion, except as prohibited by law.

3. Fees.

a. Origination Fee.
We will charge you a $4.00 origination fee when we make this Loan. This origination fee is assessed and fully earned when we make the Loan. A portion of this fee is included in each payment set forth in the Disclosure.

b. Late Fee.
If we do not receive a scheduled payment in full by its Payment Due Date, then we may charge you a late fee equal to (i) $7.00 or (ii) the amount set forth in the Disclosure based on your state of residence, if less than $7.00. If you incur such a late fee, then it is due and payable immediately unless we provided otherwise.

4. Payments.

All payments must be made in U.S. dollars. You must use one of the payment options that we provide to you and comply with any payment instructions. You may not make payments in cash. You agree that we can accept late or partial payments, or payments marked “paid in full” or other restrictive endorsements, without waiving our rights. You shall not post-date any payment instrument that you provide to us. If a scheduled payment is due on a day that is not a Business Day, then the due date will be the next Business Day. All payments must be drawn on a U.S. financial institution at a U.S. branch and must be in U.S. dollars. We nevertheless reserve the right to accept payments made in foreign currency and instruments drawn on funds on deposits outside the U.S. If we do, we select the currency conversion rate at our sole discretion. We will then credit your account in U.S. dollars after deducting any costs incurred in processing your payment. We and the Program Sponsor may determine the acceptable methods of payment and may discontinue accepting any particular method of payment at any time, from time to time, for any reason, as permissible by law. Currently, acceptable methods of payment are:

  • Debit and Credit Card – Payments made by debit and credit card will be subject to the terms and conditions established by the card issuer. If charges cannot be processed through your debit or credit card, you will be responsible for any fees incurred and We and the Program Sponsor will have no liability with respect thereto.

  • Certified Check – Payments made by certified check must be made to us c/o the Program Sponsor.

Payments received after 5 p.m. (ET) will be credited as of the next day. If you have more than one Loan with us, then we will allocate payment among Loans in any manner that we choose.

5. Representations.

You represent to us that:

a. Every statement made in the application or request for this Loan is true, complete and correct, that you are the person identified in the application or request, and that you have reached the age of majority where you reside.

b. You are not contemplating bankruptcy and that you have not consulted with an attorney regarding bankruptcy in the past six (6) months.

c. You will not use any of the Loan proceeds for any postsecondary educational expenses, such as tuition, fees, books, supplies, miscellaneous expenses, or room and board. You also represent to us that you will not use the Loan proceeds for the purpose of purchasing or carrying any securities or to fund any illegal activity.

You acknowledge and agree that we may rely on the representations above without independent verification of their accuracy.

6. Returns and Exchanges.

The acceptance of a return or exchange of the Goods is subject to the Retailer's return or satisfaction policy. Subject to applicable law and unless you have otherwise received funds from Retailer in association with the return or exchange, any amounts owing to you pursuant to the return or exchange, as indicated by Retailer to us, will be credited to any outstanding amounts that you owe to us under this Loan Agreement. To the extent the unpaid principal is reduced but not satisfied, and unless you request otherwise, the amount that you owe to us on each Payment Due Date will be reduced. We will e-mail you an updated Payment Schedule setting forth the reduced payment amounts.

7. Prepayment.

You may prepay the unpaid principal balance in full or in part at any time. If you make a prepayment, you will not have to pay a penalty. However, unless you and we agree otherwise, you cannot generally rely on an excess payment made on or before one payment due date to satisfy the payment obligation associated with the next payment due date.

8. Credit Reporting.

You authorize us and the Program Sponsor to obtain consumer reports about you and to make direct inquiries of businesses where you have accounts. This authorization begins when you consent to this Loan Agreement and ends when you pay in full everything that you owe pursuant to this Loan Agreement. We and/or the Program Sponsor may obtain consumer reports and make direct inquiries for any purpose, including without limitation in connection with any modification, renewal, extension, or collection of this Loan, administering your Loan account, and to consider you for offers of other products and services. Upon your request we will disclose whether a consumer report was requested and the name and address of any consumer reporting agency that furnished the report. We may report information about your Loan account to credit bureaus. Late payments, missed payments, or other defaults on your account may be reflected in your credit report.

