J&S Version
credited your account for a chargeback. You will remain liable for any charge
that cannot be charged back to the merchant.
18. Communications
You authorize us to contact you by phone, electronic mail, or text message
at any phone number or address you provide, including without limitation
contacting you using automatic telephone dialing systems and/or
prerecorded/artificial voice messages, and you authorize such contacts even
if it involves a wireless telephone and/or results in charges to you.
Additionally, you authorize the Program Manager, our service providers,
debt collectors, collection attorneys, and other third parties working for us to
contact you using these methods. You also agree that we may monitor
and/or record our calls with you. You agree that any written notice or
disclosure, required by law or this Agreement, may be mailed or e-mailed to
the mailing address or e-mail address we have on file for you. It is your sole
responsibility to provide and maintain your current mailing address, email
address, and other contact information with us.
19. Credit Reporting
You authorize the Issuer and/or Program Manager to obtain reports about
the condition and/or creditworthiness of your business and to investigate
such matters by making direct inquiries of businesses where you have
accounts and other counterparties with which you interact. If you are a
natural person, you also authorize us to obtain consumer reports about you
and to make direct inquiries of where you work and of people who know you,
to the extent permitted by law. Upon your request we will disclose whether
a consumer report was requested and the name and address of any
consumer reporting agency that furnished the report. These authorizations
are effective throughout the term of this Agreement and do not terminate
until you have paid us all that you owe on your Account. If you are a natural
person, we may report information about our experience with you to
consumer reporting agencies. Late payments, missed payments, or
other defaults in connection with this loan may be reflected on your
credit report. If you believe that we have reported inaccurate information to
a consumer reporting agency, write to us at the address listed on your
statement and we will investigate the matter.
20. Closing Your Account
You may close your Account at any time by contacting us and (i) destroying
the cards or (ii) returning the cards to us. You will remain responsible for any
amounts you owe us under this Agreement and your Account and this
Agreement will not terminate until you pay all that you owe us under this
Agreement. We may close, cancel, suspend or not renew your Account at
any time without notice and for any reason.
21. Governing Law
This Agreement is governed by applicable federal law and by New Jersey
law (without regard to conflicts of law principles). However, in the event you
default and we file a lawsuit to recover funds loaned to you, the statute of
limitations of the state where the lawsuit is filed will apply, without regard to
that state’s conflicts of law principles or its “borrowing statute.”
22. Legal Notices
All notices relating to legal actions, including bankruptcy notices, must be
sent to us at Cross River Bank c/o DivvyPay, LLC, 13707 S. 200 W., Suite
100, Draper, UT 84020. Legal notices sent to any other address will not
satisfy any legal requirement that you provide notice to us.
23. Arbitration
RIGHT TO REJECT ARBITRATION. IF YOU DO NOT WISH YOUR
ACCOUNT TO BE SUBJECT TO THE FOLLOWING ARBITRATION
PROVISION, YOU MUST ADVISE US IN WRITING AT CROSS RIVER
BANK c/o DIVVYPAY, LLC, 13707 S. 200 W., SUITE 100, DRAPER, UT
84020. YOU MUST CLEARLY PRINT OR TYPE YOUR NAME AND
ACCOUNT NUMBER AND STATE THAT YOU REJECT ARBITRATION.
YOU MUST GIVE WRITTEN NOTICE; IT IS NOT SUFFICIENT TO
TELEPHONE US. WE MUST RECEIVE YOUR LETTER OR E-MAIL
WITHIN SIXTY (60) DAYS AFTER THE DATE YOUR ACCOUNT IS
ESTABLISHED OR YOUR REJECTION OF ARBITRATION WILL NOT BE
EFFECTIVE.
This paragraph describes how all Claims (as defined below) will be
arbitrated, at the election of you or us, on an individual (non-class, non-
representative) basis instead of litigated in court.
