CREEK COUNTY • CS-2026-00279
VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK v. THOMAS COOPER
What's This Case About?
Let’s get one thing straight: this case is not about a murder. There’s no body. No dramatic courtroom confession. No shocking twist involving a secret twin. But what it does have — and this is where things get gloriously absurd — is a corporate game of financial hot potato so convoluted, it makes a Monopoly board look like a Zen garden. An Oklahoma man named Thomas Cooper is being sued for $3,474.23… by a company that wasn’t even the original lender, nor the first middleman, nor even the second middleman. No, this debt has been passed around like a cursed auction lot from a haunted estate sale. And now, a New Jersey-based LLC with the energy of a spreadsheet is demanding its money in Creek County court. If this were a true crime podcast, the theme music would be the sound of a fax machine and a credit check ping.
So who’s Thomas Cooper? Honestly, we don’t know much. He’s an individual — not a corporation, not a celebrity, not a TikTok influencer — just a regular guy from Oklahoma who, at some point in 2022, needed some cash. Like many Americans, he turned to an online lending platform called Upgrade, Inc. — a fintech company that promises fast, easy credit through a slick app. But here’s the kicker: Upgrade didn’t actually lend him the money. That job belonged to Cross River Bank, a New Jersey-chartered industrial bank. Think of it like this: Upgrade is the flashy salesperson at the car dealership, and Cross River Bank is the actual owner of the lot. Cooper applied, got approved, and started drawing funds through his Upgrade Card, which operated like a personal credit line. He signed promissory notes — or rather, Upgrade, acting as his attorney-in-fact (yes, really), signed them on his behalf — agreeing to pay back multiple small loans, all at a 24.98% APR. That’s not a typo. Twenty-four point nine eight percent. That’s the kind of interest rate that makes credit cards look generous.
So what happened? Well, Cooper stopped paying. That’s the short version. The longer version involves a series of promissory notes — one for $2,038.75, another for $1,452.84, and a bizarre third one for $23.98 (yes, twenty-three dollars and change). He defaulted. Upgrade, Inc., as the servicer, probably sent the polite “friendly reminder” emails, then the stern “final notice” letters, and eventually decided they didn’t want to deal with it anymore. So they did what modern financial companies do: they sold the debt. In June 2023, Upgrade assigned all rights to the unpaid balance to Velocity Investments, LLC, a debt-buying firm based in New Jersey. Velocity paid something for this bundle of delinquent loans — though we don’t know how much — and suddenly, they were the proud new owners of Thomas Cooper’s $3,474.23 problem. And they were ready to collect. Or, more accurately, sue.
Which brings us to why they’re in court. Velocity Investments, LLC is filing a petition for money due on note — legalese for “you borrowed this, you didn’t pay, now we want it.” They’re claiming Cooper still owes them $3,474.23, plus interest at 8.75% from the date of judgment, attorney’s fees, and even $310.14 in court costs from a previous lawsuit that was dismissed. Yes, this isn’t the first time someone’s tried to sue Cooper over this debt. The last attempt got dropped — “non-suited,” in legal jargon — but Velocity wants to recoup those costs this time. They’ve even included a sworn affidavit verifying that Cooper is not in the military, just in case the Servicemembers Civil Relief Act might protect him (it doesn’t). Every piece of paperwork is here: the chain of assignment from Cross River to Upgrade to Velocity, the promissory notes, the Truth in Lending disclosures, the whole nine yards. It’s like a paper trail through the soul of modern debt.
And what do they want? $3,474.23. Is that a lot? Well, in the grand scheme of civil court, it’s not exactly a fortune. You could buy a used car for that. Or a really nice couch. Or, if you’re being dramatic, six months of rent in a modest apartment. But for a debt collector, it’s a payday. And for Thomas Cooper, it’s a reminder that even small financial missteps can follow you like a digital ghost. Velocity isn’t asking for punitive damages. They’re not trying to bankrupt him. They just want the principal, interest, fees, and a little extra for their trouble. It’s not vengeance. It’s business.
Our take? The most absurd part isn’t that someone’s being sued for $3,500. It’s the sheer bureaucratic ballet this debt has performed. A bank in New Jersey lends money to a man in Oklahoma via a fintech platform in California, which then sells the debt to a collection LLC in New Jersey, which then sues in Oklahoma state court — all for a loan that started with a few clicks on a phone. Cooper never met a single person involved. He didn’t sign anything with a pen. His signature was electronically affixed by a company acting as his legal representative. He borrowed money from a system, and now he’s being chased by another system. It’s less “man vs. man” and more “man vs. algorithm with a law degree.”
Are we rooting for Thomas Cooper? Sure, a little. Not because he didn’t borrow the money — he did. But because the whole thing feels so impersonal, so automated, so inevitable. He’s not a villain. He’s a data point. And Velocity Investments, LLC? They’re not evil — they’re just efficient. But efficiency doesn’t make for good drama. And in the world of petty civil court, drama is the whole point. So while the court may eventually rule in favor of the plaintiff, we’re rooting for the chaos. We’re rooting for the moment when the judge looks at this chain of assignments and says, “Wait… who actually owns this debt?” Because in a system this convoluted, the real crime isn’t the default — it’s the paperwork.
Case Overview
$3,474 Demand
Petition
Jurisdiction
District Court, Oklahoma
Filing Attorney
FABER AND BRAND L.L.C.
Relief Sought
$3,474 Monetary
Plaintiffs
-
VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK
business
Rep: FABER AND BRAND L.L.C.
Defendants
- THOMAS COOPER individual
Claims
| # | Cause of Action | Description |
|---|---|---|
| 1 | petition_for_money_due_on_note | dispute over unpaid debt |
Petition Text
28,739 wordsIN THE DISTRICT COURT OF CREEK COUNTY
STATE OF OKLAHOMA
VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK
Plaintiff,
vs.
THOMAS COOPER
Defendant(s).
Case No. CS 2026-279
LAWRENCE PARISH
PETITION FOR MONEY DUE ON NOTE
COMES NOW the Plaintiff and for its cause of action against the Defendant(s) states as follows:
1. That Plaintiff is a LIMITED LIABILITY COMPANY organized and existing under the laws of NEW JERSEY; the debt sued upon arose in and Plaintiff’s cause of action accrued in the State of Oklahoma.
2. That at least one of the Defendant(s) reside(s) in or may be found in CREEK County, Oklahoma and within the venue of this court.
3. That upon application by the Defendant(s), the Defendant(s) did enter into a Promissory Note to borrow a sum of money from CROSS RIVER BANK which has heretofore been sold and assigned to various parties including and ultimately to Plaintiff.
4. That the Defendant(s) did fail to perform the obligations under the Note and are therefore in default.
5. That if required by law or the Note, Defendant(s) were notified of his/her/their default and right to cure, but Defendant(s) failed to cure said default.
6. That the Defendant(s) still owe(s) $3474.23 to Plaintiff after giving the Defendant(s) due credit for any and all payments made thereon and any other credits entitled to Defendant(s).
7. Pursuant to the contract attached hereto, Plaintiff is entitled to reasonable attorney’s fees.
8. Pursuant to the SCRA §201(b)(4), Plaintiff declares under penalty of perjury that Defendant(s) THOMAS COOPER is/are not in the Armed Forces for the United States, verified on 03/02/2026 via the U.S. Department of Defense website.
9. That Plaintiff incurred reasonable court costs and/or Sheriff's/special process server fees which total $310.14 in a prior filing of the underlying cause of action against Defendant(s), which were subsequently dismissed or non-suited through no fault of Plaintiff. Plaintiff therefore prays that it be awarded such costs incurred from the prior lawsuit in the present action.
WHEREFORE, Plaintiff prays for Judgment against Defendant(s) in the amount of:
Amount Claimed: $3474.23;
Interest: at the rate of 8.75% per annum from the date of Judgment until paid;
Attorney fees;; and
All costs herein expended, including but not limited to court costs, sheriff's fees, and any costs for service of the summons(es).
Respectfully submitted,
FABER AND BRAND L.L.C.
BY:
Michael L. Foster OK #20701
Jason P. Cubbins OK #22576
P.O. Box 10110
Columbia, Missouri 65205-4000
(888) 233-3141
(573) 442-1072 FAX
[email protected]
ATTORNEY FOR PLAINTIFF
THIS IS A COMMUNICATION FROM A DEBT COLLECTOR IN AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.
AFFIDAVIT OF ACCOUNT
STATE OF NJ
COUNTY OF Monmouth
Before me, the undersigned authority, personally appeared Nicholas DeGennaro, who, being by me duly sworn deposes and states:
I am of sound mind, I am over the age of 18, and I am competent to testify to the matters stated herein. I am the Affidavit Specialist of VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK a(n) LIMITED LIABILITY COMPANY organized and existing under the laws of the State of NEW JERSEY.
VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK acquired, for a valuable consideration, all right, title, and interest in and to the claim set forth in VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK’s Petition/Complaint., which claim shall hereinafter be referred to as “The Account.” The original creditor for The Account was Cross River Bank. The sale agreement and assignment whereby VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK acquired The Account, (hereinafter, the “Sale Agreement”), specifically set forth the amount then owed by THOMAS COOPER. The Sale Agreement also required the party who sold The Account to VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK to report any subsequent payments received by them to VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK.
On information and belief and based on the foregoing, after crediting any such reported payments and any payments made to VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK, there is now due and owing from THOMAS COOPER to VELOCITY INVESTMENTS, LLC ASSIGNEE OF UPGRADE, INC ASSIGNEE OF CROSS RIVER BANK $3474.23, plus interest at the Judgment rate per annum from the Judgment date until paid in full by THOMAS COOPER.
To the best of my knowledge and belief, the Defendant, THOMAS COOPER, is not in the Armed Forces for the United States nor any branch thereof.
Defendant is not an infant or incompetent person.
Nicholas DeGennaro
Affidavit Specialist
In witness whereof I have hereunto subscribed my name and affixed my official seal the 11th day of February, 2026.
My commission Expires:
EXHIBIT K
Cross River Bank, a New Jersey-chartered industrial bank located in Fort Lee, New Jersey ("Originator"), hereby certifies that:
1. Originator originates loans that are serviced by Upgrade, Inc.
2. Each of the loans identified by loan number on the attached Exhibit I (each, a "Loan") was originated by Cross River Bank.
3. On or about the respective "Closing Date" set forth on Exhibit I, Originator transferred or otherwise conveyed each Loan to the party identified on Exhibit I (each, a "Purchaser").
4. Originator transferred, assigned and conveyed to the related Purchaser and its successors and permitted assignees, all right, title and interest the Originator held in each Loan subject to no prior security interest in favor of any other creditor of Originator free and clear of any lien created by Originator, except for any interest of such Purchaser and its affiliates.
5. Upgrade, Inc. was Servicer of each Loan from the origination of the Loan to the sale by Originator to the related Purchaser. In its role as Servicer of the Loan, during the period Originator owned the Loan, Upgrade, Inc. kept and maintained business records on behalf of Originator in the regular course of business.
CROSS RIVER BANK
By: ____________________________
Name: Adam Goller
Title: EVP
Date: 6.21.2023
EXHIBIT A
BILL OF SALE
For value received and pursuant to the terms and conditions of the Forward Flow Purchase and Sale Agreement dated May 15, 2020, Upgrade, Inc., as “Initial Seller”, and on behalf of Additional Sellers as “Servicer”) hereby assigns effective as of June 28, 2023 (the “Closing Date”) all rights, title and interest in and to those certain charged-off loans and all related receivables, judgments or evidences of debt described in Schedule I attached hereto and made part hereof for all purposes to Velocity Investments, LLC (“Purchaser”).
Pursuant to the foregoing assignment, the Initial Seller stipulates that the Purchaser may be substituted for the Initial Seller, or Additional Seller, as applicable, as the valid owner of the Accounts and hereby waives any notice or hearing requirements imposed by Bankruptcy Rule 3001 (e) (2) or otherwise.
UPGRADE, INC., as INITIAL SELLER
UPGRADE, INC., on behalf of ADDITIONAL SELLER identified on Schedule I
By: ____________________________
Michael Young
Name: Michael Young
Date: July 3, 2023
Title: Sr. Director of Servicing
UPGRADE VISA® CARD FEES
These are the disclosures for the fees that apply when you use your Upgrade Visa® card. Please see your separate UPGRADE LOAN AGREEMENT for important disclosures regarding the APR, fees, and other terms and conditions that govern your Upgrade loan(s), including when you will begin paying interest on your Upgrade loan(s)
<table>
<tr>
<th>Upgrade Visa Card Fees</th>
<th></th>
</tr>
<tr>
<td>Monthly fee</td>
<td>$0.00</td>
</tr>
<tr>
<td>Per Purchase Fee</td>
<td>$0.00</td>
</tr>
<tr>
<td>ATM/Cash Advance Withdrawal Fee</td>
<td>No ATM access</td>
</tr>
<tr>
<td>Cash Reload Fee*</td>
<td>$0.00</td>
</tr>
<tr>
<td>ATM Balance Inquiry Fee</td>
<td>$0.00</td>
</tr>
<tr>
<td>Customer Service Fee</td>
<td>$0.00</td>
</tr>
<tr>
<td>Inactivity Fee</td>
<td>$0.00</td>
</tr>
<tr>
<td>Foreign Transaction Fee</td>
<td>$0.00</td>
</tr>
</table>
We charge no other fees with respect to your Upgrade Visa® card. Please see your Upgrade Personal Credit Line Agreement and Truth in Lending Act disclosure ("PCL Agreement") for APR, fees, and other terms and conditions that apply to your Upgrade loan(s), including when you will begin paying interest on the Upgrade loan(s).
Find details and conditions for all fees and services in your PCL Agreement, or call 1-844-558-5687.
*Your Upgrade Visa® card account is not capable of being loaded with cash.
IMPORTANT-PLEASE READ CAREFULLY
FOR QUESTIONS OR ASSISTANCE, PLEASE CONTACT CUSTOMER SERVICE AT 1-844-558-5687.