If you believe that we have reported inaccurate information to a consumer reporting agency, write to us at [email protected] and we will investigate the matter. Please identify the inaccurate information and tell us why you believe the information is incorrect. If you have a copy of the consumer report that includes the inaccurate information, please send a copy of that report as well.

9. Default and Remedies.

Subject to the limitations of applicable law and any right to notice and/or to cure under applicable law, you will be deemed in default under this Loan Agreement if: (a) we fail to receive any payment by its due date; (b) you file or have instituted against you any bankruptcy or insolvency proceedings or make any assignment for the benefit of creditors; (c) you are declared legally incompetent or incapacitated; (d) you fail to notify us in writing of a change in your name, address, telephone number within 10 days after a change occurs; (e) we reasonably believe that you have provided inaccurate, untrue, or incomplete information in connection with the Loan or your application, you have breached a representation in this Loan Agreement, or you otherwise tried to defraud us; or (f) you breach any term of this Loan Agreement (each, an “Event of Default”). Upon the occurrence of an Event of Default and subject to any right to cure under applicable law, we may exercise all remedies available to us under applicable law, including, without limitation, accelerating your balance and demanding payment in full of all that you owe under this Loan Agreement, subject to any notice requirement, right to reinstate, or other limitation provided by law; disclosing information about you and your conduct to one or more consumer reporting agencies; and/or instituting legal action to recover all amounts owed.

10. Collection Costs.

If we hire an attorney that is not employed by us to collect what you owe, you will pay the attorney’s fee to the extent that it is reasonable and allowed by law. You also will pay any court costs and any reasonable collection costs that we incur to the extent allowed by law. We will limit these costs where required by applicable law.

11. Communications.

You agree that we may monitor and/or record your calls with us. You further agree that we may contact you by email, text messages or with an automated dialing and announcing or similar device and/or an artificial voice or prerecorded message. You also agree that we may contact you at any telephone number you provide to us, whether a residential or business number, even if that number is a wireless, cellular or mobile number; is converted to a mobile/wireless number; or connects to any type of mobile/wireless device. Additionally, you authorize the Program Sponsor and our service providers, debt collectors, and collection attorneys to contact you using these methods. Except as prohibited by law, you agree that any statement, disclosure, or written notice, required by this Loan Agreement or law, may be sent to the e-mail address you have provided to us or the Program Sponsor. It is your sole responsibility to provide and maintain your current mailing address, email address, and other contact information with us.

12. Governing Law; Enforceability.

Except as set forth in the Arbitration Provision, this Loan Agreement and all related disputes are governed by the laws of the United States and, to the extent state law applies, the laws of the State of Utah. Except as provided in the Arbitration Provision, if any provision of this Loan Agreement is determined to be void or unenforceable under any applicable law, rule or regulation, all other provisions of this Loan Agreement will remain valid and enforceable. Our failure to exercise any of our rights under this Loan Agreement will not be deemed to waive our rights to exercise such rights in the future. This Loan Agreement is a final expression of the agreement between you and us and this Loan Agreement may not be contradicted by evidence of any alleged oral agreement. The terms of this Loan Agreement may not be changed except in a writing signed by you and us. No change shall release any party from liability unless otherwise expressly stated in writing. All of our rights are cumulative.

13. Covered Borrowers Under the Military Lending Act.

If you are a member of the armed forces, or a dependent of such member, who is a “covered borrower” as defined under 32 C.F.R. § 232.3(g) as of the date you agree to your Loan and you have received “consumer credit” as defined under 32 C.F.R. § 232.3(f) in connection with your Loan, then the following applies:

a. Important Disclosure: Federal law provides important protections to members of the Armed Forces and their dependents relating to extensions of consumer credit. In general, the cost of consumer credit to a member of the Armed Forces and his or her dependent may not exceed an annual percentage rate of 36 percent. This rate must include, as applicable to the credit transaction or account: The costs associated with credit insurance premiums; fees for ancillary products sold in connection with the credit transaction; any application fee charged (other than certain application fees for specified credit transactions or accounts); and any participation fee charged (other than certain participation fees for a credit card account). To obtain an oral statement regarding the Military Annual Percentage Rate and a description of the payment obligation, Military Lending Act covered borrowers may call: 1-888-215-2785. Note that this line is pre-recorded and does not accept voicemail.

