Last updated: January 10, 2022
SUMMARY OF KEY TERMS
Creditor or service: TryNow, Inc.,
1134 Abbot Kinney Boulevard, Floor 3, Venice, CA 90291 US (415) 234-0611
ARBITRATION: EXHIBIT A IS AN ARBITRATION CLAUSE WHICH WILL APPLY TO YOU UNLESS YOU REJECT IT AS PROVIDED IN EXHIBIT A. IF APPLICABLE, THE ARBITRATION CLAUSE WILL SIGNIFICANTLY AFFECT YOUR RIGHTS IF A DISPUTE ARISES BETWEEN YOU AND US. FOR EXAMPLE, YOU WILL NOT BE ABLE TO BRING OR PARTICIPATE IN A CLASS ACTION RELATING TO MATTERS ARISING UNDER THIS AGREEMENT.
BANK CARD HOLD: BY USING TRYNOW, YOU AUTHORIZE US TO PLACE A HOLD ON THE BANK CARD YOU PROVIDED US EQUAL TO THE AMOUNT OF THE INITIAL PURCHASE PRICE. THIS AMOUNT WILL NOT BE ACCESSIBLE BY YOU UNLESS YOU RETURN ALL OR SOME OF YOUR PURCHASE AND YOUR CARD IS CHARGED FOR THE FINAL PURCHASE PRICE. TO AVOID FEES FROM YOUR BANK AND/OR HAVING YOUR BANK REJECT OTHER PAYMENTS, YOU SHOULD ACT AS IF THE HOLD AMOUNT HAS ACTUALLY BEEN CHARGED TO THE CARD AT LEAST UNTIL ANY LESSER AMOUNT FOR THE FINAL PURCHASE PRICE IS CHARGED. SEE BELOW FOR MORE DETAILS.
Finance Charge Rate: 0%
Late Charge: $0.00
** Bank Card Hold**: We are placing a hold on the card you gave us equal to the Initial Purchase Price. This hold will remain until the Trial Period expires. See below for details.
By choosing to pay for a qualified purchase of consumer goods ("Purchase") from a participating merchant ("Merchant") with TryNow, you agree to the terms of this TryNow User Agreement, which includes the Summary of Key Terms above and the Arbitration Clause in Exhibit A (collectively, the "Agreement"). In this Agreement, the words "you," "your" and "yours" mean the user making the Purchase through TryNow; the terms "we," "us" and "our" mean TryNow and/or its successors and assigns; and the term “Extension of Credit” means the short-term extension of credit from TryNow or the Merchant for financing the Purchase. This Agreement applies to a Purchase you make through TryNow. Please keep a copy of the Agreement for your records and read it carefully.
CREDIT SALE NOTICE TO RESIDENTS OF CALIFORNIA, DELAWARE, GEORGIA, LOUISIANA, MISSOURI, MONTANA, NORTH DAKOTA, RHODE ISLAND, SOUTH DAKOTA, AND VERMONT: In your state of residence, this Agreement is intended to evidence a credit sale under which the Merchant, in its capacity as a seller, allows you to make the Purchase on credit, i.e., make the Purchase and defer payment of it. In such a credit sale transaction, the Merchant (and not TryNow) is the creditor. This Agreement is not intended to evidence a loan of money by TryNow to you. After you execute this Agreement, the Merchant will assign this Agreement to TryNow, and, at that point, TryNow will become the holder of the Agreement. Before that time, TryNow acts as a servicer for the Merchant, helping it sell the Purchase on credit. In such a credit sale transaction, the first sentence of the section captioned “Promise to Pay” below shall be replaced with the following sentence: In exchange for Merchant permitting you to defer payment of your Purchase, you promise to pay Merchant (or any subsequent holder of the Agreement) the Final Purchase Price on or soon after the expiration of the Trial Period. If you have any questions about the roles of TryNow and/or Merchant in a credit sale transaction, please contact us at (415) 234-0611.
