Line of Credit Agreement
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION IN SECTION 29. IT WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS IN THE EVENT OF A DISPUTE UNLESS YOU: (1) OPT OUT PROPERLY IN ACCORDANCE WITH SECTION 29; OR (2) ARE PROTECTED BY THE MILITARY LENDING ACT. FOR EXAMPLE, IF THE LOAN HOLDER ELECTS TO REQUIRE YOU TO ARBITRATE ANY CLAIM, YOU WILL NOT HAVE THE RIGHT TO A JURY TRIAL OR THE RIGHT TO PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION.
1. Introduction
This Line of Credit Agreement ("Agreement"), which has been offered to you in connection with your use of the services offered by ShoulderTap Technologies Inc. d/b/a Fizz (“Fizz”), outlines the terms and conditions under which a line of credit and corresponding account will be issued to you by Lead Bank, member of the Federal Deposit Insurance Corporation. The parties (each, a "Party" and collectively, "Parties") to this Agreement are you and Lead Bank. "You" and "your" mean the borrower under this Agreement. Additionally, for purposes of this Agreement, the term "Finance Charge" refers collectively to the fees, charges, and interest (if any) specified in the accompanying Truth in Lending Disclosure.
2. Promise to Pay
You promise to pay the amount of the Credit Limit that is advanced under this Agreement plus any interest and fees (if applicable) to the Loan Holder (as defined below) on the payment schedule that is explained in Section 8 below. You understand that Lead Bank may assign this Agreement or any of its rights hereunder in whole or in part at any time without your consent or notice to you as further described in Section 26 below. Lead Bank or any person to whom this Agreement is transferred to in whole or in part is called "the Loan Holder" and referred to as “we”, “us”, and “our” in this Agreement.
3. Representations, Warranties and Covenants
You represent, warrant and covenant, on the date hereof and on the date of each advance under this Agreement, as follows:
a) You are at least 18 years of age and the age of majority in your state of residence;
b) You (i) are a legal resident of the United States, or (ii) have (x) an SSN or ITIN number and (y) a valid address in the United States (other than a P.O. box);
c) Your Fizz Account (as defined in Section 4 below) is in good standing;
d) You are not currently party to any bankruptcy petition and have not consulted a bankruptcy attorney in the past six months; and
e) All information provided by you in connection with, or pursuant to, this Agreement is true, accurate and complete in all material respects.
4. Utilization of Credit Line
This is an open end line of credit that is deposited to the card account provided to you by the card issuer referenced in your separate Fizz Cardholder Agreement (such card, your “Fizz Card,” such card issuer, “Issuer”, and such card account, your “Fizz Account”). When you request funding through your line of credit, the Loan Holder will advance credit to your Fizz Account under this Agreement (each individual advance of credit granted to you, a “Charge”) and deposit such funds to your Fizz Card, up to your Credit Limit (as defined in Section 5 below). Your access to this line of credit is subject to any limits on your ability to access your Fizz Account that may be imposed by Fizz and/or Issuer. The Loan Holder may refuse to make a requested advance of credit if at the time of such request any amount then due and payable on your account has not been paid in full or you are in breach of any of your obligations under this Agreement or Fizz’s Terms of Use. Additionally, the Loan Holder may refuse to make a requested advance of credit if the Loan Holder suspects fraud, illegal activity, or other misuse of your Fizz Account.
Lead Bank is not a party to the Fizz Cardholder Agreement and has no responsibility to you or any other party related to your Fizz Cardholder Agreement, Fizz Card, or Fizz Account except as explicitly outlined in this Agreement. If you have any questions, issues, disputes, or other matters related to these items, you should contact the parties identified in your Fizz Cardholder Agreement.
5. Credit Limit
“Credit Limit” means the maximum amount of principal we make available to you under this Agreement at any one time, whether you request the full Credit Limit all at once, or incrementally through multiple separate requests. Subject to applicable law, we may periodically review your creditworthiness and increase or reduce your Credit Limit, or terminate or suspend your right to further advances under this Agreement, at any time. Should we choose to reduce your Credit Limit, we will notify you of your new Credit Limit either by sending you a notice or through your periodic billing statement.
