Website Terms of Use


These terms of use ("Terms of Use") are provided on behalf of Upstart Network, Inc. and its affiliates ("Upstart", "we", "us", "our"). By using https://bankmobile.upstart.com, including any sub-domain thereof (the "Site"), you signify that you have read, understand and agree to be bound by these Terms of Use, regardless of whether you are a registered member of the Service. Please read them very carefully. If you do not wish to be bound by these terms of use, you should not access or use the Site. In addition to these Terms of Use, you may enter into other agreements with third parties offering loans including BankMobile, a division of Customers Bank ("Lender") via the Site that will govern your use of the products and services offered on the Site. If there is any contradiction between these Terms of Use and another agreement you enter into that is applicable to a product or service offered on the Site then the other agreement will take precedence as it applies to the product or service.


Eligibility

This Site is intended solely for users who are 18 years of age or older, and any registration or use of the Site by anyone under 18 is unauthorized and in violation of these Terms of Use. By using the Site, you represent you are 18 or older and that you agree to and will abide by all of the terms and conditions of these Terms of Use. If you violate any of these Terms of Use, or violate any other agreement with us, we may terminate your registration, and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Site and the products and services available through it.


Privacy

The BankMobile Privacy Policy and the Upstart Privacy Policy explain how the personal information you provide on this website is used and protected when you use the Site.


Your Account

When you successfully register with us you will be required to create an account on the Site that uses your email address as your username and you must pick a password. You may not disclose your username or password to any third party. If you learn of any unauthorized use of your password or account, please contact us immediately. You will be required to login in order to use certain parts of the Site.


Restrictions on Use

You agree to abide by all applicable laws and regulations in your use of the Site and the products and services available through our site. In addition, you agree that you will not do any of the following:

  • Register for more than one account (unless the additional account is for purposes of applying for additional products or services), or register for an account on behalf of an individual other than yourself or on behalf of any group or entity;

  • Submit content that in our judgment is objectionable, such as content that is harmful, threatening, inflammatory, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or otherwise objectionable, or which restricts or inhibits any other person from using or enjoying the Site, or which may expose us or our users to any harm or liability of any type;

  • Use the Site or our products and services in any manner that could damage, disable, overburden or impair the Site; or

  • Submit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.


Copyright Complaints

If you believe that any material on the Site infringes upon any copyright that you own or control, you may send a written notification to us via email at support@upstart.com, or via regular mail at Upstart Network, Inc., P.O. Box 1503, San Carlos, CA 94070. In your notification please:

  • confirm you are the owner, or are authorized to act on behalf of the owner, of the copyrighted work that has been infringed;

  • identify each copyrighted work you claim has been infringed;

  • identify the material that you claim is infringing or is the subject of infringing activity and that is to be removed; please include information reasonably sufficient to permit us to locate the material;

  • provide your contact details, including an email address; and

  • provide a statement that the information you have provided is accurate and that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.


Changes and Modifications

We reserve the right to temporarily or permanently modify or discontinue the Site, or any portion of the Site, for any reason, without notice to you. We may also change the Terms of Use from time to time without notice to you. Please review these Terms of Use from time to time because your continued access to or use of the Site after any modifications have become effective shall be deemed your conclusive acceptance of the modified Terms of Use.


Links

We are not responsible for the information practices employed by sites linked to or from our web site. In most cases, links to third party websites other than a Lender’s website are provided solely as pointers to information on topics that may be useful to our users. Since third party websites may have different privacy policies and/or security standards governing their sites, we advise you to review the privacy policies and terms and conditions of these sites prior to providing any personal information.


No Warranty; Errors

The Site and the products and services are provided "as is" and without any representation or warranty, whether express, implied or statutory. Upstart, our officers, directors, agents, employees and suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. We do not warrant the accuracy, adequacy or completeness of the information provided on the Site and expressly disclaim liability for any errors or omissions in such information. We do not guarantee continuous, uninterrupted or secure access to the Site nor any of the products and services available through it, and the operation of the Site may be interfered with by numerous factors outside of our control. We cannot guarantee and do not promise any specific results from use of the Site and/or the products and services available through it. Calculators and tools on the Site provide you with estimates that may be different than actual amounts. We are not responsible for the conduct, whether online or offline, of any user of the Site or the products or services available through it.

You agree that we on behalf of BankMobile may promptly correct any error that we discover, including any error in calculating your loan rates. If the error results in your receipt of an incorrect interest rate, APR or origination fee, BankMobile will notify you and provide you with the correct rate. You agree to provide any additional consents necessary to correct any errors that occur.


Limitation of Liability

You agree that all access and use of the Site and its contents and your use of the products and services on the Site is at your own risk. In no event shall we be held liable for any damages, including direct or indirect, special, incidental, or consequential damages, losses or expenses arising in connection with the Site, any linked site, any use thereof or inability to use by any party, your use of the products and services available on the Site, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if we or our representatives are advised of the possibility of such damages, losses or expenses.


Intellectual Property

You agree that the Site, Lenders’ names, and all logos related to our products and services are our, Lenders’ and each of our or their licensors’ trademarks or registered trademarks. You may not copy, imitate or use them without our prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks, and/or trade dress. All right, title and interest in and to the Website, any content thereon, our products and services, the technology related to our products and services, and any and all technology and any content created or derived from any of the foregoing is our or our licensors’ exclusive property.