- Payment Deferral/Trial Period: You can use TryNow to defer paying for a Purchase until after you have had a chance to try it on or otherwise evaluate it. The period for evaluating a Purchase (the “Trial Period”) begins on the earlier of the following: (a) the day the product is delivered to you (as determined by TryNow based on Purchase tracking information it receives from Merchant or a tracking service) and (b) 10 days after you place an order for a Purchase. The Trial Period ends on the earliest of the following: (a) the day any one item from the Purchase is returned to Merchant; (b) the day you notify TryNow that you are keeping everything from the Purchase; and (c) the trial expiration date communicated to you by TryNow at the time of the Purchase. TryNow will notify you when the Trial Period for a Purchase begins and when it is set to expire by sending you an email to the email address you keep on file with TryNow.
- Initial and Final Purchase Price: The amount you can use TryNow to defer paying is the total value of the goods and services in your Purchase as specified by Merchant at the time of checkout (the “Initial Purchase Price”). This includes the cost of all of the items you purchase from Merchant plus shipping and handling and any other fees or charges assessed by Merchant. When the Trial Period ends, you will be responsible for repaying the Initial Purchase Price less any amounts credited to TryNow by Merchant during the Trial Period, such as an amount credited due to a return (this net amount being the “Final Purchase Price”). In the event that Merchant processes credits for multiple returned items on different days during the Trial Period, the Final Purchase Price will be equal to the Initial Purchase Price less the amount of the earliest Merchant credit. Any subsequent credits issued by the Merchant to TryNow will be credited to the Bank Card (defined below) within 2 business days of TryNow receiving the credit. For example, if you buy three $50 items, return two of them during the Trial Period and Merchant credits TryNow for the first return on Monday and the second return on Tuesday, the Final Purchase Price will be $100 and TryNow will subsequently issue you a $50 credit for the return credited on Tuesday.
- Virtual Card: TryNow may provide you with a one-time-use, 16-digit number and expiration date (the “Virtual Card”) for entry into Merchant’s point-of-sale system so that you can make a Purchase using TryNow. If you are provided a Virtual Card, you agree to use it only at the website of the Merchant at which it was issued to you by TryNow for the approved Purchase. The Virtual Card will expire if not used within a short period of time. If you are provided a Virtual Card, but it expires before you have a chance to use it for a Purchase, you may request a new transaction from TryNow and, if approved, you may get a new Virtual Card.
- Card Hold on Your Bank Card: When you agree to use TryNow, TryNow places an authorization hold on funds associated with the credit or debit card you provided TryNow in connection with the Purchase transaction (the “Bank Card”) equal to the amount of the Initial Purchase Price (such authorization hold, a "Card Hold"). A Card Hold is different than a card charge in that the Card Hold does not result in funds coming out of the deposit account associated with your debit card or an advance from the credit line associated with your credit card. Instead, a Card Hold effectively “freezes” the held funds and generally prevents them from being used for other purchases/transactions until the Card Hold is removed. For example, if you have $500 in your checking account and make a $200 Purchase with TryNow, TryNow will place a hold on $200 of the $500 balance. The $200 will remain in your checking account, but if, while the hold is on the funds, you attempted to make a $400 purchase with your debit card or you authorized a $400 check/electronic debit, the $400 transaction may be rejected by your bank because the available balance in your account (due to the hold) is only $300. Alternatively, your bank might honor the $400 transaction but charge you an overdraft fee. You should check with your bank regarding its specific hold and overdraft practices. TryNow is not responsible for any transactions that the issuer of your Bank Card may decline or on which it may assess an overdraft fee due to a Card Hold for a TryNow Purchase you requested.
- Card Holds and Virtual Card Expiration: As noted above, TryNow places a Card Hold on your Bank Card the moment you agree to use TryNow. If you do not use TryNow to make a Purchase within a short period of time (i.e., 5 to 15 minutes), TryNow will request that the card network release the Card Hold. However, TryNow’s request to release the Card Hold may not immediately be effective. If you find that a Card Hold for an expired/unmade purchase is not released by the network within one hour of the issuance of the Virtual Card, please contact the Merchant to resolve the issue. You may also contact the institution that issued your Bank Card.