You are permitted to request an advance of credit in the amount of your full Credit Limit all at once, or incrementally through multiple separate requests. You should always keep your total balance below your Credit Limit. If you attempt to make a Charge that would cause you to exceed your Credit Limit: (1) the Loan Holder may not authorize the Charge; and (2) if the Loan Holder authorizes the Charge and you thereby exceed your Credit Limit, this may not increase your Credit Limit, and the Loan Holder is not obligated to permit you to exceed your Credit Limit later. However, if your total balance due in repayment of authorized Charges goes over your Credit Limit, you must still repay us for the full amount of your total balance.
6. Total Amount Due and Periodic Statements
All Charges made in each billing period of thirty days (a “Billing Cycle”) will be aggregated with all other Charges made during that Billing Cycle for which payment has not yet been made (collectively, the “Amount Due”). A periodic statement (your “Statement”) will be made available to you electronically in connection with your account through the Fizz mobile application on the first day following the closing date for each Billing Cycle (your “Statement Date”). The Statement will include: the account balance outstanding at the beginning of the applicable Billing Cycle, the closing date for such Billing Cycle, your Amount Due, the Payment Due Date (as defined in Section 8 below) for such Amount Due, any Grace Period (as defined in Section 8 below), your maximum and available Credit Limit, interest and fees accrued on the Amount Due (if applicable), and payments made or owed by you with respect to the relevant Billing Cycle.
Following each Billing Cycle, you must pay the Amount Due that is shown on your Statement. To determine the Amount Due, we use the daily balance method (including current transactions). To calculate the “daily balance” of your account, the Loan Holder will take the beginning balance on your account each day of the respective Billing Cycle, add any new Charges, and subtract any payments or credit credited as of that Billing Cycle. Please see Section 8 below for more information.
7. Interest
The Loan Holder reserves the right to amend this Agreement to assess a Finance Charge on your advances, where permitted by law, subject to Section 13 below. Should the Loan Holder choose to assess a Finance Charge at a later date, the breakdown of any fees and the annual percentage rate of any interest charged will be communicated to you in advance pursuant to applicable law.
8. Payments
You shall make payments of principal and interest (if applicable) in an amount sufficient to pay off the principal Amount Due and any accrued interest (if applicable) in full for each Billing Cycle. Your first payment for the Amount Due will be due on the twenty-first (21st) day after your Statement Date for your initial Billing Cycle, and all your remaining payments will be due on the twenty-first (21st) day after your Statement Date for each subsequent Billing Cycle (each, a “Payment Due Date”). You must repay the full Amount Due on or before each Payment Due Date. However, you may make payments up to the entire outstanding balance of your Amount Due at any time. For the avoidance of doubt, you may not carry your balance of Amount Due across Billing Cycles. If you are unable to pay us your full Amount Due each Payment Due Date, we may decline to authorize any future Charges until the outstanding balance of your Amount Due has been paid. You will be entitled to an interest-free grace period for an additional thirty (30) days after your Payment Due Date (the “Grace Period”). If you do not pay your full Amount Due by the end of the Grace Period, we may declare you in Default pursuant to Section 15 below. Additionally, if your account is in default, is part of a bankruptcy proceeding or is otherwise charged off or accelerated, including at the end of the Billing Cycle, your obligations are immediately due and payable.
9. Application of Payments
We apply your payments – up to the Amount Due – first to your principal Amount Due and then to any accrued interest or charges (if applicable).
10. Late Payment Fees
You will never be charged any late fee. However, if you fail to repay your full Amount Due by the relevant Payment Due Date, we may charge you interest as described in Section 5 above.
11. Payment Methods
You agree that you will make your monthly payments, using one of the methods made available to you by the Loan Holder, which currently consists of: ACH transfer. You understand that if the payment you submit does not meet these requirements, it may not be processed, may be processed late, or may be processed as the Loan Holder deems appropriate.
12. Returned/Unsuccessful Payment(s)
You understand that your financial or banking institution may charge you a fee for a returned or unsuccessful payment toward your Amount Due. We will not be held responsible for any fees assessed by your financial or banking institution for returned or unsuccessful payments.
