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Effective date: May 30, 2019
- IMPORTANT INFORMATION ABOUT OPENING A NEW ACCOUNT To help the government fight the funding of terrorism and money laundering activities, federal law requires us to obtain, verify, and record information that identifies each person opening an account. Prior to opening an account, we generally must obtain your name, address, date of birth, taxpayer identification number or other identifying number (e.g., Social Security number or employer identification number) and other information that will allow us to identify you. We also may ask to see documentation verifying your identity, such as an unexpired driver’s license or passport.
- In order to access the Upturn Service, you must have (i) a computer or other device with internet access and a browser installed, or which is capable of downloading and operating Upturn’s mobile application, that can send and receive information using the technology that supports this Upturn Service (an “Eligible Device“) and (ii) all information required to enroll, which will be described in the Upturn website or mobile application (collectively, the “Website“) at the time of enrollment.
- Upturn may update the Eligible Devices from time to time. The technical standards required to access and use the Upturn Service (the “Technical Standards“) vary among the types of Eligible Devices and software that support the Upturn Service. The Technical Standards are described on our Website, and may be updated from time to time to reflect changes in the technology that supports the Upturn Service.
- Credit Review - This service allows you to review an online version of your TransUnion credit report to verify that information listed by TransUnion is accurate and up to date. This service will also provide free ongoing credit monitoring.
- Credit Dispute - This service allows you to dispute errors directly with TransUnion. Upturn will provide updates to you regarding any outstanding credit disputes, as such information is made available by TransUnion to Upturn.
- Financial Education - This service provides personal credit and financial educational resources on topics including but not limited to credit scores, credit reports, personal finance, and overall credit health.
- Financial Product Offers - This service provides product offers from third-parties.
Charges for Upturn Service.
We do not currently charge you any fee to register for or access the Upturn Service. However, you may incur charges to receive internet, cellular or other data service on your Eligible Device. You may also incur charges from your telecommunications carrier when sending and receiving information in connection with your use of the Upturn Service. You agree to pay any applicable fee that is based on your usage of a particular Service, if applicable.
- To access and use the Upturn Service, you will be required to select or create one or more alphanumeric passwords, usernames, and/or other types of security techniques, all of which are referred to together and separately as your “Security Codes“. We require you to use the Security Codes to gain access to the Upturn Service. From time to time, we may require you to select or create different Security Codes and may change the types of security techniques used to access the Upturn Service. For certain Services, we may require you to select or create additional Security Codes and/or use other security techniques that we make available to you. You agree that use of your Security Codes and/or any other required security techniques will authenticate your identity and verify the instructions you provide to us. You also agree that we may send notices and other communications about our security techniques and your Security Codes, including designations and confirmations of specific Security Codes, to your current address and/or email address shown on our records.
- You are responsible for maintaining the security of your Eligible Device, computer equipment, software and browser, and any Security Codes you have created for the purpose of accessing the Upturn Service (collectively, an “Enrolled Device”). If you allow any person to obtain or use your Enrolled Device, you will be deemed to have authorized that person to access the Upturn Service on your behalf, and you agree that you are responsible for any activity that person initiates or authorizes and will be bound by any agreements that person accepts or acknowledges electronically through the Upturn Service. You agree not to share any Security Codes with anyone. Notify us at once if you believe that your Security Codes have been compromised, or that your Enrolled Device has been accessed or used without your authorization. Write to us at: firstname.lastname@example.org
Exclusion of Warranties.
- You are granted a non-exclusive, non-licensable, non-transferable, personal, limited license to use the Upturn Service only on an Eligible Device that you own or control, solely for your personal use and as expressly permitted herein. Upturn has no responsibility to notify you of any changes to or new releases of the Upturn Service.
- You acknowledge that from time to time, the Upturn Service may be delayed, interrupted or unavailable for an indeterminate period of time. Upturn and its affiliates shall not be liable for any claim arising from or related to the Upturn Service arising from any such delay, interruption or unavailability.