TABLE OF CONTENTS
1. This Agreement.
2. Important Information about Procedures for Opening a Card Account.
3. Your Consent.
4. Your Right to Withdraw Your Consent.
5. You Must Keep Your Contact Information Current with Us.
6. Copies of Communications.
7. Hardware and Software Requirements.
8. Changes.
9. Participating in the Program.
10. Card.
11. Prohibitions and Restrictions.
12. Card Account.
13. Obtaining A Physical Card.
14. Activating your Virtual Card.
15. Activating your Physical Card.
16. Adding your Card to a Digital Wallet.
17. Fees.
18. Card Security.
19. Lost or Stolen Card Number.
20. No Secondary Cardholders.
21. Using Your Card.
22. No Cash Advance.
23. Transaction with Your Card.
24. Transaction Limits.
25. Funds Availability.
26. Transaction History.
27. Account Alerts.
28. Verified Mobile Device.
29. Preauthorized Transfers.
30. Transactions in Foreign Currencies.
31. Receipts.
32. Refunds.
33. Rewards Program.
34. Privacy Policy.
35. Replacement Cards on Expiration.
36. Our Liability to You.
37. Errors or Questions About Your Card Account or Transactions.
38. Your Liability for Unauthorized Transactions.
39. Assignment.
40. Severability and Waiver.
41. Amendment.
42. Entire Agreement.
43. Cancellation and Suspension.
44. Business Days.
45. English Language Controls.
46. Telephone Monitoring/Recording.
47. Website Availability.
48. Governing Law.
49. Indemnification.
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 Upgrade 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 Upgrade Visa® Card Program (the "Program"). This Agreement does not replace the Upgrade Personal Credit Line Agreement ("PCL Agreement") or any other documentation provided to you in connection with credit obtained through the Upgrade platform. In the event of an inconsistency between this Agreement and the PCL Agreement, this Agreement shall govern and control your Card Account, use of the Card, and your relationship with Bank. For more information about your credit line, please see your PCL Agreement and accompanying documentation provided to you by Upgrade, Inc. ("Upgrade"). "Card" means the Upgrade Visa® Card issued by Bank that you can use for conducting transactions pursuant to your Upgrade Personal Credit Line, which is governed by your PCL 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 paragraph labeled "Obtaining a Physical Card"). By accepting and using the Card, you agree to be bound by the terms and conditions contained in this Agreement in addition to the PCL Agreement between you and Cross River Bank, a New Jersey-chartered FDIC-insured bank ("Lender"). Lender is not a party to this Agreement, but is a third party beneficiary of the arbitration provision. "Card Account" means the records maintained by Bank for each Card to evidence transactions initiated with the Card. "PCL Agreement" means the terms of service for participating in the Upgrade program located at www.upgrade.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 Bank and its successors, affiliates and/or assignees. 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.
PURSUANT TO THIS AGREEMENT, BY ACTIVATING YOUR CARD OR PARTICIPATING IN THE PROGRAM IN ANY WAY, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OUR PRIVACY POLICY. PLEASE VISIT https://www.suttonbank.com/_kcms-doc/85/49033/WK-Privacy-Disclosure-1218.pdf TO VIEW, PRINT AND SAVE OUR PRIVACY POLICY.
2. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A CARD ACCOUNT
TO HELP THE GOVERNMENT FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERA' [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 UPGRADE 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 Upgrade, 275 Battery Street, Suite 2300, San Francisco 94111, Attn: Upgrade Customer Support ("Upgrade 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 www.upgrade.com (the "Upgrade Website").
6. Copies of Communications. You should print and save and/or electronically store a copy of all Communications that we send to you electronically.
[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.
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 under which we provide Electronic Communications. Except as otherwise required by applicable law, we will notify you of any such termination or change by posting this Agreement on Upgrade’s Website or delivering notice of such termination or change electronically.
9. Participating in the Program. In order to participate in the Program, you must (a) have previously agreed to the PCL Agreement located at www.upgrade.com, and to Upgrade’s and Lender’s Privacy Policies located at www.upgrade.com (both privacy policies are also attached as an exhibit to the PCL Agreement); (b) register with Lender through the Upgrade Website or the Upgrade mobile application for the Program (the “App”); (c) accept and agree to this Agreement and our Privacy Policy, (d) be a U.S. citizen (or a legal resident with a U.S. tax ID number) of at least 18 years of age (or older if residing in a state where the majority age is older); and (e) provide Lender and Upgrade, each of which may provide us, with all requested information, such as your name, date of birth, physical address, email address, social security number, user name and password, and such other information as we may request from time to time (collectively, “User Information”). You represent and warrant that all information, including User Information, you provide us from time to time is truthful, accurate, current, and complete. You agree to promptly notify Upgrade, Lender, and us of changes to any User Information. If we approve your registration for a Card Account, we will issue you a Card that you can access through the App.
10. Card. The Card is issued by 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 as set forth in the paragraphs below labeled “21. Using Your Card.”
11. Prohibitions and Restrictions. The Card is not a gift card or gift certificate. The Card remains the property of 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 the Card for any illegal purpose. We may refuse to process any transaction that we believe may violate the terms of this Agreement. YOUR CARD IS NOT AN ATM CARD AND MAY NOT BE USED AT ANY ATM.
12. Card Account. You acknowledge and agree that the amount of funds that may be accessed by the Card is limited to the amount of the funds available to you. See paragraph below labeled "23. Transacting with Your Card" for information on the amount of funds available to you to transact with the Card. The funds associated with your Card Account are not insured by the Federal Deposit Insurance Corporation. You will not receive any interest on the funds in your Card Account. In addition, you acknowledge and agree that when you have both a virtual Card and a physical Card that both Cards access the same Card Account.
13. 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 via the Upgrade Website. When you request a physical Card, you will receive a physical Card 5-7 business days after we receive your request.
14. Activating Your Virtual Card. You will need to provide personal information in order to verify your identity when you order the Card. After opening your account you will activate your virtual Card, and you represent and warrant to us that: (a) you are at least 18 years of age (or older if you reside in a state where the majority age is older); (b) you are a U.S. citizen or legal alien residing in the United States; (c) the User Information is truthful, accurate, current, and complete; (d) you received a copy of this Agreement and our Privacy Policy and agree to be bound by and to comply with their terms; and (e) you accept your Card.
15. Activating Your Physical Card. You will need to provide personal information in order to verify your identity when you order the Card. You must activate your Card before it can be used. You may activate your Card by following any directions for activation provided via the Upgrade Website or App. By activating your physical Card, you represent and warrant to us that: (a) you are at least 18 years of age (or older if you reside in a state where the majority age is older); (b) you are a U.S. citizen or legal alien residing in the United States; (c) the User Information is truthful, accurate, current, and complete; (d) you received a copy of this Agreement and our Privacy Policy and agree to be bound by and to comply with their terms; and (e) you accept your 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 Upgrade Visa® Card to a Digital Wallet ("Digital Wallet Terms").
(b) Contact Customer Service at (877) 418-3667, or by email at [email protected] immediately if you believe someone has gained unauthorized access to your Card or Card Account, or someone has transferred or may transfer funds from your Card Account without your permission. Contacting us by telephone at (877) 418-3667 is the best way to minimize your possible losses. (See Section 19. Lost or Stolen Card Number.)
17. Fees. Neither we nor Upgrade, 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. Please be aware that your Card will not work at any ATM.
18. Card Security. Do not share your Card number 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 (877) 418-3667 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 immediately and all further attempted transactions with either of those Cards will be declined. If you report either of your Cards lost or stolen, 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 Upgrade Website. You will be required to provide personal information which may include your Card number, full name, transaction history, and other relevant information.
20. No Secondary Cardholders. You may not request an additional Card for another person.
21. 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 “23. 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 ANY TRANSACTION INVOLVING ILLEGAL ACTIVITY OF ANY KIND. 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 a 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. These funds sujet 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 full funds subject to the hold.
22. No Cash Advances. YOUR CARD ACCOUNT IS NOT ELIGIBLE FOR CASH ADVANCES AND YOUR CARD MAY NOT BE USED AT ANY ATM. “Cash advances” are transactions other than purchases that allow you direct access to funds available through your Card Account and Card. Cash advances may include transactions such as advances obtained directly from the issuer, from automated teller machines (“ATMs”), or from other participating financial institutions.
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 PCL Agreement. You acknowledge and agree that by registering for the Program, you have authorized Lender or Upgrade on Lender’s behalf to access funds loaned to you pursuant to PCL Agreement. Such authorization shall continue until you withdraw from participating in the Program. (See PCL 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 Lender to determine if you have sufficient funds pursuant to your PCL Agreement available to fulfill the transaction authorization request. If Lender 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 to your PCL Agreement for the amount of the transaction. If Lender 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 $50,000.00, 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. YOUR CARD MAY NOT BE USED AT ANY ATM. 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 your account including your recent transactions by accessing your account on the Upgrade Website or through the App, when available. 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 may 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. Transactions in Foreign Currencies. If you make a purchase using your Card in a currency other than in U.S. dollars, the amount transacted will be converted by Visa® into U.S. dollars. The applicable exchange rate will be selected by Visa® from the range of rates available in wholesale currency markets for the applicable central processing date, which may vary from the rate Visa® itself receives or the government-mandated rate. The exchange rate used on the central processing date may be different than the rate that was in effect on the date you performed the transaction. For each foreign currency transaction, Bank may assess a foreign currency conversion fee and will retain this amount as compensation for its services.
31. Receipts. You should get a receipt for each Card transaction. You agree to retain, verify, and reconcile your Card transactions and receipts.
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 in the amount of the original transaction. If the credit adjustment is submitted more than seven (7) calendar days after the original transaction, you may be responsible for interest that has accrued for the transaction under. Please see your PCL Agreement. for the details. After we process a credit adjustment, we will notify Lender that the amount of credit may be available for you to transact with by using the Card and pursuant to your PCL 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.
33. Rewards Program. At Upgrade’s discretion, you may be awarded cash back or other rewards when you make timely payments to pay off purchases made using your Upgrade Card. Upgrade may modify or cancel the Rewards Program at any time, including changing the value of the rewards, imposing caps on rewards, or adding other limitations to the rewards. Upgrade, in its sole discretion, will not issue rewards for accounts which Upgrade determines shows signs of fraud or suspected fraud, or misuse or abuse of the Rewards Program. Upgrade may decline to issue rewards for accounts which are past due or if an account is closed to new draws for any reason. Rewards will be calculated based on payments against net card spending; card charges that are cancelled, refunded, or failed to process will not generate rewards. ACH transfers to a bank account and payments toward these balances will not result in rewards. Rewards will be provided in the month after the rewards are accrued in a time and method determined by Upgrade and subject to change.
34. Privacy Policy. Your privacy is very important to us. We may disclose information to third parties about you, your Card and Card Account, and transactions related thereto: (a) as necessary to effect, administer, or enforce a transaction requested or authorized by you; (b) with your consent; (c) to protect against or prevent actual or potential fraud, unauthorized transactions, or other liability; (d) to comply with government agency or court orders; (e) as permitted and required by applicable law; and (f) as otherwise provided in our Privacy Policy. You understand that by participating in the Program, you consent to the collection, use, and disclosure of your information as set forth in this Agreement and our Privacy Policy available on our website located at https://www.suttonbank.com/jkcpms-doc/85/49033/VK-Privacy-Disclosure-1218.pdf.
35. Replacement Cards or 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 Lender 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.
36. Our Liability to You. If we do not comply with a condition within 90 days of notice or if there is no outstanding balance according to this Agreement, we may be liable for your losses or damages. However, there are some exceptions. We will not be liable: (a) through no fault of yours, you do not have enough available funds to perform the transaction; (b) circumstances beyond our control (such as a flood, water damage, a power failure, strike, immediate, computer breakdown, telephone line disruption, or natural disasters) prevented or delayed the transfer; (c) despite reasonable care because of fire, theft, or misuse; (c) the machine or point-of-sale terminal was not working properly, and you knew about the problem when you initiated the transaction; (e) the funds available to you to transact with your Card Account are subject to legal process or are otherwise not available to you; (f) someone else used your Card without your permission; (g) if access to your Card has been blocked after you reported your Card lost or stolen; (h) if we have reasons to believe the transaction was not authorized; (i) the transaction cannot be completed because your Card is damaged; or (j) any other exception stated in this Agreement.
37. Errors or Questions About Your Card Account Transactions. Contact Upgrade Customer Service in writing at 275 Battery Street, San Francisco, CA 94111 as soon as you can if you think an error has occurred involving your Card Account. Unless applicable law permits a longer time for you to provide notice, Upgrade must hear from you no later than 60 days after the date Upgrade sent the FIRST written transaction history on which the error appeared. When you notify Upgrade about an error involving your Card Account, you will need to tell Upgrade: (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. Upgrade will mail you a written acknowledgement of your notice within 30 days of receiving such written notice. Upgrade will determine whether an error occurred within 90 days after Upgrade hears from you and will correct any error promptly. During this time, Upgrade will not try to collect any disputed amounts or related charges. If Upgrade determines that an error has occurred, Upgrade shall correct the error, reverse or adjust the transaction and related charges, and mail a correction notice. If Upgrade determines that no error has occurred, Upgrade will mail an explanation that sets forth the reasons Upgrade believes the alleged error is incorrect in whole or in part. Upon request, Upgrade will furnish copies of the documentary evidence supporting Upgrade’s determination. If Upgrade determines that a different error has occurred, Upgrade will correct such error and reverse or adjust the transaction with any such disputed amount and related charges. If you need more information about Upgrade’s error resolution process, contact Customer Service by telephone at (877) 418-3667.
38. Your Liability for Unauthorized Transactions. Tell us AT ONCE if you believe your Card has been lost or stolen or you believe a transaction has been made without your permission using information from your Card or Card Account, or you could lose all the money associated with your Card Account. Contact Upgrade Customer Service immediately at the number provided below or in writing at 275 Battery Street, San Francisco, CA 94111 to keep possible losses to a minimum. The best way to contact us is to call Upgrade by telephone at (877) 418-3667. You will not be liable for any unauthorized use that occurs after you notify us. You may, however, be liable for unauthorized use that occurs before your notice to us. In any case, your liability will not exceed $50 (unless Visa Zero Liability Protection applies).
Zero Liability Protection. Under Visa rules, your liability for unauthorized purchases using your Card Account that take place on the Visa® system without a PIN is $0.00 if: (a) your Card Account is in good standing; (b) you have exercised reasonable care in safeguarding your Card Account from unauthorized use (i.e., you did not provide, directly, by implication, or otherwise, the right to use your Card Account and you received no benefit from the “unauthorized” purchase); and (c) you have not reported two (2) or more unauthorized events in the past 12 months.
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 (2) 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 (2) 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.