13. Cancelling or Amending this Agreement
The Loan Holder reserves the right to periodically re-evaluate your use of your Fizz Account and may cancel or amend this Agreement at any time, even if you are not in Default, and will provide you with notice of any such action if required to do so by applicable law. Where permitted by law, the changes will apply to all existing and future balances. If more than one interest rate applies to your account, we will apply payments to the oldest rate's unpaid interest charge and unpaid principal balance first.
The Loan Holder reserves the right to periodically re-evaluate your use of your Fizz Account and may cancel or amend this Agreement at any time, even if you are not in Default, and will provide you with notice of any such action if required to do so by applicable law. Where permitted by law, the changes will apply to all existing and future balances. If more than one interest rate applies to your account, we will apply payments to the oldest rate's unpaid interest charge and unpaid principal balance first.
You have the same right to cancel this Agreement and close your account for any reason or if you do not agree with any amendment. You may initiate a request to close your account by contacting the Loan Holder through the Fizz mobile application. Upon receipt of a cancellation notice from you, the Loan Holder will cancel your line of credit within a reasonable period. You agree that the Loan Holder is not responsible for any costs, damages, or inconvenience you may suffer as a result of our cancelling your line of credit. The Loan Holder will not charge you any fee for terminating this Agreement, however, you will remain responsible and must pay for any and all obligations owed to the Loan Holder under this Agreement.
14. Your Right to Prepay
You may prepay your outstanding principal balance in full or in part at any time without penalty. You are entitled to a refund of any amounts you may pay to the Loan Holder in excess of the remaining obligations as of the date of prepayment, however you are not entitled to a refund of any other interest or fees. Notwithstanding the foregoing, you agree that the Loan Holder may set off any amounts you are entitled to against any amounts you owe the Loan Holder on any other Charge or otherwise.
15. Default
If you are in Default, the Loan Holder may, subject to applicable law, and upon notice to you, require that you pay immediately the full amount of your obligations under this Agreement, including any credit advanced, accrued interest, and fees, irrespective of the due date as otherwise defined in this Agreement or any Statement. The Loan Holder may also reduce your credit limit or refuse to make future advances of credit while you are in Default.
The event or an occurrence of any of the following shall constitute a “Default”:
a) You fail to make any payment within thirty (30) days of the Payment Due Date, including upon death or legally declared incapacity;
b) You fail to perform or observe any of your covenants or obligations set forth in this Agreement for a period of ten (10) days after written notice thereof from the Loan Holder;
c) A bankruptcy or insolvency proceeding is instituted by or against you, or a receiver is appointed for your property;
d) You, or if applicable, your cosigner, spouse or domestic partner, make an assignment for the benefit of creditors;
e) You permanently reside outside the United States of America; or
f) The Loan Holder determines that you made a false, incomplete or misleading statement to it, or that you otherwise tried to defraud the Loan Holder.
Even if, at a time when you are in Default, the Loan Holder does not require you to pay immediately, the Loan Holder will still have the right to do so if you are in Default at a later time. If the Loan Holder has required you to pay immediately in full as described above, the Loan Holder will have the right to be paid back by you for all of its costs and expenses in enforcing this Agreement to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees.
16. Collection
You agree that if you fail to pay any amount owed on the line of credit then the Loan Holder may engage in collection efforts to recover those amounts. These collection efforts may involve contacting you directly or taking legal action. The Loan Holder will have the right to be paid back by you for all of its costs and expenses in enforcing this Agreement to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees.
17. Credit Bureau Disputes
We may report information about your Line of Credit to consumer reporting agencies. Late payments or other Defaults on your account may be reflected on your credit report. If you believe that any information about your loan that the Loan Holder or its representative has furnished to a consumer reporting agency is inaccurate, or if you believe that you have been the victim of identity theft in connection with any loan made in connection with this Agreement, you may write to Loan Holder c/o Fizz at [email protected] or ShoulderTap Technologies Inc. d/b/a Fizz, 40 Wooster Street, New York, NY 10013. In your letter, you will: (i) provide your name and e-mail address, (ii) identify the specific information that you are disputing, (iii) explain the basis for the dispute; and (iv) provide any supporting documentation you have that substantiates the basis of the dispute. If you believe that you have been the victim of identity theft, you may submit an identity theft affidavit or identity theft report.
