Effective: October 17, 2019
This Agreement contains an arbitration clause which includes, but is not limited to, waiver of your right to sue in court, your right to a jury and your right to participate in class actions. Please review Section 21 for the details regarding your agreement to arbitrate any disputes with us.
- This Agreement
- Service Overview
- Using the Service
- Other Borrower Agreements; Use of Loan Proceeds
- Account Termination, Agreement Cancellation and Restrictions
- Communication & Notification
- Feedback and Submissions
- Service Rights; Restrictions
- Termination of Use; Discontinuation and Modification of the Service
- Additional Terms; Changes to the Terms
- Disclaimers; No Warranties
- Copyright Complaints
- Links to Other Web Sites and Content
- Limitation of Liability
- Governing Law
- Arbitration; No Class Actions
1. This Agreement
2. Service Overview
2.1 Service Description. Uplift offers access to closed-end installment loan products. All loans originated through the Uplift platform are made by the Originating Bank. Uplift provides the Originating Bank (including its successors or assigns) with services in connection with the origination and servicing of the loans. Through the Service, you may submit a credit application on a travel provider’s website to finance your purchase from the Originating Bank. If you receive a loan offer and agree to a loan, the Originating Bank will pay the travel provider on your behalf in exchange for your promise to repay the loan according to the terms of your Borrower Agreement and Promissory Note. You may be required to make a down payment in order to confirm your loan. Loan term options may vary based on a variety of factors, including purchase price, travel provider, and other factors.
2.2 Loan Terms. The terms of your loan with the Originating Bank will be stated in the Truth in Lending Disclosure and the Borrower Agreement and Promissory Note provided to you before you confirm the loan and complete the transaction. Your obligations, including your obligation to repay principal and interest, are set forth in the Borrower Agreement and Promissory Note. Your loan will have a principal balance in the amount set forth in the Truth in Lending Disclosure and the Borrower Agreement and Promissory Note, each of which will be provided to you in your Uplift account.
2.3 Interest Rates. The loan interest rate is determined by your creditworthiness and other factors. Interest will accrue daily on unpaid principal until the full amount of principal has been paid.
2.4 Origination Fee. If you receive a loan, you may be required to pay the Originating Bank a non-refundable origination fee. The amount of the origination fee will be stated in your Truth in Lending Disclosure and the Borrower Agreement and Promissory Note.
2.5 Loan Payments. Your loan will be payable in monthly installments consisting of principal and interest. Loan payments are due on the same date each month beginning one month from the date of loan origination. If your due date is the 29th, 30th or 31st, and the current month is shorter, your payment will be due on the last day of the month. All payments will be applied first to the payment of any interest then due and then to principal. Payments will be considered to be paid on time before 4 p.m. PST. Your final payment will consist of the remaining principal, unpaid accrued interest and any other charges due under this agreement. If you default the application of your payments may change.
2.6 Late Fees. There are no flat fees for late payment, however, interest will continue to accrue on outstanding balances.
2.7 Prepayments. You may pay off your loan in full or in part at any time without penalty. Partial prepayments will not change the due date or amount of your scheduled monthly payments unless the principal balance outstanding is less than the principal portion of your payment.
2.8 Cancelation and Refunds. It is the sole discretion of the person or entity from which your purchase was made and their policies whether they choose to provide a refund. In the event that a refund is granted by the person or entity from which your purchase was made, and said refund is credited to Uplift or Originating Bank, this refund will be applied to the principal balance. Any funds refunded in excess of any fees, interest or principal due will then be credited to Borrower.
2.9 Payment Methods. You may make loan payments by any form of payment accepted including, but not limited to, debit from your debit card, check, or electronic funds transfer via Automated Clearing House (“ACH”). You may make payments by personal check by contacting email@example.com or by regular mail at Uplift, 801 El Camino Real, Menlo Park, CA 94025, Attention: Payment Processing.
3.1 Setting Up an Account. When you use the Service, you will be required to provide us with some information about yourself (such as your name, date of birth, e-mail address, your mobile phone number, and other personal information) in order to set up your account and verify your identity on behalf of the Bank pursuant to Section 326 of the USA PATRIOT ACT.
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.
You will be asked to provide your Mobile Phone number with SMS (Text) message capabilities to be used to access your 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 and SMS (text) messages at each of the telephone numbers you have provided to us. You understand that your cellular or mobile telephone provider will charge you according to the type of plan you carry. You agree to alert us whenever you stop using a particular telephone number. You also acknowledge that the ability of Uplift to send these SMS (Text) Messages and other forms of electronic transmittals are an integral part of our approval process without which, your application may not be approved. Therefore, you acknowledge that you do not and will not have the right to revoke such approval. If your email address, home address, or text-enabled phone number changes, you will notify us of the change by sending an email to firstname.lastname@example.org or calling (844) 257-5400.
