This CleanSweep Line of Credit Agreement (Agreement) applies to your use of CleanSweep line of credit. If you are approved, this Agreement will be your contract with us. CleanSweep line of credit is a revolving line of credit that allows you to request Balance Transfers to satisfy existing debt obligations. It is not a credit card and may not be used to purchase goods or services. If your Account is approved, your use of the Account will be deemed acceptance of these terms.
Please read all parts of this Agreement, including the Arbitration Agreement, and keep it for your records.
About this Account
This Account is an unsecured, open-end line of credit. Once your Account is opened, you can access credit by requesting one or more disbursements of funds to satisfy, in whole or in part, certain qualifying debt obligations that meet our eligibility requirements. Each such disbursement to the Designated Creditor Account(s) is called a “Balance Transfer” that you must repay according to the terms of the Balance Transfer Plan. A Balance Transfer Plan will provide for repayment of the Balance Transfer over 36 Statement Periods. When you request a Balance Transfer, we will provide you with an estimated Installment Payment due each Statement Period for the 36-period term of the corresponding Balance Transfer Plan. This is only an estimate. Your actual Minimum Payment Due may vary depending on your use of the Account. You agree to pay the Minimum Payment Due in accordance with this Agreement, as described below.
Each Balance Transfer request must be for an amount of at least $200. The total of all outstanding Balance Transfer Plans may not exceed your Credit Limit. Each Balance Transfer may be used to pay one or more creditors. Additional use of your line of credit will become available as you make payments. We may make Balance Transfer Plans available at interest rates that are lower than the APR listed in the Interest Rates and Interest Charges section above. Such rates may only be available for a limited time and will apply only to the Balance Transfer Plan(s) that we specify. We may deny your request for a Balance Transfer in our sole discretion.
If we approve your request for a Balance Transfer, we will attempt to transfer the requested Balance Transfer funds to the Designated Creditor Account(s) that you select. You are responsible for confirming that the proceeds of your Balance Transfer have posted to your Designated Creditor Accounts. We are not responsible for fees or costs that you may incur as a result of a delayed, returned, or erroneous Balance Transfer. If a Balance Transfer is returned to us, we will update your Account accordingly. You should continue to make any required payments to your designated third-party creditors in accordance with the applicable account terms.
Account — Your unsecured, open-end CleanSweep line of credit account.
Annual Percentage Rate (APR) — A rate, shown as a percentage, used to calculate interest on the balance on your Account.
Balance Transfer – The transfer of all or part of a balance on a Designated Creditor Account to your Account. A Balance Transfer may include a transfer of balances on multiple third-party creditor accounts to your Account.
Balance Transfer Plan – The payments and APR to repay a particular Balance Transfer.
Business Day — Monday through Friday, excluding federal holidays.
Consumer Reporting Agency — A third-party organization, such as Experian, Equifax and TransUnion, that compiles credit information for the purpose of generating consumer credit reports. It’s also known as a “credit bureau” and a “credit reporting agency.”
Designated Creditor Account —A credit account held by a third-party creditor for your benefit, which we deem eligible to receive Balance Transfer funds.
Include and Including — These terms mean “include or including without limitation.”
Installment Payment — The periodic payment amount due on a Balance Transfer Plan.
Late Payment — A payment is late if you don’t pay at least an amount equal to the Minimum Payment Due on or by the payment due date.
Minimum Payment Due – You must pay at least this amount, as provided on your billing statement, each Statement Period.
New Balance — The total amount you owe us at the end of each Statement Period. This amount is shown on each billing statement under the heading “New Balance.” We explain how we calculate the New Balance below.
Returned Payment — A payment that isn’t honored by your third-party financial institution.
Statement Period — The period of time between each date when we create a billing statement for your Account. For each Statement Period, your billing statement will show any Balance Transfer Plans, other charges, payments and other credits posted during that Statement Period.
