Afterpay Plus Card by First Electronic Bank Account Agreement
READ THIS ENTIRE AGREEMENT CLOSELY BEFORE SIGNING. IT CONTAINS IMPORTANT DISCLOSURES AND THE TERMS OF YOUR AFTERPAY CARD ACCOUNT AND INSTALLMENT AGREEMENTS ORIGINATED IN CONNECTION WITH YOUR ACCOUNT.
SECTION 9 REQUIRES MOST CLAIMS TO BE ARBITRATED AND FORBIDS MOST CLASS ACTIONS UNLESS YOU EXERCISE YOUR RIGHT TO REJECT ARBITRATION UNDER SECTION 8 BY MAIL OR EMAIL (WE MUST RECEIVE YOUR REJECTION WITHIN 30 DAYS AFTER YOUR LOAN AGREEMENT DATE).
This Afterpay Card by First Electronic Bank Account Agreement (“Afterpay Plus Account Agreement”) governs your use of an Afterpay Plus account to request credit from us from time to time.
Use of the words “you” and “your” throughout this Account Agreement refer to the account holder listed above, and the words “we,” “us,” and “our” refer to the First Electronic Bank or its assignees.
1. Nature of Account
When you execute this Afterpay Plus Card Account Agreement, you authorize us to open an Afterpay Plus Card Account for you. The account itself is not an extension of credit, but allows you to request credit from us from time to time.
2. Access to Account
Once your Afterpay Plus Card Account is opened, we will provide you an account number that can be used to request credit from us by: (i) loading the account into a third-party mobile wallet application; and (ii) using the third-party mobile wallet application at the point of sale with a merchant. In the future, we may offer you the ability to access your Afterpay Plus Card Account through additional means, including through a physical Afterpay Plus Card or a mobile application offered by one of our service providers, at our sole discretion. If we offer additional means of access to your Afterpay Plus Card Account, we will disclose the terms under which credit may be accessed using such additional means at or prior to issuance, subject to applicable law. The Account number we provide for you to request credit from us is the number of a commercial card issued to Afterpay by Sutton Bank, member FDIC (“Sutton Bank”) and is not a consumer credit card, charge card, or other card account you have with the issuer of Afterpay’s commercial card. The Account number has been issued to Afterpay, not you, and we are providing it to you solely to facilitate our ability to consider your request to access credit from us and our ability to disburse loan funds to merchants for loans you may receive from us. You have no account relationship with the issuer of Afterpay’s commercial card as a result of your relationship with us.
3. Participation Fee for Credit Access
By executing this Afterpay Plus Card Account Agreement and opening an Afterpay Plus Card Account, you agree to pay us a Participation Fee of $5.99 per month ($71.88 per year) for access to Afterpay Plus Card credit plan. Your initial Participation Fee will be billed upon account opening and subsequent Participation Fees will be billed monthly thereafter. Each monthly Participation Fee will be earned and due upon billing and is not contingent on your use of your Afterpay Plus Card Account to make purchases or otherwise obtain extensions of credit from us or any balance you may maintain on loans made under your Afterpay Plus Card Account. If you close your Afterpay Plus Card Account, you will no longer be billed monthly participation fees going forward for any month in which you do not maintain an open Afterpay Plus Card Account, but you will remain responsible for any Participation Fees that were billed prior to Afterpay Plus Card Account closure.
4. Effect of Using Account at Point of Sale
Submission of the Account number we provide to you to a merchant through a third-party mobile wallet at the point of sale, or use of any other alternative means of account access issued by us results in a request for credit from us. We will review your request for credit and may choose to approve or deny the request.
If the request is approved, your transaction will process successfully and your use of your Afterpay Plus Card Account number or alternative means of account access will constitute your electronic signature indicating your acceptance of, and agreement to be contractually bound by, an individual Afterpay Plus Card Loan Agreement bearing the specific terms of the approved transaction. The form of Afterpay Plus Card Loan Agreement currently in effect is attached to this Afterpay Plus Card Account Agreement as Exhibit A. The form may be modified from time to time in accordance with Section 5, below. Your use of your Afterpay Plus Card Account number or alternative means of account access to request credit will be deemed a request for credit under the terms of the Afterpay Plus Card Loan Agreement in effect at the time of use and an electronic signature on such agreement. If you have authorized us (or our designated servicer) to process recurring payments to one or more payment methods of your choice saved to your Afterpay Account, your use of your Afterpay Plus Card Account number or alternative means of account access will also be electronic authorization for us to process recurring payments to such payment methods for credit extended as a result of such request. You are not required, however, to have authorized recurring payments using a debit card or other electronic fund transfer method as a condition of obtaining credit from us using your Afterpay Plus Card Account.