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 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 Upgrade 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 by telephone at (877) 418-3667 or in writing at 275 Battery Street, San Francisco, CA 94111. 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 from 6:00 a.m. - 6:00 p.m. and Saturday - Sunday from 6:00 a.m. - 5:00 p.m. Pacific time, excluding federal holidays. Any references to “days” found in this Agreement are calendar days unless indicated otherwise.
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 OR AT YOUR OWN DEFENSE AND COST, WE AND OUR HOLDING COMPANY 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 MAY arise FROM YOUR VIOLATION OF THIS AGREEMENT, APPLICABLE LAW, OR ANY THIRD-PARTY RIGHT FOR YOUR FRAUD OR WRONGFUL ACT. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, AND IF EVENT YOU WILL COOPERATE IN ASSERTING ANY AVAILABLE DEFENSES.
50. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY 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 Lender, 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 victory provision that requires the prevailing party to be paid attorneys’ fees and expenses and the arbitrator awards such attorneys’ fees and expenses to the willing party, and, in such instance, the fees and costs awarded shall 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 Upgrade by email at [email protected], by phone at 1-844-558-5687, in the App, or by writing us at 275 Battery Street, Suite 2300, San Francisco, California 94111.
This Card is issued by Sutton Bank, Member FDIC, pursuant to a license from Visa® U.S.A. Inc.
Visa® is a registered trademark of Visa® Incorporated. All other trademarks and service marks belong to their respective owners.
DISCLOSURE AND CONSENT TO ELECTRONIC RECEIPT OF COMMUNICATIONS AND ELECTRONIC SIGNATURES
(ESIGN ACT CONSENT)
This ESIGN Act Consent (this “Consent”) is provided by Upgrade, Inc. (DBAs include Universal Credit and the names at www.upgrade.com/landing/dba) (“Upgrade”), and, as applicable, its financial institution partners (https://www.upgrade.com/bank-partners/) (“Partners”), and, to the extent you apply for, use or obtain any bitcoin products or services through the Upgrade online platform, NYDIG Execution LLC and NYDIG Trust Company LLC ("NYDIG"). The terms “we,” “us,” or “our” refer to each of Upgrade, Partners, and/or NYDIG to the extent any of them provides a product or service to you.
You understand that in order to request, apply for or obtain one or more financial product(s) and/or bitcoin product(s) and engage in related transactions through us or our service providers, and to view and retain a copy of the related notices, disclosures, agreements, authorizations, acknowledgements, terms and conditions, statements, receipts and other documents and records (collectively, “Communications”), or sign or submit any Communications to us at our request, during the course of our relationship with you, you must consent to receive Communications electronically and provide your signature electronically.
Please read this Consent carefully and thoroughly. By accepting this Consent, you affirmatively consent to the use of electronic Communications, electronic records and electronic signatures when transacting business with us.
1. SCOPE OF YOUR CONSENT.
Your consent applies to Communications related to all accounts, products or services we offer, provide to you, or that you apply for, own, use, administer or access, either now or in the future (the “Products”). Your consent includes, but is not limited to, Communications related to:
o Applying for, opening or otherwise obtaining a Product.
o Servicing, maintaining, using, operating or closing a Product.
o Performing transactions or obtaining information in connection with a Product.
The scope of Communications we will provide to you electronically includes Communications we are required by law to provide “in writing,” including legally required disclosures.
If you apply for or obtain any bitcoin product from NYDIG, please see additional terms for electronic delivery of the documents below: https://upgrade.com/documents/nydig-consent/
2. YOUR CONSENT TO USE ELECTRONIC RECORDS AND SIGNATURES.
In our sole discretion, the Communications we provide to you, or that you sign or provide to us at our request, may be in electronic form. Electronic Records: We may also use electronic signatures and obtain them from you as part of our transactions with you.
Electronic Records may be delivered to you in a variety of ways. In some cases, Electronic Records may be delivered via e-mail or through the Upgrade online platform. You should print or download a copy of any electronic Communications for your records, including this Consent.
We may always, in our sole discretion, provide you with any Communication in writing or send it to you via U.S. mail or other means of delivery, even if you have chosen to receive it electronically. We may require any information you provide to us, or any document you sign, to be delivered to us in writing.
3. GETTING PAPER COPIES.
You may request from us a paper copy of any Communication that we have provided or made available to you electronically without charge, provided that such request is made within a reasonable time after we first provided the Communication to you.
To request paper copies, you must send an e-mail to [email protected] with the subject line "Paper Document Request" and in the body of the e-mail you must state (i) your e-mail address, full name, US Postal address, and telephone number and (ii) whether your request concerns a Personal Loan, Upgrade Card with Personal Credit Line, and/or Rewards Checking Account. Please also specify (in the body of the e-mail) which Communication you are requesting in paper copy. Alternatively, if you would like a paper copy of all account documents as are available in your Upgrade online dashboard, please request “All Account Documents” in paper copy.
Requesting paper copies, as specified above, does not remove your previously provided consent to receive electronic Communications. To withdraw your consent to receive any future Communications in electronic format, please follow the instructions below under "Withdrawing Your Consent".
4. WITHDRAWING YOUR CONSENT.
You may withdraw your consent to receive Communications electronically by following the instructions below. Note that for certain Products, withdrawing your consent may result in termination of your participation in such Products or your application for such Products as described below.
Personal Loan Product: If you have a pending loan request or application in process with us, or a loan that has been approved and is in the process of funding, withdrawing your consent will respectively terminate
your loan request or origination, or result in the cancellation of any funds in process of disbursement (except where prohibited by law). After your loan has been originated and funded, you may withdraw your consent to receive any future Communications in electronic format. Withdrawing your consent does not apply to origination disclosures that were previously provided to you (electronically) prior to your loan funding (or at the time of funding). Withdrawing your consent may slow the speed at which we can deliver services to you.
Upgrade Card with Personal Credit Line Product: If you have a pending Upgrade Card request or application in process with us, withdrawing your consent will terminate your Upgrade Card request or application (except where prohibited by law). If you withdraw your consent after your Upgrade Card has been approved, we will close your Upgrade Card account in accordance with the terms of your Cardholder Agreement and terminate your Credit Line Agreement. You will remain responsible for all obligations under the Credit Line Agreement prior to closure and any Draws (as defined in your Credit Line Agreement) outstanding at the time of termination plus applicable interest and charges will remain in full force and effect until paid in full, regardless of the termination of the Credit Line Agreement. Withdrawing your consent does not apply to Communications that were previously provided to you (electronically) prior to such withdrawal.
Rewards Checking Account Product: If you have a pending account request or application in process with us, withdrawing your consent will terminate your account request or application (except where prohibited by law). If you withdraw your consent after your account has been opened, we will close your account and mail you a refund check for any remaining balance in your account in accordance with the terms of your Cross River Bank Deposit Account Agreement. Withdrawing your consent does not apply to Communications that were previously provided to you (electronically) prior to such withdrawal.
Bitcoin Products in connection with any of the foregoing Products: Your use of the bitcoin Products from NYDIG is conditioned on your consent to the use of electronic Communications as described in this Consent. If you refuse to provide your consent or withdraw your consent, NYDIG will treat such refusal or withdrawal as a cancellation or termination of your use of the bitcoin Products and a closure of your bitcoin account(s). In connection with the closure of your bitcoin account, NYDIG will sell any bitcoin balance in your bitcoin account at the applicable price at the time NYDIG receives your withdrawal of consent and return the proceeds to you in the manner described in your agreement with NYDIG, net of any transaction fees. The sale of your bitcoin could result in adverse consequences to you, including potential loss of value and potential tax liability.
How to withdraw your consent: You may withdraw your consent to receive these Communications electronically by sending an e-mail to [email protected] with the subject line of "Withdraw Electronic Consent" and in the body of the e-mail state (i) your full name, US postal address, e-mail address, and telephone number and (ii) whether you request to withdraw a Personal Loan, Upgrade Card with Personal Credit Line, and/or Rewards Checking Account.
Your withdrawal of consent will be effective twenty-four hours after we have had a reasonable period of time to process your request.
5. CHANGE IN YOUR E-MAIL ADDRESS OR OTHER CONTACT INFORMATION.
To ensure you receive all Communications in a timely manner, you agree to promptly notify us of any change in your e-mail address or home mailing address. To let us know of a change in your e-mail address, within your Upgrade online dashboard, go to "Account Settings". You may also call our Member Support team at (844) 319-3909. Until you notify us of a change in your e-mail address, any Communications delivered to your e-mail address in our records will be deemed to have been delivered to you.
At our discretion, we may treat your failure to provide us with a valid e-mail address or the malfunction of a previously valid e-mail address as a withdrawal of your consent to receive electronic documents.
6. REQUIRED HARDWARE AND SOFTWARE
In order to access and retain Communications electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an e-mail account and related software capable of receiving e-mail through the Internet; supported Web browsing software (Chrome version 32.0 or higher, Firefox version 26.0 or higher, Internet Explorer version 8.0 or higher, or Safari version 7.0 or higher); and hardware capable of running this software. To ensure access and optimal printing of your documents in PDF format, you must have Adobe Reader. To install the free version of Adobe Reader, click here (http://get.adobe.com/reader/otherversions/).
Additional Mobile Technology Requirements. If you are accessing the Upgrade online platform and the Communications electronically via a mobile device (such as a smart phone, tablet, and the like), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print and save the Communications presented to you. These applications can be found for most mobile devices in the device's respective "app store". If you do not have these capabilities on your mobile device, please access the Upgrade online platform through a device that provides these capabilities.
Telephone Communications and Consent. If you access the Upgrade online platform and the Communications via a mobile device, or provide us with a telephone number that is a mobile phone number, by accessing through or providing your mobile phone number, you consent to receipt of information calls and text messages made by Upgrade, its Partners, NYDIG, or any of their service providers to provide services to you related to your application for or use of our Products. You agree we may use
automatic dialing sys' and prerecorded calls to this number and any number you provide to us. Your mobile provider may message and data rates.
7. FEDERAL LAW.
All Communications we provide to you in either electronic or paper format will be considered "in writing". You should print or download for your records a copy of this Consent and any other Communications. You agree and we both intend the federal Electronic Signatures in Global and National Commerce Act to apply to (i) this Consent and (ii) our ability to conduct business with you by electronic means.
8. TERMINATION/CHANGES.
We reserve the right, in our sole discretion, to discontinue the provision of electronic Communications at any time or to terminate or change the terms and conditions upon which electronic Communications are provided. We will provide you with notice of any such termination or change as required by law.
9. ADDITIONAL PROVISIONS FOR TAX STATEMENTS.
If you apply for, use or obtain any bitcoin Product from NYDIG, the terms, conditions and disclosures above apply to the electronic delivery of related tax documents ("Tax Documents"), in addition to the following provisions:
• You are not required to receive Tax Documents electronically. However, if you do not elect to receive Tax Documents electronically, or withdraw your consent at any time, NYDIG may be unable to provide you with the bitcoin Products (see “Withdrawing Your Consent” above).
• Your election to receive Tax Documents electronically applies to any Tax Document which NYDIG is legally permitted to provide to you now or at any time in the future until such time that you withdraw your consent.
• Withdrawal of consent of electronic delivery of Tax Documents will not affect Tax Documents previously provided electronically; such Tax Documents may continue to be provided electronically for the applicable posting period.
• The electronic delivery of Tax Documents may be terminated at any time by us. Further, we may make certain Tax Documents available electronically only for a limited time.
• If you need to update any information relevant to electronic delivery of Tax Documents, you may request that such information be updated through the procedures set forth in the section titled “Change in your E-mail Address or Other Contact Information” above.
• A description of the hardware and software required to maintain Tax Documents is set forth in the section titled “Required Hardware and Software” above.
10. ACKNOWLEDGING YOUR ACCESS AND CONSENT TO RECORDING MATERIALS ELECTRONICALLY AND TO CONDUCT BUSINESS ELECTRONICALLY.
By accepting this Consent, you are confirming your use of electronic Communications, electronic records and electronic signatures in connection with your relationship with us, and also confirming: (i) your ability to access and read, and also print or save, this Consent and the Communications or any related documents and communications; (ii) you have provided a valid e-mail address at which we can send electronic Communications to you; (iii) you have access to software and hardware that satisfies the above requirements to receive and review electronic records and Communications; (iv) you agree to the terms and conditions of this Consent including the telephone consent above; and (vi) by clicking the box referencing this Consent, you affix your electronic signature to this Consent.
Thomas Cooper
I agree:
Upgrade Card Personal Credit Line Agreement
This Agreement contains a Power of Attorney Provision and an Arbitration Agreement.
Last Revised: February 18, 2022
This Upgrade Card Personal Credit Line Agreement ("Agreement") is entered into between you ("you") and Cross River Bank, a New Jersey-chartered FDIC-insured bank ("CRB," "Lender," "we," or "us") and governs the Upgrade Card with Unsecured Personal Credit Line provided to you by CRB. This Agreement, and any future changes to it, is your contract with us. Upgrade, Inc. ("Upgrade") operates a national online consumer loan marketplace platform, via its website(s) and mobile application(s), including the website located at www.upgrade.com (together, the "Site"), through which you may request and apply for consumer installment loans or other financial products. Upgrade will also administer and service this Agreement on behalf of CRB.
If you are applying for or have been approved for an Upgrade Card with Unsecured Personal Credit Line, any references to “Upgrade Card Personal Credit Line Agreement,” “PCL Agreement,” or “Upgrade Loan Agreement,” in any related disclosure(s) shall mean this Agreement.
The Upgrade Card allows you to obtain funds from us from time to time by requesting Draws up to your Credit Limit. Your Credit Limit will equal the amount of credit extended to you under the initial Upgrade Card Loan (the amount of credit for which you are approved), as reflected in the estimated Truth in Lending Disclosure given to you. As you repay a Draw, the Credit Limit will not be replenished by the amount of the repayment as it would be in an open-end line of credit arrangement. Under the Agreement, any amount advanced will permanently reduce the amount available for subsequent advances under the initial Upgrade Card Loan. After an amount is advanced, that amount is repayable over 36 months in substantially equal monthly payments.
To permit you to obtain new Draws equal to the amount of principal you have repaid on prior Draws up to your Credit Limit, you agree that we may, based on your creditworthiness, authorize additional Draws up to the amount of principal that has been repaid under such prior Draws up to your Credit Limit. Instead of authorizing such additional Draws from time to time as principal is repaid under the Upgrade Card Loan, you agree that once you have exhausted your current Upgrade Card Loan or may exhaust it with an additional Draw, we may offer and you will have accepted an Additional Upgrade Card Loan by your continued use of the Upgrade Card after we have presented you with an additional Truth in Lending Disclosure for that new Upgrade Card Loan. The credit extended to you under the additional Upgrade Card Loan will equal the amount of credit provided in the initial Upgrade Card Loan.