LendingClub, we, us, and our — LendingClub Bank, National Association.
you and your — The Borrower who opened the Account, and any other person who is or becomes obligated under this Agreement to repay amounts borrowed using the Account.
Account use is subject to this Agreement. You must pay us for all amounts due on your Account.
Binding Agreement. This Agreement takes effect at the time your Account is opened.
Credit Limit. We assign a credit limit to your Account. We may increase or decrease the Credit Limit at any time and for any reason. We may authorize Balance Transfer Plans that cause your balance to exceed your Credit Limit but we are not required to do so.
Balance Transfer Availability Period. You are able to request Balance Transfers for thirty-six (36) Statement Periods starting on the date your Account is opened. We may renew your Account after that period at terms acceptable to us.
Account Uses. You are only permitted to use your Account for the purpose of satisfying, in whole or in part, qualifying debt obligations that you owe to third-party creditors. The debt obligations and third-party creditors must be deemed acceptable to us, and we may reject any Balance Transfer request for any reason. Your use of the Account for any other purpose (such as for the purchase of goods or services) will be considered an Event of Default. In the Event of Default, we may close your Account, in which case you won’t be able to request any additional Balance Transfers, but this Agreement otherwise still applies, and you must repay us for all outstanding Balance Transfers and other amounts due on your Account. You have to pay us for any damages and/or expenses resulting from improper use of your Account. All debt obligations must be denominated and payable in currency of the United States, and all Designated Creditor Accounts must be located at an address within the United States. We will attempt to transfer Balance Transfer funds into the account you identify when you request a Balance Transfer (the Designated Creditor Account). You are responsible for ensuring that all names and account, routing, or other such Designated Creditor Account information provided to us is accurate and complete.
Prohibited Balance Transfer Uses. You are not permitted to use your Account for purposes that are unlawful or otherwise contradictory to the terms of this Agreement. If you do use your Account for unlawful purposes or such other purposes, this Agreement still applies and you must pay us for all outstanding Balance Transfers and other amounts due on your Account. You also may have to pay us for any damages and expenses resulting from that use. In addition, we may close your Account.
Joint Account. If two or more people are or become obligated under this Agreement to repay amounts borrowed using the Account, then each of you is responsible for all amounts owed and for any defaults, even if the Account is used or managed by only one of you. Each of you will be liable for the entire balance of the Account, even if a court orders only one of you to pay us. We may report information about your Account to the Consumer Reporting Agencies under each of your names. We may only deliver notices or billing statements to one of you, but that delivery will serve as delivery to each of you. Each of you has authority to manage the Account. We will follow instructions about the Account from either of you. We are not liable if we act on instructions from one of you.
ANNUAL PERCENTAGE RATES (APRs) AND INTEREST CHARGES
The following sections explain how we calculate the interest you owe each Statement Period.
APRs. We use APRs to calculate interest charges on your Account. Different APRs may apply to different Balance Transfer Plans. See the listing of your APRs on the Balance Transfer Request Summary or Billing Statements.
Calculating Interest. We calculate the interest charge on your Account by applying the periodic rate to the “daily balance” of each Balance Transfer Plan in your Account for each day in the Statement Period. Your Account may have multiple Balance Transfer Plans with different interest rates. We use the daily balance method to determine interest charges on each Balance Transfer Plan, and the sum of interest charges on all Balance Transfer Plans is the total interest charged. Interest charged on a Balance Transfer Plan equals the principal outstanding multiplied by the daily interest rate (APR divided by 365) multiplied by the number of days the balance was outstanding. If you make payments during the period, then there will be different principals outstanding in one or more Balance Transfer Plans, and daily interest will be calculated for each principal amount outstanding. For example, assume that you have one Balance Transfer Plan of $1,000 at 12% APR in a 30-day period, and you make a $250 payment on day 15; the daily APR is 0.0328% multiplied by $1,000 multiplied by 15 days plus 0.0328% multiplied by $750 multiplied by 15 days, which equals $8.61 total interest.