18. Verification
You authorize the Loan Holder or its representative to verify the information you provided in connection with your application. You understand that the Loan Holder or its representative may require additional identity verification/validation information from you directly at any time while your obligations under this Agreement exist.
19. Settlements
A late payment, a partial payment, or a payment marked with any restrictive language may be processed without effect on the terms of this Agreement. Any settlement of a Charge for less than what is owed requires the Loan Holder's written agreement.
20. Notices
Unless applicable law requires a different method, any notice that must be given to you under this Agreement may be given, at the Loan Holder's option, electronically, by telephone, in writing by U.S. Mail, or by providing it to you in any other manner, in each instance using the contact information the Loan Holder or its representative has on file for you. To the extent permitted under applicable law, any notice the Loan Holder gives to you will be effective and deemed delivered when sent. You must send notices to Loan Holder c/o Fizz at [email protected] or ShoulderTap Technologies Inc. d/b/a Fizz, 40 Wooster Street, Level 2, New York, NY 10013, unless a different address is later provided to you in writing. To the extent permitted under applicable law, any notice you send to the Loan Holder will not be effective until the Loan Holder receives it and has had a reasonable opportunity to act on such notice.
21. Bankruptcy
You agree to send all bankruptcy notices and related correspondence to Loan Holder c/o Fizz at [email protected] or ShoulderTap Technologies Inc. d/b/a Fizz, 40 Wooster Street, New York, NY 10013. You promise that you have no current intent to file any bankruptcy petition and have not consulted a bankruptcy attorney in the past six (6) months.
22. Notices of Change in Circumstances
You agree to notify the Loan Holder of any changes to your name, mailing or e-mail address, or phone number (including your cell phone number) within fifteen (15) days by writing to Fizz on behalf of the Loan Holder by email at [email protected]. You understand the Loan Holder will rely on your cell phone number, mailing and e-mail addresses the Loan Holder has on file for you for any and all communications addressed to you unless or until either you, or, in the case of your mailing address, the U.S. Postal Service, notifies the Loan Holder of a change of address, or the Loan Holder otherwise has reason to know the contact information is no longer valid, and it has had a reasonable opportunity to act on such notice. You agree to cooperate with and participate in any verification process the Loan Holder may require in completing this change, and understand that your failure to do so may prevent your ability to access the account.
23. Contacting You; Phone and Text Messages; Call Recording
You expressly authorize the Loan Holder and its affiliates, agents, contractors, collectors, representatives, assigns and servicers/service providers (collectively, the "Messaging Parties") to contact you using automatic telephone dialing systems, automated dialer systems, artificial or pre-recorded voice message systems, text messaging systems, and automated e-mail systems for any and all purposes arising out of or relating to this Agreement or your line of credit and in order to provide you with information about this Agreement and your line of credit, including information about upcoming payment due dates, missed payments and returned payments. You authorize the Messaging Parties to make such contacts using any telephone numbers (including wireless, landline and VOIP numbers) or e- mail addresses you supply to the Messaging Parties in connection with this Agreement, the Messaging Parties' servicing and/or collection of amounts you owe the Messaging Parties or any other matter. You understand that anyone with access to your telephone or e-mail account may listen to or read the messages the Messaging Parties leave or send you, and you agree that the Messaging Parties will have no liability for anyone accessing such messages. You further understand that, when you receive a telephone call, text message or e-mail, you may incur a charge from the company that provides you with telecommunications, wireless and/or Internet services, and you agree that the Messaging Parties will have no liability for such charges. You expressly authorize the Messaging Parties to monitor and record your calls with the Messaging Parties. To the extent you have the right under applicable law to revoke this authorization, you agree you may do so, in writing, by contacting Loan Holder c/o Fizz at [email protected] or ShoulderTap Technologies Inc. d/b/a Fizz, 40 Wooster Street, Level 2, New York, NY 10013.
24. Waivers
You waive the rights of Presentment and Notice of Dishonor. "Presentment" means the right to require the Loan Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Loan Holder to give notice to you that amounts due have not been paid.
