SplitPay Terms of Service
Last Updated: May 2020
PLEASE READ THESE SPLITPAY TERMS OF SERVICE CAREFULLY. THESE SPLITPAY TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY. PLEASE PAY SPECIAL ATTENTION TO CAPITALIZED PROVISIONS. YOU SHOULD PRINT A COPY OF THESE SPLITPAY TERMS OF SERVICE FOR YOUR RECORDS.
SplitPay is not available to customers in California.
By accessing the website of Lon Operations LLC (d/b/a Bread) (collectively, along with its successors and assigns, “Bread,” the “Company,” “we,” or “us”) or the Bread SplitPay Services (as defined below), you signify that you have read, understand and agree to be bound by these SplitPay Terms of Service.
The “Bread SplitPay Services” may include:
- Bread’s technology interface, which may be used on a third party website operated by a merchant (each, a “Merchant”) or through other electronic means either on an e-commerce website, in a retail store, by phone, or by any other method through which the Bread SplitPay Services are made available, and through which you determine potential eligibility and submit an application to make a purchase through deferred payments under a retail installment agreement (a “Purchase Agreement”) with the Merchant (each, a “Purchase”).
- The portal through which you may access information and manage the account associated with your Purchase(s) (your “Account”), including scheduling payments and accessing important information with respect to your Purchase (such portal the “Member Portal”);
- Our interactions with you in the course of providing services in connection with your Account or with your Purchase, including electronic, written and telephone communications (“Bread Communications”); and
- Other products and services ancillary to each of the foregoing which may be provided by Bread from time to time to you
EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
The headline summaries at the beginning of each section are for reference purposes only, may not summarize all of the rights and obligations contained in that section, and are not contract terms. Please read these SplitPay Terms of Service carefully and in their entirety.
Changes to these SplitPay Terms of Service
We may change these SplitPay Terms of Service at any time in our sole discretion. If you continue to use the Bread SplitPay Services after the SplitPay Terms of Service have been updated, you are agreeing to the new SplitPay Terms of Service. The date on the top of this page shows when the SplitPay Terms of Service were last updated.
We may make changes, including adding or removing provisions, to these SplitPay Terms of Service from time to time in our sole discretion. If we take such action, we will post the changed or amended SplitPay Terms of Service at www.getbread.com (“the Site”) and will indicate at the top of this page the date the SplitPay Terms of Service were last revised. Any such changes will be effective upon posting. If any such changes impose additional obligations on you that we deem material, we will take reasonable steps to inform you of these changes. If any changes are made to the Arbitration section of these SplitPay Terms of Service, that notice will include the option to opt-out of the changes. Your continued use of the Bread SplitPay Services or the Site after we have made any such changes will constitute your acceptance of the new SplitPay Terms of Service.
To use the Bread SplitPay Services you must have reached the age of majority in your state (generally 18) and be a legal resident of the United States. You must have a valid, unexpired credit or debit card at the time of your Purchase and sufficient capacity on such payment card. You must pass Bread’s fraud prevention checks. We must also be able to verify you are who you say you are.
The Bread SplitPay Services and the Site are intended solely for natural persons who are eighteen (18) years of age or older (nineteen (19) years of age for residents of Alabama and Nebraska), and residents of the United States (excluding its territories) and not including the state of Florida. You represent to Bread that you are of the required age to be able to enter into, and be bound by, these SplitPay Terms of Service and to use the Bread SplitPay Services. We do not make any representations that the Bread SplitPay Services or the Site are appropriate for or comply with the laws or regulations of any other jurisdiction. In addition, when you attempt to complete a Purchase, you must have (1) a valid, unexpired credit or debit payment card (a “Payment Card”) associated with an account which you are authorized to use (2) sufficient capacity on such Payment Card as determined by Bread, and (3) no more than one (1) outstanding Purchase . You must also pass Bread’s fraud prevention checks which Bread may modify from time to time. By using the Bread SplitPay Services or accessing this Site, you represent and warrant that you are eligible to do so. We reserve the right to verify your identity and share your information with third party service providers to assist us in doing so. If you misrepresent your eligibility to us you may be prohibited from using the Bread SplitPay Services or other Bread services in the future. Bread SplitPay Services are available only in the United State in jurisdictions where SplitPay is available.