The outstanding balance on any of your Draws may be used to renew your Credit Limit. Each Draw is subject to approval by us based on your creditworthiness, and we may at any time change the amount of your Upgrade Card Loan or your Credit Limit and the interest rate and other terms that apply to your draw in our sole discretion. The reasons we may change these terms include, but are not limited to, changes in laws or regulations, changes to your individual credit profile, or changes to overall economic or market conditions. You may obtain Draws by presenting a card or similar access to your bank account via ACH or via a Card access device. You hereby request that a Card be issued to you to access your Credit Limit available under this Agreement.
1. Definitions
1. "Annual Percentage Rate" or "APR" means your cost of credit displayed as a yearly percentage rate. The rate includes your interest rate and the other terms of your account as of the time of calculation.
2. "Billing Cycle" means the time period between billing statements. Each billing statement shows a statement closing date that is also the last day of the previous billing cycle.
3. "Card" means a card or similar access device that allows you to request Draws with participating merchants.
4. "Covered Draws" means, for each Promissory Note, all Draws requested and received by you during a given Billing Cycle that have the same payment term and interest rate that are evidenced by that Promissory Note. All Covered Draws for a given Billing Cycle that have the same payment term and interest rate will be evidenced by one or more Promissory Notes by the end of that Billing Cycle, but the total amount of Promissory Notes for any Billing Cycle will never exceed the amount of Draws received by you during that Billing Cycle.
5. "Credit Limit" means the maximum amount of Draws that you are allowed to have outstanding at any point in time, under your Personal Credit Line.
6. "Draw" means a transfer of funds from us to you (or a third party, in the case of a Purchase) pursuant to a request made by you under this Agreement and approved by us to be repaid over a specified term. Each Draw is subject to credit approval by us. A Draw request may be made through the Account Dashboard or through the use of a Card. You agree to repay each Draw in monthly installments over the approved repayment term.
7. "Draw Funding Date" means the date that we initiate a transfer of funds for your benefit or use.
8. "Minimum Draw Amount" means the smallest dollar amount you may request for a single Draw under your Personal Credit Line. We will provide you with your Minimum Draw Amount prior to our final submission of your Draw request.
9. "Monthly Payment" means the total amount due each month for outstanding unpaid Draws, plus applicable interest and any other charges that you may owe us under this Agreement.
10. "Monthly Payment Due Date" means the date your monthly payment is due as set forth in the Truth in Lending Disclosure.
11. "Promissory Note" means documentation evidencing your unilateral promise to repay all Draw amounts requested and received by you during a given Billing Cycle pursuant to the agreed-upon terms.
12. "Purchase" means your use of your Card or Card number to access your Upgrade Card Personal Credit Line to buy or lease goods or services or make other transactions.
13. "Statement Closing Date" means the last day of each billing cycle. You will receive an electronic statement on your Account Dashboard that displays your Monthly Payment and your Monthly Payment Due Date.
14. "Upgrade Card Loan" means the loan that we have extended you to permit Draws up to your Credit Limit.
15. "Upgrade Card Personal Credit Line", "Upgrade Card", "Personal Credit Line", "PCL" or "Unsecured Personal Credit Line" means an account through which you may access an unsecured, closed-end consumer loan offered by CRB that may be requested in a series of Draws in amounts up to your Credit Limit consisting of one or more Upgrade Card Loans.
15. "we" or "us" or "our" or "CRB" means Cross River Bank, a New Jersey state bank.
16. "you" or "your" means the person who opened the Upgrade Card.
2. Use of Your Upgrade Card Personal Credit Line. You may use your Card for personal, family or household purposes. You agree not to request draws or use any draw proceeds to pay post-secondary education expenses, to invest or sell securities, or for any illegal purpose. Your Upgrade Card Personal Credit Line may not be used to make a payment on another loan or account owned by us or serviced by Upgrade. We will not be responsible if you engage in illegal activity.
3. Terms of Your Upgrade Card Personal Credit Line.
3.1 Upgrade Card Personal Credit Line Description. Your Upgrade Card Personal Credit Line is an account through which you may access your Upgrade Card Loan, with loan proceeds that may be requested and received in a series of multiple Draws, up to your Credit Limit. You can request these Draws which are subject to credit approval by us using your Card or through your account dashboard accessible via the Site ("Account Dashboard").
3.2 Initial Upgrade Card Loan. The initial Upgrade Card Loan will extend you a loan in an amount equal to your Credit Limit.
3.3 Additional Upgrade Card Loans. By continuing to use your Upgrade Card Personal Credit Line as described below, you agree that you are requesting that a new, separate and additional Upgrade Card Loan in the same amount as the Initial Upgrade Card Loan be made available to you once you have exhausted your current Upgrade Card Loan or may exhaust it with an additional Draw. Each Upgrade Card Loan will be equal to the credit extended to you under the initial Upgrade Card Loan. Each time you are approved for an additional Upgrade Card Loan, we will send you an additional Truth in Lending Disclosure reflecting the terms of that new Upgrade Card Loan. By continuing to use your Upgrade Card Personal Credit Line after we have presented you with an additional Truth in Lending Disclosure for that new Upgrade Card Loan, you agree that you are accepting the terms of your next Upgrade Card Loan and that those terms will apply to any Draws taken from your next Upgrade Card Loan.
From time to time and as you make payments on your PCL, your payment history and credit risk profile will be evaluated to determine if you can be approved for an additional Upgrade Card Loan in an amount that equals your initial Upgrade Card Loan amount. You understand and agree that you may not be approved for additional Upgrade Card Loans. You understand that your Credit Limit may include amounts available for Draws from more than one Upgrade Card Loan. The maximum number of additional Upgrade Card Loans that may be extended under this Agreement including the initial Upgrade Card Loan is eight (8) per year. Regardless of whether you're approved for additional Upgrade Card Loans, the outstanding principal balance owed on your PCL at any given time may not exceed your Credit Limit. If you do not want to request additional Upgrade Card Loans, you may close your account to future Draws and Upgrade Card Loans by emailing [email protected] or calling 1-855-997-3100.
3.4 Outstanding Balance Limitation. At any point in time, the outstanding principal balance owed on your PCL
cannot exceed your Credit Limit. If a Draw attempt, whether made through your Card or the Account Dashboard, would cause your outstanding account balance to exceed your Credit Limit may be declined.
4. Use of the Site/Draw Requests. Under this Agreement, you may request Draws in amounts ranging from your Minimum Draw Amount up to your available credit under your Credit Limit through your Account Dashboard. Draws may also be requested by use of the Card. All approved Draws are originated and funded by CRB. By entering into this Agreement, you agree to comply with Upgrade's Terms of Use and all other rules or procedures set forth and described on the Site. By submitting a Draw request, you agree to receive the proceeds in the amount requested and you agree to repay timely all installments required under this Agreement and any associated Promissory Note. You understand that each application or Draw request is subject to CRB's loan underwriting criteria, which may change from time to time.
5. Disclosures and Statements. When you accept your Upgrade Card Personal Credit Line, we provide you with an estimated Truth in Lending Disclosure for the initial Upgrade Card Loan that is calculated based on the assumption that you will upon opening your Upgrade Card make a Draw that exhausts the initial Upgrade Card Loan. Pursuant to Section 3 of this Agreement, upon your request for additional Upgrade Card Loan(s) by using the Upgrade Card, we will send you an estimated Truth in Lending Disclosure for each such additional Upgrade Card Loan, prior to the time credit will be extended to you that is calculated based on the assumption that you will make a Draw for the full amount of the additional Upgrade Card Loan. The Finance Charge and Total of Payments listed on these Truth in Lending Disclosures are estimates based upon the assumption that all Monthly Payments will be made on time. If Monthly Payments are made before or after the applicable due dates or if you do not draw the full Upgrade Card Loan amount, the actual amount of Finance Charge and Total of Payments may be less or more than that what appears in the estimated Truth in Lending Disclosure.
For each group of Covered Draws, we will provide you with one or more final Truth in Lending Disclosure(s) and Promissory Note(s) that provide the repayment terms for that group of Covered Draws. Finally, we will send you a statement after each Statement Closing Date. All of these disclosures will be provided to you in your Account Dashboard.
6. Authorization to Obtain Your Credit Report; Credit Reports and Monitoring. By entering into this Agreement and requesting a Personal Credit Line or a Draw, or for an additional Upgrade Card Loan, you authorize Upgrade and CRB, and their agents, servicers, and assigns (for purposes of this section, collectively, “we”), to obtain your credit reports from one or more consumer reporting agencies, such as TransUnion, Experian, or Equifax. You acknowledge that we may use the credit reports for all purposes permitted by law, including: (i) to authenticate your identity; (ii) to make credit decisions; (iii) to determine your current debt-to-income ratio; and (iv) to obtain your credit score. For processed Draws or Draw applications or Draw request you authorize us to contact third parties, potentially including your employer, to verify the information in your application and/or credit report without further notice to you. You acknowledge that we may obtain credit reports on you on an ongoing basis until all amounts owed under your PCL are paid in full. We may report information concerning your performance under this Agreement to credit reporting agencies. Late payments, missed payments or other defaults on this Agreement may be reflected in your credit report. If you believe we inaccurately reported information about you or this Agreement to a credit reporting agency, call (855) 997-3100, write to us at 275 Battery Street, 23rd Floor, San Francisco, CA 94111, Attention: Disputes Department, or send an email to us at [email protected]. You will need to provide the date of your Credit Line Agreement along with a copy of your credit bureau report reflecting the information that you believe is inaccurate.
7. Limited Power of Attorney for Executing Your Promissory Notes. You hereby grant to Upgrade a limited power of attorney and appoint Upgrade and its designees as your true and lawful Attorney-in-Fact and agent, with full power of delegation, substitution, and re-substitution, for you and in your name, place, and stead, in any and all capacities, to complete and execute one or more Promissory Notes with respect to each Billing Cycle in which you received a Draw, in the form attached herein as Exhibit A, but which together incorporate the aggregate dollar amount of all related Draws for that Billing Cycle, less the amount of any payments made and applied to the principal amount of those Draws prior to the date of the related Promissory Note. At the end each Billing Cycle, Upgrade will use this limited power of attorney to execute, for each combination of rate and term applicable to the Draws you received during such Billing Cycle, one or more Promissory Notes. The aggregate amount of the Promissory Notes issued will never exceed the aggregate amount of Draws received by you during the related Billing Cycle. You further authorize Upgrade to perform each and every act necessary to be done in connection with executing each Promissory Note as you might or could do in person, and to approve, execute, and deliver the provisions of any instruments, documents, agreements, powers, releases, and certificates related to each Promissory Note and perform each and every action required, including but not limited to any legal or beneficial assignment of each Promissory Note. This Power of Attorney is limited to the purpose described above and will expire automatically upon the termination of this Agreement. You may revoke this Power of Attorney by emailing [email protected] or calling 1(855) 997-3100 and closing your PCL account. If your PCL account is closed you still remain responsible for obligations under this Agreement prior to closure. However, if your Draw request or application has been approved, you must revoke this Power of Attorney prior to the proceeds being transferred to your bank account. Once each Promissory Note is signed by Upgrade as your Attorney-in-Fact on your behalf, it is deemed executed and is thereafter your binding obligation. You further understand and agree that you must repay all Draw amounts you receive with interest thereon. Even if a Promissory Note is not executed at the end of the Billing Cycle, you must repay all amounts you received pursuant to the terms you agreed to at the
8. TCPA Consent. By providing us with your mobile telephone number, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf including Upgrade, for any and all purposes arising out of your relationship with us, your use of Upgrade’s website and services, or any agreement you have entered into with Upgrade or us. You agree we may contact you in any way including SMS text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using an automated telephone dialing system or an automated texting system. You understand that automated messages may be played when the telephone is answered, whether by you or someone else. You also agree that representatives may leave you messages on your answering machine, voice mail, or via text if you don’t answer. Standard calling and text messaging rates will apply, based on your cellular telephone carrier and service plan.
During the online application process performed by Upgrade on our behalf, you may be asked to provide your prior express written consent to receive autodialed or prerecorded calls and texts to your mobile device for marketing purposes. We or Upgrade will not use autodialed or prerecorded calls or texts to contact you for marketing purposes unless you provide us with that prior express written consent.
You understand that you do not have to consent to receive any autodialed or prerecorded calls or texts to your mobile phone number in order to use or enjoy our services and products. If you have already provided your consent, you may withdraw your consent to receive autodialed or prerecorded calls or texts to your mobile phone number by contacting Upgrade by email at [email protected] or by calling Upgrade customer support at 1-(855) 997-3100.
9. Account Servicing. You acknowledge that your account will be serviced by Upgrade. You also agree that Upgrade may delegate the servicing of your account to a third party in its sole discretion without prior consent or notice.
10. 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 dependents may not exceed an annual percentage rate of 36 percent. This rate must include, as applicable to the credit transaction or account: the costs associated with credit insurance premiums; fees for ancillary products sold in connection with the credit transaction; any application fee charged (other than certain application fees for specified credit transactions or accounts); and any participation fees charges other than those paid proportionately over time (that can be counted). Your payment obligation is shown on the Truth in Lending Disclosure. Please call 1-(855) 611-7628 toll-free to have this disclosure provided to you orally.
You are a “Covered Borrower” if you are entitled to special protections for service members and their dependents pursuant to your termination of employment. In accordance with 32 C.F.R. § 232.5(a), and have not ceased to be a Covered Borrower. You are not a Covered Borrower, or cease to be a Covered Borrower, if you are not a member of the armed forces serving on active duty or a dependent of such member, as defined under 32 C.F.R. § 232.3(g). This Agreement shall be interpreted to comply with the Military Lending Act, including its restrictions on permissible terms and limitations on interest, charges, and fees. The limitations on interest and fees apply to individuals while they are Covered Borrowers, provided such individuals are Covered Borrowers as of the date they execute this Agreement. As applied to Covered Borrowers: (1) any interest, charges, or fees in excess of the permitted limit shall be reduced by the amount necessary to satisfy that limit and any amounts collected in excess of the permitted limit shall be refunded by crediting your account or by making a direct payment to you; (2) Section 18 (Arbitration Agreement) and Section 24 (Limitation of Liability) of this Agreement (see below) shall not apply; and (3) any other provision of this Agreement that is inconsistent with the Military Lending Act shall not apply.
