LENDFI VISA CARD PROGRAM AGREEMENT
FOR LENDFI CARDHOLDER
Last Updated: February 26, 2020
IMPORTANT-PLEASE READ CAREFULLY
FOR QUESTIONS OR ASSISTANCE, PLEASE CONTACT CUSTOMER SERVICE AT (800) 600-1321 OR IN THE LENDFI APP.
LendFi Visa CardFees
These are the disclosures for the fees that apply when you use your LendFi Visa card. Please see your separate LendFi LOAN AGREEMENT for important disclosures regarding the APR, fees, and other terms and conditions that govern your LendFi loan(s), including when you will begin paying interest on the LendFi loan(s).
LendFi Visa Card Fees
Per Purchase Fee
ATM/Cash Advance Withdrawal Fee
No ATM access
Cash Reload Fee*
ATM Balance Inquiry Fee
Customer Service Fee
We charge no other fees with respect to your LendFi Visa card. Please see your LendFi Loan Agreement for APR, fees, and other terms and conditions that apply to your LendFi loan, including when you will begin paying interest on the LendFi loan.
Find details and conditions for all fees and services in your LendFi Visa Card Program Agreement, or call (800) 600-1321 or visit www.LendFi.com.
* Your LendFi Visa card account is not capable of being loaded with cash.
TABLE OF CONTENTS
1. This Agreement
2. Important Information About Opening an Account
3. Your Consent
4. Your Right to Withdraw Consent
5. You Must Keep Your Contact Information Current With Us
6. Copies of Communications
7. Hardware and Software Requirements
9. Participating in the Program
11. Card Account
12. Obtaining A Physical Card
13. Activating Your Virtual Card
14. Activating Your Physical Card
15. Setting a PIN & PIN Security
16. Adding your Card to a Digital Wallet
18. Card Security
19. Lost or Stolen Card Number
20. Authorized Users
21. No Secondary Cardholders
22. Using Your Card
23. Transacting with Your Card
24. Transaction Limits
25. Funds Availability
27. Account Alerts
28. Verified Mobile Device
29. Preauthorized Transfers
30. No Transactions in Foreign Currencies
34. Replacement Cards on Expiration
35. Our Liability to You
36. Errors or Questions About Your Virtual Account Transactions
37. Your Liability for Unauthorized Transactions
38. Unclaimed Property
40. Severability and Waiver
42. Entire Agreement
43. Cancellation and Suspension
44. Business Days
45. English Language Controls
46. Telephone Monitoring/Recording
47. Website Availability
48. Governing Law
50. LIMITATION OF LIABILITY
51. DISPUTE RESOLUTION BY BINDING ARBITRATION; JURY TRIAL WAIVER; CLASS ACTION WAIVER
52. Contact Information for Customer Service
1. This Agreement. This LendFi Visa Card Program Agreement (this “Agreement”) represents an agreement between you and Sutton Bank, member FDIC (the “Bank”), the issuer of your Card. This Agreement outlines the terms and conditions governing the LendFi Visa Card Program (the “Program”). This Agreement supplements but does not replace the LendFi’s Loan Agreement. In the event of an inconstancy between this Agreement and the LendFi’s Loan Agreement, this Agreement shall govern and control your Card Account, use of the Card, and your relationship with the Bank. For more information about your loan, please see your LendFi’s Loan Agreement. “Card” means the LendFi Visa Card issued by Bank that you can use for conducting transacting pursuant to LendFi’s Loan Agreement (See the paragraph below labeled Transacting With Your Card). The Card will be a virtual card represented by a 16-digit account number and a physical card embossed with the same 16-digit number if you choose to receive the physical card (See Obtaining a Physical Card). By accepting and using the Card, you agree to be bound by the terms and conditions contained in this Agreement, as well as the LendFi’s Loan Agreement between you and Swipe Wallet Inc., doing business as LendFi (“LendFi”). “Card Account” means the records maintained by Bank for each Card to evidence transactions initiated with the Card. “Lender App” means the “LendFiApp” as defined in the LendFi’s Loan Agreement. LendFi’s Loan Agreement” means the terms of service for participating in the LendFi program located at www.LendFi.com. “You” and “your” mean the person who receives a Card and is authorized to use a Card as provided for in this Agreement. “We,” “us,” and “our” mean the Bank and its successors, affiliates Please read this Agreement carefully and keep it for future reference.