Purchase and Checkout
Your Purchase is provided through a Purchase Agreement between you and the Merchant. Immediately after your Purchase is consummated, your Purchase Agreement will be assigned from the Merchant to an affiliate of Bread, who may then assign the Purchase Agreement to a third party. Your Purchase Agreement has important terms which you should read. A copy of the Purchase Agreement will be provided to you before you complete your Purchase so you can review the terms of the agreement and decide whether to accept the terms offered. After you have completed your Purchase, you will receive a notice at the email address you provided that will provide your transaction details, payment schedule and important account documents.
Prior to completing your Purchase, Bread will make an initial determination of your eligibility on behalf of the Merchant. Your ability to complete a Purchase is conditional at all times on your fulfillment of the eligibility criteria above and such other criteria as we or the Merchant may determine from time to time. By attempting to complete a Purchase, you authorize us to authorize a debit or charge to your Payment Card equal to up to half the amount of the Purchase. You acknowledge that any unpaid portion of that authorization which is canceled for refunded to you may take several days to be reflected on your Payment Card account and that we are unable to control when that amount will be credited back to you. You should refer to your Purchase Agreement for further information on your payment options and authorization of payments.
Prior to completing a Purchase, you may be denied use of the Bread SplitPay Services for any reason permitted by applicable law, including, but not limited to, your creditworthiness, suspected fraud, your history of using the Bread SplitPay Services, or your violation of any agreement with us, including these SplitPay Terms of Service. Any Purchase may be held as pending, delayed for processing, or canceled at any time prior to the Merchant’s fulfillment of the goods or services.
You expressly authorize Bread to obtain your credit report and other information from one or more consumer reporting agencies for the purposes of administering your account and verifying your information when you complete a Purchase and from time to time thereafter during the servicing of your Account.
You certify that the information you have provided in connection with your Purchase is true and correct. You authorize us to verify the information you have provided, including contacting third parties to do so. You represent and certify that you intend to use the Bread SplitPay Services for personal, family or household purposes only and not for commercial or business use.
Outages and Disruptions of the Bread SplitPay Services
Although Bread will make commercially reasonable efforts to make the Bread SplitPay Services available to you, delays may result from: first or third-party service outages, hardware failure, telecommunications issues, software failure, overloading of system capacities, acts of God (including weather, fire, water damage, explosion, and natural disasters), changes in government or regulatory restrictions, issues with Merchant technology or fulfillment, or for other reasons outside of Bread’s control. Bread is not responsible for any such delays.
Refunds and Cancellations
Once you complete your Purchase, you are responsible for making your installment payments according to the terms of your Purchase Agreement. If you wish to ask for a refund on your purchase, you should contact the Merchant. If the Merchant processes your refund, the amount you owe will be reduced by the amount of the refund. If the refund is for the entire Purchase amount, your Purchase Agreement will be treated as fully paid. The Merchant will be solely responsible for determining the amount of the refund. You will still be responsible for any outstanding balance. Please review your Purchase Agreement for further details.
Any dispute pertaining to the product or service, the amount you were charged, delivery, or any other aspect of your Purchase must be first directed to the Merchant. If you are unable to resolve a retail transaction issue with the Merchant you may submit a formal dispute to Bread, along with any supporting evidence. Bread will review such disputes in accordance with its internal policies and review of all relevant information submitted by you and the Merchant. Bread may determine in its sole discretion that the Merchant has complied with its refund and cancellation policies, in which case you will remain obligated for the full amount of your Purchase. If Bread determines that the Merchant has not complied with its policies, Bread may request that the Merchant issue a refund to your Account in accordance with those policies. Any refund issued by a Merchant will be applied to your Account to reduce the balance of your Purchase, and you will remain responsible for any outstanding amount.