11. Billing Cycle. Your first Billing Cycle begins when you make your first Draw and ends on your first Statement Closing Date, which will be determined by us. Subsequent Billing Cycles will begin on the day after each Statement Closing Date and will end on the next Statement Closing Date. You will receive a monthly statement for each Billing Cycle at least twenty-one (21) days prior to your Monthly Payment Due Date. Each monthly statement covers one Billing Cycle. Statements are available on your Account Dashboard.
12. How We Calculate Interest.
Interest Calculation. Interest will accrue on Draws on an Actual/365-day year basis for each full month and each partial month based on the interest rate disclosed on the Truth in Lending Disclosure applied to the unpaid outstanding amounts for the actual number of days the funds are outstanding for such full or partial month. Your interest is calculated by dividing the interest rate for each Draw by 365 to arrive at a daily periodic rate for that Draw. Each day, we take the outstanding balance on the Draw (as recorded at the close of business on the previous day) and multiply it by the daily periodic rate. The result is the interest accrued on the Draw for that day. The interest you owe for each Billing Cycle will be included in your Monthly Payment so that the Covered Draw will fully amortize it over the repayment period. Interest will start accruing for each Covered Draw that you receive from CRB on the Draw Funding Date and will continue to accrue until all amounts owed are paid in full. As a result, if your first Monthly Payment is due more than 30 days after the Draw Funding Date, your Draws will have accrued more than 30 days of interest at the time your first Monthly Payment is due, but your repayment schedule will always be calculated to provide for substantially equal monthly payments.
13. Fees. We will not charge any fees to use your Upgrade Card Personal Credit Li
14. Payments.
14.1 Promise to Pay. When you request a Draw or otherwise use your account, you promise to pay the total amount of that Draw plus all interest, charges, and other amounts that you may owe us, regardless if we decline any subsequent Draw request, lower your Credit Limit, or close your account.
14.2 Allocation of Your Payments and Prepayments. You will receive a statement showing your recent Draws and the amount of your current Monthly Payment at least twenty-one (21) days before your Monthly Payment Due Date. The Monthly Payment shown on your statement will reflect the principal and interest associated with the aggregate of your outstanding unpaid Draws. Your Monthly Payment amount will be applied first to the accrued interest, and then to any scheduled principal payment, on each Draw or collection of Draws. If you pay an amount that is less than your Monthly Payment as shown on your statement, the amount you pay will be applied to each Draw or collection of Draws in proportion to the outstanding payment due on each Draw as included in the Monthly Payment. If you pay more than your Monthly Payment amount, then the excess amount will be applied first to any accrued but unpaid interest, and then to outstanding principal, on each Draw or collection of Draws in proportion to the outstanding balance on each Draw at the time of the payment. YOU WILL NOT BE ABLE TO PREPAY OR PAY DOWN ANY ONE DRAW OR COLLECTION OF DRAWS FASTER THAN ANY OTHER DRAW OR COLLECTION OF DRAWS.
14.3 Other Payment Terms. We may accept partial payments, late payments, or payments with restrictive writing without losing any of our rights under this Agreement. The words “paid in full” or other restrictive writing on or with payments shall have no effect, and our acceptance of those payments shall in no way operate as an accord and satisfaction of your obligation.
14.4 Your Monthly Payment. Your Monthly Payment reflects the principal and interest associated with your outstanding unpaid Draws. Your Monthly Payment is calculated to allow you to pay down each outstanding Draw according to its agreed-upon schedule.
14.5 Minimum Monthly Payment. If your monthly payment for a collection of Covered Draws is calculated to be less than $5.00, then your minimum monthly payment for that collection of Covered Draws will be $5.00. If you owe less than $5.00 for a collection of Covered Draws, then your minimum monthly payment will be the total outstanding balance for that collection of Draws. If you have one Covered Draw for a certain rate and term combination, and the Monthly Payment is calculated to be less than $5.00, then your minimum monthly payment for that Draw will be $5.00. Your Initial Monthly Payment will be reflected on your monthly statement and shall reflect all prior activity (other collections of draws taken on your account and payment), and may be higher than $5.00.
15. Default. You will be in default of this Agreement if:
a. you fail to make any required Monthly Payment in full by its Monthly Payment Due Date; or
b. you fail to perform any of your obligations required under this Agreement; or
c. any representation made by you in, or in connection with your Upgrade Card application, account or Draw request is false in any material respect when made; or
d. any of the following occurs (each a "Bankruptcy Event"): (1) you make an application for the appointment of a receiver, trustee or custodian or a receiver, trustee or custodian is appointed for you or a majority of your assets; (2) you initiate or consent to any legal proceedings under the Bankruptcy Code, or equivalent law providing for the relief of debtors; (3) you make an assignment for the benefit of creditors; or (4) you have a petition in bankruptcy or similar relief of debtors filed against you, which is not withdrawn or discharged within thirty (30) days of being filing; or
e. you die.
16. Remedies. If you are in default under this Agreement, we may take any remedy allowed by law, including but not limited to requiring immediate repayment of your total outstanding balance. We may also require you to pay all costs and expenses incurred in the collection of your account, and we may also require you to pay all reasonable attorneys’ fees associated with the collection of your account if your account is referred to a non-employee attorney.
In the event that we exercise any of our rights or remedies under this Agreement, you will continue to be in default until such time that you pay to us all amounts due to us and you have cured any and all defaults. Our failure to take any action or delay taking any action related to your default, does not waive, or imply a waiver of, any of our rights under this Agreement.
17. Credit Availability.
17.1 Personal Credit Limit. Before executing the Agreement, we will provide you with an estimated Truth in Lending Disclosure that discloses your approved initial Upgrade Card Loan amount and the associated interest and charges. If you accept the terms, you may request a series of Draws in United States dollars in any amount up to the total amount of your Upgrade Card Loan or your remaining available Credit Limit, whichever is less. Draws requested via ACH will be subject to the Minimum Draw Amount disclosed to you. Draw requests are subject to credit approval, including additional credit underwriting that we may undertake. As you use your Upgrade Card Loan, you agree that we will periodically determine whether to approve you for an additional Upgrade Card Loan as provided in Section 3 so we can make the principal amount you repay available for future Draws. We will base this decision on your payment history with us and on information we receive from third parties such as credit reporting agencies. You understand that, based on information reviewed at the time of your payment submission, the principal amount you repay will not become available for future Draws under your Credit Limit unless you have been approved for an additional Upgrade Card Loan.
17.2 Changes to Your Upgrade Card Personal Credit Line. From time to time, we may make changes to your Upgrade Card Personal Credit Line. These changes can include raising or lowering the amount of your Upgrade Card Loan or your Credit Limit and raising and lowering your interest rate. We will base these decisions on your payment history with us and on information we receive from third parties including credit reporting agencies, which we will review on a monthly basis.
a. Credit Limit Changes. We may raise or lower the amount of your Upgrade Card Loan or your Credit Limit without your consent at any time. We will base this decision on your payment history with us and on information we receive from third parties including credit reporting agencies.
b. Changes to Your Interest Rate. We may raise or lower your interest rate for future Draws. We will base this decision on your payment history with us and on information we receive from third parties including credit reporting agencies. If we make any changes to your interest rate, we will present you with a new Truth in Lending Disclosure showing the details of your Upgrade Card Personal Credit Line with the new rate. You must read, understand, and agree to the disclosure and the new rate in order to request future Draws. The new interest rate will only apply to future Draws. Draws that are outstanding at the time of the change will not be affected in any way.
17.3 Draw Requests. When you request a Draw, we may review your payment history and information we receive from third parties including information from credit reporting agencies to determine whether to approve your Draw request. You understand that we may approve your draw request based on the information reviewed at the time of the request.
17.4 Account Suspension. We reserve the right to suspend or close your account if you are in default, if there is a change to your credit risk or other risk factors based on a credit inquiry, if there are changes to market conditions, if there are changes to law or regulation, if it is necessary to prevent fraud, or for any other reason. Your repayment obligations under this Agreement continue even if your account is suspended or closed.
18. Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. YOU HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW.
a. The parties to this Agreement agree that either you or CRB or its service provider Upgrade (or any subsequent assigns of the foregoing), may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section (the “Arbitration Provision”), unless you opt out as provided in paragraph (b) below. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and CRB or Upgrade and/or any assign of CRB or Upgrade (or persons claiming through or connected with CRB or Upgrade and/or any assign of CRB or Upgrade), 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 paragraph (f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, 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.
b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to Cross River Bank, Attn: Legal Department, 400 Kelby Street, 14th Floor, Fort Lee, NJ 07024, only if received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt-out notice must clearly state that you are rejecting arbitration; identify the agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send the opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt-out of this Arbitration Provision. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit
the opt-out notice on your own half.
c. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or JAMS. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
d. If CRB or Upgrade (or any assign of CRB or Upgrade) elects arbitration, CRB or Upgrade (or the assign, as the case may be) shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. CRB or Upgrade (or the assign, as the case may be) shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that CRB or Upgrade (or the assign) pay them and CRB or Upgrade agrees (or the assign agrees) to do so. Each party to the arbitration shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party to the arbitration may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (the “FAA”), and may be entered as a judgment in any court of competent jurisdiction.
f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN COURT AS A CLASS, REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join or consolidate, nor otherwise bring Claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (i) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (ii) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this paragraph (f) and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this paragraph (f) shall be determined exclusively by a court and not by the administrator or any arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties and/or assignee; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or this Agreement to any other person or entity. If any portion of this Arbitration Provision is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in paragraph (f) are finally adjudicated pursuant to the last sentence of paragraph (f) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision. THE PARTIES ACKNOWLEDGE THAT THEY MAY 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.
i. EXCEPTION: Active duty military servicemembers and their dependents are exempt from arbitration to the extent provided for in the Military Lending Act.
19. Registration of Draw O s. If you receive a funded Draw pursuant to this Agree*, you appoint Upgrade, Inc. as your authorized agent (in such capacity, the “Draw Registrar”) to maintain a book-entry system (the “Register”) for recording the owner of the Draw and related Promissory Note (the “Draw Owners”). The person or persons identified as the Draw Owners in the Register shall be deemed to be the owner(s) of such Draw and related Promissory Note for purposes of receiving payment of principal and interest on such Draw and Promissory Note and for all other purposes. You acknowledge that the Draw Registrar maintains the only authoritative copy of the Promissory Note. With respect to any transfer by a Draw Owner of its beneficial interest in the Draw and related Promissory Note, the right to payment of principal and interest on each Draw shall not be effective until the transfer is recorded in the Register.
20. Term and Termination. The term of this Agreement shall commence on the date that you electronically sign the Agreement (“Effective Date”) and shall continue for a period of five (5) years unless terminated earlier. Even though the Agreement is terminated, your repayment obligations will nevertheless remain. If you receive eight (8) Upgrade Card Loans within a single twelve (12) month period and you would like to request a ninth Upgrade Card Loan in that same period, then you will be asked to enter into a new agreement with us, and this Agreement shall terminate as to any new Draws and any remaining availability under Upgrade Card Loans under this Agreement, but shall remain in effect for your obligations incurred hereunder. We may terminate this Agreement in our sole discretion, with or without cause, by providing you with notice of the termination. The reasons we may terminate this Agreement include, but are not limited to, changes in laws or regulations, changes to your individual credit profile, changes to overall economic and market conditions, and any closure or termination of your Upgrade Visa® card account per the terms of your Cardholder Agreement. If we determine that you have committed fraud, made a material misrepresentation, or otherwise failed to abide by the terms of any Agreement you have entered into with us, including the Upgrade Terms of Use, we may, in our sole discretion, terminate this Agreement and disable your Account Dashboard for the PCL. All Draws outstanding at the time of termination plus applicable interest and charges shall remain in full force and effect until paid in full, regardless of the termination of this Agreement. The following provisions shall also survive the expiration or earlier termination of this Agreement: Sections 2, 6, 7, 8, 9, 12, 14, 15, 16, 17, 18, 20, 21, 22, 24, 25, and 26.
21. Amendment. We reserve the right to amend this Agreement at any time by adding, deleting, or changing provisions of this Agreement. All amendments will comply with the requirements of applicable federal and New Jersey law, including all required notice provisions.
22. Assignment. You may not assign or transfer rights or obligations under this Agreement without our prior written consent. We may assign or transfer all or any portion of this Agreement and/or related documents to a third party or affiliate. Our rights under this Agreement will inure to the benefit of our successors and assigns and your obligations under this Agreement will be binding on your heirs, personal representatives and permitted assigns. Promissory notes under this Agreement may be sold, transferred, or assigned by us.
23. No Warranties. UNLESS SPECIFICALLY PROHIBITED BY APPLICABLE LAW, WE MAKE NO WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADDITIONALLY, WE MAKE NO CLAIM OR GUARANTEE AS TO THE ACCURACY OF ANY INFORMATION PROVIDED OR SITE CONTENT. THIS WARRANTY DISCLAIMER IS NOT APPLICABLE TO RESIDENTS OF KANSAS OR WISCONSIN.
24. Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON YOUR FOREIGN, FEDERAL, STATE, OR LOCAL TAX LIABILITY.
25. Choice of Law. Unless expressly provided otherwise in this Agreement, this Agreement shall be governed by federal law and, to the extent not preempted by federal law, the laws of the State of New Jersey without regard to any conflict of laws provision.
26. Miscellaneous.
26.1 Entire Agreement. This Agreement together with the Upgrade Terms of Use and your Consent to Conduct Business Electronically represents the entire agreement between you and CRB regarding your request for an Upgrade Card or Draws from us and your related use of the Site, and supersedes all prior and contemporaneous communications, whether written or oral, between you and CRB with regard to your request an Upgrade Card or Draws from us and your related use of the Site.
26.2 Electronic Transactions and Disclosures. This Agreement includes your express consent to electronic transactions and disclosures, which consent is contained in the document titled "Consent to Conduct Business Electronically," the terms of which are expressly incorporated herein in their entirety.
26.3 Notices. You consent to receive all notices and communications required in connection with this Agreement by email to the email address you registered with us when you created your Upgrade account. Delivery of such notices and communications shall be deemed to be made upon transmission. By registering
an email address with l' de, you acknowledge that you have ownership and control over the email account associated with your address and you understand that we may send personally, confidential communications, including but not limited to collections-related communications, to you at that address. If your email address or any other contact information changes, you acknowledge that you must update your registered email address through the Upgrade website, contact Upgrade at [email protected] or call 1-(855) 997-3100 to update your contact information.