25. Fees on Charges
If a law, which applies to your line of credit and sets maximum fees or finance charges on a Charge, is finally interpreted so that the interest or other Charge fees or finance charges collected or to be collected in connection with your Charges exceeded or exceeds the permitted limit, then: (a) any such fee or finance charge will be reduced by the amount necessary to reduce the fees or finance charges to the permitted limit; and (b) any sums already collected from you which exceeded permitted limits will be refunded to you, subject to the Loan Holder's right of set off. The Loan Holder may choose to make this refund by reducing the amount you owe or by making a direct payment to you.
26. Assignment
You agree the Loan Holder may sell or otherwise transfer its rights under this Agreement and amounts owed by you at any time. If it does, this Agreement will remain in effect. You may not transfer your rights under this Agreement without the Loan Holder's written permission, which it is not required to give. Any attempt to do so will be void. Your obligations under this Agreement apply to all of your heirs, successors and permitted assigns, if any. The Loan Holder's rights under this Agreement apply to it and each of its successors and assigns.
27. Non-Negotiable Instrument
This Agreement is not a negotiable instrument.
28. Privacy Notice
You acknowledge that you received a copy of Fizz’s Privacy Policy with this Agreement or within the past twelve (12) months.
29. Mandatory Arbitration
YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN Section 29.3 BELOW.
29.1 Election to Arbitrate
You and the Loan Holder agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 29 (the “Arbitration Provision”), unless you opt out as provided in Section 29.3 below or your Claim is subject to an explicit exception to in this Arbitration Provision. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of Section 29.6 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise, except that both you and the Loan Holder retain the right: (a) to bring an individual action in small claims court (a “Small Claims Action”); or (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
29.2 Opt-Out of Arbitration Provision
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to Loan Holder c/o Fizz at [email protected] or ShoulderTap Technologies Inc. d/b/a Fizz, 40 Wooster Street, New York, NY 10013, within thirty (30) days of the date of your electronic acceptance of the terms of this Agreement (such notice, an “Arbitration Opt-Out Notice”). 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. If you don’t provide the Loan Holder with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth above.
29.3 Judicial Forum for Disputes
In the event that (i) you or we bring an IP Protection Action; (ii) you timely provide the Loan Holder with an Arbitration Opt-out Notice; or (iii) this Section 29 is found not to apply, the exclusive jurisdiction and venue of any Claim will be the state and federal courts located in Missouri and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
29.4. Informal Dispute Resolution
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. You agree that before filing any claim in arbitration, you will try to resolve the Claim informally by contacting Fizz at [email protected] or ShoulderTap Technologies Inc. d/b/a Fizz, 40 Wooster Street, New York, NY 10013. Similarly, the Loan Holder will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Claim is not resolved within thirty (30) days after the email noting the Claim is sent, you or the Loan Holder may initiate an arbitration proceeding as described below.
29.5. WAIVER OF RIGHT TO LITIGATE
Unless you timely provide the Loan Holder with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
29.6. NO CLASS ACTIONS
You and Fizz agree that the arbitration of any Claim shall proceed on an individual basis, and neither you nor Fizz may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Claim against Fizz will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
You and the Loan Holder agree that the arbitration of any Claim shall proceed on an individual basis, and neither you nor the Loan Holder may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Claim against the Loan Holder will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR THE LOAN HOLDER SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY CLAIM (AS DEFINED IN SECTION 29.1 ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 29.6 SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
29.7. Arbitration Procedures
The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Claims involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’ roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then JAMS will appoint the arbitrator in accordance with the JAMS Rules. The arbitrator(s) shall be authorized to award any remedies, including public injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 29.7, if a party seeks injunctive relief that would significantly impact other Fizz users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 29.7 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
29.8. Arbitration Location
Unless you and the Loan Holder otherwise agree, the arbitration will be conducted in the county where you reside, or if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and the Loan Holder submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
29.9. Arbitration Fees
If the Loan Holder elects 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 selected, or in accordance with countervailing law if contrary to the administrator's rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the administrator rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law.
29.10. Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
29.11. Survival and Severability of Arbitration Provision
This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 29.6, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 29.6 to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Claim must be litigated in court pursuant to Section 29.3.