THIS AGREEMENT INCLUDES, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER AND YOUR AUTHORIZATION FOR THE CARD TO BE CHARGED FOR ALL FEES ASSOCIATED WITH THE PROGRAM.
2. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A CARD 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 A CARD ACCOUNT, WE WILL ASK YOU TO PROVIDE YOUR NAME, PHYSICAL ADDRESS, DATE OF BIRTH, AND OTHER INFORMATION THAT WILL ALLOW US TO IDENTIFY YOU. WE MAY ALSO ASK YOU TO PROVIDE YOUR SOCIAL SECURITY NUMBER. BY ACCEPTING THE CARD, YOU CONFIRM YOU HAVE AUTHORIZED LENDFI TO PROVIDE US WITH THIS INFORMATION.
CONSENT TO USE ELECTRONIC SIGNATURES AND COMMUNICATIONS
3. Your Consent. To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to you under this Agreement and in connection with your relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide you in paper form (e.g., by mail). By accepting and agreeing to this Agreement electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.
4. Your Right to Withdraw Your Consent. Your consent to receive Communications electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further Communications electronically at any time by writing to LendFi, 548 Market Street, #83283 San Francisco, California 94104, Attn: LendFi Customer Support (“LendFi Address”). If you withdraw your consent to receive Communications electronically, we will close your Card Account, and you will no longer be able to use your Card or participate in the Program, except as expressly provided in this Agreement. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that your withdrawal of consent to receive Communications electronically will not apply to Communications electronically provided by us to you before the withdrawal of your consent becomes effective.
5. You Must Keep Your Contact Information Current With Us. In order to ensure that we are able to provide Communications to you electronically, you must notify us of any change in your email address and your mobile device number or other text message address by updating your profile on the LendFi Website at www.LendFi.com.
We will attempt to communicate with you only by use of the most recent contact information you have provided to us. You agree that any notice or communication sent to you at an address noted in our records shall be effective unless we have received an address change notice from you.
We cannot accept responsibility for any email messages not received by you, or for any delay in the receipt or delivery of any email notifications. If you make your email account available to any other individual, you agree that you are responsible for any release of any Account information to such individual.
6. Copies of Communications. You should print and save and/or electronically store a copy of all Communications that we send to you electronically.
7. Hardware and Software Requirements. In order to access and retain Communications provided to you electronically, you must have: (1) a valid email address or phone number; (2) a computer or other mobile device (such as tablet or smart phone) that operates on a platform like Windows or a Mac environment; (3) a connection to the Internet; (4) a Current Version of Internet Explorer 11 (or higher), Safari 8 (or higher), or Mozilla Firefox 32.0 (or higher), Chrome 35 (or higher), iOS 8 (or higher), or Android 4.4 (or higher); (5) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; (6) a computer or device and an operating system capable of supporting all of the above; and (7) a printer to print out and save Communications in paper form or electronic storage to retain Communications in an electronic form. “Current Version” means a version of the software that is currently being supported by its publisher.
8. Changes. We reserve the right, in our sole discretion, to communicate with you in paper form. In addition, we reserve the right, in our sole discretion, to discontinue the provision of electronic Communications or to terminate or change the terms and conditions on which we provide electronic Communications. Except as otherwise required by applicable law, we will notify you of any such termination or change by updating this Agreement on the LendFi Website or delivering notice of such termination or change electronically.
10. Card. The Card is issued by the Bank to access the Card Account; however, the Card Account is not issued in a specified amount. The funds you use with this Card are not loaded and stored in the Card Account after issuance. Instead, the funds pass through the Card Account for the sole and limited purpose of (and typically for no more than 200 milliseconds) effectuating purchases or cash advances as set forth in the paragraphs below labeled “Using Your Card” and “Cash Advances.” The Card is not a gift card or gift certificate. The Card is not a credit card. The Card remains the property of the Bank and must be surrendered upon demand. The Card cannot be redeemed for cash. The Card is not for resale and may not be transferred or assigned. The Card is not connected in any way to any other account with us. The Card is non-transferable and it may be canceled, repossessed, or revoked at any time without prior notice subject to applicable law. The Card is not designed for business use and may only be used for personal, family and household purposes, and we may close your Card Account if we determine that it is being used for business purposes. You may not use your Card for any illegal purpose. We may refuse to process any transaction that we believe may violate the terms of this Agreement.