26.4 Severability and Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
26.5 Third-Party Beneficiary. Upgrade is not a party to this Agreement, but you agree that Upgrade is a third-party beneficiary and is entitled to rely on the provisions of this Agreement, including without limitation your representations, covenants, and agreements herein. The parties agree that there are no third-party beneficiaries other than Upgrade.
26.6 Unauthorized Use of Your Account. If you believe there is unauthorized access or use of your account, please contact Upgrade at [email protected] or call 1-(855)-997-3100.
26.7 Phone Monitoring. We may monitor and record any phone calls we, Upgrade or any subsequent account servicer has with you.
26.8 State Law Notices and Disclosures.
ALABAMA RESIDENTS: CAUTION — IT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU SIGN IT.
CALIFORNIA RESIDENTS: A married applicant may apply for a separate account. If Lender takes any adverse action as defined by Section 1785.3 of the California Civil Code and the adverse action is based, in whole or in part, on any information contained in a consumer credit report, Borrower has the right to obtain within 60 days a free copy of Borrower's consumer credit report from the consumer reporting agency who furnished the consumer credit report from any one of the three major credit reporting agencies, which maintains files on consumers on a nationwide basis.
CALIFORNIA and NEW YORK RESIDENTS: We may report information about your account to credit bureaus. Late payments or missed payments (other defaults) on your account may be included on your credit report.
CALIFORNIA and NEW YORK RESIDENTS: You shall not be notified of 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.
COLORADO RESIDENTS: This Agreement shall be governed by Colorado law, except where otherwise preempted or authorized by federal law, including that any “interest” terms as contemplated by 12 U.S.C. § 1831d shall be governed by 12 U.S.C. § 1831d and the laws of CRB’s home state.
FLORIDA RESIDENTS: Florida documentary stamp tax required by law has been paid or will be paid directly to the Department of Revenue.
KANSAS RESIDENTS: NOTICE TO CONSUMER: 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.
MAINE, NEW YORK and VERMONT RESIDENTS: A consumer credit report may be requested in connection with your application or in connection with updates, renewals or extensions of any credit granted as a result of your application. Upon your request, you will be informed whether or not such a report was requested and, if so, the name and address of the agency that furnished the report.
MASSACHUSETTS RESIDENTS: Massachusetts law prohibits discrimination based upon marital status or sexual orientation.
MISSOURI AND NEBRASKA RESIDENTS: YOU MAY PREPAY YOUR LOAN IN WHOLE OR IN PART AT ANY TIME. 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 US (LENDER) FROM 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 HAMPSHIRE RESIDENTS: If we refer this Agreement to an attorney for collection, you agree to pay our reasonable attorneys’ fees. However, if you prevail in (1) any action, suit, or proceeding we bring, or (2) an action brought by you in connection with this Agreement, or (3) if you successfully assert a partial defense or setoff, recoupment, or counterclaim to an action brought by us, the court may withhold from us the entire amount or such portion of the attorneys’ fees as the court considers equitable.
NEW JERSEY: 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 to acts or practices that New Jersey law permits or requires. In this Agreement, acts or practices (i) by you which are or may be permitted by "applicable law" are permitted by New Jersey law, and (ii) that may or will be taken by you unless prohibited by "applicable law" are permitted by New Jersey law.
OHIO RESIDENTS: Ohio anti-discrimination laws require creditors to make credit equally available to all creditworthy customers and that credit reporting agencies maintain separate credit histories on individuals upon request. The Ohio Civil Rights Commission administers these laws.
SOUTH DAKOTA RESIDENTS: Any improprieties in making the loan or in loan practices may be referred to: South Dakota Division of Banking, 1601 N. Harrison Ave, Suite 1, Pierre, SD 57501.
TEXAS RESIDENTS: You agree to give up (waive) your common law rights to receive notice of intent to accelerate and notice of acceleration. This means that you give up the right to receive notice that we intend to demand that you pay all that you owe on this loan agreement at once (accelerate) and notice that we have accelerated. 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: 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.
WISCONSIN RESIDENTS: NOTICE TO CUSTOMER: (A) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT, EVEN IF OTHERWISE ADVISED; (B) DO NOT SIGN THIS IF IT CONTAINS ANY BLANK SPACES; (C) YOU ARE ENTITLED TO AN EXACT COPY OF ANY AGREEMENT YOU SIGN; AND (D) YOU HAVE THE RIGHT AT ANY TIME TO PAY IN ADVANCE OF THE UNPAID BALANCE DUE UNDER THIS AGREEMENT AND YOU MAY BE ENTITLED TO A PARTIAL REFUND OF THE FINANCE CHARGE.
MARRIED WISCONSIN RESIDENTS: No provision of any marital agreement, unilateral statement or court order applying to marital property will adversely affect a creditor's interest unless prior to the time credit is granted, the creditor is furnished with a copy of the agreement, statement or court order, or has actual knowledge of the provision. If you are married, by signing this loan agreement, you are confirming that this loan obligation is being incurred in the interest of your marriage and your family. If the loan for which you are applying is granted, you will notify the Lender if you have a spouse who needs to receive notification that credit has been extended to you.
26.9 NOTICE TO CUSTOMER:
(a) DO NOT SIGN THIS BEFORE YOU READ THE ENTIRE AGREEMENT, EVEN IF OTHERWISE ADVISED.
(b) DO NOT SIGN THIS 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 AND THE FINANCE CHARGE DISCLOSED MAY BE LESS.
Truth in Lending Disclosure Statement
Lender:
Cross River Bank
400 Kelby Street
14th Floor
Fort Lee, NJ 07024
Borrower:
Thomas Cooper
<table>
<tr>
<th>ANNUAL PERCENTAGE RATE</th>
<th>FINANCE CHARGE</th>
<th>Amount Financed</th>
<th>Total of Payments</th>
</tr>
<tr>
<td>The cost of your credit as a yearly rate.</td>
<td>The dollar amount the credit will cost you.</td>
<td>The amount of credit provided to you or on your behalf.</td>
<td>The amount you will have paid after you have made all payments as scheduled.</td>
</tr>
<tr>
<td>24.98%</td>
<td>$1,581.05</td>
<td>$3,500.00</td>
<td>$5,081.05</td>
</tr>
</table>
All numerical disclosures except the late payment disclosure are estimates
Your payment schedule will be:
<table>
<tr>
<th>Number of Payments</th>
<th>Amount of Payments</th>
<th>When Payments are Due</th>
</tr>
<tr>
<td>35</td>
<td>$141.15</td>
<td>The first Monthly Payment will be due 51 days after the first draw on your credit line. All other Monthly Payments will be due on the same day of each following month. If your due date is the 29th, 30th or 31st and the current month is shorter, your payment will be on the last day of the month. If the first draw has already set the payment date, then your first Monthly Payment for new draws will be on that date.</td>
</tr>
<tr>
<td>One Final Payment</td>
<td>$140.80</td>
<td>Your last payment will be due 35 months from your first Monthly Payment due date.</td>
</tr>
</table>
Prepayment
If you pay off all your balance early, you will not have to pay a penalty. You will not be entitled to a refund of any unearned finance charge or fee.
Security
None. This credit line is not secured.
Additional Information
See your contract terms for any additional information about nonpayment, default, repayment in full before the scheduled due date.
Itemization of the Amount Financed
Principal Amount of Loan $3,500.00
Origination Fee/Prepaid Finance Charge (Paid to Lender) $0.00
Amount Financed (Amount Provided to You) $3,500.00
Date Generated: 06/01/2022
NON-NEGOTIABLE PROMISSORY NOTE
Date: 07/09/2022 ("Effective Date")
Borrower Name and Address:
THOMAS COOPER
1. PROMISE TO PAY. I promise to pay to CRB or any other holder of this promissory note ("Note"), the principal amount of $2,038.75, together with interest at the interest rate and charges as set forth below, until paid in full. The principal amount disclosed herein represents the aggregate amount of funds transferred to me or on my behalf by CRB under my Upgrade Card Personal Credit Line in respect of the Covered Draws (as defined in the Upgrade Card Personal Credit Line Agreement) for this Note, less the amount of any payments made by me and applied to the principal amount of the Covered Draws prior to the date hereof. As used herein, the "Covered Draws" for this Note include all Draws (as defined in the Upgrade Card Personal Credit Line Agreement) having a term of 36 months and an interest rate of 24.98% that were received by me during the previous Billing Cycle. I promise that I will use the funds received for the purpose that I have previously indicated when requesting the funds, and I agree not to use the funds to pay any post-secondary student loan, to buy or sell securities, or for any illegal purposes.
2. THIS NOTE IS NON-NEGOTIABLE.
3. INTEREST AND PAYMENTS.
a. Payment Timing and Application. Principal and interest shall be paid in 36 monthly installments of $81.65 as discussed herein. My first Monthly Payment will be due on 07/31/2022. All other Monthly Payments will be due on the same day of each following month ("Subsequent Due Date") until 06/30/2025, when all principal, and interest payable and owing under this Note are due. If my Subsequent Due Date is the 29th, 30th or 31st and the current month is shorter, my payment will be on the last day of the month. All payments or prepayments will be applied in the agreed-upon manner as described in Section 14 of the Upgrade Card Personal Credit Line Agreement.
b. Accrual. Interest will accrue on Draws on an Actual/365-day accrual basis for each month and each partial month based on the interest rate disclosed on the Draw in the Upgrade Card Disclosure related to the unpaid outstanding amounts for the actual number of days the funds are outstanding for such full or partial month. Interest is calculated by dividing the interest rate for each Draw by 365 to arrive at a daily periodic rate for that Draw. Each Draw's outstanding balance (the Draw(s) recorded at the close of business on the previous day) is multiplied by the daily periodic rate. The result is the interest accrued on the Draw for that day. The interest I owe for each Billing Cycle will be included in my Monthly Payment so that the Covered Draw will fully amortize it over the repayment period. Interest will start accruing for each Covered Draw that I receive from CRB on the Draw Funding Date and will continue to accrue until all amounts owed are paid in full. As a result, if my first Monthly Payment is due more than 30 days after the Draw Funding Date, my Draws will have accrued more than 30 days of interest at the time my first Monthly Payment is due, but my repayment schedule will always be calculated to provide for substantially equal monthly payments.
c. Interest Rate. Interest on the Covered Draw or group of Covered Draws evidenced by this Note shall accrue at a rate of 24.98% per year until all amounts owed are paid in full.
d. Maturity. When this Note matures, I agree to pay in full any unpaid amounts due under this Note.
e. Payment Method. Payment may be made by check or electronic funds transfer. Payment by check may be made by sending a personal check: (1) by standard US Mail to: Upgrade, Inc., Lbx#452210, P.O. Box 52210, Phoenix, AZ 85072-2210, or (2) by courier (FedEx, UPS, etc.) to: Upgrade, Inc., Attn: Batching Dept. lbx#452210, 530 W Alameda Dr., Suite 105, Tempe, AZ 85282. You may change these addresses from time to time, and you will notify me of the new address for payments.
f. This Note evidences the outstanding indebtedness incurred by me in connection with each Covered Draw received by me during the Billing Cycle and is not intended to be a substitution or novation of (1) any indebtedness incurred by me or (2) the Upgrade Card Personal Credit Line Agreement, all of which shall continue in full force and effect as evidenced hereby.
4. ASSIGNMENTS. I may not assign or transfer my rights or obligations under Note without the prior written consent of CRB or any other holder of this Note. A holder of this Note may assign or transfer all or a portion of this Note and the related documents to a third party or an affiliate.
5. GOVERNING LAW. Unless expressly provided otherwise in this Note, this Note shall be governed by federal law and, to the extent not preempted by federal law, the laws of the State of New Jersey without regard to any conflict of laws provision.
6. STATE LAW NOTICE AND CLOSURE.
COLORADO RESIDENTS: This Note shall be governed by Colorado law, except where otherwise preempted or authorized by federal law, including that any "interest" terms as contemplated by 12 U.S.C. § 1831d shall be governed by 12 U.S.C. § 1831d and the laws of CRB's home state.
SIGNATURE:
THOMAS COOPER
BY: UPGRADE, INC.
ATTORNEY-IN-FACT FOR THOMAS COOPER
(Signed Electronically)
Truth in Lending Disclosure Statement
Lender:
Cross River Bank
400 Kelby Street
14th Floor
Fort Lee, NJ 07024
Borrower:
THOMAS COOPER
<table>
<tr>
<th>ANNUAL PERCENTAGE RATE</th>
<th>FINANCE CHARGE</th>
<th>Amount Financed</th>
<th>Total of Payments</th>
</tr>
<tr>
<td>The cost of your credit as a yearly rate.</td>
<td>The dollar amount the credit will cost you.</td>
<td>The amount of credit provided to you or on your behalf.</td>
<td>The amount you will have paid after you have made all payments as scheduled.</td>
</tr>
<tr>
<td>24.98%</td>
<td>$900.26</td>
<td>$2,038.75</td>
<td>$2,939.01</td>
</tr>
</table>
Your payment schedule will be:
<table>
<tr>
<th>Number of Payments</th>
<th>Amount of Payments</th>
<th>When Payments are Due</th>
</tr>
<tr>
<td>35</td>
<td>$81.65</td>
<td>Monthly, Beginning on 07/31/2022 and due on the same day of each following month. If your due date is on the 29th, 30th or 31st and the current month is shorter, your payment will be due on the last day of the month.</td>
</tr>
<tr>
<td>One Final Payment</td>
<td>$81.26</td>
<td>06/30/2025</td>
</tr>
</table>
Prepayment: If you pay off all your loan early, you will not have to pay a penalty. You will not be entitled to a refund of any prepaid finance charge or other fee.
Security: None. This loan is unsecured.
Additional Information: See your contract terms for any additional information about nonpayment, default, and repayment in full before the scheduled due date.