Calculating the New Balance. Your New Balance at the end of each Statement Period is the sum of all outstanding Balance Transfers on the last day of the prior Statement Period, plus new Balance Transfers, plus interest charges or fees incurred during the Statement Period, plus any overdue amounts, minus payments made and credits applied to the Account. We may add fees or make other adjustments, as applicable.
Note: Your Minimum Payment Due may vary significantly from one Statement Period to the next, depending on your use of the Account. The Minimum Payment Due will generally increase as you add Balance Transfer Plans and decrease as you pay off Balance Transfer Plans. As you pay off Balance Transfer Plans, additional use of your line of credit will become available unless LendingClub, in its sole discretion, adjusts your Credit Limit. We will provide an estimate of how each Balance Transfer Plan will impact your Minimum Payment Due each time you request a new Balance Transfer.
Minimum Payment Due. You must pay at least the Minimum Payment Due by the payment due date each Statement Period. You may pay all or a part of your Account balance at any time.
When you initiate a Balance Transfer, we will estimate your Installment Payments for the Balance Transfer Plan over thirty-six (36) Statement Periods, as described below. Your Minimum Payment Due will vary from period to period, depending on factors including the number and amount of outstanding Balance Transfer Plans and the dates on which you transact or make a payment. If you do not pay as agreed, or if your due date changes, your Balance Transfer Plan may require more than 36 payments.
To determine your Minimum Payment Due, we add the Installment Payment due for each outstanding Balance Transfer Plan, plus any amount past due.
To determine your estimated Installment Payment:
We start with the amount of the Balance Transfer, or the principal amount;
We calculate estimated interest charges from the date on which you create a Balance Transfer Plan through the end of the Balance Transfer Plan period;
We add the principal amount from step 1 to the amount of estimated interest charges from step 2 and divide this sum by 36. The result is your estimated Installment Payment for the Balance Transfer Plan.
The estimated Installment Payment assumes that you will make all Minimum Payments Due on the payment due date. If you make a payment before the payment due date, the final payment on a Balance Transfer Plan may be lower. If you do not make all Minimum Payments Due on or before the respective payment due dates, this will be considered an Event of Default. We reserve the right to demand immediate payment of your Account outstanding balance or to recalculate your Balance Transfer Plan.
Note: Your payment due date is typically the same day of the month every month. You may request a change to your payment due date. This may impact the Minimum Payment Due and the number of installments.
Application of Payments. We decide how to apply your payment, up to the Minimum Payment Due, and credits, to the balances on your Account and you authorize us to apply payments and credits in a way that is most favorable or convenient for us. If you pay more than the Minimum Payment Due, we’ll apply the amount over the Minimum Payment Due first to the Balance Transfer Plan with the highest APR, then to the Balance Transfer Plan with the next highest APR, and so on. If two or more Balance Transfer Plans have the same APR, we’ll apply the amount first to the Balance Transfer Plan with the earliest request date, then to the Balance Transfer with the second earliest request date, and so on.
Payment Instructions. You must pay in U.S. dollars. You must use a check or electronic debit issued by a bank in the United States. If you elect to make a payment via check, please write your account number on the check and send the check to one of the addresses listed below or to a different payment address that we subsequently provide to you:
Standard Mail (USPS)
You are solely responsible for ensuring on-time payments.
If you do not pay in U.S. dollars and we accept your payment, we will select the currency conversion rate, and you must pay our costs. If you do not follow our payment instructions, we may not accept your payment, or there may be a delay in crediting your Account. Either case may result in additional interest charges to your Account. If you do not follow the instructions in this Agreement or on your billing statement, we may accept your payment without losing our rights. We may reject a payment if it’s more than the outstanding balance. We may also close your Account.