You may log in to the Borrower Portal website using your login and 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 Service and its information electronically (“Password”). You agree not to disclose your Password to others and to keep it secure.
3.2 Providing Accurate 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. You agree to promptly notify us regarding any material changes to information or circumstances. 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 email@example.com.
3.3 Account Restrictions. You agree not to use the Service or the Site to (1) register for an account on behalf of an individual other than yourself; (2) operate an account on behalf of or for the benefit of any person who is not eligible to register for or operate an account in their own name; (3) register for an account on behalf of any group or entity; (4) impersonate any person, or falsely state or otherwise misrepresent yourself or your age; (5) use or attempt to use another’s account, service, or system without authorization from that person and Uplift; or (6) create a false identity on the Service or the Site.
4. Using the Service
4.1 Loan Requests. You may request a loan through the Service. This Agreement describes those services as well as your rights and obligations should you decide to request a loan. You may only apply for one loan at a time. If you make a loan request, and if that request results in a loan that is approved and funded by the Originating Bank, then your loan will be governed by the terms of the Borrower Agreement and Promissory Note. This Agreement will remain in effect for the applicable loan, and will terminate if your loan request is cancelled, withdrawn, or declined.
4.2 Servicing by Uplift. You acknowledge and agree that Uplift may provide services to the Originating Bank in connection with evaluating your loan requests and all other aspects of your relationship with us. Uplift will also act as the servicer of any loan that you obtain. Uplift may delegate servicing to another entity in its sole discretion without notice.
4.3 No Guarantee. Neither Uplift nor the Originating Bank warrants or guarantees that you will receive a loan as a result of submitting a loan request or credit application.
4.4 Agreement to Provide Accurate Credit Application and Loan Request. You certify that everything you have stated in your credit application and on any other documents submitted to us is true and correct to the best of your knowledge. You understand that you must update the information contained within your credit application if either your financial condition materially changes or we make a request to you orally or in writing. You understand that we will retain your credit application whether or not it is approved, as required by applicable law.
4.5 Account Verification. You agree and acknowledge that we may verify any information you submit either by asking for true and complete copies of necessary documentation, additional documentation, or by other proof or through a third party. By submitting an application, you consent to our use of any third-party to verify any information about, or provided by, you. Failure to timely provide this information can result in your loan application being incomplete and closed. We may terminate consideration of your application at any time in our sole discretion. By accessing the Site or using the Service, you authorize us to collect and store information about you and the device you are using to verify your identity. You also consent to allowing the location information of your mobile phone to be used by us to locate the device and that the location information is being shared with third parties for anti-fraud purposes.
4.6 Confirming Your Loan. Before confirming your loan, you may be asked to provide a valid form of payment for your down payment or future repayments. You must be an owner of the payment method you provide, with authority to direct that payments be made from the payment method you provide. Your payment method may be preauthorized prior to your purchase to verify that it is valid and has the necessary amounts available to cover your down payment. You understand that if we are unable to verify or preauthorize your down payment for any reason, your application and loan may be cancelled.
4.7 Collection & Reporting of Delinquent Loans. You acknowledge that positive or negative information about your loan account, including your repayment history, may be reported to credit reporting agencies, in accordance with applicable law. You agree that if you do not make your loan payments on time or according to your Borrower Agreement and Promissory Note, we may engage in collection activities and your loan may be referred to a collection agency for collection.
5. Other Borrower Agreements; Use of Loan Proceeds
You agree that you (A) are a US citizen, permanent resident or non-permanent resident alien in the United States on a valid long term visa; and (B) will not, in connection with your loan request: (i) make any false, misleading, or deceptive statements or omissions of fact in your loan request; (ii) misrepresent your identity or describe, present, or portray yourself as a person other than yourself; (iii) give to or receive from, or offer or agree to give to or receive from any other person any fee, bonus, additional interest, kickback or thing of value of any kind except in accordance with the terms of your loan; (iv) represent yourself to any person, as a representative, employee, or agent of ours, or purport to speak to any person on our behalf; (v) use any of the loan proceeds to fund any illegal activity or any other activity or use not otherwise allowed under this Agreement or the Service; (vi) use any of the loan proceeds for the purpose of purchasing or carrying any securities; or (vii) use the Service to request or obtain a loan for someone other than yourself. You further acknowledge and agree that we may rely without independent verification on the accuracy, authenticity, and completeness of all information you provide to us. Additionally, you agree that all loan proceeds will be used to fund the purchase of services from the service provider you designate.