- In no event will Upturn or its affiliates be liable for indirect, consequential or special damages, including lost profits, arising from or related to the Upturn Service, even if such damages were reasonably foreseeable and notice was given regarding them. These limitations will apply to all causes of action, whether arising from breach of contract, tort (including negligence) or any other legal theory. Upturn disclaims all warranties with respect to any Website or Service, whether express, implied or statutory, including without limitation implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, timeliness, and non-infringement of third party rights. You release Upturn, its service providers, and its affiliates from all claims and damages that may arise from or relate to your use of any Website or Service. You agree not to reverse engineer, decompile, disassemble or attempt to learn the source code of any Website or Service, and you may not redistribute any Website or Service. All rights not expressly granted to you herein are reserved by us.
- By identifying an Eligible Device for use with the Upturn Service, Upturn does not recommend, endorse or make any representation or warranty of any kind regarding the performance or operation of such device. You are responsible for the selection of an Eligible Device and for all issues relating to the operation, performance, and costs associated with such device with your telecommunications carrier or internet service provider.
- Upturn and its service providers have no obligation to correct any bugs, defects or errors in the Upturn Service, or to otherwise support, maintain, improve, modify, upgrade or enhance the Upturn Service. Subject to applicable law or regulations, Upturn may terminate your use of the Upturn Service and expand, reduce or suspend your use of any Service, change the enrollment process, and/or change any limits associated with the Upturn Service at any time in its sole discretion without prior notice.
Usage Requirements and Restrictions.
- You agree that you will not use the Upturn Service or any services related thereto while driving. You assume all risks associated with the use of the Upturn Service. We may terminate your access to the Upturn Service if any conduct on your part constitutes a violation of this Agreement. In order to use the Upturn Service, you must be at least 18 years old, a United States resident and legally capable to enter into contracts. You agree to use the Upturn Service only as permitted by this Agreement. You shall not use or otherwise export or re-export the Service, except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. You hereby represent and warrant (i) you are not located in a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist supporting“ country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Provide Accurate Information. You agree to provide true, accurate, current and complete information about yourself and you agree not to misrepresent your identity or your account information. Accurate records enable us to provide the Upturn Service to you. You agree to keep your account information up-to-date and accurate.
- Illegal Use of the Service. You agree that the Upturn Service is not to be used for illegal purposes or for the transmission or storage of material that is unlawful, harassing, libelous (untrue and damaging to others), invasive of another’s privacy, abusive, threatening, sexually explicit, pornographic or obscene, or that infringes on the rights of others. We may terminate your use of the Upturn Service immediately and without notice to you if we discover you or someone using your Security Codes has used the Upturn Service in this manner.
- Proprietary Rights. You agree that we own all rights to the information and content displayed in the Service. Further, you agree not to reverse engineer or reverse compile any of our technology.
- Restrictions on Commercial Use or Resale. Your right to use the Upturn Service is personal to you; therefore, you agree not to resell or make any commercial use of the Upturn Service.
- Use of Marks, Materials and Suggestions. The names, logos and all related product and service names, design marks and slogan are the property of Upturn, our affiliates and service providers. You are not authorized to use our names or marks in any advertising, publicity or in any other commercial manner without our prior written consent. All copies that you make of the material must bear any copyright, trademark or other proprietary notice, which pertains to the material being copied. Except as authorized in this section, you are not being granted a license under any copyright, trademark, patent or other intellectual property right in the material or the products, services, processes or technology described therein. We, our affiliates and/or any third party owner of such rights retain all such rights. Any feedback, questions, comments, suggestions, ideas or the like, which you send to us will be treated as being non-confidential and nonproprietary. We will also be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services incorporating such information. You agree to indemnify and hold harmless Upturn, our subsidiaries and affiliates, successors and assigns, all officers and employees thereof, and our service providers, from any and all claims, liability, damages, and to be responsible for all expenses and costs (including, but not limited to, reasonable attorneys’ fees) caused by or arising from your use or infringement of any intellectual property relating to the Upturn Service.
Subpoenas, Court Orders, etc.
Upturn will comply with all applicable laws concerning the production of documents and files pursuant to valid and enforceable subpoenas, court orders and investigations.
Consent to Calls.