29.12. Changes
If the Loan Holder changes this Section 29 after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to Loan Holder c/o Fizz at [email protected] within thirty (30) days of the date such change became effective, as indicated in the “Last revised” date above or in the date of the Loan Holder’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Claim between you and the Loan Holder in accordance with the provisions of this Section 29 as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
30. Other Terms
This Agreement is governed by the laws of the United States of America, and, to the extent state law applies, the laws of Missouri, regardless of the conflicts of laws principles of any jurisdiction, except where such application is prohibited by applicable law.
If a court of competent jurisdiction makes a final determination that any charge imposed pursuant to this Agreement violates usury or other similar credit laws of any state, the charges payable under this Agreement will be accordingly adjusted for the purpose of avoiding any such usurious payment without any further action of the parties to this Agreement.
No modification to this Agreement is effective unless made in writing and signed by the Loan Holder and you. Except as provided in Section 29, if any provision of this Agreement is found to be invalid or unenforceable, all other provisions will be enforced and construed as if the invalid provisions were never a part of this Agreement.
31.Billing Rights Notice
What To Do If You Find A Mistake On Your Statement
If you think there is an error on your statement, write to us at:
Loan Holder c/o ShoulderTap Technologies Inc. d/b/a Fizz 40 Wooster Street, Level 2, New York, NY 10013
You may also contact us via email at [email protected].
In your letter, give us the following information:
Account information: Your name and account number.
Dollar amount: The dollar amount of the suspected error.
Description of problem: If you think there is an error on your bill, describe what you believe is wrong and why you believe it is a mistake.
In order to limit your liability for the error, you must contact us:
Within sixty (60) days after the error appeared on your statement.
At least three (3) business days before an automated payment is scheduled, if you want to stop payment on the amount you think is wrong.
What Will Happen After We Receive Your Letter
When we receive your letter, we must do two things:
Within thirty (30) days of receiving your letter, we must tell you that we received your letter. We will also tell you if we have already corrected the error.
Within ninety (90) days of receiving your letter, we must either correct the error or explain to you why we believe the bill is correct.
While we investigate whether or not there has been an error:
We cannot try to collect the amount in question, or report you as delinquent on that amount.
The charge in question may remain on your statement, and we may continue to charge you interest on that amount.
While you do not have to pay the amount in question, you are responsible for the remainder of your balance.
We can apply any unpaid amount against your credit limit.
After we finish our investigation, one of two things will happen:
If we made a mistake: You will not have to pay the amount in question or any interest or other fees related to that amount.
If we do not believe there was a mistake: You will have to pay the amount in question, along with applicable interest and fees. We will send you a statement of the amount you owe and the date payment is due. We may then report you as delinquent if you do not pay the amount we think you owe.
If you receive our explanation but still believe your bill is wrong, you must write to us within ten (10) days telling us that you still refuse to pay. If you do so, we cannot report you as delinquent without also reporting that you are questioning your bill. We must tell you the name of anyone to whom we reported you as delinquent, and we must let those organizations know when the matter has been settled between us.
If we do not follow all of the rules above, you do not have to pay the first $50 of the amount you question even if your bill is correct.
32. Important Information About Procedures For Opening A New Account
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account.
What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's license or other identifying documents.
33. Covered Borrowers under the Military Lending Act.
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 thirty-six (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). Notwithstanding any other provision of this Agreement, Section 29 will not apply to a “covered borrower” under the Military Lending Act, as defined in 32 C.F.R. § 232.3(g). Furthermore, nothing in this Agreement will be construed as applying to a covered borrower to the extent inconsistent with the Military Lending Act.
To obtain an oral statement regarding the Military Annual Percentage Rate and a description of the payment obligation, covered borrowers may call the following toll-free phone number: +1 940 260 2704
34. Applicable Law
This Agreement and your account are governed by federal law and, to the extent that state law applies, the law of Missouri without regard to its conflict of law principles, but we will rely on the provisions of Nebraska law with respect to any fees, charges and interest that apply to your account, as authorized by Missouri Revised Statutes § 408.145. Further, this Agreement is made in Missouri and credit is extended to you from Missouri, regardless of where you live or use your account.
