Effective: July 26, 2016
1. Service Overview
2. Accounts and Registration
3. Service Rights; Restrictions
4. User Representation
5. Offers and User Content
8. Termination of Use; Discontinuation and Modification of the Service
9. Additional Terms; Changes to the Terms
10. Disclaimers; No Warranties
11. All Users: E-SIGN CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES
12. Copyright Complaints
13. Limitation of Liability
14. Governing Law
15. Arbitration; No Class Actions
UpLift provides a service for offering closed-end installment loan products by CBW Bank (“Bank”), optimizing and fulfilling consumer rewards, perks, messaging and incentives, and performing business analytics. We may provide you access to an application programming interface (“API”) as part of the Service.
In consideration for access to the Site and the Services and products offered on or through the Site you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address, your mobile phone number or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times and you will promptly notify us regarding any material changes to information or circumstances that could affect your eligibility to continue to use the Site or Service or the terms on which you use the Site or Service. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. Additionally, when you register you may be asked to provide your Mobile Phone number with Text message capabilities to be used for access your account. You are solely responsible for maintaining the confidentiality of your account and access method. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
3.1 Use of the Service. All content on the Site, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement (the “Site Content”), are the proprietary property of the UpLift with all rights reserved. Subject to the terms and conditions of these Terms, we grant to you a limited, worldwide, non-exclusive, non-sublicensable, non-transferable right during the term of these Terms to: (a) use the Service solely on your behalf and (b) utilize any Code only on websites owned, operated or controlled by you. You may allow a third party to exercise the foregoing right on your behalf, provided that you are fully responsible for the acts and omissions of such third party as if they were your acts and omissions. You may not use any part of the Service for any purpose other than for which the Service is expressly designed. You will comply with all applicable laws and regulations in your use of the Service, including in your use of the Code.
3.2 Prohibited Conduct. You may not, and may not permit others to (a) use the Service in a manner that violates, or encourage others to violate, the rights of third parties, including rights of card networks under their agreements with you; (b) use the Service for any illegal purpose, or in violation of any local, state, national, or international laws or regulations; (c) interfere with security-related features of the Service, including by disabling or circumventing features that prevent or limit use or copying of any content; or (d) intentionally interfere with or damage, impair, or disable the operation of the Service (or any part thereof) or any customer’s enjoyment of it, by any means.
3.3 License Restrictions. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without UpLift’s prior written permission, except as provided in the following sentence and except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site. Except as expressly provided in these Terms, you may not, and may not permit others to (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service (or any part thereof) or otherwise make the Service (or any part thereof) available to any third party; (b) alter, modify or create derivative works of the Service (or any part thereof); (c) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service (or any part thereof) or during the use and operation of the Service (or any part thereof); or (d) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such restriction is expressly prohibited by applicable law.
use any automated means to access this Site or collect any information from the Site (including, without limitation, robots, spiders, scripts or other automatic devices or programs);
frame the Site, utilize framing techniques to enclose any Site Content or other proprietary information, place pop-up windows over this Site’s pages, or otherwise affect the display of this Site’s pages;
engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;
upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial or non-commercial solicitation or bulk communications of any kind to any UpLift users or third party;
use data provided by UpLift, provided in any manner whatsoever, for any competing uses or purposes. You further agree that you have never used data, provided in any manner whatsoever, from UpLift in the past to compete with the products or services of UpLift; or
use this Site in any manner that violates applicable law or that could damage, disable, overburden, or impair this Site or interfere with any other party’s use and enjoyment of this Site.
3.5 Feedback. If you provide feedback to UpLift regarding the Service (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize UpLift to use that Feedback without restriction and without payment to you. Accordingly, you grant to UpLift a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.
In addition, you agree not to use the Service or the Site to:
register for more than one User account, register for a User account on behalf of an individual other than yourself, operate a User account on behalf of or for the benefit of any person who is not eligible to register for or operate a User account in their own name, or register for a User account on behalf of any group or entity (other than approved investment accounts opened on behalf of legal entities);
impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with or authority to act on behalf of any person or entity;
upload, post, transmit, share or otherwise make available any material that contains software viruses or any other malicious or tracking computer code, files or programs designed to track, interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
use or attempt to use another’s account, service or system without authorization from that person and UpLift, or create a false identity on the Service or the Site; or
upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of UpLift, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose UpLift or its Users to any harm or liability of any type.