When you give a telephone number directly to us, you consent and authorize us to place non-telemarketing telephone calls to you at that number, regarding any and all accounts you have with us, including accounts you may open in the future. You understand that such telephone “calls“ include, but are not limited to, live telephone calls, prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system from us or our affiliates and agents. As examples, we may place calls to you about fraud alerts. We may also send you text messages to facilitate account transactions (e.g., delivering a one-time security code to you). By agreeing to receive text messages from us, you are also consenting to receive a final opt-out confirmation text message if and when you choose to opt out of a text message service we provide to you. Calls and messages may incur charges from your wireless carrier. You consent and authorize us to monitor, and to record, telephone conversations and other electronic communications you have with us and with our representatives for reasonable business purposes, including security and quality assurance. We will not remind you that we may be monitoring or recording a call at the outset of the call unless required by law to do so.
- You may use the Upturn Service to request and receive from Upturn any of the alerts made available through this Service by making alert selections within the Website. We may add new alerts or discontinue existing alerts at any time. According to your selections, we will send alerts to the email address or mobile number you provide to us on the Website. Message and data rates may apply from your telecommunications provider, and you are responsible for any such charges.
- It is solely your responsibility to ensure that the email address and mobile number you provide to us are current and accurate. If information from your wireless carrier indicates to us that the mobile number you have provided has been changed or is no longer registered to you, we will automatically stop delivery of any alerts to that number. In that event, you must update your mobile number on the Website before alerts can be delivered to a mobile number again. Should you wish to receive alerts to your mobile phone number after opting out of the alerts service, you must update your mobile number on the Website before alerts can be delivered to a mobile number again. Your failure to maintain current and accurate contact information with us will prevent delivery of alerts through this Service, for which we expressly disclaim any liability.
- Your receipt of any alert may be delayed or prevented by your internet service provider, telecommunications provider, or other third parties. We do not guarantee either the delivery or the accuracy of the contents of any alert. We will not be liable for damages of any kind arising from non-delivery or delayed delivery of an alert, the location to which an alert is delivered, inaccurate content in an alert, or your use of or reliance on the contents of any alert for any purposes. Alerts are not encrypted. You acknowledge that alerts may include your name and some information about your use of the Upturn Service. Depending on where you instruct us to send your alerts, anyone with access to your email or Enrolled Device may be able to view the contents of these alerts.
Disclaimer of Warranties.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE UPTURN SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE UPTURN SERVICE IS AT YOUR SOLE RISK. THE UPTURN SERVICE IS PROVIDED ON AN “AS IS“ AND “AS AVAILABLE“ BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE UPTURN SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE UPTURN SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE MAKE NO WARRANTY THAT: (i) THE UPTURN SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE UPTURN SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE UPTURN SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE UPTURN SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE UPTURN SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR ENROLLED DEVICE AND OTHER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE UPTURN SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above limitations may not apply to you. TO THE EXTENT THAT ANY PART OF THIS SECTION IS NOT CONSISTENT WITH ANY OTHER PART OF THIS AGREEMENT, THEN THIS SECTION WILL CONTROL.
Third Party Products and the Upturn Service.
Limitation of Liability.
YOU AGREE THAT NEITHER WE NOR ANY OF OUR AFFILIATES, THIRD PARTY SERVICE PROVIDERS OR ANY OF THEIR AFFILIATES WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY INDIRECT LOSS THAT YOU MAY INCUR OR SUFFER IN CONNECTION WITH THE UPTURN SERVICE (EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY LOSS OR DAMAGE INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE LOSS OR DAMAGE (EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES) THAT MAY BE INCURRED BY YOU OR ANY OTHER PERSON ARISING OUT OF OR RELATING TO THE AUTHORIZATION OF AND/OR DISCLOSURE OF YOUR SECURITY CODES, PASSWORD, PIN OR OTHER ACCESS CODE BY YOU TO ANY THIRD PARTY IN ORDER FOR SUCH PARTY TO COLLECT, RETRIEVE, CONSOLIDATE, AGGREGATE OR OTHERWISE GATHER ANY INFORMATION OR DATA AVAILABLE VIA THE UPTURN SERVICE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. OUR MAXIMUM, COMBINED AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT AND RELATED TO THE UPTURN SERVICE SHALL NOT, IN ANY EVENT, EXCEED ONE HUNDRED ($100.00) U.S. DOLLARS.