6. Account Termination, Agreement Cancellation and Restrictions
6.1 Account Termination and/or Agreement Cancellation. We may terminate your request and your ability to make loan requests at any time. If you committed fraud or made a misrepresentation in connection with your account registration or any application or request for a loan, performed any prohibited activity, or otherwise failed to abide by the terms of this Agreement, we will have all remedies authorized or permitted by this Agreement and applicable law. To the extent that we determine, in our sole discretion, that your loan request violates this Agreement or any other agreement, your loan request may be terminated, this Agreement may be canceled and/or you may be prohibited from using or accessing the Service or the Site (or any portion, aspect or feature of the Service or the Site), at any time, with or without notice. We may conduct our review at any time – before, during, or after the submission of a loan request or credit application, or before or after the funding of a loan. You agree to respond promptly to our requests for information in connection with any such review by us.
7. Communication & Notification
7.1 Communication. Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from Uplift or the Bank, their agents, representatives, affiliates, or anyone calling on their behalf, you expressly consent to be contacted by Uplift or the Bank, their agents, representatives, affiliates, or anyone calling on their behalf, for any and all purposes arising out of or relating to your loan request, loan or account, at any telephone number, any physical or electronic address you provide, or by any other means in which you may be reached. You agree we may contact you in any way, including e-mail, SMS messages (including text messages), calls using pre-recorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, they may also leave a message on your answering machine, voice mail, or send one via text. All Communications sent to you via email to your registered email address, to your registered mobile phone in the form of an electronic message (text message), or posted in your online account are deemed to have been duly given and effective upon transmission or when they were posted. All Communications sent to your physical address are deemed to have been duly given and effective three business days after we send it via US Mail to your physical address on file or one day after deposit prepaid for overnight delivery with a national overnight express delivery service.
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 also agree that we may contact you by e-mail, using any email address you have provided to us or that you provide to us in the future. You consent to receive SMS messages (including text messages) in order to manage your account, including messages regarding the collection of past due payments. You acknowledge that these text may be inadvertently seen by third parties.
You understand that your cellular or mobile telephone provider will charge you according to the type of plan you carry. We may listen to and/or record phone calls between you and our representatives without notice as permitted by applicable law. For example, we may listen to and record calls for quality monitoring purposes.
8. Feedback and Submissions
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. 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. 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.
9. Service Rights; Restrictions
9.1 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. You will comply with all applicable laws and regulations in your use of the Service, including in your use of the Code.
9.2 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; (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 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.
9.3 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 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, use 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.
10. Termination of Use; Discontinuation and Modification of the Service
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. 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. 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.
11. Additional Terms; Changes to the Terms
11.1 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 Application Programming Interface (“API”) that we may offer, or rules applicable to particular features or content on the Service, subject to Section 11.2 below. All such Additional Terms are hereby incorporated by reference into, and made a part of these Terms.
12. Disclaimers; No Warranties
To the extent not prohibited by applicable law, the Site and our products and services are provided “as is” and without any representation or warranty, whether express, implied, or statutory. Uplift, our directors, agents, employees, and suppliers expressly disclaim all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, adequacy, title, and non-infringement. Uplift does not warrant that the service is error-free 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. We cannot guarantee and do not promise any specific results from use of the Site and/or our products and services.
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, unauthorized access, 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, damage, financial damages, lost profits, loss of business, personal injury, or death resulting from anyone’s use of the Site or the Service.
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.
13. Copyright Complaints
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 at Uplift, Inc., Attention Copyright Department, 801 El Camino Real, Menlo Park, CA 94025 or firstname.lastname@example.org. To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) 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; (iii) 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; (iv) 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; (v) 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 (vi) 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.
13.1 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, Users 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.
14. Links to Other Web Sites and Content
The Site contains (or you may be sent through the Site or the Services) links to other websites (“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.
If a dispute arises between you and Uplift, we encourage you to first contact Uplift at email@example.com or (844) 257-5400 to try resolving the issue directly with us.
17. Limitation of Liability
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 amount 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 are severable and independent of all other provisions of these terms. The limitations in this Section and Section 20 will apply even if any limited remedy fails of its essential purpose.
20. Governing Law
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 San Mateo 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 Borrower 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.
21. Arbitration; No Class Actions
RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS MY RIGHTS IN THE EVENT OF A DISPUTE BETWEEN ME AND UPLIFT. I UNDERSTAND THAT I HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN PARAGRAPH (b) BELOW. If you are a “Covered Borrower” as defined by the Military Lending ACT (32 CFR §232, as amended from time to time) at the time of entering into this Agreement, this section 21 is not applicable, and you do not need to opt out of or take any action to ensure inapplicability.
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 21 (the “Arbitration Provision”), unless you opt out as provided in Section 21(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 these Terms, any Borrower Agreement and Promissory Note 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 21(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.
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to Originating Bank, c/o Uplift, Inc. 801 El Camino Real, Menlo Park, CA 94025, 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.
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.
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.
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.
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 21(f) shall be determined exclusively by a court and not by the administrator or any arbitrator.
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.
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 Borrower 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 21(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.