It is important that you make timely payments on your Purchase. You are required to have a credit or debit card registered as the payment method for your Account and you agree that your payment method may be charged on your due date for the amount of that installment.
You are giving us and our representatives or any of our agents or third parties acting on our behalf the right to contact you via email, text message, phone call, or regular mail. These communications are important for sending payment reminders and notices. You may withdraw from some of these communications, as permitted by Bread or by law, as outlined below and in the Bread Electronic Signature Consent. To the extent permitted by applicable law, this may limit your ability to access Bread SplitPay Services in the future or may result in the closure of your Account.
By using the Bread SplitPay Services, you consent to receiving communications from us or any of our agents or third parties acting on our behalf: 1) through telephone (including voice or text messaging; and 2) in writing through postal mail or over email.
You specifically consent that our communications to you by telephone, such as payment reminders and other important notices, including offers related to Bread products and services or the products and services offered by Merchants, may be generated by automatic dialer systems or automatic telephone dialing systems, pre-recorded voice messages, and automatically generated text messages. For any calls or text messages, your cellular or mobile telephone provider may charge you according to the type of plan you carry and you are responsible for such charges. You also agree that we may contact you at the cellular phone number you provided to us at the time of application or any other phone number you may provide to us in the future or that we may independently determine through our own research or using third-party service providers, in each case, to the extent permitted by applicable law. You agree that we may record any phone calls between you and us for quality control purposes or our own legal protection. You agree that any such communication is not unsolicited for purposes of federal or state law. If you authorize a third party to communicate on your behalf with us or our agents regarding your Account with us, you agree and acknowledge that we may disclose information about your Account to the third party.
Opting Out of Telephone Communications
You understand that you are not required to provide consent to telephone marketing communications as a condition of obtaining products or services from Bread. You may withdraw your consent to telephone communications by contacting us at the phone number, email address, or mailing address indicated on the Site at www.getbread.com. To the extent permitted by applicable law, your withdrawal of consent to telephone communications may impact your ability to access Bread SplitPay Services in the future and or may result in the closure of your Account.
You agree that we may use the email address you provided or may provide in the future to send you electronic communications in accordance with the Bread Electronic Signature Consent. You agree that unless you notify us of a change to that email address, such communications will be regarded as delivered when sent and that you shall be responsible for ensuring that electronic communication is not sent to spam folders or otherwise prevented from delivery.
If you withdraw your consent to receiving electronic communications you understand and acknowledge that we reserve the right to close your Account. Your withdrawal of consent to electronic communications will be managed in accordance with the Bread Electronic Signature Consent. You acknowledge and agree that you can only limit certain disclosures being provided to you by email and that we may continue to provide you with transactional emails related to your Account. You acknowledge that all legally-mandated disclosures are effective when sent and that Bread is not responsible for any failure to deliver such disclosures or other Account-related information due to outdated or inaccurate contact information you have provided.
You may request to close your Account. We will treat closing your Account as a request to cancel any pending Purchase and we may, at our sole discretion, and as permitted by applicable law, limit your ability to access any Member Portal without creating a new Account. Any outstanding Purchases will remain in repayment until fully repaid and you will remain liable for all outstanding obligations, during which time you will retain access to the Member Portal. Bread may also limit your ability to use the Bread SplitPay Services.
Bread may also close your Account if you do not use the Member Portal or the Bread SplitPay Services for more than two (2) years or if you are found to have engaged in a Restricted Activity or to have otherwise violated these SplitPay Terms of Service or for any other reason.
You acknowledge that we may report information about your Account to credit bureaus on behalf of the holder of your Purchase Agreement. Late payments, missed payments, or other defaults on your Account may be reflected in your consumer report.
The items listed below are a non-exclusive list of prohibited activities when you use the Bread SplitPay Services (each, a “Restricted Activity”).