354. STATE NOTICES
All Borrowers, Including Maine/Missouri/Nebraska/Oregon/Utah/Washington Residents:
Oral agreements or commitments to loan money, extend credit or to forbear from enforcing repayment of a debt, including promises to extend or renew such debt, are not enforceable. To protect you (borrower) and the Loan Holder from misunderstanding or disappointment, any agreements the Loan Holder and you reach covering such matters are contained in this writing, which, along with the Terms of Service, is the complete and exclusive statement of the agreement between the Loan Holder and you, except as we may later agree in writing to modify.
All Borrowers, including Kansas residents: NOTICE TO CONSUMER – READ THIS AGREEMENT
1. Do not sign this Agreement before you read it.
2. You are entitled to a copy of this Agreement.
3. You may prepay the unpaid balance at any time without penalty and may be entitled to receive a refund of unearned charges in accordance with law.
California Residents:
A married applicant may apply for a separate account.
Massachusetts Residents:
Massachusetts law prohibits discrimination based upon marital status or sexual orientation.
New Hampshire Residents:
You will be awarded reasonable attorney's fees if you prevail in any legal action you bring against the Loan Holder or the Loan Holder brings against you. If you successfully assert a partial defense, set-off or counterclaim against the Loan Holder in an action the Loan Holder brings against you, the court or arbitrator may withhold from the Loan Holder the entire amount or such portion of the attorney's fees as it considers equitable. You or your attorney may file a complaint with the New Hampshire Commissioner of Banking, State of New Hampshire Banking Department, 53 Regional Drive, Suite 200, Concord, NH 03301. Instructions for filing complaints can be found on the Commissioner's website at www.nh.gov/banking/consumer-assistance/complaint.htm.
New Jersey Residents:
The section headings of the Agreement are a table of contents and not contract terms. Portions of this Agreement with references to actions taken to the extent of applicable law apply to acts or practices that New Jersey law permits or requires. In this Agreement, acts or practices (a) by you which are or may be permitted by “applicable law” are permitted by New Jersey law, and (b) that may or will be taken by you unless prohibited by "applicable law" are permitted by New Jersey law.
New York Residents:
New York residents may contact the New York State Department of Financial Services by telephone at 1- 877-226-5697 or visit its website at http://dfs.ny.gov for free information on comparative rates, fees and grace periods.
Ohio Residents:
The Ohio laws against discrimination require that all creditors make credit equally available to all creditworthy customers, and that credit reporting agencies maintain separate credit histories on each individual upon request. The Ohio Civil Rights Commission administers compliance with this law.
Texas Residents:
This written loan agreement represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.
Utah Residents:
NO CLASS ACTIONS. YOU AGREE AND ACKNOWLEDGE THAT PURSUANT TO UTAH CODE ANN. § 70C-4-105 YOU ARE WAIVING YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION RELATED TO THIS AGREEMENT.
Married Wisconsin Residents:
If you are married: (1) you confirm that the loan is being incurred in the interest of your marriage or family. (2) No provision of any marital property agreement, unilateral agreement, or court decree under Wisconsin's Marital Property Act will adversely affect a creditor's interest unless prior to the time credit is granted, the creditor is furnished a copy of that agreement or decree or is given complete information about the agreement or decree. (3) You understand and agree that the Loan Holder will provide a copy of this Agreement to your spouse for his or her information. If the loan for which you are applying is granted, you agree to notify the Loan Holder if you have a spouse who needs to receive notification that credit has been extended to you by sending your name, loan number and your spouse's name and address to Loan Holder c/o Fizz at [email protected] or ShoulderTap Technologies Inc. d/b/a Fizz, 40 Wooster Street, Level 2, New York, NY 10013.
CAUTION-IT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU SIGN IT. NOTICE TO BORROWER (a) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT, EVEN IF OTHERWISE ADVISED. (b) DO NOT SIGN THIS AGREEMENT IF IT CONTAINS ANY BLANK SPACES. (c) YOU ARE ENTITLED TO AN EXACT COPY OF ANY AGREEMENT YOU SIGN. (d) YOU HAVE THE RIGHT AT ANY TIME TO PAY IN ADVANCE THE UNPAID BALANCE DUE UNDER THIS AGREEMENT. IF YOU REPAY YOUR LOAN EARLIER THAN THE MATURITY DATE THEN YOU MAY PAY LESS IN THE FINANCE CHARGE SET FORTH IN THE TRUTH IN LENDING DISCLOSURE.