12. Obtaining A Physical Card. You may choose to receive a physical Card only after you have activated your virtual Card. To obtain a physical Card, follow the directions provided by LendFi via the LendFi Website at www.LendFi.com. When you request a physical Card, you will receive your physical Card 5-7 days after we receive your request.
15. Setting a PIN & PIN Security. You will need to set a PIN for your virtual Card when you choose to add your Card to a digital wallet. (See Adding Your Card to a Digital Wallet.) If you choose to receive a physical Card and have not yet set a PIN for your virtual Card, you will need to set a PIN for your physical Card when you activate your Card. If you choose to receive a physical Card, the PIN for your physical Card and virtual Card will be the same number. If you choose to receive a physical Card and have already set a PIN for your virtual Card, the PIN that you set for your virtual Card will be the PIN for your physical Card. When selecting a PIN, you should not use numbers or words that appear in your wallet (e.g., date of birth, address, or social security number). You must memorize your PIN and do not share it with anyone. Do not write the PIN on a Card or keep it in the same location as the Card.
16. Adding Your Card to a Digital Wallet. (a) You may elect to add your Card to one or more digital wallets (“Digital Wallets”) supported by the Bank and subject to the Terms for Adding Your LendFi Visa Card to a Digital Wallet (“Digital Wallet Terms”).
(b) The Digital Wallet provider may allow you to conduct Transactions at a point of sale device, and you may not be able to use your Card to perform Transactions at such point of sale devices until you have selected a personal identification number (“PIN”) pursuant to this Agreement.
(c) Contact Customer Service at (800) 600-1321, on the web at LendFi Website, or in the App immediately if you believe someone has gained unauthorized access to your PIN, or someone has transferred or may transfer funds from your Card Account without your permission. Contacting us by telephone at (800) 600-1321 is the best way to minimize your possible losses. (See Lost or Stolen Card Number.)
17. Fees. Neither we nor LendFi will charge you any fees for you to obtain or use your Card. Third party fees may apply for participating in the Program as described in the paragraphs labeled “Account Alerts” in this Agreement. In addition, if you use an automated teller machine (“ATM”) to access cash with your Card and the ATM is not owned by us, you may be charged a “surcharge” or a “convenience fee” by the ATM operator or any network used to complete the transaction as described in paragraph labeled “Cash Access.” Read the ATM screen message carefully for information related to surcharges before you complete a transaction at an ATM.
18. Card Security. Do not share your Card number or PIN with anyone. You should treat your Card number with the same care as you would treat cash. Either memorize your Card number or keep it in a safe place. Do not send your Card number in an email or text message. Make sure your Card number is secured with encryption when you use your Card to perform transactions over the Internet or wireless networks. If you believe that anyone has gained unauthorized access to your Card number, you should advise us immediately, following the procedures in the paragraph labeled “Lost or Stolen Card Number.”
19. Lost or Stolen Card Number. Contact Customer Service immediately if you believe: (a) your Card or Card number has been lost or stolen, or (b) someone has transferred or may transfer funds from your Card Account without your permission. Contacting us by telephone at (800) 600-1321 is the best way to minimize your possible losses. If you have both a virtual and a physical Card and you report one of your Cards lost or stolen, both Cards will be canceled and new Cards will be issued. If you need to replace any Card that is reported lost or stolen, you can do so within the App by tapping the Card and tapping the Report Lost Card or by visiting the LendFi’s Website at www.LendFi.com. You will be required to provide personal information which may include your Card number, full name, transaction history and other relevant information.