- Promise to Pay: In exchange for TryNow permitting you to defer payment of your Purchase, you promise to pay TryNow the Final Purchase Price on or soon after the expiration of the Trial Period. You promise to make this payment by authorizing TryNow to charge the Bank Card you provide in connection with the Purchase transaction, any substitute Bank Card you may provide TryNow or any other Bank Card you may have on file with TryNow. In the event that TryNow’s charge to a Bank Card fails, you authorize TryNow to continue attempting to charge any Bank Card until such charge is successful. In the event that you close a Bank Card, report it as lost or stolen or otherwise know that TryNow’s charge to the Bank Card will not be processed, you agree immediately to provide TryNow with a substitute Bank Card or pay TryNow through another means that TryNow may make available. TryNow will notify you of the Final Purchase Price on or around the date that TryNow processes the charge by sending an email to the email address you keep on file with TryNow.
- Individual Purchase Evaluation; Disbursal: We will separately review each request you make to use TryNow for a Purchase. Our approval of one Purchase does not mean we will approve a subsequent Purchase. If we approve your request, we will disburse the Initial Purchase Price (less an amount we may retain) to Merchant (or, in the case of a credit sale, disburse that amount to the Merchant as payment for the assignment of the resulting retail installment contract).
- You Pay No Finance Charges to TryNow: This is a 0% APR extension of credit. There are no finance charges due on this payment option. Other fees will apply as described in this Agreement.
- Late Charges: TryNow will not impose a late charge if you fail to make a payment when it is due.
- Prepayment: You may prepay the Extension of Credit at any time without penalty.
- Returns and Exchanges: Any return, cancellation or exchange of the Purchase not credited to TryNow by Merchant is a matter between you and Merchant. It will not impact the amount you owe under this Agreement.
- Product Questions and Issues: Please contact Merchant with any questions regarding any issues with items in your Purchase.
- Events of Default: To the extent permitted by applicable law, we may declare you to be in default under this Agreement if you fail to make your payment when due and, in such event, (a) declare the entire Extension of Credit to be immediately due and payable; (b) deny you credit in the future; (c) charge you all reasonable collection expenses we incur, including attorneys' and collection agency fees and charges; and/or (d) avail ourselves of any other remedies available to us under applicable law.
- Waiver of Jury Trial: You acknowledge that the right to trial by jury is a constitutional right but may be waived in certain circumstances. To the extent permitted by law, you knowingly and voluntarily waive any right to trial by jury in the event of litigation arising out of or related to this Agreement. This jury trial waiver shall not affect or be interpreted as modifying in any fashion the Arbitration Clause in Exhibit A, which has its own separate jury trial waiver.
- Correspondence: All notices to us must be sent to: TryNow, Inc., 1134 Abbot Kinney Boulevard, Floor 3, Venice, CA 90291 US (the "Notice Address"), with such attention as may be specified in this Agreement. To the extent permitted under applicable law, any notice you send us will not be effective until we receive and have had a reasonable opportunity to act on such notice. Any telephone calls to us should be made to (415) 234-0611 (the "Notice Telephone Number"). Any written or electronic correspondence we send to you will be effective and deemed delivered when sent in accordance with any authorization for electronic communications you execute or mailed to you at your mail address, as it appears on our records.
- CALLS AND MESSAGES: We may use automated telephone dialing, text messaging systems and electronic mail to provide messages to you or contact you about scheduled payments, missed payments and other important information regarding this Agreement or your relationship with us. Telephone messages may be played by a machine automatically when the telephone is answered, whether answered by you, someone else or a voice mail or answering machine. You authorize us to call or send a text message to any telephone number you have given us or you give to us in the future and to play pre-recorded messages or send text messages with information about the Agreement over the phone. You also give us permission to communicate such information to you by e-mail. You understand that, when you receive such calls, texts or e-mails, you may incur a charge from the company that provides you with telecommunications, wireless and/or internet services. You agree that we will not be liable to you for any fees, inconvenience, annoyance or loss of privacy in connection with such calls or e-mails. You understand that anyone with access to your telephone, answering machine or email account may listen to or read the messages, notwithstanding our efforts to communicate only with you. This authorization is part of our bargain concerning your purchase on credit and this Agreement and we do not intend it to be revocable. However, to the extent we are required by applicable law to allow you to revoke your consent to these automatic reminders, you may do so by contacting us at the Notice Address or Notice Telephone Number.
