Last Updated April 2020
These Terms constitute a legal agreement between you and Uprova Credit, LLC (“we”, “us”, or “our”) that sets forth the terms and conditions for your use of this Site. The words “you” and “your” refer to any person who uses the Site. Use of the Site indicates your assent to these Terms; if you do not agree with these Terms you should not use the site. If you obtain a loan from us, that loan and your relationship with us will be governed by the Consumer Loan and Arbitration Agreement (the “Loan Agreement”); if you have obtained a loan from us and there is a conflict between these Terms and the Loan Agreement, the Loan Agreement will control. You can print or save a copy of these Terms to your computer or other device. You also may request a copy of these Terms and we will provide them to you in a form which allows you to store and reproduce the information (for example, by email).
To use this Site you must (i) be a resident of the United States; (ii) have full legal capacity to enter into a contract, and (iii) be an individual at least 18 years old. Loan eligibility is subject to meeting the lender’s underwriting criteria.
We may, at any time, amend these Terms (a “Change”) and will notify you of any such Change by posting the revised Terms on the Site. You will be deemed to have accepted the Change if you continue to use the Site after the Change to the Terms. All Changes take effect upon posting. You should periodically review these Terms for Changes. Continued use of the site after a Change to the Terms constitutes acceptance of the new Terms.
The URLs representing the Uprova Credit, LLC. website(s), “Uprova Credit, LLC.,” and all related logos of our products and services described in our website(s), as well page headers, custom graphics, button icons, scripts, and the Site itself, are the intellectual property of Uprova Credit, LLC. You may not copy, imitate, modify, alter, amend or use them without our prior written consent. All rights, title, and interest in and to the Uprova Credit, LLC. website and any content thereon is the exclusive property of Uprova Credit, LLC. and the Habematolel Pomo of Upper Lake.
Limitation of Use
In connection with your use of our Site, or in the course of your interactions with Uprova Credit, LLC., you agree to use the content and Site only for lawful purposes. You are prohibited from using the content or Site to violate any law, statute, contract, or regulation (including, without limitation, those governing financial services including anti-money laundering, consumer protections, unfair competition, anti-discrimination, and false advertising), breach these Terms, act in a manner that is obscene, defamatory, libelous, hateful, unlawfully threatening or unlawfully harassing; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; or provide false, inaccurate or misleading Information. Any unauthorized use of the Site, including but not limited to unauthorized entry into Uprova Credit, LLC. systems, misuse of passwords, or misuse of any information posted on the Site is strictly prohibited.
If you access this Site from outside of the United States, you are solely responsible for ensuring compliance with all local laws. Your eligibility for products or services is subject to review by Uprova Credit, LLC.
You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
While Uprova Credit, LLC. has no obligation to monitor you, you acknowledge and agree that Uprova Credit, LLC. has the right to monitor the Site electronically from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation, or other governmental request, to operate the Site, or to protect itself or other users of the Site.
Our failure to enforce any rights under these Terms shall not be construed as a waiver of those rights.
Limitations of Liability
IN NO EVENT WILL UPROVA CREDIT, LLC. BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES LOSSES OR EXPENSES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR SYSTEM FAILURE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF UPROVA CREDIT, LLC. OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.
Disclaimer of Warranties
We provide services to you without any warranty or condition, express or implied, except as specifically stated in these Terms. Uprova Credit, LLC. does not guarantee continuous, uninterrupted or secure access to any part of our Site. We shall not be liable for any delay in the failure in our provision of our obligations under these Terms. You acknowledge your access to the Site may be occasionally restricted to allow for repairs, maintenance, or the introduction of new facilities or services. We make every effort to ensure that the information contained in our correspondence, reports, on the website(s), and given verbally by our directors, officers, and staff is accurate to the best of our belief at the time the information is provided. However, we cannot guarantee the accuracy of all such information in all circumstances and contexts, and no reliance should be placed on such information by you. You must check all correspondence between us carefully and tell us as soon as possible if it includes something which appears to you to be wrong or not made in accordance with your instructions.
You alone are responsible for understanding and complying with any and all laws, rules and regulations of your specific jurisdiction that may be applicable to you in connection with your use of the Site.