20. Authorized Users. You are responsible for all authorized transactions initiated and fees incurred by use of your Card and Card Account. If you permit another person to have access to your Card number, we will treat this as if you have authorized such person to use the Card, and you will be liable for all transactions and fees incurred by such person, even if they exceed the authorization granted. Transactions will be considered unauthorized only after you notify us that the person is no longer authorized to use the Card. You are wholly responsible for the use of your Card according to the terms and conditions of this Agreement.
21. No Secondary Cardholders. You may not request an additional Card for another person.
22. Using Your Card. You may use your Card to make purchases from merchants as described below:
(a) Using your Card for Purchases. You may use your Card to make purchases at any merchant that accepts Visa debit cards or debit cards of other networks in which the Bank participates, subject to the amount of funds available to you to transact with your Card, the transaction limits described below, and the other terms and conditions of this Agreement. See the paragraph below labeled “Transacting with Your Card” for information on the amount of funds available to you to transact with your Card. You may not use your virtual Card for making purchases at any vending machines, kiosks, or gas station pumps. Each time you use your physical Card or your virtual Card, the amount of funds available to transact with your Card may be reduced by the amount of the transaction and any applicable fees. The new amount of funds available may be used for making purchases with your physical and virtual Cards. You are not allowed to exceed the amount of available funds through an individual transaction or a series of transactions. If you do not have enough funds available to complete a transaction, you can instruct the merchant to charge a part of the purchase to the Card and pay the remaining amount using another payment method. These are called “split transactions.” Some merchants do not allow cardholders to conduct split transactions. Nevertheless, if a transaction exceeds the amount of available funds, you will be fully liable for the full amount of the transaction and any applicable fees. When making purchases with your Card at any point-of-sale (“POS”) device other than through a Digital Wallet provider, you may select “CREDIT” on the keypad to make a signature purchase. You may not use your Card for online gambling or illegal transactions. We may temporarily “freeze” or entirely deactivate your Card Account and attempt to contact you if we notice transactions that are unusual or appear suspicious.
(b) Merchant Holds on Available Funds. When you use your Card or Card number to initiate a transaction at certain merchant locations, websites or mobile applications, such as hotels, restaurants, gas stations, and rental car companies, where the final purchase amount is unknown at the time of authorization, a hold may be placed on your available funds for an amount equal to or in excess of the final transaction amount. The funds subject to the hold will not be available to you for any other purpose until the merchant sends us the final transaction amount. Once we receive the final transaction amount, it may take up to seven days for the hold to be removed. During that period, you will not have access to the funds subject to the hold.
23. Transacting with Your Card. Subject to the limitations set forth in this Agreement, the only funds available for transacting with your Card are the funds made available through your Lender’s Loan Agreement. You acknowledge and agree that by registering for the Program, you have authorized LendFi to access funds loaned to you pursuant to LendFi’s Loan Agreement. Such authorization shall continue until you withdraw from participating in the Program. (See LendFi’s Loan Agreement for instructions on withdrawing from the Program). When the Card is used for a transaction at a merchant, an authorization request will be transmitted to us from a merchant. We will communicate with LendFi to determine if you have sufficient funds pursuant to LendFi’s Loan Agreement available to fulfill the transaction authorization request. If LendFi notifies us that funds are available for the transaction and the transaction itself is authorized, the funds will be available for your Card transaction. The funds will then be drawn down pursuant with LendFi’s Loan Agreement for the amount of the transaction. If LendFi notifies us that there are not sufficient funds available for the amount of the purchase or the transaction itself is not authorized, then the transaction will be declined. Any withdrawal of your participation in the Program will be effective only after we have had a reasonable period of time to process your withdrawal.
24. Transaction Limits. The maximum amount that can be spent using your Card per day is the amount of funds available to you to transact with your Card or $10,000.00, whichever is lower. See the paragraph above labeled “Transacting with Your Card” for information on the amount of funds available to you to transact with your Card. The maximum amount that can be spent using the Card in a thirty (30) day period is the amount of funds available to you to transact with your Card or $50,000.00, whichever is lower. In order to protect your Card Account, we may temporarily impose limits on the dollar amount, number, and type of transactions performed using your Card and your Card Account. To the extent permitted by applicable law, we reserve the right to: (a) change the transaction limits; (b) limit, block, or place a hold on certain types of transfers or transactions; and (c) limit, suspend, or block transfers from particular persons, entities, or Card Accounts.