- Telephone Monitoring and Recording. You agree that we may monitor, record, retain and reproduce your telephone calls and any other communications you provide to us, regardless of how transmitted to us, for training, quality control, evidentiary and other purposes. However, we are not under any obligation to monitor, record, retain or reproduce such items, unless required to do so by applicable law.
- Reporting Information to Credit Bureaus; Identity Theft. We may report information about your Extension of Credit and this Agreement to other creditors, other financial institutions and credit bureaus. Late payments, missed payments or other defaults may be reflected in your credit report. You have the right to dispute the accuracy of information we have reported. If you believe that any information that we have reported to a credit bureau is inaccurate, or if you believe that you have been the victim of identity theft in connection with this Agreement, write us at the Notice Address, Attn: Fraud/Dispute. Please include your name, address, Extension of CreditNumber, telephone number and a brief description of the problem. If available, please include a copy of the credit report in question. If you believe that you have been the victim of identity theft, you should send us a police report or written statement in a form we provide you alleging that you are the victim of identity theft for a specific debt.
- Credit Reports; Credit History. You understand and agree that we may, from time to time, obtain credit and other reports about you.
- Truthfulness of Information. You represent that every statement made to us in seeking credit is true, complete, and correct and that you have reached the age of majority in your state of residence.
- Bankruptcy. All bankruptcy notices and related correspondence to us must be sent to us at the Notice Address, Attn: Bankruptcy Notice. You promise that you have no current intent to file any bankruptcy petition and have not consulted a bankruptcy attorney in the past six months.
- Notices of Change in Circumstances. You must notify us of any changes to your name, mailing address, home, cell or business phone number within fifteen (15) days by writing us at the Notice Address. We will rely on your mail and email addresses as they appear on our records for any and all communications we send you by mail or email unless and until either you or, in the case of your mailing address, the U.S. Postal Service, notifies us of a change of address and we have had a reasonable opportunity to act on such notice.
- Partial Payments Marked Payment in Full. Any check or other payment you provide us for less than the total outstanding balance on your Extension of Credit that is marked "payment in full" or with any similar language or that you otherwise tender as full satisfaction of a disputed amount must be sent to the Notice Address, Attn: Payment of Disputed Amount. We may deposit any such payment without such deposit effecting a satisfaction of the disputed amount.
- Settlements. Any settlement of the balance of your Extension of Credit for less than what is owed requires our written agreement.
- Inadvertent Excessive Charges or Collection of Payments. If a law which applies to this Agreement and which sets maximum charges is finally interpreted so that any fees or charges collected or to be collected in connection with this Agreement exceed the permitted limits, then: (i) any such charges or fees will automatically be reduced to the maximum permitted limit, retroactively effective as of the date of this Agreement, and as though this Agreement originally provided for the reduced charges or fees; and (ii) any sums already collected from you which exceeded permitted limits will be refunded to you. Also, if we inadvertently collect more payments than permitted by this Agreement, we will refund to you any such excess payments. We may choose to make any refunds described in this section by reducing the amount you owe under this Agreement or by making a direct payment to you.
- Governing Law. This Agreement (but not the Arbitration Clause in Exhibit A) shall be governed by the substantive laws of your home state without regard to its conflict of laws principles.
- Assignment. We may transfer or assign this Agreement and/or any or all of our rights or obligations under this Agreement at any time without your consent; however, any such transfer or assignment of any of our rights, liabilities or obligations shall not result in any changes to your rights and obligations under this Agreement. Any assignment of this Agreement by us shall not require delivery of a physical copy of this Agreement or endorsement by us to any assignee. You may not transfer or assign your obligations under this Agreement without our consent.