You agree to indemnify and hold harmless Upturn, our subsidiaries and affiliates, successors and assigns, all officers and employees thereof, and our service providers, from any and all third party claims, liability, damages, and to be responsible for all expenses and cost (including, but not limited to, reasonable attorneys’ fees) caused by or arising from your use of the Upturn Service, your violation of this Agreement or your infringement of any intellectual property or other right of anyone, or caused by or arising from the use, violation or infringement by any other user of your Account.
- Termination by You. You may terminate your Account at any time through the Website or by contacting us at email@example.com.
- Termination by Us. We may immediately terminate your Account without notice to you if we discover you have violated any provision of this Agreement, including, but not limited to, those found in “Usage Requirements and Restrictions.“ You acknowledge that we may, at our sole discretion and without notice to you, terminate your use of the Upturn Service due to an extended period of inactivity. Inactivity means that you do not use the Upturn Service or log-in for an extended period of time. We reserve the right to change or discontinue, temporarily or permanently, the Upturn Service at any time without notice. In order to maintain the security and integrity of the Upturn Service, we may also suspend your access to the Upturn Service at any time without notice. You agree that we will not be liable to you or any third party for any modification, suspension or discontinuance of the Upturn Service.
- Effect of Termination. If your Account is terminated as provided above, after any required notice to you, we will permanently destroy all content you have housed in the Upturn Service.
You may not assign all or any part of your rights or obligations under this Agreement without our prior express consent, which may be withheld in our sole discretion. We may assign or delegate all or any part of our rights or obligations under this Agreement, including, without limitation, the performance of the services described herein. This Agreement will be binding upon and inure to the benefit of your and our successors and assigns. You agree not to resell or make any commercial use of the Upturn Service. Unless otherwise required by law, you agree that your enrollment in the Upturn Service is non-transferable and that any rights to your enrollment or content within your Account terminate upon your death. If we receive a copy of a death certificate, your access will be terminated and all content deleted.
We reserve the right to refuse or cancel your enrollment if we cannot verify your identity or confirm information about you.
Hours of Operation.
You can use the online portion of the Upturn Service 24 hours a day, seven days a week, subject to regular daily maintenance periods and any special maintenance periods.
Changing this Agreement.
We may change this Agreement from time to time, as follows:
- Changes to this Agreement necessary to maintain or restore the security of the Upturn Service may be made immediately and without prior notice to you.
- For changes not described in subsection (a) above, we will notify you prior to the change, as required by applicable law. Notice may be given as provided herein.
- Any change will begin to apply upon the effective date of the change, and will apply only to your future use of the Upturn Service. Your continued use of the Upturn Service following the effective date of a change signifies your acceptance of the change.
Changes to Your Contact Information.
It is solely your responsibility to assure that the contact information you have provided to us in connection with your use of the Upturn Service is current and accurate. This includes, but is not limited to, name, address, phone numbers and email addresses. You may make changes to your email address or some of your other contact information by logging into the Website.
Dispute Resolution - ARBITRATION
- Either you or we may ask to settle disputes by arbitration. Arbitration is a way of working out disputes without going to court. If you or we ask for arbitration, we would all meet with a person called an arbitrator. An arbitrator is like a referee or a judge. The arbitrator will listen to what you and we have to say. The arbitrator will decide who is right. The arbitrator’s decision is called an award. The party who wins the award can take it to any court that could have heard the dispute and get an official judgment. Please read the rest of this section carefully. It explains how arbitration works.
- Some Legal Rights May Not Be Available in Arbitration: After any party asks for arbitration of a dispute, neither you nor we can ask a court to hear that dispute.
- There will be no jury trial of that dispute. You cannot be part of any class action relating to that dispute. The right to get information from each other and other procedures may be more limited in arbitration than in court. With a few limited exceptions, the arbitrator’s award will be final and unchangeable. Other rights that you or we would have in a court also may not be available in arbitration.
- What Disputes Are Covered: Any dispute that arises from or relates to this Agreement, the Upturn Service, your Account and any transaction involving the Account or any service or product related to your Account will be settled by arbitration unless it is described below in “What Disputes Are Not Covered.”