25. Funds Availability. You are responsible for keeping track of whether you have funds available to transact with your Card. See the paragraph above labeled “Transacting with Your Card” for information on the amount of funds available to you to transact with your Card. Merchants generally will not be able to determine your funds availability. It is important to know the amount of funds available before performing a transaction. If you do not have sufficient available funds to cover the transaction amount, the transaction will be declined. If you do not have available funds, but an error occurs and you transact with the Card, then you are not authorized to use such funds. Any transaction that could create a negative balance for your Card Account is not permitted.
26. Transaction History. You may obtain information about the available funds in your Card Account and a 60- day history of your Card Account transactions on the App. You will not receive paper statements for your Card Account.
27. Account Alerts. If you provide your mobile phone number, other text message address or download the App to another mobile device, we will send you important notices to the mobile number, text message address or mobile device you have provided in the App. In addition, if you provide your mobile phone number, other text message address or download the App to another mobile device to us, you expressly consent to receive text messages relating to your Card Account at that number, address or device. Third-party data and message fees may apply.
28. Verified Mobile Device. When using the App and other Program services with your mobile device, you may provide a valid mobile device number or text message address in the App and verify such number or text message address as instructed by us. To verify your mobile device number or text message address, we may send you a code via text message to the mobile device number or text message address you provide, and you must enter that code as instructed by us. If you change your mobile device number or text message address, you must promptly provide and verify your new mobile device number or text message address.
29. Preauthorized Transfers. No preauthorized transfers will be allowed.
30. No Transactions in Foreign Currencies. No transaction can be made in foreign currency.
31. Receipts. You should get a receipt for each Card transaction. You agree to retain, verify, and reconcile your Card transactions and receipt.
32. Refunds. You will not receive cash refunds for Card transactions. If a merchant gives you a credit for merchandise returns or adjustments, the merchant may do so by processing a credit adjustment. After we process a credit adjustment, we will notify LendFi that the amount of credit is available for you to transact with by using the Card and pursuant to LendFi’s Loan Agreement. We are not responsible for the delivery, quality, safety, legality, or any other aspects of goods or services that you purchase with your Card, except as otherwise required by law or Visa rules.
34. Replacement Cards on Expiration. If you have a virtual card, the expiration date of your virtual Card is identified on the front of the virtual Card. If you have a physical plastic card, the expiration date of your physical plastic Card is identified on the back of the Card. If LendFi notifies us that there is a positive balance of funds in your Card Account upon expiration of your Card and your Card Account is in good standing, we may issue you a new Card. We may also issue you a new Card when your Card expires even if you have no funds available in your Card Account. Write down your Card number and the customer service phone number provided in this Agreement on a separate piece of paper in case your Card is lost, stolen, or destroyed. Keep the paper in a safe place. If you need to replace your Card for any reason, please contact Customer Service. You will need to provide certain User Information so we can verify your identity.
35. Our Liability to You. If we do not complete a transaction with your Card on time or in the correct amount according to this Agreement, we may be liable for your losses or damages. However, there are some exceptions. We will not be liable if: (a) through no fault of ours, you do not have enough available funds to perform the transaction; (b) circumstances beyond our control (such as fire, flood, water damage, power failure, strike, labor dispute, computer breakdown, telephone line disruption, or natural disaster) prevent or delay the transfer despite reasonable precautions taken by us; (c) the system, ATM, or point-of-sale terminal was not working properly, and you knew about the problem when you initiated the transaction; (d) the funds available to you to transact with your Card Account are subject to legal process or are otherwise not available for transactions; (e) the merchant refuses to accept your Card; (f) if access to your Card has been blocked after you reported your Card lost or stolen; (g) if we have reason to believe the transaction is unauthorized; (h) the transaction cannot be completed because your Card is damaged; or (i) any other exception stated in this Agreement.