DEFAULT, CLOSING OR SUSPENDING YOUR ACCOUNT
Default. We may require immediate payment of your outstanding balance, to the extent allowed by law, if any of the following Events of Default occurs: you have a Late Payment; you have a Returned Payment; you file for bankruptcy or some other insolvency proceeding is filed by or against you; you don’t honor the terms of this Agreement; you commit fraud or make any material misrepresentations to us; you default under any other agreement you have with us; you’re declared incompetent or mentally incapacitated; you move outside the United States (50 states and the District of Columbia) and do not have a valid APO/FPO mailing address; or in the event of your death.
Closing or Suspending Your Account. We may close or suspend your Account if any of the events listed above occur, or for any reason, or for no reason. We may do this at any time, without notifying you, to the extent allowed by law. You also may close your Account at any time by notifying us by telephone or in writing. If we close or suspend your Account, or if you close your Account, you must pay us all amounts you owe on the Account, even if they post to your Account after it’s closed or suspended.
You allow us to get information about you. We get it from Consumer Reporting Agencies and other sources that provide consumer financial information. You allow us to use it for: renewal of your Account; credit line increases or decreases; administration or review of your Account; collection and any other servicing activities related to your Account; all other credit-related purposes connected with this Agreement; and other uses permitted by law.
We report Account information in your name, as well as information about you to Consumer Reporting Agencies. The information we provide may appear on your credit reports. This can include information about: Late Payments; overlimit amounts; Returned Payments; and other violations of this Agreement.
If you think we have given incorrect information to a Consumer Reporting Agency about you, please write to us at the Customer Service address on your billing statement and we’ll research it. We’ll let you know if we agree or disagree with you. If we agree with you, we’ll contact each Consumer Reporting Agency we reported to and request a correction. We will only accept such communications in writing as indicated in your billing statement.
ACCOUNT INFORMATION, INFORMATION SHARING AND COMMUNICATIONS
Changes to Account Information. You provided certain personal information to us when you opened your Account. You agree to notify us if this information changes. If you don’t, or if we ask you to verify your Account information and you cannot, we may suspend or close your Account.
Consent for Communications. You expressly consent and agree to receive communications (including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system) from us, our affiliates, successors and assigns, and designated third-party service providers acting on our behalf, regarding any partially or fully completed application for credit that you submit or attempt to submit to us, any extension of credit that you obtain from or through us, and any account that you establish with us, at any telephone number that you provide to us or that we can reasonably associate with you (through skip trace, caller ID capture or other means), now and in the future, including cellular telephone numbers. You agree to notify us if any such telephone number changes or is reassigned to a new subscriber. You certify that you are authorized to provide this consent because you are either the subscriber of the telephone number you provide or a non-subscriber customary user with authority to provide this consent. Standard communication rates, fees, and charges from your telephone service provider may apply.
You agree that we may communicate with you via electronic mail regarding any action you take in response to any offer of credit or invitation to apply for credit from us, any partially or fully completed application for credit that you submit or attempt to submit to us, any extension of that you obtain from or through us, and any account that you establish with us. You agree that we may communicate with you via electronic mail to market products or services to you, or for any other permitted business purpose. You understand and agree that we may always communicate with you in any manner allowed by law that does not require your consent.
How We Capture and Use Voiceprints. We may use voice recognition technology to verify your identity when you call. We may capture and store your voiceprint for this purpose.
Call Monitoring and Recording. You agree that we may monitor and record any communications between you and us for quality assurance and other permitted business purposes.
Notices. You agree that we may send any notices to the online account you have established with us (“Online Account”), your billing address, or by email to the address you gave us unless you opt-out. We consider a notice sent as soon as we send it.
BALANCE TRANSFER PLANS
Third-Party Creditor Refunds. A third-party creditor refund to your Account will post to your Account as a credit. The credit will be applied to its respective Balance Transfer Plan.
INFORMATION FOR MEMBERS OF THE ARMED FORCES AND THEIR DEPENDENTS
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). If you are a member of the Armed Forces, or a dependent of a member of the Armed Forces, you may call (844) 538-6754 to hear the preceding statement and certain payment-related information.