b. Compliance with the Military Lending Act: Notwithstanding any other provision of this Loan Agreement, if you are a “covered borrower”, then nothing in this Loan Agreement shall be construed as applying to you to the extent inconsistent with the Military Lending Act, including without limitation any finance charges, fees, or limitations on your rights that would not be consistent with the Military Lending Act. Without limiting the foregoing, as applied to a covered borrower: (1) any charges or fees in excess of the permitted limit shall be reduced by the amount necessary to satisfy that limit and any amounts collected in excess of the permitted limit shall be refunded by crediting the covered borrower’s account or by making a direct payment to the covered borrower; (2) the Arbitration Provision in section 14 below shall not apply; and (3) all waivers of legal recourse in this Loan Agreement shall not apply.

14. Arbitration Provision.

 READ THIS ARBITRATION PROVISION. THIS “ARBITRATION PROVISION” WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU AND WE RESOLVE ANY CLAIM WHICH YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE. THIS ARBITRATION PROVISION DOES NOT APPLY IF, AS DESCRIBED ABOVE, YOU ARE A MEMBER OF THE ARMED FORCES OR A DEPENDENT OF SUCH MEMBER COVERED BY THE FEDERAL MILITARY LENDING ACT.

a. General: This Arbitration Provision describes when and how a Claim (as defined below) may be arbitrated. Arbitration is a method of resolving disputes in front of one or more neutral persons, instead of having a trial in court in front of a judge and/or jury. It can be a quicker and simpler way to resolve disputes. Arbitration proceedings are private and less formal than court trials. Each party to the dispute has an opportunity to present some evidence to the arbitrator. The arbitrator will issue a final and binding decision resolving the dispute(s), which may be enforced as a court judgment. A court rarely overturns an arbitrator's decision. As solely used in this Arbitration Provision, the terms “we”, “us” and “our” mean not just WebBank but also the Program Sponsor and WebBank’s and the Program Sponsor’s parent companies, wholly or majority-owned subsidiaries, affiliates, commonly- owned companies, successors, assigns, vendors, service providers, and any of these entities' employees, officers, directors, and agents. For purposes of this Arbitration Provision, these terms also mean any third party providing any goods and/or services in connection with the origination, servicing, and collection of this Loan Agreement, if you name that third party and us as defendants in a single proceeding.

b. What Claims are Covered: “Claim” means any claim, dispute or controversy between you and us that in any way arises from or relates to the extension of credit, the Product(s) or this Loan Agreement, or the relationships between you and us resulting from any of the foregoing, including disputes arising from actions or omissions on or prior to the date of this Loan Agreement. “Claim” has the broadest reasonable meaning, and includes initial claims, counterclaims, crossclaims and third-party claims. It includes disputes based upon contract, negligence, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). Despite the foregoing, “Claim” does not include any individual action brought by you in small claims court or your state's equivalent court, unless such action is transferred, removed, or appealed to a different court. In addition, except as set forth in the immediately following sentence, “Claim” does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, this sentence, the prohibitions against class proceedings, private attorney general proceedings and/or multiple-party proceedings described in subsection f, captioned “Prohibition Against Certain Proceedings” (the “Class Action Waiver”), or the last sentence of Section L, captioned “Rules of Interpretation”); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of this Loan Agreement as a whole is for the arbitrator, not a court, to decide.

c. Starting or Electing to Require Arbitration: Either you or we may elect to arbitrate a Claim by giving the other party written notice of the intent to arbitrate the Claim or by filing a motion to compel arbitration of the Claim. This notice may be given before or after a lawsuit has been filed concerning the Claim or with respect to other Claims brought later in the lawsuit, and it may be given by papers filed in the lawsuit, such as a motion to compel arbitration. Each of the arbitration administrators listed below has specific rules for starting an arbitration proceeding. Regardless of who elected arbitration or how arbitration was elected, the party asserting the Claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. Thus, if you assert a Claim against us in court, and we elect to arbitrate that Claim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Similarly, if we assert a Claim against you in court, you assert a counterclaim against us, and we elect to arbitrate that counterclaim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Even if all parties have opted to litigate a Claim in court, you or we may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a Claim 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 Provision.