- Severability. Except as set forth in the Arbitration Clause in Exhibit A, if any provision of this Agreement is invalid or unenforceable under any law, rule or regulation, it shall not affect the validity or enforceability of any other provision of this Agreement.
- Check Conversion Notification; Electronic Check Re-Presentment. If you provide and we accept a check as payment, you authorize us and our servicers or agents either to use information from your check to make a one-time electronic fund transfer from your account or to process the payment as a check transaction. When we use information from your check to make an electronic funds transfer, funds may be withdrawn from your account as soon as the same day we receive your payment, and you will not receive your check back from your financial institution. In the event a check is returned unpaid for insufficient or uncollected funds, we may re-present the check electronically. For questions, please contact us at the Notice Telephone Number. In the ordinary course of business, the check will not be provided to you with your bank statement, but a copy can be retrieved by contacting your financial institution.
- Agreement in Writing: This Agreement is the final expression of the agreement between you and us and it may not be contradicted by evidence of an alleged oral agreement.
- Additional Disclosures and Limitations:
CALIFORNIA AND UTAH RESIDENTS: As required by California and Utah law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.
ALL BORROWERS, INCLUDING IOWA, MISSOURI, NEBRASKA, AND TEXAS RESIDENTS: ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR FORBEAR FROM ENFORCING REPAYMENT OF DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU AND US FROM ANY MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
NEW YORK, RHODE ISLAND AND VERMONT RESIDENTS: You understand and agree that we may obtain a consumer credit report in connection with any updates, renewals or extensions of any credit as a result of your application. If you ask, you will be informed whether or not such a report was obtained and, if so, the name and address of the agency that furnished the report. You also understand and agree that we may obtain a consumer credit report in connection with the review or collection of any extension of credit made to you or for other legitimate purposes related to such extension of credit.
WASHINGTON RESIDENTS: Fraudulent transactions may result in the loss of your money with no recourse.
WISCONSIN RESIDENTS ONLY: We may declare you to be in default if you permit to be outstanding an amount exceeding one full payment for more than 10 days after its due date or you fail to pay the last payment within 40 days of its scheduled due date.
MARRIED WISCONSIN RESIDENTS: If you are married: (i) you confirm that the Loan is being incurred in the interest of your marriage or family; (ii) no provision of any marital property agreement, unilateral statement, or court decree under the Wisconsin Marital Property Act will adversely affect our interest unless, before the time credit is granted, we are furnished a copy of that agreement or decree or are given complete information about the agreement or decree; and (iii) you understand and agree that we will provide a copy of this Agreement to your spouse for his or her information. If the Loan is granted, you will notify us if you have a spouse by sending your name and your spouse's name and address to us at the Notice Address
SOUTH DAKOTA RESIDENTS:
If you are in default for failure to make a timely payment, you will have 30 days to cure your default prior to acceleration of the credit obligation or prior to us seeking other available remedies.
The sales tax applicable to this transaction is the amount shown on the previous screen. By signing this Agreement, you agree to the sales tax set forth on the previous screen.
NORTH DAKOTA RESIDENTS: NOTICES AND SPECIAL PROVISIONS
The Buyer’s name and address are as previously provided to the Merchant on a previous screen.
The personal property subject to the retail installment contract are the goods purchased at Merchant as described on the previous screen.
The Cash Price of the personal property is the amount shown on the previous screen as the cost of the goods purchased from Merchant plus sales tax.
The buyer has not provided a down payment for the purchase. The Unpaid Balance of the Cash Price is equal to the Cash Price referenced above.
The Official Fees imposed by the Merchant are shown on the previous screen.
The Amount Financed is the total of the Unpaid Balance of the Cash Price plus any Official Fees imposed by the Merchant as shown on the previous screen.
There is no Finance Charge on this extension of credit.
The Total of Payments is equal to the Amount Financed as shown on the previous screen. This extension of credit is payable in one installment that is equal to the Final Purchase Price as described in this Agreement. The single installment is due when the Trial Period expires.