36. Errors or Questions About Your Card Account Transactions. Contact LendFi Customer Service in writing at the address provided below as soon as you can if you think an error has occurred involving your Card Account. Lender must hear from you no later than 60 days after the date Lender sent the FIRST written transaction history on which the error appeared. When you notify Lender about an error involving your Card Account, you will need to tell Lender: (a) your name and Loan Account number; (b) why you believe there is an error and the dollar amount involved; and (c) approximately when the error took place. Lender will mail you a written acknowledgement of your notice within 30 days of receiving such written notice. Lender will determine whether an error occurred within 90 days after Lender hears from you and will correct any error promptly. During this time, Lender will not try to collect any disputed amounts or related charges. If Lender determines that an error has occurred, Lender shall correct the error, reverse or adjust the transaction and related charges, and mail a correction notice. If Lender determines that no error has occurred, Lender will mail an explanation that sets forth the reasons Lender believes the alleged error is incorrect in whole or in part. Upon request, Lender will furnish copies of the documentary evidence supporting Lender’s determination. If Lender determines that a different error has occurred, Lender will correct such error and reverse or adjust the transaction with any such disputed amount and related charges. If you need more information about the Lender’s error resolution process, contact Customer Service.
37. Your Liability for Unauthorized Transactions. Tell us AT ONCE if you believe your Card or PIN has been lost or stolen or you believe a transaction has been made without your permission using information from your Card, your PIN, or Card Account, or you could lose all the money associated with your Card Account. Contact Customer Service immediately at the number or address provided below to keep possible losses to a minimum. Contacting LendFi by telephone at (800) 600-1321 is the best way to minimize possible losses.
(a) Transaction Routed Through the Visa System. Visa Zero Liability Protection. Under Visa U.S.A. Inc. Operating Regulations. Your liability for unauthorized transactions using your Card Account that take place on the Visa system without a personal identification number (PIN) is $0.00 if you are not grossly negligent or fraudulent in the handling of your Card. This reduced liability does not apply to PIN transactions not processed by Visa (see Transactions Not Routed Through the Visa System below).
(b) Transaction Not Routed Through the Visa System. Unauthorized transactions that are not routed through Visa are not protected by the Visa Liability Protection policy. These types of transactions include point of sale, PIN, PINless or other debit transactions not processed by Visa. If you tell us within two business days after you learn of any unauthorized transactions or the loss of your PIN, you will lose no more than $50 if someone accessed your Card Account without your permission. If you do NOT tell us within two business days after you learn of an unauthorized transaction or the loss of your PIN, and we can prove we could have stopped someone from accessing your Card Account without your permission if you had told us, you could lose as much as $500. Also, if your Card Account transaction history or other information shows transfers that you did not make or authorize, tell us at once. If you do not tell us within 60 days after the information is made available to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip, a hospital stay, or other extenuating circumstances) kept you from telling us, we will extend the times specified above to a reasonable period. You agree to cooperate reasonably with us in our attempts to recover funds from, and to assist in the prosecution of, any unauthorized users of your Card Account.
38. Unclaimed Property. If your Card Account becomes inactive (e.g., if you do not use the funds in your Card Account or access your Card Account for a certain period of time), applicable law may require us to report any funds in your Card Account as unclaimed property. If this occurs, we may try to locate you at the address shown in our records. If we are unable to locate you, we may be required to deliver any funds in your Card Account to the applicable state as unclaimed property. The specified period of time to report and send funds in an inactive Card Account to a state varies by state, but usually ranges between two and five years.
39. Assignment. To the extent permitted by applicable law, we may assign this Agreement without obtaining your consent. You may not assign or transfer your Card, your Card Account, or this Agreement without our prior written consent.
40. Severability and Waiver. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be deemed to be modified to the minimum extent necessary to make it valid and enforceable and the rest of this Agreement will not be affected. We do not waive our rights by delaying or failing to exercise them at any time.
41. Amendment. We may add to, delete, or amend this Agreement at any time in our sole discretion without providing notice to you, subject to applicable law. We reserve the right, subject to applicable law, to deliver to you any notice of changes to existing terms or the addition of new terms by posting an updated version of this Agreement on the LendFi Website or delivering notice of changes to you electronically.