d. Choosing the Administrator: “Administrator” means the American Arbitration Association (“AAA”), 120 Broadway, Floor 21, New York, N.Y 10271, www.adr.org; JAMS, 1920 Main St. at Gillette Ave., Suite 300, Irvine, CA 92614, www.jamsadr.com; or any other company selected by mutual agreement of the parties. If AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The party asserting the Claim (the “Claimant”) may select the Administrator. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that purports to override the Class Action Waiver.

 e. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU AND WE WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR AND OUR ABILITY TO OBTAIN INFORMATION FROM THE OTHER PARTY IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.

 f. Prohibition Against Certain Proceedings: IF YOU OR WE ELECT TO ARBITRATE A CLAIM: (1) NEITHER YOU NOR WE MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A PLAINTIFF, DEFENDANT OR CLASS MEMBER; (2) NEITHER YOU NOR WE MAY ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN AN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION, OR MULTIPLE-PARTY ARBITRATION.

g. Location and Costs of Arbitration: Any arbitration hearing that you attend in person must take place at a location reasonably convenient to you, as determined by the arbitrator. Each Administrator charges fees to administer an arbitration proceeding and the arbitrator also charges fees. This includes fees not charged by a court. If either you or we require a Claim to be arbitrated, you may tell us in writing that you cannot afford to pay the fees charged by the Administrator and/or the arbitrator or that you believe those fees are too high. If your request is reasonable and in good faith, we will pay or reimburse you for all or part of the fees charged to you by the Administrator and/or arbitrator. Also, we will pay these fees if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. We will not ask you to pay or reimburse us for any fees we pay the Administrator or arbitrator. We will bear the expense of our attorneys, experts and witnesses. You will bear the expense of your attorneys, experts and witnesses if we prevail in an arbitration. However, if you are the Claimant, we will pay your reasonable attorney, expert and witness fees and costs if you prevail or if we must bear such fees and costs in order for this Arbitration Provision to be enforced. Also, we will bear any fees and costs if applicable law requires us to do so.

h. Governing Law: This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. 1-16 (the “FAA”), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator is authorized to award all remedies permitted by the substantive law that would apply to an individual action brought in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.

i. Right to Discovery: In addition to the parties' rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.

j. Arbitration Result and Right of Appeal: At the timely request of either party, the arbitrator shall provide a written explanation for the award. If the amount at stake in the arbitration (including the value or cost of any equitable relief) is at least $25,000, either party may appeal the arbitrator's decision within 30 days to a single arbitrator or a three- arbitrator panel selected in accordance with the Administrator's rules, which shall resolve the Claim without regard to the original decision. We will pay the entire cost of an appeal unless we are willing to have the appeal decided by a single arbitrator and you insist upon a three-arbitrator panel. In such event, you will be responsible for paying your portion of the difference in arbitration fees between a single arbitrator and a three-arbitrator panel, as determined by the panel. However, we will pay all costs to the extent required by law and/or required to enforce this Arbitration Provision. The original award or any subsequent award on the appeal described above shall be final and binding, subject to any further right to appeal provided by the FAA. The arbitrator's award may be entered by any court having jurisdiction.

 k. RIGHT TO REJECT ARBITRATION You may reject this Arbitration Provision by mailing a special rejection notice to WebBank c/o Program sponsor at 28 Park Avenue South · PMB 59872 · New York, NY 10003-1502. You must sign the rejection notice, affirmatively state that you do not want arbitration to apply to this Loan Agreement and provide your account number, name, address and telephone number. We must receive your rejection notice within 60 days after the date of this Loan Agreement. You may not reject arbitration by phone or by any method other than the method described above. If you reject this Arbitration Provision, that will not affect any other provision of the Loan Agreement.