5.1 Offers. You acknowledge and agree that you shall be solely responsible and fully liable for fulfilling any rewards or other offers you make to your customers, including through the Service. You represent and warrant that all reward and offers you make and fulfill in connection with the Service are in compliance with all applicable laws and regulations and your agreements with third parties.
5.2 User Content. Certain features of the Service may allow you to submit offers and other content, including messaging, images, reward offers, and other types of works to the Service (collectively, “User Content”) and to publish User Content through the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you submit to the Service. By providing User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to UpLift an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. By submitting or publishing the User Content, you affirm, represent, and warrant that:
You are solely responsible for the personal or other information, photos, profiles, messages, notes, text, information, music, video, contact information for you or others, advertisements or other content that you upload, publish, provide or display (hereinafter, “post”) on or through the Service or the Site.
You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize us to exercise the licenses granted by you in this Section and in the manner contemplated by these Terms; and
The User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
Additionally, you may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will not expire.
You agree not to submit or publish any User Content that is unlawful. We expressly disclaim any and all liability in connection with the User Content. If notified by a user or content owner that the User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service.
Access to the Service, or to certain features of the Service, may require you to pay fees. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. If UpLift changes the fees for the Service, including by adding additional fees or charges, UpLift will provide you advance notice of such changes. If you do not accept such changes, UpLift has the right to discontinue providing the Service to you. UpLift will charge the payment method you specify at the time of purchase. You authorize UpLift to charge all sums described herein to such payment method. If you pay any applicable fees with a credit card, UpLift may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
We may terminate, disable or throttle your access to, or use of, this Site and the Services at any time without notice for any reason, with or without cause at UpLift’s sole discretion. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at email@example.com. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination. Failure by UpLift to enforce any of its rights under this Agreement shall not be construed as a waiver of those rights or any other rights in any way whatsoever.
9.1 Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as terms specific to any API that we may offer, or rules applicable to particular features or content on the Service, subject to Section 9.2 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
UpLift makes no representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. UpLift expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and noninfringement. UpLift does not warrant against interference with the enjoyment of the service. UpLift does not warrant that the service is error-free or that operation of the service will be secure or uninterrupted. UpLift does not warrant that any information provided through the service is accurate or complete or that any information provided through the service will always be available. UpLift exercises no control over and expressly disclaims any liability arising out of or based upon the results of your use of the service.
Because the UpLift platform operates only on the Internet, whether you choose to participate on our platform as a borrower, investor, merchant or in any other manner, it is necessary for you to consent to transact business with us online and electronically. This E-Sign Consent constitutes your consent to receive disclosures and other information in electronic form. In connection with the UpLift Services, UpLift and CBW Bank, A Kansas State Chartered Bank,who is the lender of all loans, are required by law to provide you with certain disclosures. Without your consent, Uplift is not permitted to provide those disclosures to you online. If you do not consent to this E-Sign Consent, you should choose another payment option.
By electronically signing, you agree that UpLift and CBW Bank may provide this Agreement, all disclosures, statements, notices, privacy policies, and other communications and agreements (including any IRS Forms) related to the service, including disclosures required by law (collectively, “Electronic Communications”) electronically either via our Site or an UpLift Enabled Site, Service, Text message to your mobile device, or to the email address you provide to us.
IRS Forms refers to any Forms or other Form, Schedule or information statement, including corrections of such documents, required to be provided pursuant to U.S. Internal Revenue Service rules and regulations and that may be provided electronically (each, an “IRS Forms”).
From time to time or when you receive the notification, you agree to promptly visit the UpLift Borrower Portal Site to view the Electronic Communication. You may log in to the UpLift Borrower Portal using the login and “Password” information you created. “Password” means the security code and/or other method of authentication, including receiving a text message to your supplied mobile device, that you are provided to access the UpLift Service and its information electronically. You agree not to disclose your Password to others and to keep it secure.
You also agree that your use of your Password constitutes, and you intend it to constitute, your electronic or digital signature on any document or record where your signature is requested or required. By logging in to the UpLift Borrower Portal and using your Password, you demonstrate that you can access information that we post there.
Upon your request, we will send you a paper copy of any material provided electronically pursuant to this consent. There is no charge for initial paper copies. You have the right to withdraw consent but if you do, we may terminate the User Agreement. To withdraw your consent to electronic disclosures, update your electronic mail address or request paper copies, contact us by email at firstname.lastname@example.org or at
Att: E-sign consent
440 North Wolfe Road
Sunnyvale CA 94085
We recommend that you print a copy of this disclosure statement to keep for your own records.