Definitions. The term Claim means any claim, dispute, or controversy
between you and us or the Program Manager arising from or relating to your
loan, your account with us, or this Agreement, as well as any related or prior
agreement that you may have had with us or the Administrator, or the
relationships resulting from this Agreement, including the validity,
enforceability or scope of this arbitration provision or the Agreement. Claims
arising in the past, present, or future, including Claims arising before the
execution of this Agreement, are subject to arbitration. Claim includes,
without limitation, claims that arise from or relate to any application for this
loan or any advertisements, promotions, or statements related to your loan.
For purposes of this Arbitration provision, you and us also includes any
corporate affiliates, any licensees, predecessors, successors, assigns, any
purchaser of any accounts, all agents, employees, directors and
representatives of any of the foregoing, and other persons referred to below
in the definition of Claims. Claim includes claims of every kind and nature,
including but not limited to initial claims, counterclaims, cross-claims, third-
party claims, and claims based upon contract, tort, fraud, and other
intentional torts, statutes, regulations, common law, and equity. Claims and
remedies sought as part of a class action, private attorney general action, or
other representative action are subject to arbitration on an individual (non-
class, non-representative) basis, and the arbitrator may award relief only on
an individual (non-class, non-representative) basis. Claim also includes
claims by or against any third party relating to or arising from your Card, your
Account, or this Agreement. The term Claim is to be given the broadest
possible meaning that will be enforced. Administrator means the American
Arbitration Association, 120 Broadway, Floor 21, New York, NY 10271,
www.adr.org, (800) 778-7879; or JAMS, 18881 Von Karman Ave., Suite 350,
Irvine, CA 92612, www.jamsadr.com, (949) 224-1810.
Right to Elect Arbitration. We OR you have the right to require that each
Claim be resolved by arbitration on an individual (non-class, non-
representative) basis. A Claim will be arbitrated if (1) both we and you or (2)
only one or the other of we or you, exercise the right to require that the Claim
be arbitrated. If, for example, we exercise our right to require that the Claim
be resolved by arbitration but you do not also exercise your right to require
that the Claim be arbitrated, the Claim will be resolved by arbitration. If
neither we nor you request arbitration, the Claim will not be resolved by
arbitration and instead will be litigated in court. We will not elect arbitration
for any Claim you file in small claims court, so long as the Claim is individual
and pending only in that court. The arbitrator's authority to resolve Claims
is limited to Claims between you and us alone, and the arbitrator's authority
to make awards or decisions is limited to you and us alone. Furthermore,
Claims between you and us may not be joined or consolidated in arbitration
with Claims brought by or against someone other than you, unless otherwise
agreed to in writing by all parties. However, borrowers and co-borrowers on
a single loan, or corporate affiliates, are considered one person for the
purposes of this paragraph. No arbitration award will have any preclusive
effect as to issues or claims in any dispute involving anyone who is not a
party to the 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.).
No Jury Trial or Class Claims. If we or you request arbitration of a Claim,
we and you will not have the right to litigate the Claim in court. This means
(1) there will be no jury trial on the Claim, (2) there will be no pre-
arbitration discovery except as the Administrator’s rules permit, and
(3) no Claim may be arbitrated on a class-action, private attorney
general, or other representative basis, and neither we nor you will have
the right to participate as a representative or member of any class or
group of claimants pertaining to any Claim subject to arbitration. We
or you may elect to arbitrate any Claim at any time unless it has been filed
in court and trial has begun or final judgment has been entered.
Initiation of Arbitration. The party initiating an arbitration shall select an
Administrator from the organizations listed above. If none of the
Administrators listed above will accept the arbitration, the arbitration will be
administered by an administrator, or adjudicated by an arbitrator, upon which
you and we agree in writing. The arbitration shall be governed by the
procedures and rules of the Administrator and this Agreement, which need
not apply federal, state or local rules of procedure and evidence. The
Administrator’s procedures and rules may limit the discovery available to you