l. Rules of Interpretation: This Arbitration Provision shall survive termination or cancellation of the Loan Agreement; the sale or assignment of your Loan by us to a third-party; the repayment of some or all amounts owed under the Loan Agreement (or any prior loan(s) obtained by you from us); the termination, cancellation or suspension of credit privileges under the Loan Agreement; any legal proceeding; and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision, on the one hand, and the applicable arbitration rules or the other provisions of the Loan Agreement, on the other hand, this Arbitration Provision shall govern. If any portion of this Arbitration Provision is deemed invalid or unenforceable, it shall not invalidate the Loan Agreement (or any prior loan(s) obtained by you from us) or the remaining portions of this Arbitration Provision, except that:

  • The parties acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between them and is non-severable from this Arbitration Provision. If the Class Action Waiver is limited, voided or found unenforceable, then this Arbitration Provision (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and

  • If a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Arbitration Provision 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.

m. Notice and Cure; Special Payment: Prior to initiating a lawsuit or an arbitration proceeding under this Arbitration Provision, the Claimant shall give the other party or parties written notice of the Claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you shall be sent in writing by mail to your address on the first page of this Loan Agreement (or any updated address you subsequently provide). Any Claim Notice to us shall be sent by mail to our address on the first page of this Loan Agreement (or any updated address we subsequently provide), Attn: Claim Notice. Any Claim Notice you send must identify yourself by including your name, address and account number. Any Claim Notice must explain the nature of the Claim and the relief demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests and must give the other party a reasonable opportunity to respond to the demand for relief.

If: (i) you submit a Claim Notice in accordance with this subsection on your own behalf (and not on behalf of any other party); and (ii) we refuse to provide you with the relief you request before an arbitrator is appointed; and (iii) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $7,500 (not including any arbitration fees and attorneys' fees and costs to which you may be entitled).

15. No Waiver by Us.

We may, without notice to you, delay or refrain from enforcing our rights under this Loan Agreement without losing them. For example, we may extend the time to make a payment without extending the time to make other payments, accept late or partial payments without waiving our right to have future payments made when they are due, or waive any fee without losing the right to impose that fee when due in the future.

16. Assignment.

We may assign our rights or obligations under this Loan Agreement without prior notice to you. You may not assign your rights or obligations under this Loan Agreement without our consent.

17. Entire Agreement.

The Loan Agreement represents the entire agreement between you and us regarding the subject matter hereof and supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between us with respect to your application and loan.

18. Severability.

If any provision of this Loan Agreement shall be or become wholly or partially invalid, illegal or unenforceable, such provision shall be enforced to the extent that its legal and valid and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby, unless such enforcement is in manifest violation of the present intention of the parties reflected in this Loan Agreement.

19. Savings Clause.

If a law applicable to the Loan, sets maximum interest, fees, or charges for the Loan, and is finally interpreted such that interest, fees, or charges due or collected under the Loan exceed the permitted limits then: (a) any such interest, fee, or charge will be reduced by the amount necessary to comply with the permitted limit; and (b) upon request or as soon as practicable upon discovery by us, any amounts already collected from you exceeding such a permitted limit will be refunded to you. We may choose to make this refund by crediting the balance due under the Loan or by making a direct payment to you.

20. Events Beyond Our Reasonable Control.

To the maximum extent permitted by applicable law, we and the Program Sponsor will not be liable to you for any delay or failure in our performance under this Loan Agreement or other promises to you to the extent caused by any act of God, war, terrorism, strike, labor dispute, fire, act of government, or any other similar cause beyond our reasonable control that renders our performance impossible, impractical, or untenable.

21. Federal and State Law Notices.

Notices apply only to the residents of the specified states where indicated.

All Borrowers: Important Information About Procedures for Opening a New Account To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account.

What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's license or other identifying documents.

All Borrowers: YOU AGREE AND ACKNOWLEDGE THAT PURSUANT TO UTAH CODE ANN. § 70C-3-104 YOU ARE WAIVING YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION RELATED TO THIS LOAN AGREEMENT.

All Borrowers, including California/New York/Rhode Island/Utah/Vermont residents: 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 Loan Agreement, taking collection action on this Loan Agreement, or for any other legitimate purposes associated with this Loan Agreement. Upon your request, you will be informed of whether or not a consumer credit report was ordered, and if it was, you will be given the name and address of the consumer reporting agency that furnished the report. As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.