You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your application, loan and/or account. You certify, warrant and represent that the telephone numbers that you have provided to us are your numbers and not someone else’s. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to alert us whenever you stop using a particular telephone number.
If you have provided consent for telemarketing calls, you agree that (i) we, our agents, representatives, affiliates, third parties, and anyone calling on our behalf may call, email or SMS messages (including text messages) you at the numbers and addresses you have provided for purposes of describing goods and services that may be of interest to you, offered by us, our affiliates and/or third parties; (ii) agree these calls, text and email messages may be made using an automatic dialing, texting or email system technology and/or involve prerecorded and/or artificial voice messaging. Your consent, if provided, will be effective even if the number you have provided is registered on any state or federal Do-Not-Call (DNC) list. This consent for telemarketing calls shall remain in effect until you revoke it. Your consent to telemarketing calls may be revoked by informing the telemarketing representative, or any other method, which ensures we receive the revocation.
Your consent to telemarketing calls is not a condition of obtaining your loan or using an UpLift service.
You also understand that your cellular or mobile telephone provider will charge you according to the type of plan you carry.
You can revoke your consent by contacting us via email at email@example.com or by calling Member Support at (844) 257-5400. You may also reach us in writing to us at the following address: UpLift, Inc. 440 North Wolfe Road, Sunnyvale CA 94085, Attention: Advocacy.
CALL RECORDING AND MONITORING:
You consent to the recording and monitoring, for quality assurance, training, risk management and/or collection purposes, of any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.
Scope of Consent.
Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate, whether between you and UpLift or between you and Bank. Your consent will remain in effect for so long as you are a User and, if you are no longer a User, will continue until such a time as all Disclosures relevant to transactions that occurred while you were a User have been made.
Consenting to Do Business Electronically.
Before you decide to do business electronically with UpLift or Bank, you should consider whether you have the required hardware and software capabilities described below.
Hardware and Software Requirements.
In order to access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements (as revised from time-to-time by us): access to the Internet; an email account and related software capable of receiving email through the Internet; supported Web browsing software (Chrome version 32.0 or higher, Firefox version 26.0 or higher, Internet Explorer version 8.0 or higher, or Safari version 7.0 or higher); and hardware capable of running this software.
Additional Mobile Technology Requirements.
If you are accessing our site and the Disclosures electronically via a mobile device (such as a smart phone, tablet, and the like), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print and save the Disclosures presented to you during the application process. These applications can be found for most mobile devices in the device’s respective “app store”. If you do not have these capabilities on your mobile device, please access our site through a device that provides these capabilities.
You may withdraw your consent to receive Disclosures electronically by contacting us at the address below. However, once you have withdrawn your consent you will not be able to post loan requests on our Site. If you have a pending loan request on our Site we will terminate it and remove it from our system. If you have already received a loan, all previously agreed to terms and conditions will remain in effect, and we will send Disclosures to your verified home address provided during registration. If you are an investor member on the Site and you withdraw your consent to receive Disclosures electronically, you may continue to contribute funds to requests on the Site. If you have already purchased one or more loans, all previously agreed to terms and conditions will remain in effect, and we will send Disclosures to your verified home address provided during registration (except with regard to investor members that are entities, as discussed under “Terms Applicable to Business and Other Entity Users” below).
If you withdraw your consent to receive IRS Forms 1099 electronically, we will confirm your withdrawal and its effective date in writing by email. Such withdrawal will take effect for the calendar year in which it is made so long as such withdrawal is made before November 1 of such calendar year.
How to Contact Us regarding Electronic Disclosures.
You can contact us via email at firstname.lastname@example.org or by calling Member Support at (844) 257-5400. You may also reach us in writing to us at the following address: UpLift Inc, 440 North Wolfe Road, Sunnyvale CA 94085.
You will print a copy of this Agreement for your records and you agree and acknowledge that you can access, receive and retain all Disclosures electronically sent via email or posted on the Site.
Change in Your Contact Information.
If you are an individual User, you will keep us informed of any change in your email or home mailing address so that you can continue to receive all Disclosures in a timely fashion. If your registered email address changes, you must notify us of the change by sending an email to email@example.com or by calling Member Support at (844) 257-5400. You also agree to update your registered residence address and telephone number on the Site if they change.