Disputes

Contact Us First. If you have an issue with our services, or if a dispute arises between you and us, please contact us first. Our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly.
Arbitration Agreement. YOU HAVE READ THIS PROVISION CAREFULLY, AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION, AS PROVIDED IN PARAGRAPH (ii) BELOW.

i. Except as expressly provided below, you agree that any Claim (defined below) will be, at either your or our election, submitted to and resolved on an individual basis by binding arbitration. Any such arbitration will be under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the "FAA") before the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules including the Supplementary Procedures for Consumer Related Disputes, in effect at the time the arbitration is brought (the "AAA Rules"), or before any other party that you and we agree to in writing, provided that such party must not have in place a formal or informal policy that is inconsistent with and purports to override the terms of this arbitration agreement. The AAA Rules are available online www.adr.org. The arbitration agreement in this Section terms applies to any party named as a co-defendant with Upstart Network, Inc. in a Claim asserted by you, such as Lender, servicers, or debt collectors.

For purposes of this Section: (x) any "Claim" means any claim, dispute or controversy relating to (1) these Terms of Service (including a dispute over the validity, enforceability, arbitrability or scope of this arbitration clause) or any the services accessed through the Site; and any relationship resulting from, or activities connected to, the Site whether based on statute, contract, tort or any other legal theory, provided a Claim does not include any individual action brought by you in small claims court or your state’s equivalent court, unless such action is transferred, removed or appealed to a different court; and (y) the terms "we", or "ours" include Upstart, any subsequent holder of this Agreement, and the officers, directors, and employees, and their affiliates, subsidiaries, and parents, and any officers, directors, and employees of such entities.

ii. You may reject the arbitration agreement provided here by mailing a signed rejection notice to the address provided in the Notice section below within 30 calendar days of your agreement to this Agreement. Any rejection notice must include your name, address, the e-mail address you registered on the Site, and your telephone number.

iii. Any state or federal court with jurisdiction and venue may enter an order enforcing the arbitration agreement provided in this Section, enter judgment upon the arbitrator’s award and/or take any action authorized under the FAA. For any arbitration-related proceedings in which courts are authorized to take action under the FAA, each party expressly consents to the non-exclusive jurisdiction of any state court of general jurisdiction or any state court of equity that is reasonably convenient to that party, provided that the parties to any such judicial proceeding will have the right to initiate such proceeding in a federal court or remove the proceeding to federal court if authorized to do so under applicable federal law.

iv. IF YOU OR WE CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL, TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED IN THE APPLICABLE ARBITRATION RULES, OR OTHERWISE TO LITIGATE THE DISPUTE OR CLAIM IN ANY COURT (OTHER THAN IN AN ACTION TO ENFORCE THE ARBITRATOR’S AWARD). FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT YOU OR UPSTART WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. THE ARBITRATOR WILL HAVE NO AUTHORITY TO ARBITRATE CLAIMS ON A CLASS BASIS, AND CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON. If you reside in the U.S., any arbitration hearing will take place within the federal judicial district in which you reside. Each party will bear the expense of its own attorneys, experts and witnesses, regardless of which party prevails, unless applicable law or this Agreement gives a right to recover any of those fees from the other party. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the AAA Rules will determine the right to a hearing. All fees and expenses of the arbitrator and administrative fees and expenses of the arbitration will be paid by the parties as provided by the AAA Rules, to the extent applicable, or by specific ruling by the arbitrator, or by agreement of the parties. The arbitrator will have the authority to award in favor of the individual party seeking relief all remedies permitted by applicable substantive law, including compensatory, statutory and punitive damages (subject to constitutional limits that would apply in court), and attorneys’ fees and costs. In addition, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted in that party’s individual claim. Upon the timely request of either party, the arbitrator will write a brief explanation of the basis of his or her award. If the arbitrator determines that any claim or defense is frivolous or wrongfully intended to oppress the other party, the arbitrator may award sanctions in the form of fees and expenses reasonably incurred by the other party (including arbitration administration fees, arbitrator’s fees, and attorney, expert and witness fees), to the extent such fees and expenses could be imposed under Rule 11 of the Federal Rules of Civil Procedure.

v. The arbitration agreement in this Section is made pursuant to a transaction involving interstate commerce and will be governed solely by the FAA, and not by any state law concerning arbitration or otherwise. If you have a question about the American Arbitration Association, you can contact them as follows: American Arbitration Association, 1633 Broadway 10th Floor, New York, N.Y. 10019, 212-716-5800, www.adr.org.

vi. The arbitration agreement in this Section will survive this Agreement, any bankruptcy or insolvency, or any cancellation or request for cancellation of this Agreement. If any part of this arbitration agreement (other than the class waiver described above) is found to be invalid or unenforceable by a decision of a tribunal of competent jurisdiction, then such specific part or parts will be of no force and effect and will be severed, but the remainder of this arbitration agreement will continue in full force and effect. If such class waiver is determined to be invalid or unenforceable, then this entire arbitration agreement will be void and of no force or effect to any class actions.


Notices

You may contact us by emailing bankmobile.support@upstart.com, by calling (833)-200-0791 during our operating hours 6:00 AM PST to 5:00 PM PST, each Monday through Friday that are business days, or by writing via regular mail to Upstart Network, Inc., P.O. Box 1503, San Carlos, CA 94070. All communications given to you by email to your registered email address, or posted on the Site will be deemed to have been duly given and effective upon transmission or when they were posted. You acknowledge that communications from us may contain sensitive, confidential, and collections-related communications. If your information changes, such as your email address, your mailing address or your telephone number, you agree to notify us promptly of the change by logging into the Site and updating this information in your account profile, or by contacting us as described above.


Miscellaneous

These Terms of Use shall be governed in all respects by the laws of the State of California, without regard to its provisions relating to conflict of laws. Our failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect. Lender is not a party to this Agreement, but you agree that Lender, including its successors and assigns, is a third-party beneficiary and is entitled to rely on the provisions of this Agreement, including your representations, covenants, and agreements herein.


Effective Date: December 11, 2017. If you have questions or concerns regarding these terms, you should contact us by emailing us at support@upstart.com.