PLEASE READ THIS PROVISION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW LEGAL CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, IF YOU DO NOT OPT OUT OF THIS ARBITRATION AGREEMENT AS PROVIDED IN SECTION 2 BELOW. FOR PURPOSES OF THIS ARBITRATION AGREEMENT, THE TERMS “WE,” “US,” AND “OUR” INCLUDE LENDINGCLUB BANK, NATIONAL ASSOCIATION, LENDINGCLUB CORPORATION, AND/OR THEIR RESPECTIVE AFFILIATES, AGENTS, RELATED PERSONS OR ENTITIES, AND ANY PREDECESSORS AND SUCCESSORS IN INTEREST; ANY SUBSEQUENT HOLDER OF ANY LOAN YOU OBTAIN; AND ANY ASSIGNEE OF ANY CORRESPONDING AGREEMENT.
YOU AND WE ACKNOWLEDGE THAT WE AND YOU HAVE A RIGHT TO LITIGATE CLAIMS IN COURT BEFORE A JUDGE OR JURY AND ON A CLASS OR REPRESENTATIVE BASIS, BUT WILL NOT HAVE THESE RIGHTS IF EITHER WE OR YOU ELECT TO HAVE A DISPUTE DECIDED THROUGH ARBITRATION PURSUANT TO THIS ARBITRATION AGREEMENT. YOU AND WE NEVERTHELESS HEREBY KNOWINGLY AND VOLUNTARILY WAIVE OUR RIGHTS TO LITIGATE CLAIMS IN A COURT BEFORE A JUDGE OR JURY AND ON A CLASS OR REPRESENTATIVE BASIS UPON ELECTION OF ARBITRATION BY EITHER YOU OR US.
IF YOU ARE A “COVERED BORROWER” AS DEFINED BY THE MILITARY LENDING ACT (32 C.F.R. § 232, AS AMENDED FROM TIME TO TIME), THIS ARBITRATION AGREEMENT IS NOT APPLICABLE TO YOU AND YOU DO NOT NEED TO TAKE FURTHER ACTION TO OPT OUT. IF YOU ARE A COVERED BORROWER, (I) THEN YOU ARE NOT BOUND BY THIS ARBITRATION AGREEMENT, AND (II) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT REQUIRED BY THE MILITARY LENDING ACT, NOTHING IN THIS AGREEMENT WILL BE DEEMED A WAIVER OF YOUR RIGHT TO LEGAL RECOURSE UNDER ANY OTHERWISE APPLICABLE PROVISION OF STATE OR FEDERAL LAW. IF YOU WOULD LIKE MORE INFORMATION ABOUT WHETHER YOU ARE ENTITLED TO PROTECTION UNDER THE MILITARY LENDING ACT AND WHETHER THIS SECTION (ARBITRATION AGREEMENT) APPLIES TO YOU, PLEASE CONTACT US AT (833) 571-3478.
You and We Agree to Arbitrate Disputes Between Us. Either you or we may, at either's sole election, require that the sole and exclusive forum for resolution of a Claim be final and binding arbitration pursuant to this Arbitration Agreement, unless you opt out as provided in Section 2 below. We agree not to invoke our right to arbitrate an individual Claim you may bring in small claims court, so long as the Claim remains in such court and advances only on an individual (non-class, non-representative) basis and seeks relief only applicable to you.
As used in this Arbitration Agreement, “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 (or persons claiming through or connected with us), on the other hand, relating to or arising out of the Agreement, any LendingClub Service (including but not limited to the LendingClub Site and the LC Platform), any loan, line of credit, or Balance Transfer application, request, or execution, and/or the activities or relationships that involve, lead to, or result from any of the foregoing. Claims are subject to arbitration regardless of whether they arise from contract, tort (intentional or otherwise), a constitution, statute, common law, principles of equity, or any other legal theory. Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise.
