THIS AGREEMENT DOES NOT APPLY IF YOU RESIDE IN CALIFORNIA. UNFORTUNATELY, AT THIS TIME WE DO NOT OFFER WILLOWPAYS SERVICE IN CALIFORNIA. WE ARE WORKING HARD TO MAKE WILLOWPAYS AVAILABLE, PLEASE CHECK BACK REGULARLY FOR UPDATES.
PLEASE READ THIS Willowpay CUSTOMER AGREEMENT CAREFULLY, AS IT GOVERNS YOUR RELATIONSHIP WITH US. THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY.
1.1. BY SIGNING UP FOR A Willowpay ACCOUNT AND/OR USING THE Willowpay SERVICE, YOU ARE:
1.1.1. Representing that you are acting on your own behalf, you are an individual resident of the United States or its territories other than the State of California, you are at least of the age of legal majority where you live (which is currently 18 years old, in most cases), and the application you submitted to us in connection with the account is true and complete in all material respects and that there has been no Material Adverse Change not reflected on your application. If any of the foregoing are not true, you are not eligible to use any Services and doing to will be unauthorized and a breach of this Agreement.
1.2. This Agreement was last revised on the date first shown above. This Agreement replaces any other agreement relating to your account that you or we made earlier or at the same time.
1.3. CHANGES TO THIS AGREEMENT.
1.3.1. We reserve the right to amend this Agreement at any time, by adding, deleting, or changing provisions of this Agreement. If we amend this Agreement, then we will provide notice on our website or as otherwise required by applicable law. Subject to any notice period that may be required by applicable law, after we provide notice of any amendment to this Agreement, if you use the Services or do not immediately close your account, then you agree to such amendments.
1.4. CERTAIN DEFINITIONS.
1.4.1. ”We”, “us”, “our” or “Willowpay” means Willowpay, Inc.
1.4.2. ”You” and “your” refers to the individual person who creates the associated Willowpay account and each and all of the persons who are granted access to, accept or use the account and any person who has guaranteed payment of the account.
1.4.3. “Services” means the “Buy with Willowpay” service and any other services or benefits we may provide you from time to time (including, without limitation, the “Willowpay Anywhere” service, if applicable).
1.4.4. Your “account” means your line of credit account with Willowpay, as described and governed by this Agreement. You may request extensions of credit to finance the purchase goods or services (“Goods”) pursuant to a Service, which, if approved, may be accomplished via one of three ways (these are also further described later in this Agreement): (1) for any Merchant who has agreed with Willowpay to sell Goods to Willowpay customers pursuant to a retail installment sales contract, you will enter into such a contract with the Merchant, and then the Merchant will assign and transfer its interest in such contract to us; (2) for any Merchant who has agreed with Willowpay to only sell its Goods to Willowpay customers in exchange for Willowpay’s directly lending to such customers, you will incur a loan from Willowpay, Willowpay will pay the proceeds of the loaned amount over to the Merchant, and the Merchant will deliver Goods to you; and (3) for any purchase you wish to make via the Willowpay Anywhere service, you will facilitate Willowpay’s purchase of certain Goods and then choose to enter into a separate transaction under the terms of the Willowpay Retail Installment Contract, in order to transfer those Goods to you. Your account is an open-end credit program with a credit limit equal to your Available Spend (see below). When you choose to and we agree to finance a purchase using a Service (a “Willowpay Purchase”), your account is debited for the advance that we lend to you. Any fees, charges, or costs we impose also are debited to your account.
1.4.5. “Due Date” means any date by which you are required to make a payment as reflected on your Billing Statement or other communication provided to you by Willowpay, a Merchant, or a Retailer.
1.4.6. “Billing Statement” means any communication that Willowpay provides to you reflecting the activity on your account, the unpaid balances on your account, and/or the Due Dates associated with your account. Without limiting the foregoing, this includes any account dashboard that Willowpay makes available to you on its website and any statement or summary for a billing cycle that Willowpay makes available to you electronically or in writing.
1.5. PROVISIONS OF THIS AGREEMENT ARE SEVERABLE.
If any provision of this Agreement is found to be invalid, the remaining provisions will continue to be effective.
1.6 Important Disclosures.
1.6.1. Your name and address, as set forth in the application you submitted to us for this account, is incorporated by reference.