The Deferred Payment Price is equal to the Cash Price plus the Official Fees imposed by the Merchant as shown on the previous screen.
Liability insurance coverage for bodily injury and property damage caused to others is not included in this contract
NOTICE TO THE BUYER
1. Do not sign this contract before you read it or if it contains any blank space.
2. You are entitled to a completely filled-in copy of this contract when you sign it.
3. Under the law, you have the following rights, among others: (a) to pay off in advance the full amount due and to obtain a partial refund of the finance charge; (b) to redeem the property if repossessed for a default within the time provided by law; (c) to require, under certain conditions, a resale of the property if repossessed.
4. If you desire to pay off in advance the full amount due, the amount of the refund you are entitled to, if any, will be furnished upon request.
RETAIL INSTALLMENT CONTRACT
BY SIGNING THIS AGREEMENT BELOW OR BY ELECTRONICALLY SIGNING YOU CONFIRM THAT YOU HAVE RECEIVED A FULLY COMPLETED COPY OF THIS AGREEMENT.
ARBITRATION CLAUSE—EXHIBIT A
We have put this Arbitration Clause ("Clause") in question and answer form to make it easier to understand. However, this Clause is part of this Agreement and is legally binding. For purposes of this Clause, "we," "us," "our" and related words include TryNow, Inc. and our Notice Address is TryNow, Inc., 1134 Abbot Kinney Boulevard, Floor 3, Venice, CA 90291 US and our Notice Telephone number is (415) 234-0611.
Background and Scope
What is arbitration?
An alternative to court. In arbitration, a neutral third-party arbitrator ("Arbitrator") resolves Disputes in an informal hearing on an individual basis.
Is it different from court and jury trials?
Yes. The hearing is private. There is no jury. It is usually less formal, faster and less expensive than a court lawsuit. Pre-hearing fact finding is limited. Appeals are limited. Courts rarely overturn arbitration awards.
Can You Opt Out of this Arbitration Clause?
Yes, within 60 days. If you do not want this Arbitration Clause to apply, you must send us a signed notice within 60 calendar days after you agree to this Agreement. You must send the notice in writing (and not electronically) to the Notice Address, Attn: Legal Department. Provide your name, address and account number. State that you "opt-out" of the Arbitration Clause. Opting out will not affect the other provisions of this Agreement. If you opt out, it will apply only to that agreement.
What is this Arbitration Clause about?
The parties' agreement to arbitrate Disputes. Unless prohibited by applicable law and unless you opt out, you and we agree that you or we may elect to arbitrate individually or require individual arbitration of any "Dispute" as defined below.
Who does the Arbitration Clause cover?
You, us and certain "Related Parties". This Arbitration Clause governs you and us, your heirs and our agents. It also covers certain "Related Parties": (1) the parents, subsidiaries and affiliates of ours or any other Related Party; (2) the third party that supplied the Merchandise to us and/or that may deliver the Merchandise to you on our behalf; (3) the employees, directors, officers, shareholders, members and representatives of ours or any Related Party; (4) the successors and assigns of ours or any Related Party; (5) any third party providing any goods/parts and/or services in connection with the origination, servicing and collection of this Agreement; and (6) any person or company that is involved in a Claim you pursue at the same time you pursue a related Claim with us.
What Disputes does the Arbitration Clause cover?