As a condition to using the Bread SplitPay Services, you agree that you will not:
- Use the information of any other person to make a Purchase or allow any other person to use your Account to make a Purchase for themselves or others;
- Access another person’s Account with Bread or use another person’s account to make a Purchase;
- Use the Bread SplitPay Services for any illegal purpose;
- Use the Bread SplitPay Services to purchase any age-restricted goods or services or products and services with varying legal status on a state-by-state basis, which restriction may be waived in our sole discretion;
- Provide to us any misleading or false information, including in connection with your Purchase or in any of your communications, whether in writing or orally;
- Use any software, device, or technology to commit unauthorized use or to unauthorized access to Bread systems or disrupt the Bread SplitPay Services in any way;
- Otherwise engage in any activity that is illegal or in contravention of any agreement you have with Bread, including these SplitPay Terms of Service;
- Use the Bread Services to purchase goods or services for other than personal, family, or household purposes; or
- Use the Bread SplitPay Services for competitive purposes, including to reverse engineer Bread’s technology or the Bread API or to engage in mystery shopping;
- Use the Site or Bread SplitPay Services to engage in any other activities that we consider, in our sole discretion, to be objectionable or to be a violation of our policies or agreement with our Merchant partners.
We reserve the right, at all time, to prevent your access to the Bread SplitPay Services or close your Account, including if we have reason to believe that you have committed any of the Restricted Activities.
You agree to provide us with updates to your contact information. If your billing address, email or phone number changes, please contact us immediately.
You agree to provide us true and accurate information at all times. You agree to keep us informed of any changes to your email address or cellular number so that you can continue to receive all disclosures in a timely fashion. If your registered email address or cellular number changes, you must notify us of the change by sending an email to firstname.lastname@example.org or calling (844) 992-7323.
You share responsibility with Bread for the security and privacy of your own Account. If you think your Account has been compromised, please contact us immediately.
Your Account on the Member Portal will include personal and sensitive information about you and your Account. You agree to maintain the security of your username and password and restrict access to your Account by unauthorized persons. You agree that you are fully responsible for any activity that occurs on your Account in the Member Portal by anyone you have given your access credentials to or have permitted to access your Account. If you have reason to believe that the security of your Account has been compromised, you agree to contact us immediately by sending an email to email@example.com or calling us at (844) 992-7323.
Third Party Access
If you authorize a third party to access your Account or share your Account information with them, you acknowledge that Bread may disclose information about your Account with such third party. You acknowledge that granting a third party authorization to take action on your behalf or using your information does not relieve you of any responsibilities under these SplitPay Terms of Service or any Purchase Agreement. You acknowledge that payments made on your behalf from third parties, including those whom you authorize to access your Account may be accepted and reflected in your Account.
User Content; Feedback
With respect to the content, data or other materials you upload or otherwise submit through the Bread SplitPay Services (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content. By uploading or otherwise submitting any User Content, you hereby grant and will grant Bread and its affiliated companies a nonexclusive, worldwide, royalty-free, fully-paid-up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Bread SplitPay Services.
You acknowledge and agree that Bread may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these SplitPay Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Bread, its users and the public. You understand that the technical processing and transmission of the Bread SplitPay Services, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
From time to time we may ask you to provide feedback on the Bread SplitPay Services, for example in the form of customer surveys, or you may affirmatively provide us with feedback information based on your experience with us. Unless otherwise indicated, any content submitted to Bread via the Site, or through our agents or representatives, shall be deemed and remain the property of Bread. You agree that any comments, ideas, or feedback you provide us are non-confidential and may be used by us without any restriction or compensation owed to you. 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 other sources.
Links to Other Web Sites and Content
The Bread SplitPay Services may appear on other websites, including Merchant websites, and our Site may contain links to, or you may be directed to, other websites (including Merchant websites) (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the “Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites or any Third Party Content posted on the Site, including, without limitation, the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sites or the Third Party Content. If you decide to leave the Site and access any Third Party Sites (including accessing any Third Party Content on Merchant websites while you use the Bread SplitPay Services), you do so at your own risk and you should be aware that our terms and policies no longer govern. You further acknowledge and agree that Bread will not be responsible for or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Content or any content, goods or services available on or through any Third Party Site. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site.