2.1. YOUR Willowpay ACCOUNT AND TERMS APPLICABLE TO ALL SERVICES.
2.1.1. QUALIFICATION FOR AND ACCESS TO YOUR ACCOUNT AND THE SERVICES. You must be qualified and receive an approval from Willowpay to use any Service. Whether you are qualified and whether any use of any Service is approved is determined by Willowpay in its sole discretion. Without limiting the foregoing, Willowpay may make such determinations when you request to open an account, when you request an additional Service, when you attempt to make a purchase and/or at any other time that Willowpay deems to be appropriate. Willowpay may close, suspend, restrict, or limit your account and/or your use of or ability to transact in connection with any Service in Willowpay’s sole discretion at any time for any reason without notice to you. Willowpay also may cancel transactions at any time before a Merchant delivers any goods or services in its sole discretion at any time for any reason without notice to you.
2.1.2. USE OF YOUR ACCOUNT AND THE SERVICES.
You may use your account and the Services only for personal, family, or household purposes, and not for any business or commercial purposes. You may not use your account or any Service to make a payment on any other obligation you have with us or our affiliates. You may not use or permit your account to be used to make any illegal transaction. Without limiting the foregoing, you may not use your account or any Service in connection with any gambling activity or permit such use.
2.1.3. YOUR PROMISE TO PAY.
Each time you use a Service, you are requesting that Willowpay advance money for your benefit and you agree to repay each such advance and all other transactions, fees, charges, costs, expenses, and other obligations you incur in connection with your account. You promise to pay every required payment by its Due Date. Before completing any transaction involving any Willowpay Services, a Merchant, a Retailer, or Willowpay may disclose specific terms and conditions applicable to that transaction and the associated advance on your account. By completing the transaction, you accept and agree to any specific terms that are so disclosed.
2.1.4. PAYMENT TERMS.
184.108.40.206. HOW TO MAKE A PAYMENT. You must follow the instructions for making payments provided on your Billing Statement. If you do not, then credit of your payment may be delayed up to five days. All payments must be drawn on a U.S. financial institution at a U.S. branch and must be in U.S. dollars. We nevertheless reserve the right to accept payments made in foreign currency and instruments drawn on funds on deposit outside the U.S. If we do, we select the currency conversion rate in our sole discretion. We will then credit your account in U.S. dollars after deducting any costs incurred in processing your payment. Additionally, you may use one of the acceptable methods of payment to make one-time transactions to pay your account as payments become due or to set up automatic scheduled account payments. Willowpay may determine the acceptable methods of payment, and may discontinue accepting any particular method of payment at any time, from time to time, for any reason, as permissible by law. Currently acceptable methods of payment are:
220.127.116.11. CREDITING OF PAYMENTS. Payments received after 5 p.m. (ET) will be credited as of the next day. We may delay making credit available on your account in the amount of your payment even though we will credit your payment as of the date when we receive it. You may at any time pay, in whole or in part, any or all of the unpaid balance on your account without penalty or any additional charge for prepayment.
18.104.22.168. PAYMENT ALLOCATION. We may apply payments received on your account to balances on your account in any order and using any method we choose in our sole discretion, to the extent permitted by applicable law. This means that we may apply payments in a different manner in certain situations, such as when your account has a certain type of special promotion, and that we may payments in a manner that is more favorable for us and less favorable for you.
22.214.171.124 MINIMUM PAYMENTS DUE. Every billing cycle you must make the a “Minimum Payment” by the Due Date indicated on your Billing Statement equal to the sum of (i) all past due payments, (ii) any outstanding late fees or returned check fees on your account, and (iii) 100% of the amount of any outstanding advances for which separate payments are not required under the terms applicable to the “Buy With Willowpay” or “Willowpay Anywhere” Services.
2.1.5. TRANSACTIONS MADE IN FOREIGN CURRENCIES. If we permit you to make purchases in one currency and repay them in another currency, then unless a specific rate is required by applicable law, the rates to make conversion from transactions in foreign currencies to U.S. Dollars (or vice versa) shall be the rates quoted on our website or app, which are accessible from your account dashboard (if applicable). They may not be the rates you would be able to achieve via any other third party currency conversion service, bank or broker, and they may include a conversion commission for Willowpay.
2.1.6. YOUR AVAILABLE SPEND. Your “Available Spend” is disclosed to you when you open your account and, generally, on your account dashboard. The Available Spend is the total amount available for purchases from Merchants using the account, and it is reduced by any currently outstanding amounts from previous purchases. Your Available Spend applies across all Services and therefore use of one Service will reduce your Available Spend for other Services. We may change your Available Spend at any time and for any reason at our sole discretion.
2.1.7 REFUNDS. If we are unable to pay a bill due to an issue with the bill provider not accepting the payment (for example, last payment date exceeded or change of bill amount) we will refund to you all attempted payments made on that bill and cease efforts to pay the bill.
We are unable to refund payments where the bill has been paid as the funds have already been paid to the bill provider. If a refund is needed on such bills, please contact your biller to seek a refund.
In cases where funds are returned to us by the biller for a bill paid on your behalf, we will issue a refund to you on all payments returned to us. This refund of the payments will only be made after the money has been successfully returned to us. Refunded payments can take up to 10 business days to reach a bank account, depending on banking institution policies.
2.1.8. ACCOUNT FEES.
Late Fee. If you have not paid your Total Minimum Payment in full by the applicable Due Date, then we may charge you a late fee of up to $7 (the applicable fees may be limited by statute and vary based on your state of residence, but will not exceed $7 per late payment or three such late fees per Willowpay Purchase).
Merchant Fees. We also may charge fees to Merchants and Retailers accepting a Willowpay Service for payment. These fees are paid at your direction for the participation of such Merchants and Retailers in accepting Willowpay Services for payments.
2.1.9 Adjustments for Small Balance Installments
In the event that a refund or merchant credit is applied to your account and reduces a later installment to less than two dollars, we may move that small balance from its own separate installment and add it to the previous installment.
2.1.10 Backup Payment Methods
You can select one card on file to be your default card for purposes of making installment payments. All other cards you have saved will be considered “backup payment methods,” so that if there is a problem with your payment, we will automatically charge the backup payment methods in order to help you avoid any late fees.
2.2. THE “BUY WITH Willowpay” SERVICE.
2.2.1. SERVICE FEATURES. Signing up for a Willowpay account and qualifying for the “Buy with Willowpay” Service allows you to finance your purchases of Goods offered by participating merchants (“Merchants”) online and repay using a series of payments over time. “Buy with Willowpay” provides Merchants and their end-customers like you with the opportunity to spread payments over four equal payments of 25% of the total purchase price (including tax and shipping). When you use the Buy with Willowpay service, depending on the Merchant’s agreement with Willowpay, you either (a) enter into a contract with the Merchant to repay in four installments that the Merchant then assigns and transfers to us, with such installments being added to your account, or (b) agree with us to borrow (and repay in four installments) the Purchase Price, which we pay to the Merchant on your behalf.
2.2.2. MINIMUM PAYMENTS. When you use the Buy with Willowpay Service, you must repay in four minimum payments of at 25% of the purchase price for your purchased Goods, including any Merchant or Retailer-imposed fees, shipping, and taxes (the “Purchase Price”). Your first payment of 25% of the Purchase Price is due immediately at the time of purchase. You then will be required to make three payments equal to 25% of the Purchase Price on the Due Dates indicated at checkout and/or on your Billing Statement accessible via the Willowpay App or at http://customer.Willowpay.com
2.2.3. Delays in Processing. In some cases when you attempt to use the Buy with Willowpay Service to make a purchase, the transaction may be held as pending or be otherwise delayed for processing and confirmation by either Willowpay or the merchant and can be cancelled at any time until it is confirmed by Willowpay.
It is your responsibility to ensure there is sufficient time between you requesting us to pay a bill and the due date. You are solely responsible for any damages, such as late charges, that may be imposed as a result. We make no warranty or representation as to the time payments will be received or cleared with your biller.
2.3. THE “Willowpay ANYWHERE” SERVICE.
2.3.1. Service Features. Downloading the Willowpay app and qualifying for the “Willowpay Anywhere” Service allows you to purchase goods or services offered by retailers who accept payment cards at the physical point of sale (“Retailers”) or online at Retailer websites that don’t offer the “Buy with Willowpay” Service. Each virtual card number provided to you in the Willowpay app is associated with a virtual card issued to Willowpay that you may use to facilitate payment between Willowpay and a Retailer with respect to Willowpay’s purchases of Goods from the Retailer. By transacting with the virtual card in the Willowpay app you agree that you are using this service to purchase Goods on behalf of Willowpay, Inc and are not using this service for Personal, Family, or Household purposes. Each virtual card may be used only for a single transaction with a single Retailer. If you wish to make additional or different purchases financed using the Willowpay Anywhere Service, then you must obtain a new virtual card number from the Willowpay app for each potential purchase. Upon completion of a transaction with a Retailer using a Willowpay virtual card, Willowpay owns all rights and title to the Goods purchased. You may then choose to enter into a separate transaction under the terms of the Willowpay Retail Installment Contract. You are not authorized to use any virtual card number provided by Willowpay for any other purpose. Any unauthorized use of the virtual card will be considered theft and/or fraud, and will be declined and or reversed and may lead to deactivation of your account, among other remedies to which Willowpay may be entitled.
2.3.2. Minimum Payments. When you use the Willowpay Anywhere service, you must repay in four minimum payments of 25% of the purchase price for your purchased Goods, including any Retailer-imposed fees, shipping and taxes (the “Purchase Price”). Your first payment of 25% of the Purchase Price is due at the time of purchase. You then will be required to make three payments equal to 25% of the Purchase Price on the Due Dates indicated at checkout or on your Billing Statement, accessible via the Willowpay App or at http://customer.Willowpay.com.
2.4. SERVICES OR BENEFITS FROM OTHERS.
2.4.1. It is important to note that benefits that may be offered by your bank or credit card issuer with respect to purchases of goods and services from merchants may not be applicable to transactions made through “Buy with Willowpay,” and Willowpay does not represent or warrant that any purchase protection, extended warranty, or other such benefits offered by such third parties will be available to you if you make purchases through “Buy with Willowpay.” You should inquire with your bank or card issuer to confirm whether any such benefits may be available, and upon what terms and conditions.
2.4.2. From time to time, we may offer or introduce other Services, in which case, you will be notified of the terms and conditions applicable to such Services (“Additional Terms”) in any associated documents or other materials provided to you from time to time by or on behalf of Willowpay. Unless expressly excluded from this Agreement by their Additional Terms, any such Services are subject to this Agreement, as well as their Additional Terms. We may adjust, add, or delete Services at any time and without notice to you. Willowpay is not offering any benefits to you other than the Services.
Willowpay operates and controls the Services and your account from its offices in New York, New York. The Services and information provided on the Services is not intended for distribution to or use by any person or entity outside of the United States. You agree that you may not open an account or use the Services if you are not located within the United States.
2.6. NO WAIVER.
We may, with or without notice to you, delay or refrain from enforcing our rights under this Agreement without losing them or limiting our ability to exercise them in the future. Without limiting the foregoing, we may choose to accept late payments, partial payments, or payments with any restrictive writing without losing any of our rights under this Agreement. This means that no payment, including those marked with paid in full or with any other restrictive words, shall operate as an accord and satisfaction without the prior written approval of one of our senior officers. You may not use a postdated check to make a payment, and currently, you may not make any payment to us by check. If you do send us a check or postdate a payment check, we may elect to honor it upon presentment or return it uncredited to the person that presented it, without in either case waiting for the date shown on the check, and we are not liable to you for any loss or expense arising out of the action we elect to take.
Information about you
3.1. USING AND SHARING YOUR INFORMATION.
3.2. AGREEMENT TO PROVIDE ACCURATE INFORMATION.
You agree that when you provide information to Willowpay, you will only and at all times provide true, accurate, current, non-misleading, and complete information, and you agree not to misrepresent your identity or any of your account information or related details. You further agree to keep your account information up to date and accurate. You represent that any phone number that you provide to us belongs to you and/or that you are authorized to provide that number. You must notify us promptly when you change your address or any phone number. We may also change your address if so notified by the post office or others.
3.3. CREDIT BUREAU REPORTING.
You authorize us to investigate your creditworthiness and to obtain consumer reports about you in connection with your application for the right to use our Services and for as long as your account is open and/or this Agreement is in effect. You authorize us to use such information and consumer reports for any purpose, including without limitation, to evaluate your application, to service and collect your account, to review whether changes should be made to the terms of your account, and to consider you for offers for other products and services. You represent to us that all information associated with your identity held by any national credit bureau is true and correct in all material respects and that there has been no Material Adverse Change which is not reflected therein.
Your Other Agreements/Obligations
4.1. ACCESS TO YOUR ACCOUNT.
You are responsible for maintaining the secrecy of the login credentials to your Willowpay account. You agree to establish reasonable security procedures and controls to limit access to your password or other identifying information to authorized individuals, which includes choosing passwords and other credentials in a manner that will protect the security of your information. Your credentials include your username and password to your Willowpay account and to any third party account you have used to login to your Willowpay account.
Please notify us immediately of the loss, theft, or possible unauthorized use of your account at support@Willowpay.com.
If you permit any person to use your account information, login, or other details with the authorization to obtain credit on your account, you will be liable for all transactions made by that person including transactions for which you may not have intended to be liable, even if the amount of those transactions causes your Available Spend to be exceeded. Further, you acknowledge and agree that you will not hold Willowpay responsible for, and will indemnify Willowpay from, any liability arising from the actions or inactions of this third party in connection with the permissions you grant. Authorized users of this account may have the same access to information about the account and its users as the account holders. Notice to any of you will be considered notice to all of you. We do not advise you to share your account details with other users, but we will consider someone to be an authorized user on your account if you: (1) notify us in writing that you want someone (such as a trustee, executor, or spouse) added to your account as an authorized user; (2) lend or otherwise intentionally give your account access details to another; or (3) take any other action in which you would be legally considered to have allowed another to use your account or to be legally prevented from denying that you did so. You must think carefully before you allow anyone to become an authorized user. By doing so, you authorize the person to use your account to the same extent you can, including but not limited to making any purchases and allowing others to use your account. Your account does not permit you to limit the nature or amount of authority you give to any authorized user and you will not attempt to do so. An authorized user’s authority will continue until you both notify us that you are terminating the authority and you create new access details (i.e. login and/or password).
You agree to allow Willowpay to send you payment reminders from time-to-time. Notwithstanding whether you have consented or withdrawn your consent to the Willowpay E-Sign Consent, you agree that payment reminders may take the form of any available communication, to the extent not prohibited by law, including, without limitation, emails and text messages. You may, however, request in writing that Willowpay cease collection communications and you may revoke your consent to be contacted using an automated dialer system or automatic telephone dialing system.
You also agree that if you fail to pay an amount owed to Willowpay pursuant to this Agreement, Willowpay may engage in collection efforts to recover such amounts from you. These collection efforts may involve contacting you directly, submitting your information to a collections agency, or taking legal action. We may report information about this Agreement to credit bureaus. Late payments, missed payments, or other defaults on this Agreement may be reflected in your credit report.
4.3. COMMUNICATION & NOTIFICATION.
You agree that Willowpay may provide you communications about your account and the Willowpay services electronically or through phone calls or in writing. Standard mobile, message, or data rates may apply and you are responsible for any such fees. Willowpay reserves the right to close or limit access to your account and immediately collect all due amounts if you withdraw your consent to receive electronic or other communications. Any electronic communications will be considered to be received by you within 24 hours of the time we email it to you or otherwise send it to your attention (such as via text message or other online notification). We may assume you have received any communications sent to you by postal mail 3 business days after we send it.
4.4. CONSENTS TO COMMUNICATE.
If we need to contact you to service your account or to collect amounts you owe to us, you give direct consent to us that we, as well as servicers, agents, contractors and collectors of your account, may communicate with you in any way, such as calling, texting, or e-mail via:
Where you have provided a mobile phone number directly to us, you consent and agree to accept servicing calls and text messages to your mobile phone from us. For example, we may place calls to you about fraud alerts or amounts you owe us (collection calls) on your account. For any telephone or mobile phone calls/communications we place to you, you consent and agree that those calls may be automatically dialed including prerecorded messages or texts.
Without limiting the foregoing, you consent to us, as well as any other owner or servicer of your account, contacting you through any channel of communication and for any purpose, as permitted by applicable law. For informational, servicing or collection related communications, you agree that we may use the phone numbers that you provide to us to contact your cellular phone or wireless device with text messages, artificial or prerecorded voice calls, and calls made by an automatic telephone dialing system. This consent applies even if you are charged for the call under your plan. You are responsible for any charges that may be billed to you by your communications carrier when we contact you.
You also agree that these communications are not unsolicited for purposes of any state or federal law, and you understand that this may result in additional mobile, text message, or data charges.
You may revoke any of your consents above, to the extent required by applicable law, by contacting us.
Notwithstanding this provision, Willowpay’s delivery of any Disclosures governed by the Willowpay E-Sign Consent shall be governed by your consent or withdrawal of consent to receiving such Disclosures in electronic form.
4.5. MONITORING AND RECORDING. You understand and agree that Willowpay, any of its affiliates, or its marketing associates, or service providers may, without further notice or warning (unless required by applicable law) and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Willowpay or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with Willowpay may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Willowpay, and Willowpay does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
4.6. You may not sell, assign or transfer any of your rights or duties under this Agreement or your account. If your account is closed, you must stop using it. You must still pay the full amount you owe and this Agreement will remain in effect until you do.
5.1. You will be in default of this Agreement if you (i) fail to make any required payment in full by its due date; (ii) file or have instituted against you any bankruptcy or insolvency proceedings or make any assignment for the benefit of creditors; (iii) make any representation to us that is misleading, fraudulent, deceptive, or false; (iv) experience any MAC; or (v) you fail to abide by any term of this Agreement. Further, we may treat any MAC affecting similarly situated consumers as an event of default. In the event of a default, we may exercise all remedies available under applicable law, including (without limitation) (a) adjusting your payment schedule into fewer or more frequent payments, or (b) accelerating all obligations associated with your account and/or the Services and demanding payment of all that you owe under this Agreement and/or on your account.
5.2. WHAT WE MAY DO IF YOU ATTEMPT TO EXCEED YOUR AVAILABLE SPEND. The total outstanding balance on your account plus authorizations at any time must not be more than your Available Spend. Each time you attempt a transaction which results in your applicable outstanding balance (plus authorizations) exceeding your Available Spend, we may: (1) permit the transaction without raising your Available Spend; (2) permit the transaction and treat the amount of the transaction that is more than the Available Spend as immediately due; or (3) refuse to permit the transaction. If we refuse to permit the transaction, we may advise the person who attempted the transaction that it has been refused.
5.5. REFUSAL TO HONOR YOUR ACCOUNT. We may deny any transactions for any reason at our discretion. We are not liable for any refusal to honor your account.
5.6. ASSIGNMENT OR SALE. We may at any time, and without notice to you, sell, assign or transfer your account, any amounts due on your account, this Agreement, or our rights or obligations under your account or this Agreement to any person or entity. The person or entity to whom we make any such sale, assignment or transfer shall be entitled to all of our rights and shall assume our obligations under this Agreement, to the extent sold, assigned or transferred.
5.7 BILLING ERRORS, OVERCHARGES, AND UNDERCHARGES. In the event we collect from you any overcharges that result in your account being credited with an amount that cannot be applied to any other amounts owed, we will refund your payment method. In the event we fail to charge your nominated payment method or for any other reason your account is undercharged, a refund is posted to your account in error, or there is an adjustment in the Purchase Price occurring after the time of purchase, you agree that we may, at our discretion, (i) adjust your existing billing schedule to account for such additional amount, (ii) restart your billing cycle, (iii) start a new billing cycle from the date such amount is applied to your account, and/or (iv) require such amount be immediately paid in full.
How Willowpay will resolve disputes.
6.1. DISPUTES WITH Willowpay.
If a dispute arises between you and Willowpay, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact Willowpay at support@Willowpay.com (mailto:support@Willowpay.com) to try resolving your problem directly with us.
RESOLVING A DISPUTE WITH ARBITRATION PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. What claims are subject to arbitration: 1. If either you or we elect to use arbitration and make a demand for arbitration, then you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or dealers/Merchants/Retailers that accept payment using any Service or the virtual card, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
6.2. NO CLASS ACTIONS.
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE. If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.
6.3. HOW TO START AN ARBITRATION, AND THE ARBITRATION PROCESS.
6.4. GOVERNING LAW FOR ARBITRATION. This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). New York law shall apply to the extent state law is not preempted and otherwise relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.
6.5. HOW TO REJECT THIS SECTION. You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to Willowpay, Inc., Legal Operation, 27 W 24th Street Fl 2 New York NY 10010, ATTN: ARBITRATION OPT-OUT. This is the only way you can reject this section.
6.6. EXCEPTIONS TO INFORMAL NEGOTIATIONS AND ARBITRATION.
You and Willowpay agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or Willowpay’s intellectual property rights; and (2) any claim for injunctive relief.
7.1. ENFORCEABILITY AND GOVERNING LAW.
The failure or delay of Willowpay to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision and does not prevent Willowpay from later exercising such right or provision. This Agreement sets forth the entire understanding between you and Willowpay with respect to the Services. If any provision of this Agreement is held to be unenforceable, the unenforceable term or provision shall be replaced by an enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision and the remaining provisions shall be enforced. To the extent that anything in or associated with the Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.
The laws of the State of New York (without regard to conflicts of laws principles) govern your access to, and use of, the Services and the terms of this Agreement.
7.2. INTELLECTUAL PROPERTY.
All content, design, graphics, compilation, magnetic translation, digital conversion and other matters to the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and owned by Willowpay or one of its affiliates. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.
“Willowpay” is the marketing name for certain activities of Willowpay, Inc. as operator of the Services. “Willowpay” and “Buy with Willowpay” are trademarks of Willowpay, as are all other names, logos and slogans associated with Willowpay products and services. Other featured words or symbols may be the trademarks of their respective owners.
You agree to indemnify, defend and hold harmless Willowpay, its affiliates, and its and their respective officers, directors, employees, agents, representatives, successors, and assigns from any and all claims, debts, losses, liabilities, demands, obligations, costs, expenses (including reasonable attorneys’ fees), fines, penalties, actions and causes of action, judgments (collectively, “Losses”) and threatened Losses arising from or in connection with your use of the Services or violation of this Agreement.
Willowpay AND ITS AFFILIATES MAKE NO COMMITMENTS OR WARRANTIES ABOUT THE CONTENT, RELIABILITY, OR AVAILABILITY OF THE SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES. Willowpay AND ITS AFFILIATES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY REGARDING NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Willowpay AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SERVICES.
7.6. LIMITATION OF LIABILITY.
Willowpay AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY PRODUCT AVAILABLE FROM OR THOUGH THE WEBSITE OR ANYONE’S (INCLUDING YOUR) USE OF THE SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, Willowpay AND ITS AFFILIATES ARE NOT LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE; NOR ARE THEY LIABLE.
FOR ANY THIRD PARTY CLAIMS OF ANY NATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROM US FROM OR THROUGH THE WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. NEITHER Willowpay NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY.
7.7. LIMITATIONS PERIOD.
7.8. NO THIRD-PARTY BENEFICIARIES.
This Agreement is between you and Willowpay. No user has any rights to force Willowpay to enforce any rights it may have against you or any other user.
7.9. COVERED BORROWERS UNDER THE MILITARY LENDING ACT.
If you are a “covered borrower” as defined under 32 C.F.R. § 232.3(g) and you have received “consumer credit” as defined under 32 C.F.R. § 232.3(f) in connection with your account, then the following applies:
Important Disclosure: 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 dependent 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 fee charged (other than certain participation fees for a credit card account). To obtain an oral statement regarding the Military Annual Percentage Rate and a description of the payment obligation, Military Lending Act covered borrowers may call: 1-eight-eight-eight-215-27-eight-5. Note that this line is pre-recorded does not accept voicemail.
Compliance with the Military Lending Act: Notwithstanding any other provision of this Agreement, if you are a “covered borrower”, then nothing in this Agreement shall be construed as applying to you to the extent inconsistent with the Military Lending Act, including without limitation any finance charges, fees, or limitations on your rights that would not be consistent with the Military Lending Act. Without limiting the foregoing, as applied to a covered borrower: (1) any 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 the covered borrower’s account or by making a direct payment to the covered borrower; (2) the arbitration terms in sections 6.1-6.6 shall not apply; and (3) all waivers of legal recourse in this Agreement shall not apply.
7.10. FEEDBACK YOU PROVIDE.
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. If we accept your submission, we do not waive any rights to use similar or related ideas or feedback previously known to us, developed by our employees, or obtained from sources other than you.
7.11. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods. This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Service-related materials obtained from the Service, Willowpay or any other website or source and paying all amounts you owe (including any fees or expenses incurred or imposed by Willowpay) in full. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from Willowpay if, in our sole discretion, you fail to comply with any term or provision of this Agreement. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. This Agreement contains the entire understanding between you and Willowpay, and supersedes all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you except by Willowpay as provided herein. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon Willowpay’s request, you will furnish Willowpay any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Willowpay by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
7.12. Material Adverse Changes. “Material Adverse Change,” or “MAC,” shall mean any circumstance, change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, (a) has had, or may reasonably be expected to have, a material adverse effect on your assets, liabilities, properties, operations, or results of operations, or those of similarly situated individuals (b) has prevented, impaired or materially delayed, or would reasonably be expected to prevent, impair or materially delay your ability, or that of similarly situated individuals, to perform your obligations under this Agreement, including (without limitation) due to any of the following occurring in the United States or any other country or region in the world:
CONSENT TO ELECTRONIC COMMUNICATIONS
By (i) submitting an application online or (ii) registering for online or mobile services for your Account, you hereby agree to the following and this will constitute your consent for us to send you electronic communications about your Account. When you successfully consent through the online or mobile site, you have successfully demonstrated that you are able to access information we have posted on such online or mobile site.
Categories of Communications. You consent to receive communications relating to your Account in electronic form. The communications covered by your consent may include, but are not limited to, (i) the initial disclosure statement or agreement governing your Account, (ii) any disclosure required by federal, state or local law, (iii) your billing statement, if you have signed up to receive electronic statements, (iv) letters, notices or alerts regarding your Account and any changes to your Account, and (v) other disclosures, notices or communications in connection with the application for, the opening of, maintenance of or collection of your Account. These electronic communications may include your name and some information about your Account, including your balance or the due date; however, we will not include your full account number or social security number. Electronic communications may be reviewed by any party with access to your Account, the e-mail account you have provided to us for delivering these communications, or the hardware or software you use to view your Account information or your e-mail account.
How to Withdraw Your Consent. You may not apply online for an Account and you may not use your account, unless you also provide your consent to receive electronic communications. If you have successfully created an account and you wish to withdraw your consent to receive future electronic communications, you must cancel and close your account in accordance with the account Agreement to completely withdraw your consent to receive electronic communications. We will not impose any fee to process the withdrawal of your consent to electronic communications. However, you will not be able to receive or review your account information if you do not consent to receive electronic communications or you later withdraw your consent. Any withdrawal of your consent to electronic communications will be effective only after we have a reasonable period of time to process your account cancellation request, and only if you have also met the other conditions for closing your account.
How to Update Your Records. You agree to promptly update your e-mail address if a change occurs by updating your information through the Willowpay website or by calling customer service.
Hardware and Software Requirements. In order to access and retain electronic communications, you must have the following:
Paper Copies of Communications. Upon your request we will provide you with a paper copy of a communication that we provide you electronically. If you would like a paper copy of any material, please write to us at Willowpay, Inc., 27 W 24th Street Fl 2 New York NY 10010 or call us at the phone number listed on your account dashboard or billing statement. There will be no charge for a paper copy of any material we have sent you electronically.
Communications in Writing. All communications in either electronic or paper format from us to you will be considered “in writing.” You should print or download a copy of this consent, the Account agreement, and any other electronic communication that is important to you for your records.
Electronic Signatures. You acknowledge that by clicking on the “Submit,” “Apply,” “Buy with Willowpay” or similar button, you are indicating your intent to sign up for electronic communications and that this shall constitute your signature.
Federal Law. You acknowledge and agree that your consent is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that you and we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business and communicate with you by electronic means.
IMPORTANT TERMS FOR ELECTRONIC STATEMENTS
In addition to the above, the following information applies:
Statement Inserts. Any inserts that would be included with a statement sent by U.S. mail may also be sent to you electronically. If an insert contains legally required material, to ensure that you receive the necessary material, we may send you a paper copy of your statement in addition to making the statement available to you electronically. Any legally required insert that would not be available electronically will be sent to you by U.S. mail.
Payment Information. Even though you will not receive paper statements, you must still pay at least your Minimum Payment and have it received by us by 5 p.m. (ET) on the Payment Due Date. You can do this through your account dashboard, an electronic bill pay service (whether through this website or using a third party servicer or bank) or by mailing your payment to us at the address shown on your electronic statement. Please note, if you do not pay us electronically, the crediting of your payment may be delayed by up to five days after receipt.
Returned E-mails. If e-mails advising you of your account status are returned to us, we may attempt to reach you via other methods, which may include paper communications, but our inability to contact you shall have no impact on your due dates, amounts due, or other aspects of your account with us.
SPAM Filters. We will make every effort to ensure our e-mail notifications are properly listed with all SPAM filter agencies. However, you are responsible for ensuring that any SPAM filters recognize e-mail originating from us. If you fail to receive e-mail notifications from us after enrolling for electronic statements, please check with the provider of your e-mail account and/or the SPAM filter associated with your e-mail account.
Account Delinquency. We reserve the right, at any time and without notice, to stop providing you with electronic statements and provide you with paper statements, if your account is not maintained in good standing.
Cancellation. We reserve the right, at any time, to stop providing you electronic statements and provide you with paper statements. If we do so, we will provide you with prior notice, except in the case of account delinquency.
Definitions used in this consent: “You” and “your” mean the primary applicant or accountholder; “We”, “us” and “our” mean Willowpay, Inc.; “Account” means your Willowpay, Inc. account.
All other terms used in this consent shall have the meanings given to them in the Account agreement.