The scope of this Arbitration Agreement is to be given the broadest possible interpretation that is enforceable. Your agreement to the Agreement is made pursuant to a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. § 1, et seq., governs the interpretation and enforcement of this Arbitration Agreement.
Opt-Out Procedure. You may opt out of this Arbitration Agreement for all purposes by sending an arbitration opt-out notice to LendingClub Bank, N.A., 595 Market Street, Suite 200, San Francisco, California 94105, which is received at the specified address within 60 days of the date that you agree to the terms of the 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 by mail, delivery service (e.g., UPS, FedEx), or courier 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 Agreement. 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. If you opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply.
Pre-Arbitration Notice of Dispute. If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Before filing any claim in arbitration, you must notify us of a Claim or dispute you may have by sending an email to email@example.com at any time, or by calling (888) 596-3157 from Mon-Fri 5:00 AM to 5:00 PM PT and Sat 8:00 AM to 5:00 PM PT.
Arbitration Procedures. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. The arbitrator(s) can award the same damages or other types of relief on an individual basis that a court could under applicable law, subject to the limitations set forth in this Arbitration Agreement. All issues are for the arbitrator(s) to decide (including, without limitation, issues relating to arbitrability and the scope or enforceability of this Arbitration Agreement) except the interpretation or enforceability of Section 6 below (Prohibition of Class and Representative Actions and Non-Individualized Relief) shall be for a court of competent jurisdiction to decide.
The party initiating arbitration shall do so with the American Arbitration Association (AAA or administrator). 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, except to the extent such rules or policies conflict with this Arbitration Agreement or any countervailing applicable 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. In the case of a conflict between the rules and policies of the administrator and this Arbitration Agreement, this Arbitration Agreement shall control, subject to countervailing applicable law, unless all parties to the arbitration consent in writing to have the rules and policies of the administrator apply.
If the value of the relief sought is $10,000 or less, you or we may elect to have the arbitration conducted by telephone, online conferencing, or similar remote means, or based solely on written submissions, which election shall be binding on us and you, subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone, online conferencing, or similar remote means by you and/or us, unless the arbitrator(s) requires otherwise.
Except to the extent preempted, superseded, or supplemented by Federal law, the arbitrator(s) will apply the substantive law of the State of Utah, without regard to principles of conflicts of law, to any dispute or Claim in arbitration, including recognized principles of equity, and will honor all claims of privilege recognized by law. The award of the arbitrator(s) shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.
The parties, the arbitrator(s), and the administrator shall treat the arbitration proceedings, any related discovery, and the decisions of the arbitrator(s), as confidential, except in connection with judicial proceedings ancillary to the arbitration, such as a judicial challenge to, or enforcement of, an award, and unless otherwise required by applicable law. The arbitrator(s) may issue orders to protect the confidentiality of proprietary information, trade secrets, and other sensitive information disclosed in the proceedings.
Costs of Arbitration. If we elect arbitration, we 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, or in accordance with countervailing applicable law, if contrary to the administrator's rules. We shall pay the administrator's hearing fees for up to 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, you request that we pay them and we agree to do so, or you are able to demonstrate to the arbitrator(s) that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis. Each party shall bear the expense of hers, his, or its own attorneys' fees, except as otherwise required by countervailing applicable law.
Prohibition of Class and Representative Actions and Non-Individualized Relief. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS A PRIVATE ATTORNEY GENERAL ACTION), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED OR COULD HAVE BEEN ASSERTED IN COURT ON A PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS. YOU AND WE ALSO AGREE NOT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION AGAINST US OR YOU. UNLESS CONSENTED TO IN WRITING BY ALL PARTIES TO THE ARBITRATION: (1) NO PARTY TO THE ARBITRATION MAY JOIN, CONSOLIDATE, OR OTHERWISE BRING CLAIMS FOR OR ON BEHALF OF TWO OR MORE INDIVIDUALS OR ENTITIES IN THE SAME ARBITRATION UNLESS THOSE PERSONS OR ENTITIES ARE PARTIES TO A SINGLE TRANSACTION, AND (2) 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 6, 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 6 SHALL BE DETERMINED EXCLUSIVELY BY A COURT OF COMPETENT JURISDICTION AND NOT BY THE ADMINISTRATOR OR ANY ARBITRATOR.