Statute of Limitations
You and Bread both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these SplitPay Terms of Service (including the Additional Terms) must be filed within ONE (1) YEAR after such claim or cause of action arose or within the shortest limit permitted under applicable law or be forever barred, provided, however that any claims or causes of action arising out of or related to your Purchase Agreement is expressly excluded from this provision.
Proprietary Rights in Bread IP; Limited License
By using the Bread SplitPay Services, you acknowledge that, as between you and Bread, Bread owns all right, title and interest in any software, code, system, technology, content, procedures and other intellectual property used or embedded in the Bread SplitPay Services, the Site or through the Bread API including Bread’s name, logo and any other trademarked material but expressly excluding your User Content (the “Bread IP”). You will not use, display, rent, lease, loan, transfer, assign, sell, copy, reproduce, distribute, download, reverse engineer, frame, scrape or modify any of the Bread IP or prepare a derivative work based on the Bread IP. In connection with your use of the Bread SplitPay Services and Site, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Bread from accessing the Bread SplitPay Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
Provided that you are eligible for use of the Site and the Bread SplitPay Services, you are granted a limited, revocable, nonsublicensable, nontransferable license to access and use the Bread IP and the Bread SplitPay Services solely for your personal, noncommercial use. Any other use of the Bread IP is strictly prohibited and will terminate the license granted herein. Any rights not expressly granted herein are reserved by Bread. Nothing in these SplitPay Terms of Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Bread’s logos or other trademarks (“Trademarks”) displayed on the Site or Bread SplitPay Services, without our prior written permission in each instance. All goodwill from the use of Trademarks will inure to our exclusive benefit.
In case of a dispute, you are agreeing to waive certain rights, including the right to sue in court, the right to a jury, and the right to participate in class proceedings. You may opt out of the Arbitration Provision as described in this Section.
- (a) Either party to this agreement, or any subsequent assignee of this agreement, 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 arbitration provision (the “Arbitration Provision”), unless you opt out as provided in Section (b) 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 assignee (or persons claiming through or connected with us and/or any assignee), on the other hand, relating to or arising out of this agreement and/or the activities or relationships that involve, lead to, or result from this agreement. However, “Claim” does not include any dispute or controversy about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the Class Action Waiver in Section (g), the last sentence of Section (i) and/or this sentence); all such dispute or controversies are for a court and not an arbitrator to decide; but disputes about the validity or enforceability of this agreement as a whole are for the arbitrator and not a court to decide. In addition, 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. But if that action is transferred, removed or appealed to a different court, we then have the right to choose arbitration. 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, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Solely for purposes of this Arbitration Provision, the terms “we,” “us” and “our” also refer to our employees, officers, directors, parents, agents, controlling persons, subsidiaries, affiliates, successors and assigns and to other persons and entities you assert a Claim against in connection with a Claim you assert against us.
- (b) You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to Bread, P.O. Box 783186, Philadelphia, PA 19178, which is effective if it is received at the specified address within thirty (30) days of the date of your electronic acceptance of these SplitPay Terms of Service. The opt out notice must clearly state that you are rejecting arbitration; identify the SplitPay Terms of Service to which it applies by date; provide your name and address; and be signed by you. You may send the 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.
- (c) The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”), 1-800-778-7879 (toll-free) Website: adr.org, or JAMS, 1-800-352-5267 (toll-free) Website; jamsadr.com. In the even that AAA or JAMS is unable to handle the dispute for any reason, then the matter shall be arbitrated instead by a single neutral arbitrator selected by mutual agreement of the parties; or, if the parties cannot agree, selected by a court with jurisdiction. The arbitration shall be conducted according to the consumer rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision. Arbitration shall be conducted in your county of residence. In the case of a conflict between the rules and policies of the administrator or other provisions of this agreement and this Arbitration Provision, this Arbitration Provision shall control, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
- (d) If you initiate the arbitration, you must notify us in writing at Bread, P.O. Box 783186, Philadelphia, PA 19178. If we initiate the arbitration, we will notify you in writing at your last known address in our file. Notice may also be given by papers filed in a lawsuit, such as a motion to compel arbitration. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim (i.e., the party seeking money damages or other relief) is responsible for starting the arbitration proceeding. Thus, if you assert a claim against us in court, and we elect to arbitrate that claim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Similarly, if we assert a claim against you in court, you assert a counterclaim against us, and we elect to arbitrate that counterclaim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Provision.