- This means that disputes about the following are covered:
- This Agreement, the Upturn Service, your Account or any transaction involving the Account or any service or product related to your Account;
- Any advertisement, promotion or oral or written statement related to this Agreement or your Account;
- Any relationships that result from this Agreement or any relationship you have with us that is not also subject to a different agreement to arbitrate (including, as far as applicable law will allow, relationships with third parties who are not parties to this Agreement or this arbitration provision);
- The validity, interpretation, scope or enforceability of this Agreement (except for any challenge to the enforceability of this Dispute Resolution section or any dispute about the parts of this section about class disputes); and
- Whether it is too late to settle a dispute because of any statute of limitations, estoppel, waiver, laches or similar legal rule.
- What Disputes Are Covered: Any dispute that arises from or relates to this Agreement, the Upturn Service, your Account and any transaction involving the Account or any service or product related to your Account will be settled by arbitration unless it is described below in “What Disputes Are Not Covered.”
- What Disputes Are Not Covered: This arbitration provision does not cover any dispute:
- That you or we could take to a small claims court, which usually limits its cases based on the amount of the claim; or
- About the parts of this arbitration provision that prohibit class disputes.
- No Class Disputes: You cannot join together in a dispute with anyone. Even if other people have disputes similar to a dispute that you or we ask to arbitrate, those people and their disputes cannot be part of any arbitration between you and us. You cannot arbitrate any dispute on a class action, private attorney general or other representative basis. Only a court, and not an arbitrator, may decide whether this provision prohibiting class disputes can be enforced.
- Who Will Arbitrate: The American Arbitration Association (“AAA”) or JAMS ADR (“JAMS”) may arbitrate any dispute, or you and we may agree upon a different arbitrator. For more information about arbitration, contact the AAA (www.adr.org or 1-800-778- 7879) or JAMS (www.jamsadr.com or 1-800-352-5267). If for any reason the AAA or JAMS is unable or unwilling to arbitrate, or you and we cannot agree on an arbitrator, we will use another national or regional arbitration group. The number of arbitrators will depend on the total dollar amount of all disputes by both you and us. If the total is $250,000 or less, one arbitrator will hear the dispute(s). If the total is over $250,000, three arbitrators will hear the dispute(s). Each arbitrator must be an active member in good standing of the bar for any state in the continental United States, and either: (a) actively engaged in the practice of law for at least 5 years or (b) a retired judge.
- What Rules Apply: The arbitration of any dispute will be conducted according to the rules of the arbitrator (“Rules”). If an arbitrator other than the AAA is chosen, the Rules of the AAA will be applied to any circumstance that is not addressed by the Rules of the chosen arbitrator. If the total of all disputes is $250,000 or less, we will use any expedited procedures in the Rules. If this Agreement and the Rules say something different, we will follow this Agreement and not the Rules.
- How To Start Arbitration: Either you or we may start an arbitration by giving written notice to the other party. At a minimum, this notice must describe the subject of the dispute and the result requested in arbitration by the party giving the notice. If you ask us to arbitrate, you can choose the AAA or JAMS, or suggest another national or regional arbitration group to arbitrate the dispute. If we ask you to arbitrate, we will give you 10 days to choose the AAA or JAMS, or to suggest another national or regional arbitration group. In either case, if you suggest an alternative to the AAA and JAMS, we will work with you to determine if you and we can agree on a different group or arbitrator. If you and we are unable to agree, the arbitration will be conducted by the AAA or, if the AAA is not available, by a similar arbitration group. The party asking for arbitration must file a notice with the arbitration group following the Rules in effect at that time.
- When a Party May Ask for Arbitration: You or we may ask for arbitration before or after a lawsuit has been filed. You or we must ask for arbitration within the statute of limitations that would apply to the same dispute in court. If it is too late to resolve the dispute in court, it is also too late to resolve it in arbitration.
- What the Arbitrator(s) Must and May Not Do: Each arbitrator must:
- Limit discovery to information that is directly relevant to the dispute and is not considered confidential or otherwise protected from being made public. Discovery is the process by which you and we ask each other for information about the dispute;
- Make decisions and awards based on the evidence and applicable substantive law and the rules of evidence used in federal courts;
- Make decisions and awards only with respect to claims made by or against you individually;
- Give a brief written explanation of the basis for the award upon request of either party;
- Make specific findings of fact and conclusions of law to support any award greater than $25,000; and
- Not make any award that would require you and us to continue any relationship we may have under this Agreement or otherwise.