All Disputes (except certain Disputes about this Arbitration Clause). This Arbitration Clause governs all "Disputes" that would usually be decided in court and are between us (or any Related Party) and you. In this Arbitration Clause, the word "Disputes" has the broadest reasonable meaning. It includes all claims even indirectly related to your purchase on credit, the Merchant or this Agreement (including without limitation your application, your account, past agreements, information you previously gave us,extensions, renewals, refinancings, payment plans, collections. privacy and customer information) or the relationships between you and us and/or "Related Parties" resulting therefrom. "Disputes" includes, but is not limited to, initial claims, counterclaims, cross-claims and third-party claims,and claims based on any constitution, statute, regulation, ordinance, common law rule (including rules relating to contracts, torts, negligence, fraud or other intentional wrongs) and equity. It includes claims that seek relief of any type, including damages and/or injunctive, declaratory or other equitable relief. It includes claims related to the validity in general of this Agreement. However, it does not include disputes about the validity, coverage or scope of this Arbitration Clause or any part of this Arbitration Clause.(This includes a Dispute about the rules against class arbitration and against an Arbitrator issuing relief to anyone except you, us and Related Parties.) All such disputes are for a court and not an Arbitrator to decide.But a Dispute about this Agreement as a whole is for an Arbitrator, not acourt, to decide.
Who handles the arbitration?
Usually AAA or JAMS. Arbitrations are conducted under this Arbitration Clause and the rules of the arbitration administrator in effect when the arbitration is started. The arbitration administrator will be either:
* The American Arbitration Association ("AAA"), 120 Broadway, 21st Floor,New York, NY 10271, www.adr.org.
* JAMS,620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com
* Any other company picked by agreement of the parties.
If all the above options are unavailable, a court with jurisdiction will pick the administrator. No arbitration may be administered without our consent by any administrator that would permit a class arbitration under this Arbitration Clause. The Arbitrator will be selected under the administrator's rules.However, the Arbitrator must be a lawyer with at least ten years of experience or a retired judge unless you and we otherwise agree.
Can Disputes be litigated?
Sometimes. Either party may bring a lawsuit if the other party does not demand arbitration. We will not demand arbitration of any lawsuit you bring as an individual action in small-claims court or an equivalent court, so long as the Dispute is pending only in that court. Both parties may use lawful self-help remedies. This includes set-off or repossession and sale of any collateral. Both parties may seek remedies which don't claim money damages. This includes prejudgment seizure, injunctions, or equitable relief. Even if all parties have opted to litigate a Dispute in court, you or we may elect arbitration with respect to any Dispute made by a new party or any Dispute later asserted by a party in that or any related or unrelated lawsuit (including a Dispute initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Clause.
Are you and we giving up any rights?
Yes. For Dispute that are arbitrated under this Arbitration Clause, you and we give up our rights to:
1. Have juries decide Disputes.
2. Have courts, other than small-claims courts, decide Disputes.
3. Serve as a private attorney general or in a representative capacity in court or in arbitration.
4. Join a Dispute that you, we or Related Parties have with a dispute that others have.
5. Bring or be a class member in a class action in court or in a class arbitration.
Are you waiving class action rights?
Yes. The arbitrator shall have no authority to conduct any arbitration inconsistent with this section or to issue any relief that applies to any person or entity except you or us or Related Parties individually.
COURTS AND ARBITRATORS WON'T ALLOW CLASS ACTIONS. If we elect to arbitrate a Dispute, you waive your rights to be in a class action in court or in arbitration, as a representative and a member. Only individual arbitration, or small-claims courts, will resolve Disputes. You waive your right to bring representative claims including private attorney general claims. Moreover, 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 Dispute in arbitration, and shall not (i) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Dispute of anyone other than a named party; nor (ii) make an award for the benefit of, or against, anyone other than a named party. No arbitration group or Arbitrator shall have the power or authority to waive, modify, or fail to enforce this section, 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 shall be determined exclusively by a court and not by the administrator or any Arbitrator.
Can you or another consumer start a class arbitration?
No. The Arbitrator is not allowed to handle any Dispute on a class or representative basis. All Disputes subject to this Arbitration Clause must be decided in an individual arbitration or an individual small claims action. You may not pursue any type of collective action or class action against us in arbitration.
What law applies?
The Federal Arbitration Act ("FAA"). This Agreement and the Extension of Credit involve interstate commerce. Thus, the FAA governs this Arbitration Clause. The Arbitrator must apply substantive law consistent with the FAA. The Arbitrator must honor statutes of limitation and privilege rights. The Arbitrator is authorized to award all remedies permitted by applicable substantive law,including, without limitation, compensatory, statutory and punitive damages(subject to constitutional limits that would apply in court), declaratory,injunctive and other equitable relief, and attorneys' fees and costs. In the event of any conflict or inconsistency between this Arbitration Clause and the administrator's rules or the Agreement, this Arbitration Clause will govern.