- (e) If we elect arbitration, we shall pay all the administrator’s filing costs and administrative and arbitrator fees (other than hearing fees). If you elect arbitration, your share of fees shall be limited to twenty-five dollars ($25) for claims up to ten thousand dollars ($10,000), and two hundred dollars ($200) for claims that are between ten thousand dollars ($10,000) and seventy-five thousand dollars ($75,000). In all other cases, filing costs and administrative and arbitrator 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 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 pay them and we agree to do so. Each party shall bear the expense of its own attorneys’ fees and costs, except as otherwise provided by law. If a statute gives you the right to recover any of these fees or costs, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
- (f) Within thirty (30) days of a final award by the arbitrator, if the amount in controversy exceeds seventy-five thousand dollars ($75,000), 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 thirty (30) day 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 was 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.
- (g) CLASS ACTION WAIVER. 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 (g), 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 (g) shall be determined exclusively by a court and not by the administrator or any arbitrator.
- (h) 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 and privileges. Except as provided in Section (f), the arbitrator may award any damages or other relief or remedies that would apply under applicable law to an individual action brought in court, including, without limitation, punitive damages (which shall be governed by the constitutional standards employed by the courts) and injunctive, equitable and declaratory relief (but only in favor the of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim). 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.
This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this agreement and the relationship of the parties and/or assignees; (ii) the bankruptcy or insolvency of any party or other person; (iii) repayment of all amounts due for the Purchase; and (iv) any transfer of any retail installment agreement or this agreement to any other person or entity. If any portion of this Arbitration Provision is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force, except that if the Class Action Waiver in Section (g) is limited, voided or found unenforceable in a proceeding between you and us, then this Arbitration Provision (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and if a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Arbitration Provision prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated.
JURY TRIAL WAIVER. 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.
Limitation on Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING IN THESE SPLITPAY TERMS OF SERVICE TO THE CONTRARY, IN NO EVENT WILL WE, OUR AFFILIATES OR OUR RESPECTIVE DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, ARISNG FROM YOUR USE OF ANY PRODUCT PURCHASED USING THE BREAD SPLITPAY SERVICES, THE UNAVAILABILITY OF THE BREAD SPLITPAY SERVICES FOR ANY REASON, OR ANY SYSTEM FAILURE OR MALFUNCTION ASSOCIATED WITH THE BREAD SPLITPAY SERVICES). THESE LIMITATIONS ON LIABILITY WILL APPLY EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. IN ALL OTHER INSTANCES AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING IN THESE SPLITPAY TERMS OF SERVICE TO THE CONTRARY, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU FOR THE BREAD SERVCIES IN THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BREAD WOULD NOT PROVIDE THE BREAD SPLITPAY SERVICES TO YOU WITHOUT SUCH LIMITATIONS.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTION TITLED “LIMITATION ON LIABILITY” IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION.
Disclaimer of Warranties
YOUR USE OF THE SITE AND THE BREAD SPLITPAY SERVICES IS AT YOUR SOLE RISK. THE SITE AND BREAD SPLITPAY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BREAD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, BREAD EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS OR OMISSIONS IN ANY INFORMATION PROVIDED AS PART OF THE BREAD SPLITPAY SERVICES OR ON THE SITE AND ANY WARRANTIES REGARDING THE OPERABILITY OF THE BREAD SPLITPAY SERVICES OR LIABILITY FOR ANY SERVICE INTERRUPTIONS OR SYSTEMS FAILURES THAT MAY AFFECT THE BREAD SPLITPAY SERVICES AT ANY TIME. WE CANNOT GUARANTEE AND DO NOT WARRANT THAT YOUR ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT THE SITE WILL BE FREE OF COMPUTER VIRUSES.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTION TITLED “DISCLAIMER OF WARRANTED” IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION.