California residents: A married applicant may apply for a separate account. As required by California law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.

Iowa residents: NOTICE TO CONSUMER: 1. Do not sign this paper before you read it. 2. You are entitled to a copy of this paper. 3. You may prepay the unpaid balance at any time without penalty and may be entitled to receive a refund of unearned charges in accordance with law.

Kansas residents: NOTICE TO CONSUMER: 1. Do not sign this agreement before you read it. 2. You are entitled to a copy of this agreement. 3. You may prepay the unpaid balance at any time without penalty.

Massachusetts residents: Massachusetts law prohibits discrimination based upon marital status or sexual orientation.

Missouri residents: Oral or unexecuted agreements or commitments to loan money, extend credit or to forbear from enforcing repayment of a debt including promises to extend or renew such debt are not enforceable. To protect you (borrower(s)) and us (creditor) from misunderstanding or disappointment, any agreements we reach covering such matters are contained in this writing, which is the complete and exclusive statement of the agreement between us, except as we may later agree in writing to modify it.

Nebraska residents: NOTICE TO CONSUMER: 1. Do not sign this paper before you read it. 2. You are entitled to a copy of this paper. 3. You may prepay the unpaid balance at any time without penalty and may be entitled to receive a refund of unearned charges in accordance with law.

A credit agreement must be in writing to be enforceable under Nebraska law. To protect you and us from any misunderstandings or disappointments, any contract, promise, undertaking, or offer to forebear repayment of money or to make any other financial accommodation in connection with this Loan of money or grant or extension of credit, or any amendment of, cancellation of, waiver of, or substitution for any or all of the terms or provisions of any instrument or document executed in connection with this Loan of money or grant or extension of credit, must be in writing to be effective.

New Hampshire residents: You are not required to sign this agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods or services. Reasonable attorney fees shall be awarded to the prevailing party in any action you bring against us or we bring against you. If we successfully assert a partial defense or set-off, recoupment, or counterclaim to an action brought by you, the court may withhold from you the entire amount or such portion of the attorney’s fees as the court considers equitable.

New Jersey residents: Because certain provisions of this agreement are subject to applicable law, they may be void, unenforceable or inapplicable in some jurisdictions. None of these provisions, however, are void, unenforceable or inapplicable in New Jersey.

Ohio residents: The Ohio laws against discrimination require that all creditors make credit equally available to all creditworthy customers, and that credit reporting agencies maintain separate credit histories on each individual upon request. The Ohio Civil Rights Commission administers compliance with the law.

Texas residents: You hereby waive your common law rights to receive notice of intent to accelerate and notice of acceleration. This means that you give up the right to receive notice that we intend to demand that you pay all that you owe on this agreement at once (accelerate) and notice that we have accelerated.

Utah residents: This written agreement is a final expression of the agreement between you and us and the written agreement may not be contradicted by evidence of any alleged oral agreement.

Washington residents: ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.

Wisconsin residents: For married Wisconsin residents, your signature confirms that this loan obligation is being incurred in the interest of your marriage or family. No provision of any marital property agreement (pre-marital agreement), unilateral statement under § 766.59 of the Wisconsin statutes or court decree under § 766.70 adversely affects our interest unless, prior to the time that the loan is approved, we are furnished with a copy of the marital property agreement, statement, or decree or have actual knowledge of the adverse provision. If this Loan for which you are applying is granted, agree to notify us if you have a spouse who needs to receive notification that credit has been extended to you.

The section headings of this Loan Agreement are a table of contents and not contract terms.

NOTICE

 ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

By consenting to this Loan Agreement electronically in the Application, you are (i) acknowledging that you have read and understand all terms and conditions of this Loan Agreement, including the Arbitration Provision and the Disclosure; (ii) agreeing to the terms and conditions set forth in this Loan Agreement for the requested Loan; and (iii) agreeing that this Loan Agreement, including the incorporated Disclosure, shall serve as the electronic record documenting the contract between you and us; and (iv) agreeing that your acceptance using the Application shall serve as your electronic signature to this Loan Agreement.