42. Entire Agreement. This Agreement constitutes the entire and sole agreement between you and us with respect to the Program and supersedes all prior understandings, arrangements, or agreements, whether written or oral, regarding the Program.
43. Cancellation and Suspension. To the extent permitted by applicable law, we may cancel or suspend your Card, your Card Account, or this Agreement immediately, for any reason, and without notice to you. You may cancel your Card, your Card Account, or this Agreement at any time by notifying Customer Service at the number or address provided below. Cancellation or suspension of this Agreement will not affect any of our rights or your obligations arising under this Agreement prior to such cancellation or suspension. In the event that your Card Account is cancelled, closed, or terminated for any reason, you may request the unused balance to be returned to you via a check to the mailing address we have in our records. The Bank reserves the right to refuse to return the unused balance if it is less than $1.00.
44. Business Days. Our business days are Monday through Friday, excluding federal holidays.
45. English Language Controls. Any translation of this Agreement is provided for your convenience. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original English.
46. Telephone Monitoring/Recording. You agree that from time to time, without further notice to you, we may monitor and/or record telephone calls and electronic communications between you and us to assure the quality of our customer service or as required by applicable law.
47. Website Availability. Although considerable effort is expended to make our website and other operational and communications channels available around the clock, we do not warrant these channels to be available and error free every minute of the day. You agree that we will not be responsible for temporary interruptions in service due to maintenance, website changes, or failures, nor shall we be liable for extended interruptions due to failures beyond our control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, labor disputes and armed conflicts.
You agree to act responsibly with regard to our website and its use. You will not violate any laws, interfere or disrupt computer networks, impersonate another person or entity, violate the rights of any third party, stalk, threaten or harass anyone, gain any unauthorized entry, or interfere with the website’s systems and integrity. We shall not bear any liability, whatsoever, for any damage or interruptions caused by any “computer viruses” that may affect your computer or other equipment. We advise the regular use of a reputable and readily available virus screening and prevention software.
48. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
49. Indemnification. At our request, you agree to defend, indemnify, and hold harmless us and our parents, subsidiaries, and other affiliated companies, and our and their employees, contractors, officers, and directors against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) that arise from your violation of this Agreement, applicable law, or any third-party rights or your fraud or willful misconduct. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
50. LIMITATION OF LIABILITY. Except as otherwise expressly provided in this Agreement or as otherwise required by applicable law, we, our affiliates, and the parties with whom we contract in order to offer the Cards, the Card Accounts, and related services are neither responsible nor liable for any indirect, incidental, consequential, special, exemplary, or punitive damages arising out of or relating in any way to the Cards, the Card Accounts, any products or services purchased using Card Accounts, or this Agreement (as well as any related or prior agreement that you may have had with us).
51. DISPUTE RESOLUTION BY BINDING ARBITRATION; JURY TRIAL WAIVER; CLASS ACTION WAIVER. For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Cards, the Card Accounts, or this Agreement (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in the federal judicial district of your residence. As used in this Section, “we” and “us” mean the Bank and its subsidiaries, affiliates, predecessors, successors, and assigns and all of its and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” includes Square and any third party providing any product, service, or benefit in connection with the Cards, the Card Accounts, or this Agreement (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section.
Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving contract disputes. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You should review this provision carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in your state or municipality within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence in order to maintain the status quo pending arbitration, and each party hereby agrees to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of your residence for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate.
Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right in our sole and exclusive discretion to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) subject to the paragraph labelled “Limitation of Liability,” the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law.
This Section will survive termination of your Card Account or this Agreement as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (a) and (b) of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (a) or (b) of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence. For more information on the AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call the AAA at 1-800-778-7879 or visit the AAA website at http://www.adr.org.
52. Contact Information for Customer Service. For customer service, you may contact LendFi online at LendFi’s Website at www.LendFi.com, by phone at (800) 600-1321 , in the App, or by writing us at 548 Market Street #83283, San Francisco, California 94104.
This Card is issued by Sutton Bank, Member FDIC, pursuant to license from Visa, U.S.A., Inc.
Visa is a registered trademark of Visa, U.S.A., Inc. All other trademarks and service marks belong to their respective owners.