Governing Law; Venue and Jurisdiction
Except and to the extent the Arbitration Provision may apply to any dispute between the parties (in which case the terms of the Arbitration Provision shall apply with respect to governing law and venue), by accessing the Site or using the Bread SplitPay Services, you agree that the laws of the State of New York, without regard to any principles of conflict of laws that would require or permit the application of the laws of any other jurisdiction, will govern these SplitPay Terms of Service or your use of the Bread SplitPay Services. You agree to the personal jurisdiction by and venue in the state and federal courts in New York County, New York, and agree and consent that such courts are the exclusive forum for litigation of any claim or cause of action arising out of or relating to your use of this Site or the Bread SplitPay Services.
Indemnity and Release
You agree to release, indemnify and hold Bread, its affiliates, and each of their respective directors, employees and agents harmless from and against any and all loss, liability, damages, costs and expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind or injury arising out of or in connection with your use of the Site or the Bread SplitPay Services, any User Content, as well as any claims based on breach of contract, tort, product liability, or bread of warranty, or any violation of the SplitPay Terms of Service by you or any third party accessing the Site or the Bread SplitPay Services using your Account. You agree to fully cooperate at your expense as reasonably required by Bread. Bread may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving Bread without the consent of Bread.
Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
NOTWITHSTANDING THE FOREGOING, IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTION TITLED “INDEMNITY AND RELEASE” IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAW OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION.
The failure of Bread or its affiliates to exercise or enforce any right or provision of these SplitPay Terms of Service shall not constitute a waiver of such right or provision in that or any other instance. Except as specified above, if any provision of these SplitPay Terms of Service is held invalid, the remainder of these SplitPay Terms of Service shall continue in full force and effect. The section headings used in the SplitPay Terms of Service are for reference only and do not carry any legal significance. Upon our request, you will take any actions necessary to evidence your compliance with these SplitPay Terms of Service. The SplitPay Terms of Service are between you and Bread and these SplitPay Terms of Service will not vest any rights, either on your behalf or otherwise, to any third party from your use of the Bread SplitPay Services or the Site provided, however, that affiliates of Bread are intended third party beneficiaries of these SplitPay Terms of Service (including in particular and without limitation, the “Arbitration,” “Limitation of Liability,” “Disclaimer of Warranties,” and “Indemnity and Release” sections). The Bread SplitPay Services and the use of the Site are only intended for residents of the United States and we do not make any representations that the Bread SplitPay Services or the Site are appropriate or comply with the laws or regulation of any other jurisdiction. You agree that Bread, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Bread SplitPay Services and remove and discard any content within the Bread SplitPay Services, for any reason, including, without limitation, for lack of use or if Bread believes that you have violated or acted inconsistently with the letter or spirit of these SplitPay Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Bread SplitPay Services, may be referred to appropriate law enforcement authorities. Bread may also in its sole discretion and at any time discontinue providing the Bread SplitPay Services, or any part thereof, with or without notice. You agree that any termination of your access to the Bread SplitPay Services under any provision of these SplitPay Terms of Service may be effected without prior notice and acknowledge and agree that Bread may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or the Bread SplitPay Services. Further, you agree that Bread will not be liable to you or any third party for any termination of your access to the Bread SplitPay Services. You may not assign your rights or obligations under these SplitPay Terms of Service to any other party without our prior written consent. Bread may freely assign its rights and obligations under these SplitPay Terms of Service at any time without notice. The SplitPay Terms of Service constitute the entire understanding between you and Bread about your use of the Site and Bread SplitPay Services and supersede all prior understandings of the parties relating to the subject matter at hand but is subject to other agreements we may enter into with you specific to Bread SplitPay Services.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Bread SplitPay Services from California are entitled to the following specific consumer right notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Lon Operations LLC, P P.O. Box 783186, Philadelphia, PA 19178 or by phone at (844) 992-7323.