Survival and Severability. This Arbitration Agreement shall survive (i) the suspension, termination, revocation, closure of, or amendments to the Agreement and/or the relationship between you and us; (ii) the bankruptcy or insolvency of you or us or any other person; and (iii) any transfer or assignment of any loan, Line, or Agreement(s) or any other promissory note(s) which you owe, or any amounts owed on such loans, Lines, or notes, to any other person or entity. If any portion of this Arbitration Agreement other than Section 6 is deemed invalid or unenforceable, the remaining portions of this Arbitration Agreement shall nevertheless remain valid and in force. If a court decides that any of the provisions of Section 6 above is invalid or unenforceable because it would prevent the exercise of a nonwaivable right to pursue public injunctive relief and that decision is not overturned after any rights to appeal are exhausted, then any dispute regarding the entitlement to such relief (and only that form of relief) must be severed from arbitration and may be litigated in court. Also, if a court decides that any of the provisions of Section 6 above is invalid or unenforceable for any other reason and that decision is not overturned after any rights to appeal are exhausted, then any dispute or Claim that may not be arbitrated pursuant to such court decision must be severed from arbitration and may be litigated in court. For the sake of clarity, in no event shall any court decision finding a provision of Section 6 invalid or unenforceable be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Agreement.
Changes to this Agreement. We may change this Agreement for any reason and at any time, subject to applicable law. This means that we can change rates and fees that apply to your Account. It also means we can add, replace, or remove provisions of this Agreement. If required by applicable law, we’ll give you notice of the changes. If you have the right to reject a change, we’ll notify you and tell you how to reject. If we notify you of a change, we may do so on your billing statement or send you a separate written notice, either of which may be sent electronically if permitted by applicable law.
Assignment. We may assign any or all of our rights and obligations under this Agreement to a third party. An assignee may assign any or all of their rights and obligations under this Agreement to another third party. You may not sell, assign or transfer your Account or any of your obligations under this Agreement.
Governing Law. Federal law and the law of the State of Utah govern the terms and enforcement of this Agreement. The Federal Arbitration Act, 9 U.S.C. § 1, et seq., governs the interpretation and enforcement of the Arbitration Agreement.
Enforcing this Agreement. We won’t lose our rights under this Agreement because we delay in enforcing them or fail to enforce them. If any provision of this Agreement is found to be unenforceable, all other provisions of the Agreement will remain in effect.
Electronic Transactions. You consent to electronic transactions and disclosures. This Agreement is a “transferable record” under the Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transaction Act.
Collection Costs. To the extent allowed by law, you’re liable to us for our legal costs if we refer collection of your Account to a lawyer who isn’t our salaried employee. These costs may include reasonable attorneys’ fees, as well as costs and expenses of any legal action.
Unforeseen Circumstances. From time to time, our services might be unavailable due to circumstances beyond our control (such as fires, floods, natural disasters, system failures or other unpredictable events). When this happens, you might not be able to use your Account or obtain information about your Account. We’re not responsible or liable if this happens.
Lost or Stolen Account Information. You must try to prevent the unauthorized use of your Account, including your Account number or any other means to access your Account. You must call us if any means to access your Account is lost or stolen. Also, you must call us if you think someone has used or may use these items without permission.
Headings. The headings in this Agreement are included as a matter of convenience and don’t define, limit or enlarge the scope of this Agreement or any of its provisions.
No Warranties. We make no representations or warranties to you outside of those in this Agreement.
Limitation on Liability. We are not liable to you for any lost profits or damages. We make no representation about how this Agreement may impact any of your tax liabilities.