Will this clause continue to govern?
Yes, unless otherwise agreed. The Arbitration Clause stays effective unless the parties sign an agreement stating it doesn't or you timely opt out by the process described below. The Clause governs if you rescind the transaction. It governs if you default, renew, prepay, or pay. It governs if your contract is discharged through bankruptcy. The Arbitration Clause remains effective, despite a transaction's termination, amendment, expiration, or performance.
What must a party do before starting a lawsuit or arbitration?
Send a written Dispute notice and work to resolve the Dispute. We can try to resolve Disputes if you call us at the Notice Telephone Number. If this doesn't resolve the Dispute, before starting a lawsuit or arbitration, the complaining party must give the other party written notice of the Dispute. The notice must explain in reasonable detail the nature of the Dispute and any supporting facts. If you are the complaining party, you must send the notice in writing (and not electronically) to the Notice Address: Attn. Legal Department. You or an attorney you have personally hired must sign the notice and must provide the account number and a phone number where you (or your attorney) can be reached. A letter from us to you will serve as our written notice of a Dispute. Once a Dispute notice is sent, the complaining party must give the other party a reasonable opportunity over the next 30 days to resolve the Dispute on an individual basis.
How does an arbitration start?
Mailing a notice. If the parties do not reach an agreement to resolve the Dispute within 30 days after notice of the Dispute is received, the complaining party may commence a lawsuit or an arbitration, subject to the terms of this Arbitration Clause. To start an arbitration, the complaining party picks the administrator and follows the administrator's rules. If one party begins or threatens a lawsuit, the other party can demand arbitration. This demand can be made in court papers, such as a motion to compel arbitration. Once an arbitration demand is made, no lawsuit can be brought and any existing lawsuit must stop unless a court rules otherwise.
Will any hearing be held nearby?
Yes. The Arbitrator may decide that an in-person hearing is unnecessary and that he or she can resolve a Dispute based on written filings and/or a conference call. However, any in-person arbitration hearing shall take place either in Utah County, State of Utah, or in your county and state of residence.
What about appeals?
Very limited. Appeal rights under the FAA are very limited. The Arbitrator's award will be final and binding. Any appropriate court may enter judgment upon the Arbitrator's award. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Clause.
Arbitration Fees and Awards
Who bears arbitration fees?
Usually, we do. We will pay all filing, administrative, hearing and Arbitrator fees if you act in good faith, cannot get a waiver of such fees and ask us to pay. We will always pay amounts required under applicable law or the administrator's rules or if payment is required to enforce this Arbitration Clause.
When will we cover your legal fees and costs?
If you win. If you win an arbitration, we will pay the reasonable fees and costs for your attorneys, experts and witnesses. We will also pay these amounts if required under applicable law or the administrator's rules or if payment is required to enforce this Arbitration Clause. The Arbitrator shall not limit his or her award of these amounts because your Dispute is for a small amount.
Will you ever owe us for arbitration or attorneys' fees?
Only for bad faith. The Arbitrator can require you to pay our fees if (and only if): (1) the Arbitrator finds that you have acted in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); and (2) this power does not make this Arbitration Clause invalid.
Can an award be explained?
Yes. A party may request details from the Arbitrator within 14 days of the ruling. The Arbitrator will determine whether to grant such request.
What happens if a part of this Arbitration Clause cannot be enforced?
It depends. If any portion of this Arbitration Clause cannot be enforced, the rest of the Arbitration Clause will continue to apply, except that (A) this Arbitration Clause (except for this sentence) will be void if a court rules that the Arbitrator can decide a Dispute on a class basis and the court's ruling is not reversed on appeal, and (B) if a claim is brought seeking public injunctive relief and a court determines that the restrictions in this Arbitration Clause prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated.