Flex Pay by Upgrade Terms of Use

These Terms of Use describe your rights and responsibilities when using Flex Pay by Upgrade (which includes these product names), including obligations and alternatives for resolving disputes or violations of the Terms of Use. You should read this agreement in its entirety and you may want to print a copy for your records.

Effective: September 1, 2024

These Terms contain an arbitration provision. Unless you properly reject the arbitration provision, or are protected by the Military Lending Act, it will have a substantial effect on your rights in the event of a dispute, including, but not limited to, right to sue in court, your right to a jury and your right to participate in class actions. Please review Section 17 for the details regarding your agreement to arbitrate any disputes with us.

Thank you for your interest in Flex Pay by Upgrade. Please read these Terms of Use before using any website (“Site”), mobile application (“App”), code or other software (whether or not from the Site) or any other service provided by Upgrade, Inc. and its subsidiaries (“Upgrade”, “Company”, “we” or “us”) in connection with any product offered through Flex Pay by Upgrade (“Flex Pay by Upgrade”) (all collectively, our “Service”).

Most loans originated through Flex Pay by Upgrade are made by a partner bank. Some loans are made by Company. For more information, visit:upgrade.com/flex-pay/lenders

1. These Terms
2. Using the Service
3. Creating an Account
4. The Flex Pay App
5. Initial Payments
6. Loan Proceeds
7. Loan Servicing
8. Feedback
9. Service Rights; Restrictions
10. Copyright
11. Other Sites and Content
12. Complaints and Disputes
13. Privacy
14. Disclaimers; No Warranties
15. Limitation of Liability
16. Indemnity
17. Arbitration; No Class Actions
18. Additional Terms

1. These Terms

1.1 Agreement to the Terms. By using the Service, you agree that you have read, understood, and agree to be bound by these Terms of Use, and the Privacy Policy (collectively, these “Terms”). In addition to these Terms, you may enter into other agreements with us or others that will govern your use of the Service or related services offered by us or others. If there is any contradiction between these Terms of Use and another agreement about specific aspects of the Service, the other agreement shall take precedence. If you do not agree to these Terms, you may not use the Service. We may terminate use of the Site and Services at any time, for any or no reason.

1.2 Violation of the Terms. If you violate any provision of these Terms, or any other agreement with us, you are no longer permitted to use the Service.

2. Using the Service

2.1 Service Overview. Upgrade offers access to closed-end installment loan products on a third party’s website, from a travel agent, or through our App. Most loans are made by a bank (the “Originating Bank”). Upgrade provides the Originating Bank with services in connection with the origination and servicing of the loans. Loans in Colorado are made by Upgrade. Through the Service, you may apply to finance your purchase from a merchant with a loan. If you receive a loan offer and agree to a loan, the Bank or Upgrade will pay the merchant in exchange for your promise to repay the loan, according to the terms of your Promissory Note. You may be required to make an initial payment in addition to your loan.

2.2 User Age. Anyone who accesses or otherwise uses the Services (a “User”) must be at least eighteen years of age. Use of or access to the Site by a younger person is unauthorized and violates these Terms. By using the Service, you represent and warrant that you are at least eighteen years of age.

2.3 Providing Accurate Information. You agree to provide us with accurate information and to keep it up to date.

2.4 Mobile Phones. When you use the Service you may be asked to provide your mobile-phone number. You certify, warrant, and represent that any telephone number you provide is your own number, and does not belong to someone else. You also represent that you are permitted to receive calls and SMS (text) messages at any telephone number you provide. You understand that your cellular or mobile telephone provider will charge you according to the type of plan you carry.

2.5 Data Collection and Sharing. You authorize us to collect and store information about you and the devices you use, including the location information of your mobile phone, to access the Site, an App or use the Service. You also consent to allowing the location information of your mobile phone to be used by us. We may share your information with third parties as set forth in our Privacy Policy. You authorize your wireless carrier to use or disclose information about your account and your wireless device, if available, to us or our service provider for the duration of your business relationship, solely to help us identify you or your wireless device and to prevent fraud. See our Privacy Policy for how we treat your data.

2.6 Discontinuation or Termination. We may terminate, disable, or throttle your access to, or use of the Services at any time without notice for any reason, with or without cause at Upgrade’s sole discretion. We reserve the right to modify or discontinue the Service at any time, including by limiting or discontinuing certain features of the Service, without notice. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. Failure by Upgrade to enforce any of its rights under this Agreement shall not be construed as a waiver of those rights or any other rights in any way whatsoever.

3. Creating an Account

3.1 Eligibility. To be eligible for an account, you must be a US citizen, permanent resident or non-permanent resident alien in the United States on a valid long-term visa.

3.2 Setting Up an Account. You can set up a lending account with Upgrade when using the Service (“Account”) and an app login profile through our App (“App Profile”). If you use the Service, you may be required to provide us with some information about yourself, such as your name, date of birth, e-mail address, your mobile phone number, and other personal information, so that we can verify your identity, as required by Section 326 of the USA PATRIOT ACT.

IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT:
To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an Account. What this means for you: When you open an Account, we will ask for your name, address, date of birth, and other information that will allow us to identify you.

3.3 Account Security. Upgrade uses various methods to keep your Account secure. You agree not to disclose any verification details and security settings to others and to keep them secure. You are solely responsible for maintaining the confidentiality of your Account and access method. You agree to accept responsibility for all activities that occur under your Account. If you have reason to believe that your Account is no longer secure, immediately notify us at customercare@upgrade.com.

3.4 No Guarantee. Neither Upgrade nor the Originating Bank warrants or guarantees that you will receive a loan as a result of submitting a loan request or credit application.

3.5 Account Verification. You acknowledge and agree that we may verify any information you submit either by asking for true and complete copies of necessary documentation, additional documentation, or by other proof or through a third party.

3.6 Application History. We will retain your credit application whether or not it is approved, in order to comply with applicable law.

3.7 Restrictions. You agree not to (1) register for an Account on behalf of anyone other than yourself; (2) use an Account on behalf of or for the benefit of any person who is not eligible to register for or operate an Account in their own name; (3) register for an Account on behalf of any group or entity; (4) impersonate any person, or falsely state or otherwise misrepresent yourself or your age; (5) use or attempt to use another’s Account, service, or system without authorization from that person; or (6) create a false identity on the Service or the Site.

4. The Flex Pay App

Upgrade may offer an App that allows Users to shop for goods and services from third parties on the app and pay through a loan. Upgrade is not responsible for any content in websites linked in the Upgrade App. Upgrade has no obligations related to a sale of goods and services by a third party within the App. Upgrade may earn a commission from qualifying purchases when including a merchant’s link to products and services in the Shop with Upgrade App. Third parties (including affiliate networks and other advertisers) may serve content and advertisements, collect information from you when visiting such third-party websites, and place or recognize cookies on visitors’ browsers. Financing an in-app purchase on a merchant site is only possible through the use of an Upgrade-generated virtual card, with exact card details, name and billing information as provided in the Upgrade loan application. A transaction will not be approved and no use of Upgrade financing service will occur if a different form of payment is entered on the merchant checkout.

5. Initial Payments

Some purchases involve an initial payment made at the time you complete your transaction with the merchant. The initial payment is the first payment due under the loan agreement.
Notwithstanding the fact that Upgrade is not a party to the agreement between you and the merchant, Upgrade acts as the merchant’s payment collection agent for the limited purpose of accepting payments from you on behalf of the merchant. Upon making a payment to Upgrade, your payment obligation to the merchant for such payment amount is extinguished, and Upgrade is responsible for remitting the payment to the merchant. In the event that Upgrade does not remit such payment to the merchant, the merchant will have recourse only against Upgrade, not you.

6. Loan Proceeds

6.1 Use of Loan Proceeds. You agree that all loan proceeds will be used to fund the purchase of services from the designated merchant.

You will not use the Services to purchase:
Ammunition, firearms, certain firearm parts or accessories, and certain weapons or knives regulated under applicable law;
Narcotics, steroids, controlled substances, quasi-pharmaceuticals, or drug paraphernalia;
Currency in any form, including virtual and digital currency;
Gift cards or gift certificates
Any goods or services deemed unacceptable by Upgrade or its Bank Partner(s), in their sole discretion; You will not use the Services to accomplish a cash advance, wire or money transfer.

6.2 Unused Loan Proceeds. Upgrade’s Services are designed to enable the financing of specific purchases from merchants. If your purchase costs less than the expected amount, unused loan proceeds will be credited to your account.

6.3 Illegal Activity. You agree that you will not use the Service to fund illegal activity.

7. Loan Servicing

7.1 Servicing by Upgrade. Upgrade acts as the servicer of your loans. Upgrade may delegate servicing to another entity.

7.2 Loan Payments. You must have the authority to use any payment method. For loans serviced by Upgrade, you may make payments online at our Borrowers Portal. You also may pay by personal check by contacting customercare@upgrade.com or by regular mail to Upgrade, Inc., c/o Flex Pay, 2 N Central Ave, 10th Floor, Phoenix, AZ 85004, Attention: Payment Processing.

7.3 Credit Reporting. Information about your loan account, including your repayment history, may be reported to credit reporting agencies, in accordance with applicable law.

7.4 Communications. You consent to be contacted by Upgrade or the Bank, or their agents, for any and all purposes relating to your loan request, loan or account, at any telephone number, any physical or electronic address you provide, or by any other means by which you may be reached. You agree we may contact you in any way, including e-mail, SMS messages (including text messages), calls using pre-recorded messages or artificial voice, and calls and messages delivered using an automated telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. An agent or representative may leave a message on your answering machine or voice mail, or send one via text. Your cellular or mobile telephone provider may charge you according to your plan. We may listen to and/or record phone calls between you and our representatives without notice as permitted by applicable law, including for quality monitoring purposes.

8. Feedback

If you provide feedback to Upgrade regarding the Service (“Feedback”), you authorize Upgrade to use that Feedback without restriction, acknowledgement or payment to you. You grant to Upgrade a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.

9. Service Rights; Restrictions

9.1 Upgrade Content. All content on the Site or an App, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound, and other files, and their selection and arrangement that is created and hosted by Upgrade (the “Content”), is the proprietary property of Upgrade with all rights reserved. The Site, an App and our Service may include links to other websites (“Third-Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, logos, music, sound, video, information, software and other content belonging to or originating from third parties (the “Third-Party Content”), which is not Upgrade’s proprietary property. Upgrade excludes any responsibility for any content accessible through third- party links embedded in the Site or an App

9.2 Laws and Regulations. You agree to comply with all applicable laws and regulations in your use of the Service, including in your use of the Code.

9.3 Prohibited Uses. You may not, and may not permit others to (a) use the Service in a manner that violates, or encourage others to violate, the rights of third parties; (b) use the Service for any illegal purpose, or in violation of any local, state, national, or international laws or regulations; (c) interfere with security-related features of the Service, including disabling or circumventing features that prevent or limit use or copying of any content; or (d) intentionally interfere with or damage, impair, or disable the operation of the Service (or any part thereof) or any customer’s enjoyment of it, by any means.

9.4 Restrictions. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without Upgrade’s prior written permission. Except as expressly provided in these Terms, you may not, and may not permit others to (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service (or any part thereof) or otherwise make the Service (or any part thereof) available to any third party; (b) alter, modify or create derivative works of the Service (or any part thereof); (c) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service (or any part thereof) or during the use and operation of the Service (or any part thereof); or (d) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such restriction is expressly prohibited by applicable law.

9.5 Proprietary Rights. The Service is owned and operated by Upgrade. Provided that you are eligible for use of the Site or an App, you are granted a limited license to access and use the Site or an App and to download or print a copy of any portion of the Site or App Content solely for your use in connection with your use of the Site, an App or Service, provided that you keep all copyright or other proprietary notices intact. The visual interfaces, graphics, logos, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Upgrade are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials, except for some Third Party Content under Sec. 10, contained in the Service are the property of Upgrade or third-party licensors. Except as expressly authorized by Upgrade in these Terms, you may not make use of the Materials or Service. Upgrade reserves all rights to the Materials and Service not granted expressly in these Terms. You may not republish Content or incorporate the information in any other database or compilation. Any other use of the Content is strictly prohibited. Any use of the Site, an App or the Content other than as specifically authorized herein, without the prior written permission of Upgrade, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable by us at any time without notice and with or without cause. You may not:

use any automated means to access this Site or an App or collect any information from the Site or an App (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);
frame the Site or an App, use framing techniques to enclose any Content or other proprietary information, place pop-up windows over this Site’s pages or an App, or otherwise affect the display of this Site’s pages or an App page;
engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining content or other information;
upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial or non commercial solicitation or bulk communications of any kind to any Upgrade Users or third party; use data provided by Upgrade, provided in any manner whatsoever, for any competing uses or purposes. You further agree that you have never used data, provided in any manner whatsoever, from Upgrade in the past to compete with the products or services of Upgrade; or
use this Site or an App in any manner that violates applicable law or that could damage, disable, overburden, or impair this Site or interfere with any other party’s use and enjoyment of this Site or an App.

10. Copyright

If you believe that any material on the Site or an App infringes upon any copyright which you own or control, you may send a written notification of such infringement to us at Upgrade, Inc., Attention Legal Department, 2 N Central Ave, 10th Floor, Phoenix, AZ 85004 or legal@upgrade.com.

11. Other Sites and Content

We do not investigate, monitor or check for accuracy, appropriateness, or completeness of Third-Party Sites or Third-Party Content. We are not responsible for Third-Party Sites accessed through the Service or an App or any Third-Party Content posted on the Site or an App. Inclusion of or linking to any Third-Party Site or any Third-Party Content does not imply our approval or endorsement nor does it obligate to fulfil any of such Third Parties’ obligations (in particular, any obligation to sell you a product). If you leave the Site, an App or Service and access Third-Party Sites, you do so at your own risk.

12. Complaints and Disputes

If you have a complaint about Upgrade or if a dispute arises between you and Upgrade, we encourage you to contact Upgrade at customercare@upgrade.com or (844) 257-5400 so that we can resolve the issue.

13. Privacy

Our Privacy Policy explains how we use and protect user data, and your rights.

14. Disclaimers; No Warranties

To the extent not prohibited by applicable law, the Site or an App and our products and services are provided “as-is” and without any representation or warranty, whether express, implied, or statutory. Upgrade, our directors, agents, employees, and suppliers expressly disclaim all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, adequacy, title, and non-infringement. Upgrade does not warrant that the service is error-free or uninterrupted. Upgrade does not warrant that any information provided through the service is accurate or complete or that any information provided through the service will always be available. Upgrade exercises no control over and expressly disclaims any liability arising out of or based upon the results of your use of the service. We cannot guarantee and do not promise any specific results from use of the Site and/or our products and services.

The Site, an App and the Service may be temporarily unavailable from time to time for maintenance or other reasons. Upgrade assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft, or destruction, unauthorized access, or alteration of User communications. Upgrade is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Site, or combination thereof, including injury or damage to Users or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will Upgrade be responsible for any loss, damage, financial damages, lost profits, loss of business, personal injury, or death resulting from anyone’s use of the Site, an App or the Service.
Upgrade reserves the right to change any and all content contained in the Site, an App and any Services offered through the Site or an App at any time without notice. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Upgrade.

15. Limitation of Liability

EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE EXPRESSLY PROHIBITED BY LAW, IN NO EVENT WILL UPGRADE OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS, LOST DATA, OR OTHER INTANGIBLE LOSSES ARISING FROM OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE UPGRADE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
You agree that the aggregate liability of the Upgrade entities to you for any and all claims arising out of relating to the use of or any inability to use the service (including any materials or content available through the service) or otherwise under these terms, whether in contract, tort, or otherwise, is limited to the greater of (i) the amount you have paid to Upgrade for access to and use of the service in the 12 months prior to the claim or (ii) $100.
Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions are severable and independent of all other provisions of these terms. The limitations in this Section and Section 18.5 will apply even if any limited remedy fails of its essential purpose.

16. Indemnity

You agree to indemnify and hold Upgrade, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with your use of the Service or the Site or an App, your conduct in connection with the Service or the Site or an App or with other Users of the Service or the Site or an App, or any violation of these Terms of Use or of any law or the rights of any third party.

17. Arbitration; No Class Actions

RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS MY RIGHTS IN THE EVENT OF A DISPUTE BETWEEN ME AND UPGRADE, BANK, AND ANY ASSIGNEES OF BANK OR UPGRADE. I UNDERSTAND THAT I HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN PARAGRAPH (2) BELOW. If you are a “Covered Borrower” as defined by the Military Lending ACT (32 CFR §232, as amended from time to time) at the time of entering into this Agreement, this Section 17 is not applicable, and you do not need to opt out of or take any action to ensure inapplicability.

1. Either party may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 17 (the “Arbitration Provision”), unless you opt out as provided in Section 17.2 below. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or any subsequent holder (or persons claiming through or connected with us and/or the subsequent holders), on the other hand, relating to or arising out of these Terms, any Borrower Agreement and Promissory Note and Promissory Note(s), the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of Section 17.6 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counterclaims, crossclaims, third party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.

2. You may opt out of this Arbitration Provision for all purposes by sending a signed arbitration opt-out notice, in writing, within 30 calendar days of accepting the terms of this Agreement to: Originating Bank or Loan Holder, c/o Upgrade, Inc., 2 N Central Ave, 10th Floor, Phoenix, AZ 85004, Attention: “Arbitration Opt Out”. Your notice must be received at this address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number or loan number, if applicable; and be signed by you. You may send an opt out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.

3. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.

4. If we (or the subsequent holder) elect arbitration, we (or the subsequent holder, as the case may be) shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We (or the subsequent holder, as the case may be) shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we (or the subsequent holder) pay them and we agree (or the subsequent holder agrees) to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.

5. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.

6. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 17.6, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 17.6 shall be determined exclusively by a court and not by the administrator or any arbitrator.

7. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.

8. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties and/or Upgrade; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or Borrower Agreement or Promissory Note(s) or any other promissory note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than Section 17.6 is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration proceeding is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 17.6 are finally adjudicated pursuant to the last sentence of Section 17.6 to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.

18. Additional Terms

18.1 Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as the Privacy Policy, terms specific to an App or any Application Programming Interface (“API”) that we may offer, or rules applicable to particular features or content on the Service. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.

18.2 Changes to the Terms. Upgrade reserves the right, at our discretion, to change these Terms at any time. We will post the changed Terms of Use on the Site and/or an App and will indicate at the top of this page the date the Terms of Use were last revised. By continuing to access or use the Service after any changes become effective, you agree to be bound by the revised Terms.

18.3 No Waiver. The failure of Upgrade to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance.

18.4 Severability. If any provision of these Terms of Use is held invalid, the remainder of these Terms of Use shall continue in full force and effect. If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

18.5 Governing Law. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Upgrade agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes.

18.6 Amendment. This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Upgrade regarding your use of and access to the Service, and except as expressly permitted above, may be amended only by a written agreement signed by authorized representatives of all parties to these Terms.

18.7 Assignment. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice.

18.8 Waiver. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

18.9 Interpretation. Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.

18.10 Post-Termination. Upon termination of these Terms, the following Sections will survive such termination: 4, 8, 9.5, 14, 15, 17, 18, and any other provision that by its terms survives termination of your use or access to the site.