You agree to indemnify and hold harmless Uprova Credit, LLC., its affiliates, officers, employees, agents, representatives and third parties, from and against any losses, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) relating to or arising out of your use of or inability to use the Site, any user postings or transmissions, your violation of any of these Terms or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. You further agree that you will cooperate fully in the defense of any such claims. Uprova Credit, LLC. reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate in asserting any available defenses.
In general, confidential arbitration is a process in which persons with a dispute waive their rights to file a lawsuit in a court and waive their rights to have a jury trial. Instead, the parties agree to submit their disputes to a neutral third person (an “arbitrator”) for an award or decision. Arbitration proceedings are private and less formal than court proceeding. Each party to a dispute has an opportunity to present their evidence to the arbitrator regarding the dispute. After considering each party’s evidence and arguments, the arbitrator then issues a confidential decision or award resolving the dispute.
We will follow and you agree to follow our policy of arbitrating all disputes, including the scope and validity of this section and all of its subsections (collectively, the “Arbitration Provision”). As part of agreeing to arbitrate any dispute, you explicitly waive any right you may have to participate in any class action or other representative action against us.
THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
(1) For purposes of this Arbitration Provision, the words “dispute” and “disputes” are given the broadest possible meaning and include, without limitation, (a) all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, the validity and scope of this Arbitration Provision, the enforceability of this Arbitration Provision, and any claim or attempt to set aside this Arbitration Provision or deem all or any part of this Arbitration Provision void or voidable; (b) all tribal, federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to the Terms; the information you gave us before entering into your Loan Agreement, including the customer information application; and any past agreement or agreements between you and us; (c) all counterclaims, cross‐claims and third‐party claims; (d) all common law claims, based upon contract, tort, fraud, or intentional torts; (e) all claims based upon a violation of any tribal, state or federal constitution, statute, rule, or regulation; (f) all claims asserted by us against you, including claims for money damages to collect any sum we claim you owe us; (g) all claims asserted by you against us and/or any of our employees, agents, directors, officers, shareholders, governors, managers, members, parent company, affiliated entities, vendors, or service providers (hereinafter collectively referred to as “related third parties”), including, without limitation, claims for money damages and/or equitable or injunctive relief; (h) all claims asserted on your behalf by another person; (i) all claims asserted by you as a private attorney general, as a representative and member of a class of persons, or in any other representative capacity, against us and/or related third parties (hereinafter referred to as “Representative Claims”); and/or (j) all claims arising from or relating directly or indirectly to the disclosure by us or related third parties of any non‐public personal information about you. The arbitrator shall have exclusive authority to resolve any dispute(s), including, without limitation, any claim arising from or relating directly or indirectly to the signing of this Arbitration Provision or the Agreement, the validity and/or scope of this Arbitration Provision, enforceability of this Arbitration Provision, and any claim or attempt to set aside this Arbitration Provision or deem all or any part of this Arbitration Provision is void or voidable.
(2) You acknowledge and agree that by entering into this Arbitration Provision:
(a) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES;
(b) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; and
(c) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION ACTION, OR OTHER LEGAL PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.
(3) All disputes including any Representative Claims against us and/or related third parties shall be resolved by confidential arbitration (“Arbitration”) only on an individual basis with you and the award or decision of an arbitrator or appellate arbitrator(s) may only be appealed or reviewed pursuant to subsections (6) and (7) of this Arbitration Provision. THEREFORE, THE ARBITRATOR AND APPELLATE ARBITRATOR(S) SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR AND APPELLATE ARBITRATOR(S) SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION. Further, unless both you and we agree in writing otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The Arbitration proceedings and all associated decisions and awards of the arbitrator and appellate arbitrator(s) shall be confidential except as required to enforce or confirm the award or decision of the arbitrator or appellate arbitrator(s) in federal court located in the state of California. However, any party filing information or documents regarding the arbitration in such court shall follow the court’s procedures to make such filings under seal, unless the court denies the filing party’s request to make such filings under seal for reasons other than failure to comply with the applicable rules governing filings under seal.