If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to us as designated below:
Attention Copyright Department
440 North Wolfe Road
Sunnyvale CA 94085
To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, UpLift has adopted a policy of terminating, in appropriate circumstances and at the UpLift’s sole discretion, the memberships of members who are deemed to be repeat infringers. UpLift may also at its sole discretion limit access to the Site and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to UpLift are non-confidential and shall become the sole property of UpLift. The UpLift shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Links to Other Web Sites and Content
The Site contains (or you may be sent through the Site or the Services) links to other web sites (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the “Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Site or any Third Party Content posted on the Site, including without limitation the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sites or the Third Party Content. Inclusion of or linking to any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third Party Sites, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users.
None of Uplift’s, its parent, any of its affiliates, subsidiaries, providers or their respective officers, directors, employees, agents, independent contractors or licensors (collectively the “UpLift Parties”) guarantees the accuracy, adequacy, timeliness, reliability, completeness, or usefulness of any of the Site Content, User Content or Third Party Content (collectively “Content”) and the UpLift Parties disclaim liability for errors or omissions in the Content.
This Site and all of the Content is provided “as is” and “as available,” without any warranty, either express or implied, including the implied warranties of merchantability, fitness for a particular purpose, noninfringement or title. Additionally, there are no warranties as to the results of your use of the Content. The UpLift Parties do not warrant that the Site is free of viruses or other harmful components. This does not affect those warranties which are incapable of exclusion, restriction or modification under the laws applicable to this Agreement.
UpLift does not guarantee the accuracy of any User Content or Third Party Content. Although we provide rules for User conduct and postings, we do not control and are not responsible for what Users post on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site or in connection with any User Content or Third Party Content. UpLift is not responsible for the conduct, whether online or offline, of any User of the Site or Service. UpLift cannot guarantee and does not promise any specific results from use of the Site and/or the Service to obtain a loan.
The Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. UpLift assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. UpLift is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Site or combination thereof, including injury or damage to Users or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will UpLift be responsible for any loss or damage, including any loss or damage to any User Content, financial damages or lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Site or the Service, any User Content or Third Party Content posted on or through the Site or the Service or transmitted to Users, or any interactions between Users of the Site, whether online or offline.
UpLift reserves the right to change any and all content contained in the Site and any Services offered through the Site at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by UpLift.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE expressly prohibited by law,IN NO EVENT WILL UPLIFT OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS, LOST DATA OR OTHER INTANGIBLE LOSSES ARISING FROM OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE UPLIFT ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
You agree that the aggregate liability of the UpLift entities to you for any and all claims arising out of relating to the use of or any inability to use the service (including any materials or content available through the service) or otherwise under these terms, whether in contract, tort, or otherwise, is limited to the greater of (i) the amounts you have paid to uplift for access to and use of the service in the 12 months prior to the claim or (ii) $100.
Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this Section 13 will apply even if any limited remedy fails of its essential purpose.
These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and UpLift agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes. If you obtain a loan through UpLift, the terms of the loan will be governed by federal laws and the laws stated in your loan agreement and Promissory Note to the extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of the laws of any other jurisdiction.
RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS MY RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND ME. I UNDERSTAND THAT I HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN PARAGRAPH (b) BELOW.
a. Either party may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 15 (the “Arbitration Provision”), unless you opt out as provided in Section 15(b) below. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or any subsequent holder (or persons claiming through or connected with us and/or the subsequent holders), on the other hand, relating to or arising out of this Agreement, any Loan Agreement and Promissory Note(s), the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of Section 15(f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counterclaims, crossclaims, third party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to CBW Bank, c/o UpLift, Inc. 440 North Wolfe Road, Sunnyvale CA 94085, Attention: Legal Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.
c. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
d. If we (or the subsequent holder) elect arbitration, we (or the subsequent holder, as the case may be) shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We (or the subsequent holder, as the case may be) shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we (or the subsequent holder) pay them and we agree (or the subsequent holder agrees) to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.
f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 15(f), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 15(f) shall be determined exclusively by a court and not by the administrator or any arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties and/or UpLift; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or Loan Agreement or Promissory Note(s) or any other promissory note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than Section 15(f) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration proceeding is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 15(f) are finally adjudicated pursuant to the last sentence of Section 15(f) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.