LOAN TERMS AND CONDITIONS
In submitting your application to us, you agree to each of the terms of conditions set forth below (the “Terms”). By agreeing to the Terms you also acknowledge that you:
- Agree that we may share the status of your application, information about your account, and other information about you with vendors from which you have purchased goods or services if those goods or services are financed by us or you have applied to have those goods or services be financed by us.
- Completed every aspect of the application truthfully and in good faith.
USA PATRIOT ACT NOTICE: IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver’s license or other identifying documents.
ADVERSE ACTION DISCLOSURES: If we take adverse action with respect to your application, you may request a statement of specific reasons for our decision if you request such a statement from us within 60 days of us providing notice of our decision to you. We will provide such a statement within 30 days of receiving your request for the statement. You may make such a request by contacting FinWise Bank c/o Behalf at (877) 943-9962, PO Box 1804, New York, NY 10159, or email@example.com. Notice: The Federal Equal Credit Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age (provided the applicant has the capacity to enter into a binding contract); because all or part of the applicant’s income derives from any public assistance program; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The Federal agency that administers compliance with this law concerning this creditor (FinWise Bank) is FDIC Consumer Response Center, 1100 Walnut Street, Box #11, Kansas City, MO 64106.
TEXT MESSAGING: By agreeing to these Terms, you authorize us, our assigns, successors or servicing agents to send SMS Statement Notifications (as defined below) to any phone numbers provided to us, our assigns, successors or service agents in connection with your relationship with us, including your application, any loans with us, and any other agreements with us. This applies to any phone numbers you provide now or in the future. As used in this Disclosure, “SMS Statement Notifications” means any SMS (text message), MMS, iMessage, or equivalent mobile communications from us to you pertaining to your loan sent to the phone numbers provided in connection with this loan, including but not limited to payment information, account information, due dates, delinquent accounts, program updates, and other marketing messages.
- How To Unsubscribe: You may withdraw your consent to receive SMS Statement Notifications by calling us at (877) 943-9962 and requesting we turn off notifications. At our option, we may treat your provision of an invalid mobile phone number, or the subsequent malfunction of a previously valid mobile phone number, as a withdrawal of your consent to receive SMS Statement Notifications. We will not impose any fee to process the withdrawal of your consent to receive SMS Statement Notifications. Any withdrawal of your consent to use SMS Statement Notifications will be effective only after we have a reasonable period of time to process your withdrawal.
- To request additional information, contact us by telephone at (877) 943-9962.
- In order to access, view, and retain SMS Statement Notifications that we make available to you, you must have: (1) an SMS-capable mobile phone, (2) an active mobile phone account with a communication service provider; and (3) sufficient storage capacity on your mobile phone.
- All SMS Statement Notifications in electronic format from us to you will be considered “in writing.”
- There is no service fee for SMS Statement Notifications but you are responsible for any and all charges, including but not limited to fees associated with text messaging, imposed by your communications service provider. Other charges may apply. Such charges may include those from your communications service provider. Message frequency depends on account settings.
- Additionally, you agree that we may send any SMS Statement Notifications through your communication service provider in order to deliver them to you and that your communication services provider is acting as your agent in this capacity. You agree to provide a valid mobile phone number for these services so that we may send you certain information about your loan. Additionally, you agree to indemnify, defend and hold us harmless from and against any and all claims, losses, liability, cost and expenses (including reasonable attorneys’ fees) arising from your provision of a mobile phone number that is not your own or your violation of applicable federal, state or local law, regulation or ordinance. Your obligation under this paragraph shall survive the termination or expiration of the Terms.
- Receipt of each SMS Statement may be delayed or impacted by factor(s) pertaining to your communications service provider(s). We will not be liable for losses or damages arising from any disclosure of account information to third parties, non-delivery, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the SMS Statement Notifications sent by us.
We may modify or terminate our text messaging services from time to time, for any reason, and without notice. This includes the right to terminate text messaging with or without notice and without liability to you, any other user, or third party. YOU ARE NOT REQUIRED TO AGREE TO THIS AUTHORIZATION TO OBTAIN A LOAN FROM US.
ARBITRATION: Except as otherwise stated below, any Claim (as defined below) will be resolved, at the election of either Borrower or Lender, by binding arbitration pursuant to (a) this arbitration provision (the “Arbitration Provision”) and (b) the code of procedure of the national arbitration organization to which the Claim is referred (as in effect when the Claim is filed). For the purposes of this Arbitration Provision, “Borrower” includes both Borrower and Responsible Party, which will be treated as a single party and election by either will be sufficient for a Claim to be arbitrated. Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. Streamlined arbitration procedures will be used if available. If a selection by Lender of one of these organizations is unacceptable to Borrower, Borrower has the right, within 30 calendar days after Borrower receives notice of Lender’s selection, to select the other organization listed to serve as arbitration administrator. For purposes of this Arbitration Provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future, (collectively, “Claims”) as further described below. If for any reason a selected organization cannot, will not, or ceases to serve as an arbitration administrator, Borrower or Lender may substitute another arbitrator or arbitration organization that uses a similar code of procedure and is mutually acceptable to both parties, in accordance with Section 5 of the Federal Arbitration Act. If both parties cannot agree on an arbitration organization, then either party may ask a court of competent jurisdiction to appoint a qualified arbitration organization. An arbitration proceeding can decide only Borrower’s or Lender’s Claims. Borrower cannot join other parties (or consolidate Claims). Neither Borrower nor Lender will be permitted to arbitrate claims on a class-wide (that is, on other than an individual) basis.