You (but not us) shall have the sole right to opt-out of this Arbitration Provision, which requires Arbitration as the only means for resolving disputes, at any time within 21 calendar days following your signing of this Agreement. You may choose to opt-out of this Arbitration Provision by providing written notice to us by certified, registered, or return-receipt requested mail to us at the following physical address: 635 East Highway 20, V, Upper Lake, CA 95485, Attention: Arbitration Opt-Out, or you can send us a written notice via email to email@example.com. The written notice you send to us must (a) state that you are opting out of the Arbitration Provision, (b) if sent by letter must be postmarked or if sent by email must be sent no later than 21 calendar days after the date that you signed the Agreement, (c) state the name of the Creditor and your loan number, and (d) be physically or electronically signed by you. If you opt out of this Arbitration Provision, all other parts of this Agreement will remain in full force and effect. If you do not opt out of this Arbitration Provision, then the parties will be required to resolve all disputes through Arbitration pursuant to this Arbitration Provision.
(4) Any party to a dispute, including related third parties, may send the other party written notice by certified mail return receipt requested of their intent to commence Arbitration and setting forth the subject of the dispute along with the relief requested, even if a lawsuit has been filed. Regardless of who demands Arbitration, you shall have the right to select any of the following arbitration organizations to administer the Arbitration: the American Arbitration Association (1‐800‐778‐7879) http://www.adr.org or JAMS (1‐800‐352‐5267) http://www.jamsadr.com. Alternatively, the parties may mutually agree on an arbitrator or an arbitration administrator. If one or more arbitration administrators or arbitrators refuse to administer or act as an arbitrator, then the parties shall select either one of the arbitration administrators referenced above, AAA or JAMS, or select a mutually agreeable arbitration administrator or arbitrator to address the dispute(s). The party receiving notice of Arbitration will respond in writing by certified mail return receipt requested within twenty (20) days. If you demand Arbitration, you must inform us in your demand of the arbitration organization you have selected. If related third parties or we demand Arbitration, you must notify us within twenty (20) days in writing by certified mail return receipt requested of your decision to select an arbitration organization. If you fail to notify us, then we have the right to select an arbitration organization. The parties to such dispute will be governed by the laws of the Habematolel Pomo of Upper Lake (“Tribal Law”), applicable federal law, the Federal Arbitration Act (“FAA”) and such rules and procedures used by the applicable arbitration organization applicable to consumer disputes, to the extent those rules and procedures do not contradict the express terms of this Arbitration Provision or Tribal Law, including the limitations on the arbitrator below. You may obtain a copy of the rules and procedures by contacting the arbitration organization listed above.
You have the right to request that Arbitration take place within thirty (30) miles of your residence or some other mutually agreed upon location, provided, however, that such election to have Arbitration occur somewhere other than on Tribal land shall in no way be construed as a waiver of sovereign immunity or allow for the application of any law other than Tribal Law, applicable federal law, the FAA and such rules and procedures used by the applicable arbitration organization regarding consumer disputes, to the extent those rules and procedures do not contradict the express terms of this Arbitration Provision, Tribal Law, or applicable federal law.
(5) Regardless of who demands Arbitration, we will advance your portion of the arbitration expenses, including the filing, administrative, hearing, and arbitrator’s fees (“arbitration fees”) at your request. Throughout the Arbitration, each party shall bear his or her own attorneys’ fees and expenses, such as witness and expert witness fees. The arbitrator shall apply applicable Tribal Law and applicable federal law including, without limitation, the FAA, and applicable statutes of limitation, and shall honor claims of privilege recognized by Tribal Law and applicable federal law. The arbitrator may decide, with or without a hearing, any motion that is substantially similar to a motion to dismiss for failure to state a claim or a motion for summary judgment. If allowed by Tribal Law or applicable federal law, the arbitrator may award statutory damages and/or reasonable attorneys’ fees and expenses; however, the arbitrator shall not award punitive damages. The arbitrator shall not be bound by rulings and awards in prior arbitrations involving different customers. If the arbitrator renders a decision or an award in your favor resolving the dispute, then you will not be responsible for reimbursing us for your portion of the arbitration fees, if any, and we will reimburse you for any arbitration fees you have previously paid. At the timely request of any party, the arbitrator shall provide a written explanation for the award or decision. The arbitrator’s award or decision is confidential as stated above. However, the only relief each party may seek regarding the arbitrator’s award is pursuant to subsections (6) and (7) of this Arbitration Provision.