- Who Pays for Arbitration: There will be costs for arbitration. Contact the AAA or other arbitration group to find out what the arbitration charges will be. You may have to pay some of the arbitration charges unless this Agreement, an applicable law or the Rules say we must pay. If the total dollar amount of all disputes is $50,000 or less, we will pay that portion of the arbitration filing fee that is more than the cost of filing a lawsuit in the federal court where you live. You can ask us to pay some or all of the other arbitration charges you have to pay, but we don’t promise to do as you ask. At the end of the arbitration, the arbitrator(s) will decide who has to pay for any arbitration charges that are greater than those we agreed to pay. The arbitrator(s) also may order us to pay some or all of your attorneys, expert and witness fees. Unless ordered otherwise by the arbitrator(s), each of us must pay for its own attorneys, expert and witness fees, no matter who wins.
- Where Will Arbitration Take Place: Any arbitration will take place in the federal judicial district near your home. Or, you and we could agree that arbitration will take place somewhere else.
- What Law Applies: This arbitration provision is made pursuant to a transaction involving interstate commerce. The Federal Arbitration Act will apply to the construction, interpretation and enforceability of this arbitration provision despite any other choice of law provision in this Agreement.
- Other Rights and Remedies: Nothing in this arbitration provision will limit certain other rights you or we may have. This means that you or we could, for example:
- Get an injunction, which is a court order to stop someone from doing something; or
- File an interpleader action, which is a type of lawsuit used to decide who owns property that more than one person claims to own.
- If you or we do any of these things or take part in any other court case, it does not affect your or our rights under this arbitration provision.
- What Happens If Part or All of This Arbitration Provision Cannot Be Enforced: Only a court and not an arbitrator can determine if any part of this arbitration provision cannot be enforced. If a court with proper jurisdiction says that any part of the “No Class Disputes” subsection above (which prohibits arbitration of class disputes) cannot be enforced, then none of the arbitration section in this Agreement will apply, and this section will be considered deleted from the Agreement. If a court with proper jurisdiction says that any other part of this arbitration provision cannot be enforced, then the rest of this arbitration subsection still will apply, including the “No Class Disputes” subsection above.
- Waiver Of Jury Trial: This provision limits your rights to a jury trial. You should review this section carefully. If you and we have any dispute related to this Agreement, the Upturn Service, your Account, or any transactions involving your Account or any service or product relating to your Account and (i) neither you nor we seek to compel arbitration of the dispute, or (ii) some or all of the arbitration section is unenforceable and the dispute will be resolved in court, then you and we agree voluntarily and knowingly to waive any right each may have to a jury trial to the fullest extent permitted by law.
- Attorneys’ Fees. In any action between you and us in court, the prevailing party will be entitled to receive from the other party an amount equal to the reasonable attorneys’ fees the prevailing party incurred in bringing or defending the court action.
Unless otherwise required by law, we may provide notice to you either by mail or electronically. If we choose to provide the notice to you by mail, we may mail it separately or with other information to any address on our records for you. If we choose to provide notice electronically, we will notify you as provided in the Electronic Communications Agreement. You accept responsibility to ensure that the contact information in your profile is always current and accurate.
The validity, construction and enforcement of this Agreement shall be governed by the laws of the State of Alabama, without regard to its conflicts of laws, and by applicable federal laws and regulations. To the extent permitted by applicable law, if any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect and, if practicable, the invalid or unenforceable provision will be reformed to achieve its intended purpose. The provisions of this Agreement that relate to any obligation or liability arising prior to termination (including without limitation, Sections 8(f), 14 & 15), or the resolution of any dispute regarding such obligation or liability, shall survive any termination or expiration of this Agreement. We shall not be deemed to have waived any of our rights or remedies hereunder unless such waiver is in writing and signed by us. No delay or omission on the part of us in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver by us on any one occasion shall not be construed as a bar or waiver of our rights or remedies on future occasions. The captions of Sections in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement.
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