Small Claims Court Option. All parties, including related third parties, shall retain the right to seek adjudication of an individual (and not class or representative) Claim in a small claims tribunal in the county of Borrower’s residence for disputes within the scope of such tribunal’s jurisdiction. Any dispute that cannot be adjudicated within the jurisdiction of a small claims tribunal, including claims transferred by the small claims tribunal to another court, shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
SIGNIFICANCE OF ARBITRATION; LIMITATIONS AND RESTRICTIONS. IN ARBITRATION, NEITHER BORROWER NOR LENDER WILL HAVE THE RIGHT TO (i) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PRE-ARBITRATION DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT BORROWER OR LENDER COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN BORROWER’S OWN OR LENDER’S OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) above. If a court holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire Arbitration Provision will be null and void. Borrower or Lender can appeal any such holding. If a court holds that any other part(s) of this Arbitration Provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this Arbitration Provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this Arbitration Provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide any Claim upon the submission of documents alone. A party may request a telephonic hearing if permitted by applicable rules. The exchange of non-privileged information relevant to any Claim, between the parties, is permitted and encouraged. Either party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding any Claim.
Right to Opt-Out of Arbitration. Borrower may opt-out of this Arbitration Provision. If Borrower does so, neither Borrower nor Lender will have the right to engage in arbitration. Opting out of this Arbitration Provision will have no effect on any of the other provisions in these Terms. To opt out of this Arbitration Provision, Lender must receive Borrower’s written notice of opt-out, within 30 calendar days of submission of Borrower’s application. In Borrower’s letter, Borrower must give Lender the following information: Borrower’s name, address and loan number. The right to opt-out granted here applies solely to this Arbitration Provision and these Terms, and not to any other provision of these Terms or to any other agreement with Lender. In the event of a dispute over whether Borrower has provided a timely opt-out notice, Borrower must provide proof of delivery.
Broad Meaning of “Claims.” The term “Claims” in this Arbitration Provision is to be given the broadest possible meaning and includes, by way of example and without limitation, Claims arising from or relating to (i) these Terms, (ii) any transactions between any of the parties, (iii) any application by the Borrower, (iv) collection of Borrower’s obligations to Lender, (v) advertisements, promotions or oral or written statements relating to any transactions between Borrower and Lender, including any Claims regarding information obtained by Lender from, or reported by Lender to, credit reporting agencies or others, (vi) Claims between Borrower and Lender or Lender’s parent corporations, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, independent contractors, employees, officers, directors or representatives arising from any transaction between Borrower and Lender, and (vii) Claims regarding the validity, enforceability or scope of this Arbitration Provision or these Terms, including but not limited to whether a given claim or dispute is subject to arbitration.
Arbitration Procedure and Costs. For a copy of relevant codes of procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their web site or call them at: (i) for JAMS, 18881 Von Karman Ave., Suite 350, Irvine, CA 92612, https://www.jamsadr.com, or 1-800-352-5267; or (ii) for AAA, 120 Broadway, 21st Floor, New York, NY 10271, https://www.adr.org, or 1-800-778-7879. If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including reasonable attorneys’ fees, incurred by the party compelling arbitration. Any physical arbitration hearing will be held in the federal judicial district selected by Borrower. No matter which party initiates the arbitration, Lender will advance or reimburse filing fees and other costs or fees of arbitration. Each party will initially be responsible for its own attorneys’, experts’ and witness fees and related costs and expenses. Unless prohibited by law, the arbitrator may, applying applicable law, award fees, costs and reasonable attorneys’ fees and expenses to the party who substantially prevails in the arbitration. The allocation of fees and costs relating to an appeal in arbitration will be handled in the same manner. For an explanation and schedule of the fees that may apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is hereby incorporated by reference into this Arbitration Provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding a physical arbitration hearing can increase the cost of arbitration.
Governing Law for Arbitration. This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo, that is, without deference to the ruling of the original arbitration, any aspect of the initial award requested by the appealing party.
Continued Effect of Arbitration Provision. This Arbitration Provision will continue to govern any Claims that may arise without regard to any termination, expiration, or cancellation of these Terms. If any portion of this Arbitration Provision, other than the provisions prohibiting class-wide arbitration, joinder or consolidation, is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this Arbitration Provision. If a conflict or inconsistency arises between the code of procedures of the selected arbitration administrator and this Arbitration Provision, this Arbitration Provision will control.
OTHER TERMS AND CONDITIONS:
- We disburse loan proceeds to vendors in two ways: via the MasterCard network or by electronic bank transfer. This flexibility enables us to pay most businesses; exclusions apply.
- Our single-use MasterCard numbers are not compatible with all checkout scenarios. Select exclusions apply.
- Our loan program agreement and draw-down loans have a single use MasterCard feature. Our products are not credit card products.
- We offer Net Terms, an interest free payment option, at select vendors. If 0% interest is offered at your vendor, that option will be presented with your choice of terms.
- In some situations, errors may occur during the application process that prevent us from returning an instant decision and/or giving immediate access to approved funds.
- Rates are assigned at application approval and are based on the applicant’s creditworthiness
- Our standard payment delivery time is one business day. Payment delays may occur due to holidays, system maintenance, or other such events.
- We offer an ACH deposit option at a lower processing costs than any credit card network. Standard MasterCard interchange fees apply to our MasterCard processing option.
- Your Behalf repayments will be automatically drawn for your bank account on the schedule to which you have agreed.
DEFINITIONS: These Terms are between the business seeking financing (the “Borrower”), the individual acting on behalf of the Borrower as principal shareholder, partner, member or other responsible party (the “Responsible Party”) and FinWise Bank and its agents, servicers and any assignees (collectively “Lender”, “we,” “us,” or “our”). “You” and “your” mean the Borrower and Responsible Party collectively.