Itemization of the Amount Financed
Principal Amount of Loan: $2,038.75
Origination Fee/Prepaid Finance Charge (Paid to Lent: ) $100.00
Amount Financed (Amount Provided to You): $2,038.75
Date Generated: 07/09/2022
NON-NEGOTIABLE PROMISSORY NOTE
Date: 09/09/2022 ("Effective Date")
Borrower Name and Address:
THOMAS COOPER
1. PROMISE TO PAY. I promise to pay to CRB or any other holder of this promissory note ("Note"), the principal amount of $23.98, together with interest at the interest rate and charges as set forth below, until paid in full. The principal amount disclosed herein represents the aggregate amount of funds transferred to me or on my behalf by CRB under my Upgrade Card Personal Credit Line in respect of the Covered Draws (as defined in the Upgrade Card Personal Credit Line Agreement) for this Note, less the amount of any payments made by me and applied to the principal amount of the Covered Draws prior to the date hereof. As used herein, the "Covered Draws" for this Note include all Draws (as defined in the Upgrade Card Personal Credit Line Agreement) having a term of 6 months and an interest rate of 24.98% that were received by me during the previous Billing Cycle. I promise that I will use the funds received for the purpose that I have previously indicated when requesting the funds, and I agree not to use the funds to pay any post-secondary student loan, to buy or sell securities, or for any illegal purposes.
2. THIS NOTE IS NON-NEGOTIABLE.
3. INTEREST AND PAYMENTS.
a. Payment Timing and Application. Principal and interest shall be paid in 6 monthly installments of $5.00 as discussed herein. My first Monthly Payment will be due on 09/30/2022. All other Monthly Payments will be due on the same day of each following month ("Subsequent Due Date") until 02/28/2023, when all principal, and interest payable and owing under this Note are due. If my Subsequent Due Date is the 29th, 30th or 31st and the current month is shorter, my payment will be on the last day of the month. All payments or prepayments will be applied in the agreed-upon manner as described in Section 14 of the Upgrade Card Personal Credit Line Agreement.
b. Accrual. Interest will accrue on Drawn on an Actual/365-day basis for each whole month and each partial month based on the interest rate disclosed on the then in effect Agg. Disclosure and to the unpaid outstanding amounts for the actual number of days since funding or awarding for such full or partial month. Interest is calculated by dividing the interest rate for each Covered Draw by 365 to arrive at a daily periodic rate for that Draw. Each draw's outstanding balance since Draw Date recorded at the close of business on the previous day is multiplied by the daily periodic rate. The result is the interest accrued on the Draw for that day. The interest I owe for each Billing Cycle will be included in my Monthly Payment so that the Covered Draw will fully amortize it over the repayment period. Interest will start accruing for each Covered Draw that I receive from CRB on the Draw Funding Date and will continue to accrue until all amounts owed are paid in full. As a result, if my first Monthly Payment is due more than 30 days after the Draw Funding Date, my Draws will have accrued more than 30 days of interest at the time my first Monthly Payment is due, but my repayment schedule will always be calculated to provide for substantially equal monthly payments.
c. Interest Rate. Interest on the Covered Draw or group of Covered Draws evidenced by this Note shall accrue at a rate of 24.98% per year until all amounts owed are paid in full.
d. Maturity. When this Note matures, I agree to pay in full any unpaid amounts due under this Note.
e. Payment Method. Payment may be made by check or electronic funds transfer. Payment by check may be made by sending a personal check: (1) by standard US Mail to: Upgrade, Inc., Lbx#452210, P.O. Box 52210, Phoenix, AZ 85072-2210, or (2) by courier (FedEx, UPS, etc.) to: Upgrade, Inc., Attn: Batching Dept. lbx#452210, 530 W Alameda Dr., Suite 105, Tempe, AZ 85282. You may change these addresses from time to time, and you will notify me of the new address for payments.
f. This Note evidences the outstanding indebtedness incurred by me in connection with each Covered Draw received by me during the Billing Cycle and is not intended to be a substitution or novation of (1) any indebtedness incurred by me or (2) the Upgrade Card Personal Credit Line Agreement, all of which shall continue in full force and effect as evidenced hereby.
4. ASSIGNMENTS. I may not assign or transfer my rights or obligations under Note without the prior written consent of CRB or any other holder of this Note. A holder of this Note may assign or transfer all or a portion of this Note and the related documents to a third party or an affiliate.
5. GOVERNING LAW. Unless expressly provided otherwise in this Note, this Note shall be governed by federal law and, to the extent not preempted by federal law, the laws of the State of New Jersey without regard to any conflict of laws provision.
6. STATE LAW NOTICE AND CLOSURE.
COLORADO RESIDENTS: This Note shall be governed by Colorado law, except where otherwise preempted or authorized by federal law, including that any “interest” terms as contemplated by 12 U.S.C. § 1831d shall be governed by 12 U.S.C. § 1831d and the laws of CRB’s home state.
SIGNATURE:
THOMAS COOPER
[REDACTED]
BY: UPGRADE, INC.
ATTORNEY-IN-FACT FOR THOMAS COOPER
(Signed Electronically)
COPY
Truth in Lending Disclosure Statement
Lender:
Cross River Bank
400 Kelby Street
14th Floor
Fort Lee, NJ 07024
Borrower:
THOMAS COOPER
<table border="1">
<tr>
<th>ANNUAL PERCENTAGE RATE</th>
<th>FINANCE CHARGE</th>
<th>Amount Financed</th>
<th>Total of Payments</th>
</tr>
<tr>
<td>The cost of your credit as a yearly rate.</td>
<td>The dollar amount the credit will cost you.</td>
<td>The amount of credit provided to you or on your behalf.</td>
<td>The amount you will have paid after you have made all payments as scheduled.</td>
</tr>
<tr>
<td>24.98%</td>
<td>$1.42</td>
<td>$23.98</td>
<td>$25.40</td>
</tr>
</table>
Your payment schedule will be:
<table border="1">
<tr>
<th>Number of Payments</th>
<th>Amount of Payments</th>
<th>When Payments are Due</th>
</tr>
<tr>
<td>5</td>
<td>$5.00</td>
<td>Monthly, Beginning on 09/30/2022 and due on the same day of each following month. If your due date is on the 29th, 30th or 31st and the current month is shorter, your payment will be due on the last day of the month.</td>
</tr>
<tr>
<td>One Final Payment</td>
<td>$0.40</td>
<td>02/28/2023</td>
</tr>
</table>
Prepayment: If you pay off all your loan early, you will not have to pay a penalty. You will not be entitled to a refund of any prepaid finance charge or other fee.
Security: None. This loan is unsecured.
Additional Information: See your contract terms for any additional information about nonpayment, default, and repayment in full before the scheduled due date.
COPY
Itemization of the Amount Financed
Principal Amount of Loan
Origination Fee/Prepaid Finance Charge (Paid to Lender) $0.00
Amount Financed (Amount Provided to You) $23.98
NON-NEGOTIABLE PROMISSORY NOTE
Date: 08/10/2022 ("Effective Date")
Borrower Name and Address:
THOMAS COOPER
1. PROMISE TO PAY. I promise to pay to CRB or any other holder of this promissory note ("Note"), the principal amount of $1,452.84, together with interest at the interest rate and charges as set forth below, until paid in full. The principal amount disclosed herein represents the aggregate amount of funds transferred to me or on my behalf by CRB under my Upgrade Card Personal Credit Line in respect of the Covered Draws (as defined in the Upgrade Card Personal Credit Line Agreement) for this Note, less the amount of any payments made by me and applied to the principal amount of the Covered Draws prior to the date hereof. As used herein, the "Covered Draws" for this Note include all Draws (as defined in the Upgrade Card Personal Credit Line Agreement) having a term of 36 months and an interest rate of 24.98% that were received by me during the previous Billing Cycle. I promise that I will use the funds received for the purpose that I have previously indicated when requesting the funds, and I agree not to use the funds to pay any post-secondary student loan, to buy or sell securities, or for any illegal purposes.
2. THIS NOTE IS NON-NEGOTIABLE.
3. INTEREST AND PAYMENTS.
a. Payment Timing and Application. Principal and interest shall be paid in 36 monthly installments of $58.50 as discussed herein. My first Monthly Payment will be due on 08/31/2022. All other Monthly Payments will be due on the same day of each following month ("Subsequent Due Date") until 07/31/2025, when all principal, and interest payable and owing under this Note are due. If my Subsequent Due Date is the 29th, 30th or 31st and the current month is shorter, my payment will be on the last day of the month. All payments or prepayments will be applied in the agreed-upon manner as described in Section 14 of the Upgrade Card Personal Credit Line Agreement.
b. Accrual. Interest will accrue on Draws on an Actual/365-day calendar basis for each complete month and each partial month based on the interest rate disclosed on the then in effect Upgrade Card Disclosure statement to the unpaid outstanding amounts for the actual number of days such funds are outstanding for such full or partial month. Interest is calculated by dividing the interest rate disclosed above by 365 to arrive at a daily periodic rate for that Draw. Each new outstanding amount on the Draw recorded at the close of business on the previous day is multiplied by the daily periodic rate. The result is the interest accrued on the Draw for that day. The interest I owe for each Billing Cycle will be included in my Monthly Payment so that the Covered Draw will fully amortize it over the repayment period. Interest will start accruing for each Covered Draw that I receive from CRB on the Draw Funding Date and will continue to accrue until all amounts owed are paid in full. As a result, if my first Monthly Payment is due more than 30 days after the Draw Funding Date, my Draws will have accrued more than 30 days of interest at the time my first Monthly Payment is due, but my repayment schedule will always be calculated to provide for substantially equal monthly payments.
c. Interest Rate. Interest on the Covered Draw or group of Covered Draws evidenced by this Note shall accrue at a rate of 24.98% per year until all amounts owed are paid in full.
d. Maturity. When this Note matures, I agree to pay in full any unpaid amounts due under this Note.
e. Payment Method. Payment may be made by check or electronic funds transfer. Payment by check may be made by sending a personal check: (1) by standard US Mail to: Upgrade, Inc., Lbx#452210, P.O. Box 52210, Phoenix, AZ 85072-2210, or (2) by courier (FedEx, UPS, etc.) to: Upgrade, Inc., Attn: Batching Dept. lbx#452210, 530 W Alameda Dr., Suite 105, Tempe, AZ 85282. You may change these addresses from time to time, and you will notify me of the new address for payments.
f. This Note evidences the outstanding indebtedness incurred by me in connection with each Covered Draw received by me during the Billing Cycle and is not intended to be a substitution or novation of (1) any indebtedness incurred by me or (2) the Upgrade Card Personal Credit Line Agreement, all of which shall continue in full force and effect as evidenced hereby.
4. ASSIGNMENTS. I may not assign or transfer my rights or obligations under Note without the prior written consent of CRB or any other holder of this Note. A holder of this Note may assign or transfer all or a portion of this Note and the related documents to a third party or an affiliate.
5. GOVERNING LAW. Unless expressly provided otherwise in this Note, this Note shall be governed by federal law and, to the extent not preempted by federal law, the laws of the State of New Jersey without regard to any conflict of laws provision.
6. STATE LAW NOTICE AND CLOSURE.
COLORADO RESIDENTS: This Note shall be governed by Colorado law, except where otherwise preempted or authorized by federal law, including that any "interest" terms as contemplated by 12 U.S.C. § 1831d shall be governed by 12 U.S.C. § 1831d and the laws of CRB's home state.
SIGNATURE:
THOMAS COOPER
BY: UPGRADE, INC.
ATTORNEY-IN-FACT FOR THOMAS COOPER
(Signed Electronically)
Truth in Lending
Disclosure Statement
Lender:
Cross River Bank
400 Kelby Street
14th Floor
Fort Lee, NJ 07024
Borrower:
THOMAS COOPER
<table>
<tr>
<th>ANNUAL PERCENTAGE RATE</th>
<th>FINANCE CHARGE</th>
<th>Amount Financed</th>
<th>Total of Payments</th>
</tr>
<tr>
<td>The cost of your credit as a yearly rate.</td>
<td>The dollar amount the credit will cost you.</td>
<td>The amount of credit provided to you or on your behalf.</td>
<td>The amount you will have paid after you have made all payments as scheduled.</td>
</tr>
<tr>
<td>24.98%</td>
<td>$653.24</td>
<td>$1,452.84</td>
<td>$2,106.08</td>
</tr>
</table>
Your payment schedule will be:
<table>
<tr>
<th>Number of Payments</th>
<th>Amount of Payments</th>
<th>When Payments are Due</th>
</tr>
<tr>
<td>35</td>
<td>$58.50</td>
<td>Monthly, Beginning on 08/31/2022 and due on the same day of each following month. If your due date is on the 29th, 30th or 31st and the current month is shorter, your payment will be due on the last day of the month.</td>
</tr>
<tr>
<td>One Final Payment</td>
<td>$58.58</td>
<td>07/31/2025</td>
</tr>
</table>
Prepayment
If you pay off all your loan early, you will not have to pay a penalty. You will not be entitled to a refund of any prepaid finance charge or other fee.
Security
None. This loan is unsecured.
Additional Information
See your contract terms for any additional information about nonpayment, default, and repayment in full before the scheduled due date.
Itemization of the Amount Financed
Principal Amount of Loan: $1,452.84
Origination Fee/Prepaid Finance Charge (Paid to Lender): $653.24
Amount Financed (Amount Provided to You): $1,452.84
Date Generated: 08/10/2022
Terms of Use
June 28, 2021
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING AND USING THIS WEBSITE OR MOBILE APPLICATION YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE. ANY CHANGES WILL BE POSTED TO THIS WEBSITE OR MOBILE APPLICATION FROM TIME TO TIME. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS STATED HEREIN, PLEASE EXIT THIS WEBSITE OR MOBILE APPLICATION IMMEDIATELY.
THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT WHICH AFFECTS YOUR RIGHTS. YOU HAVE THE RIGHT TO OPT OUT OF THE ARBITRATION AGREEMENT AS DESCRIBED BELOW.
You are currently using a website or mobile application (each, a “Site”) owned and operated by Upgrade, Inc., a Delaware corporation (DBAs include Universal Credit and the names at www.upgrade.com/landing/dba) (“Upgrade”). This Site and any of the services provided by Upgrade in connection with this Site (“Services”) are provided expressly subject to the terms and conditions stated herein (“Terms of Use”). By accessing the Site, you (“User”) acknowledge that you have read, understand, and agree to be bound by these Terms of Use. If any provision contained in these Terms of Use conflicts with a provision contained in another agreement that you enter into with Upgrade or related to the Upgrade Services, the provision of the other agreement shall govern with respect that specific aspect of the Site or Services.
Changes and Modifications
Upgrade reserves the right in its sole discretion to temporarily or permanently change, or modify these Terms of Use or discontinue the Site, or any portion of the Site, for any reason, at any time without notice to you. Please review these Terms of Use from time to time because your continued access or use of the Site after any modifications have become effective shall be deemed your conclusive acceptance of the modified Terms of Use. Notwithstanding the foregoing, we will not amend the Arbitration Provision set forth below in a manner that adversely affects your rights or responsibilities in a material manner unless we give you a right to reject the amendment and/or the Arbitration Provision.