(6) Notwithstanding any language to the contrary in the Arbitration Provision, the parties hereby agree that the arbitrator’s award or decision (“Underlying Award”) may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”); that the Underlying Award rendered by the arbitrator shall, at a minimum, be a reasoned award; and that the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by the Appellate Rules, by filing a notice of appeal with any AAA office. Following the appeal process the decision or award rendered by the appeal arbitrator(s) is final, binding, confidential, and may be entered in federal court located in the state of California.
(a) Once an appeal has been timely filed:
(i) The Underlying Award is not considered final for purposes of seeking relief from a court as provided by the FAA.
(ii) The time period for filing judicial proceedings is tolled while the appellate process is pending.
(iii) The parties are required to ask the court to stay any already-initiated judicial proceedings until the conclusion of the appeal.
(b) Three appellate arbitrators are appointed from the AAA’s appellate panel unless the parties agree in writing to a single arbitrator and the parties can request specific qualifications for the appellate arbitrator(s) or the parties agree otherwise in writing. Appeals are submitted by written submission. If the appeal arbitrator(s) deem(s) oral argument necessary, or a party requests oral argument, it must be held within 30 days of the last written submission.
(c) Appeals must satisfy at least one of three alternatives to succeed. The arbitrator(s) who issued the award must have made either:
(i) An error of law that is material and prejudicial.
(ii) Determination(s) of fact that is/are clearly erroneous.
(iii) The Underlying Award is arbitrary or capricious.
(d) A majority of the appellate arbitrators or the appellate arbitrator if the parties agree in writing to one appellate arbitrator may arrive at three potential outcomes regarding an appeal:
(i) The appellate arbitrator(s) may adopt the Underlying Award as his/her/their own.
(ii) The appellate arbitrator(s) may issue a new award or decision (adopting those portions of the Underlying Award that he/she/they choose to accept and rejecting some or all of those portions of the Underlying Award that he/she/they choose to accept).
(iii) The appellate arbitrator(s) may request additional information and extend the period for issuing a final decision by 30 days.
(7) All parties shall retain the right to (i) confirm the Underlying Award or the award or decision of the appellate arbitrator(s) pursuant to the FAA, (ii) vacate, modify or correct the final, binding and confidential award of the appellate arbitrator(s) pursuant to the FAA, and (iii) enforce the Underlying Award of the arbitrator confirmed under the FAA by the federal courts located in the state of California if it is not subject to an appeal as provided for in this Arbitration Provision or the final, binding and confidential award of the appellate arbitrator(s) confirmed under the FAA by the federal courts located in the state of California. The Tribe does not waive its sovereign immunity or the sovereign immunity extended to its economic development arm Uprova Credit, LLC. other than for the purposes stated in subsections (4) and (7) and with respect to individual claims under Tribal Law and applicable federal law made in an arbitration action filed pursuant to this Arbitration Provision.
(8) This Arbitration Provision is made pursuant to a transaction involving both interstate commerce and Indian commerce under the United States Constitution, Tribal Law and applicable federal law. Thus, this Arbitration Provision and any Arbitration held pursuant to this Arbitration Provision shall be governed by the FAA and subject to Tribal Law and applicable federal law. If an arbitrator, appellate arbitrator(s), or a final non‐appealable judgment of a court having jurisdiction over this transaction and the parties finds, for any reason, that the FAA does not apply to this transaction, then this Arbitration Provision shall be governed by Tribal Law, specifically, Chapter 8 of the Habematolel Pomo of Upper Lake Judicial Code.
(9) This Arbitration Provision is binding upon and benefits you, your respective heirs, successors, and assigns. This Arbitration Provision is binding upon and benefits us, our successors and assigns, and related third parties. This Arbitration Provision continues in full force and effect, even if your obligations have been paid or discharged through bankruptcy. This Arbitration Provision survives any cancellation, termination, amendment, expiration or performance of any transaction between you and us and continues in full force and effect unless you and we otherwise agree in writing. If any part of this Arbitration Provision is held invalid or unenforceable, the remainder shall remain in effect, valid and enforceable.
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