General Eligibility
This Site is intended for individuals who are residents of the United States and at least eighteen (18) years of age, and any access by individuals who are under the age of 18 is in violation of these Terms of Use. If you are under 18, please exit this Site now. By using the Site, you represent that you are a resident of the United States and 18 or older, and that you agree to abide by all of the terms and conditions of these Terms of Use. Unauthorized use of the Site or Services, including unauthorized access of Upgrade’s systems and misuse of passwords or Site information is strictly prohibited. If you violate any of these Terms or any other agreement between you and Upgrade, then Upgrade may restrict or suspend, or terminate your access to any portion or all of the Site and Services without notice.
Privacy
Your privacy is very important to us. Please carefully read Upgrade’s Privacy Policy, which details how Upgrade treats your personal information.
Service Rights and Restrictions
All material and content on this Site including but not limited to text, data, articles, designs, software, photos, images, and other information (collectively the “Site Content”) are the proprietary property of Upgrade with all rights reserved. Site Content may not be copied, reproduced, distributed, republished, displayed, posted, transmitted, or sold in any form or by any means without Upgrade’s express prior written consent. You acknowledge that all Site Content is and shall remain the sole property of Upgrade. You may only use access the Site and use the Services for their intended purpose, and any use of the Site or Services that is not expressly authorized herein is strictly prohibited.
Credit Health
Upgrade offers free credit monitoring and ancillary products and services such as credit score reporting, credit bureau alerts, and credit score simulation (“Credit Health”). Customers with issued loans or other financial products obtained through Upgrade may enroll into Credit Health after loan or product approval. Others can also sign up for Credit Health without a loan or other financial product obtained through Upgrade. Credit Health works by accessing information in your credit profile via soft inquiries at TransUnion, a credit reporting agency. By requesting and accessing Credit Health, you agree to be bound by the terms and conditions contained herein. The term of your Credit Health shall begin when you first access the service and shall continue until terminated. Upgrade may terminate your Credit Health at any time without notice to you. If you wish to discontinue your use of Credit Health, please email [email protected] to disable the service. You agree that all information and data obtained by Upgrade in connection with your use of Credit Health is owned solely by Upgrade and Upgrade is not restricted in any way in its use of the information and data, subject to the terms of Upgrade’s Privacy Policy and applicable law and regulation. You agree that Upgrade may use any information obtained to determine whether to offer you products and services that may be obtained through Upgrade.
Trademarks
Nothing on this Site should be construed as granting the User any license or right to use any trademark, whether owned by Upgrade or a third party, displayed on the Site, without prior written approval of the trademark owner. You may not use, copy, duplicate, display, distribute, modify or reproduce any trademark contained on the Site without the prior express written consent of the trademark’s owner.
Consent to Conduct Business Electronically
Because Upgrade operates its platform online and conducts its business solely through the Internet, you must consent to receive all disclosures, notices, documents, agreements, and information associated with the Services
("Communications") electronically in order to transact business with us. This section informs you of your rights when receiving electronic Communications from Upgrade.
Electronic Communications. You agree that Upgrade, its agents and representatives, may provide all Communications to you electronically via email or through our Site. You may still request a paper copy of any Communication by following the procedure outlined below.
Hardware and Software Requirements. In order to receive electronic Communications, you must have the following: (1) access to the Internet; (2) an active email account; (3) software capable of receiving email through the Internet; (4) supported Web browsing software (Chrome version 32.0 or higher, Firefox version 26.0 or higher, Internet Explorer version 8.0 or higher, or Safari version 7.0 or higher); and (5) hardware capable of running this software. To ensure access and optimal printing of your documents in PDF format, you must have Adobe Reader. To install the free version of Adobe Reader, click here.
Additional Mobile Technology Requirements. If you access our Site and Communications electronically via a mobile device (such as a smart phone or tablet), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print and save the Communications presented to you. If you do not have these capabilities on your mobile device, please access our Site through a device that provides these capabilities.
Requesting a Paper Copy. You may request from us a paper copy of any Communication that we have provided or made available to you electronically without charge, provided that such request is made within a reasonable time after we first provided the Communication to you. To request paper copies, you must send an e-mail to [email protected] with the subject line "Paper Copy Request" and in the body of the e-mail you must state your e-mail address, full name, US Postal address, and telephone number.
Withdrawing Consent. You may withdraw your consent to receive future Communications electronically by changing your settings on the Upgrade borrower portal, or by sending an email to [email protected] with the subject line "Withdraw Electronic Consent" and including your full name, US Postal Address, email address, and telephone number in the body of the email. Your withdrawal of consent will be effective only after we have had a reasonable period to process your request.
Telephone Communications. By accepting these Terms of Use, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes, at any telephone number, or physical or electronic address you provide to us. You agree we may contact you in any way including SMS text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using an auto telephone dialing system or an automated texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on answering machines, voice mail, or on voicemail.
You consent to receive SMS messages including text messages, calls and messages containing prerecorded and artificial voice (autodialer) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or number(s) can reasonably associate with your account (through skip trace, caller ID capture, other means), with information or questions about your request, application, loan and/or payment. You certify and represent that the telephone numbers that you have provided to us are your numbers and not someone else's. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to alert us whenever you stop using a particular telephone number. For more information on SMS text messages, please see the Account Alerts Terms and Conditions page at www.upgrade.com/sms.
MARKETING CALLS AND TEXTS: We will not use autodialed or prerecorded calls or texts to contact you for marketing purposes unless you provide us with prior express written consent. If you have provided consent to receive marketing calls, you agree that Upgrade’s employees, agents, and representatives may use autodialed or pre-recorded phone calls and SMS text messages to contact your mobile phone at the number you provide for the purpose of describing goods and services that may be of interest to you, whether offered by Upgrade, affiliates, or third parties. If provided, your consent will be effective even if the number you have provided is registered on any state or federal Do-Not-Call (DNC) list. This consent for telemarketing calls shall remain in effect until you revoke it. Your consent to receive telephone communications is not a condition of obtaining any product or service and may be revoked at any time by email at [email protected], by writing to us at Upgrade, Inc. c/o compliance department, 275 Battery Street, Suite 2300, San Francisco, CA 94111, or by calling us at 1-855-997-3100.
Standard calling and text messaging rates will apply, based on your cellular telephone carrier and service plan.
Changes in Contact Information. Please keep us informed of any changes in you contact information so that you can continue to receive timely electronic Communications from us. You may update your contact information by emailing [email protected], by writing to us at Upgrade, Inc. c/o compliance department, 275 Battery Street, Suite 2300, San Francisco, CA 94111 or by calling us at 1-855-997-3100.
Copyright Complaints
If you believe that any material on the Site infringes upon any copyright that you own or control, you may send a written notification to us via email at [email protected], or via regular mail at 275 Battery Street, Suite 2300, San Francisco, CA 94111. In your notification, please:
• Confirm that you are the owner, or authorized to act on behalf of the owner, of the copyrighted work that has been infringed;
• Identify the copyrighted work or works that you claim have been infringed;
• Identify the material that you claim is infringing or is the subject of infringing activity and that is to be removed (please include information reasonably sufficient to permit us to locate the material);
• Provide your contact details, including an email address; and
• Provide a statement that the information you have provided is accurate and that you have a good-faith belief
that use of the material complained of is not authorized by the copyright owner, its agent or the law.
Links to Third-Party Sites
We are not responsible for the information practices employed by sites linked to or from our Site. In most cases, links to third-party websites are provided solely as pointers to information on topics that may be useful to our users. Since third-party websites may have different privacy policies and/or security standards governing their sites, we advise you to review the privacy policies and terms and conditions of these sites prior to providing any personal information.
Disclaimer of Warranties
UPGRADE PROVIDES THE SITE AND SERVICES “AS IS” AND “AS AVAILABLE” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADDITIONALLY, UPGRADE MAKES NO CLAIM OR GUARANTEE AS TO THE ACCURACY OF ANY INFORMATION PROVIDED OR SITE CONTENT.
Limitation of Liabilities
IN NO EVENT WILL UPGRADE OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR LOST PROFITS OR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING FROM YOUR USE OF THE SITE OR SERVICES, EVEN IF UPGRADE IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, UPGRADE’S LIABILITY TO YOU FOR ANY CAUSE OF ACTION REGARDLESS OF FORM WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID BY YOU TO UPGRADE, IF ANY, AND IN NO CASE SHALL UPGRADE’S LIABILITY TO YOU EXCEED $1,000.00.
Indemnification
You agree to indemnify, defend, and hold harmless Upgrade and its affiliates, officers, directors, employees, agents, and representatives for damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), arising in connection with any claim, suit, proceeding, or other action arising from your use of the Site or Services, your conduct in connection with your use of the Site or Services, or any violation of these Terms of Use or of any law or the rights of any third party.
Arbitration
1. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. YOU HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW.
a. You and Upgrade, as well as either you or Upgrade’s subsequently assigned entity (collectively, “the Parties”) agree that the sole and exclusive remedy for a dispute or controversy involving this Terms of Use is binding arbitration (the “Arbitration Provision”). Each such arbitration shall be conducted in accordance with the AAA Arbitration Rules, or if the AAA cannot be reached at the time, by JAMS, and pursuant to its then-current rules. The arbitrator will have the authority to award monetary damages and to grant any non-monetary relief sought on behalf of you or Upgrade, to the full extent permitted by law. The arbitrator shall issue a written decision describing the substantial grounds for the arbitrator’s award. Except as otherwise provided herein, the arbitration will be conducted before a single arbitrator who must be a neutral arbitrator. The arbitrator’s award may be reviewed only for errors in law, and the arbitrator shall not be bound by decisions in similar cases. All issues in the arbitration, including the scope of arbitration, whether to arbitrate a given claim, and the meaning or interpretation of this Arbitration Provision, shall be governed exclusively by the law of the State of California. The arbitrator’s award shall be final and binding on both Upgrade and you, and judgment on the award may be entered in any court of competent jurisdiction. Any arbitration decision shall not include any past, present, or future claims, disputes, or controversies involving you (or persons claiming through or connected with you), on the one hand, and Upgrade or any assignee thereof (or persons claiming through or connected with Upgrade and/or any assign of Upgrade), on the other hand, relating to or arising out of these Terms of Use and/or the activities or relationships that involve, lead to, or result from these Terms of Use, including (except to the extent provided otherwise in the last sentence of paragraph (f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Terms of Use. Claims are subject to arbitration regardless of whether they arise from contract, tort (intentional or otherwise), a constitution, statute, ordinance, common law, or principles of equity, or otherwise. 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.
b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to Upgrade, Inc., Attn: Legal Department, 275 Battery Street, Suite 2300, San Francisco, CA 94111, only if received at the specified address within 30 days of the date you first access these Terms of Use. The opt-out notice must clearly state that you are rejecting arbitration; state the date you first accessed these Terms of Use; provide your name, address, and social security number; and be signed by you. You may send the opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt-out of this Arbitration Provision. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt-out notice on your behalf.
c. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or JAMS. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
d. If Upgrade (or any assign of Upgrade) elects arbitration, Upgrade (or the assign, as the case may be) shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. Upgrade (or the assign, as the case may be) shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that Upgrade (or the assign) pay them and Upgrade agrees (or the assign agrees) to do so. Each party to the arbitration shall
bear the expense of it attorneys' fees, except as otherwise provided by law statute gives you the right to recover any o fees, these statutory rights shall apply in the arbitra notwithstanding anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party to the arbitration may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (the “FAA”), and may be entered as a judgment in any court of competent jurisdiction. No arbitration award involving you and Upgrade (or any assign of Upgrade) 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 you and Upgrade (or any assign of Upgrade).
f. You and we agree not to invoke our right to arbitrate an individual Claim you or we may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS, REPRESENTATIVE, OR COLLECTIVE ACTIONS. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (i) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (ii) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this paragraph (f) and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this paragraph (f) shall be determined exclusively by a court and not by the administrator or any arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable state limitations of actions. These include awards of damages and other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect evidentiary information.
h. This Arbitration Provision shall survive: (i) suspension, termination, revocation, closing or amendments to these Terms of Use; the relationship between you and Upgrade, and/or assignee; (ii) the bankruptcy or insolvency of you or Upgrade or other person; and (iii) any assignment by Upgrade to any other person or entity. If any portion of this Arbitration Provision is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force, subject to two exceptions: (1) if a determination is made that the limitations on class, representative or collective proceedings in paragraph (f) is unenforceable, and that determination is not reversed on appeal, then the Arbitration Provision shall be void in its entirety (except for this sentence); and (2) if a court determines that a public injunctive relief Claim may proceed notwithstanding the limitations on class, representative or collective proceedings in paragraph (f), and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated, and the parties will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision. YOU AND UPGRADE ACKNOWLEDGE THAT THEY MAY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF EITHER YOU OR UPGRADE ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. YOU AND UPGRADE HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY YOU OR UPGRADE.
Miscellaneous
Choice of Law; Jurisdiction and Venue
Except as set forth in the Arbitration Provision, these Terms of Use shall be governed by the laws of the State of California without regard to any conflict of laws provision. You irrevocably consent to the exclusive jurisdiction and venue of the United States District Court for the Northern District of California in connection with any dispute or the enforcement of any right arising from these Terms of Use.
Severability
Except as set forth in the Arbitration Provision, if any provision of these Terms of Use is held by a court of competent jurisdiction to be unenforceable for any reason, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Use shall remain in full force and effect.
Waiver
Upgrade's failure or delay in exercising any right, power, or remedy under these Terms of Use shall not operate as a waiver of any such right, power, or remedy.
Credit Ineligibility
If you are working with a debt settlement company at the time of application or if you are preparing or planning to file for bankruptcy within ninety (90) days of your application, you may be ineligible for credit through the Site.
Credit Union Membership
During the application process, you may be asked to become a member of a credit union. Details associated with this request will be provided prior to your loan being funded.
Contacting Us
If you have questions, comments, or complaints regarding these Terms of Use, the Site, or Services, you may call 1-855-997-3100, email us at [email protected], or write to Upgrade, Inc. c/o customer service, 275 Battery Street, Suite 2300, San Francisco, CA 94111.
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Crazy Civil Court is an entertainment platform and does not provide legal advice.
We are not lawyers. All information is presented as-is from public filings.