If the request is denied, your transaction will not process successfully and we will not extend credit to you with respect to your purchase. At the merchant’s discretion, you may be able to resubmit other forms of payment to complete your transaction.
5. Credit Obtained Using Afterpay Plus Card Account
If credit is extended under an Afterpay Plus Card Loan Agreement as a result of your use of your Afterpay Plus Card Account number or alternative means of account access, such credit will be governed by the Afterpay Plus Card Loan Agreement you thereby execute. In general, such credit will involve a down payment and three payments deferred in two-week intervals. Each payment will be in an amount substantially equal to 25% of the overall amount of your purchase with the relevant merchant. The specific Afterpay Plus Card Loan Agreement governing each extension of credit you obtain under your Afterpay Plus Card Account will contain additional information regarding issues such as late fees, non-sufficient funds fees, and consequences of delinquency or default.
All requests for credit under your Afterpay Plus Card Account will be reviewed and underwritten separately. Opening an account or obtaining any particular extension of credit does not guarantee that we will approve any subsequent request for credit. We (or our designated service provider on our behalf) may display to you a “Maximum Purchase Limit” for Afterpay Plus Card Account transactions. Any such limit represents the maximum amount that we normally will permit you to be obligated for across all Afterpay Plus Card loans at once. It is not a “credit limit” to which you have guaranteed access as you pay down other Afterpay Plus Card Loan Agreements or obligations, however.
6. Change of Terms
To the extent permitted by Applicable Law, we may change the terms of this Afterpay Plus Card Account or any Afterpay Plus Card Loan Agreement that may be obtained under your Afterpay Plus Card Account by providing you reasonable advance notice. Changes to the Afterpay Plus Card Loan Agreements you request and execute through use of your Afterpay Plus Card Account number or alternative means of account access will be made available at [website] or through the online or mobile application account maintained by Afterpay as our service provider.
7.Transfers or Assignments of Account(s)
We may transfer, assign or sell this Afterpay Plus Card Account Agreement, and any rights under this Afterpay Plus Card Account Agreement or under any Afterpay Plus Card Loan Agreement entered into under your Afterpay Plus Card Account, to a third party without your consent.
8.Complaints and Disputes
If you have a complaint with us arising out of or related to this Afterpay Plus Card Account Agreement or any Afterpay Plus Card Loan Agreement originated pursuant to this Afterpay Plus Card Account Agreement, you should contact us through our service provider at [email protected]. If you have a complaint arising out of the delivery or quality of the goods you have purchased using your Afterpay Plus Card Account, you should contact the merchant using the details posted on the retailer’s website. If you wish to submit a general complaint to us, you should do so by contacting us using the details posted at https://help.afterpay.com/hc/en-us or available through the online or mobile application account maintained by Afterpay as our service provider. We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving all complaints and disputes.
9. Billing Disputes
If you think there is an error on your statement, contact us through our Help Center link: https://help.afterpay.com/hc/en-us/requests/new or write to us at Afterpay US Services, LLC, 760 Market St. Floor 2, Unit 2.03, San Francisco, CA 94102
Please provide the following information:
• Account information: Your name and email address for your Afterpay account.
• Dollar amount: The dollar amount of the suspected error.
• Description of Problem: If you think there is an error on your bill, describe what you believe is wrong and why you believe it is a mistake.
You must contact us:
· Within 60 days after the error appeared on your statement.
· At least 3 business days before an automated payment is scheduled, if you want to stop payment on the amount you think is wrong.
You must notify us of any potential errors in writing. You may call us, but if you do we are not required to investigate any potential errors and you may have to pay the amount in question.
When we receive your letter, we must do two things:
1. Within 30 days of receiving your dispute, we must tell you that we received your dispute. We will also tell you if we have already corrected the error.
2. Within 90 days of receiving your letter, we must either correct the error or explain to you why we believe the bill is correct.
While we investigate whether or not there has been an error, the following are true:
• We cannot try to collect the amount in question, or report you as delinquent on that amount.
• The charge in question may remain on your statement, and Afterpay may continue to charge you interest on that amount.
• While you do not have to pay the amount in question, you are responsible for the remainder of your balance.
• We can apply any unpaid amount against your credit limit.
After we finish our investigation, one of two things will happen:
• If we made a mistake: You will not have to pay the amount in question or any interest or other fees related to that amount
• If we do not believe there was a mistake: You will have to pay the amount in question, along with applicable interest and fees. We will send you a statement of the amount you owe and the date payment is due. We may then report you as delinquent if you do not pay the amount we think you owe.
If you receive our explanation but still believe your bill is wrong, you must write to us within 10 days telling us that you still refuse to pay. If you do so, we cannot report you as delinquent without also reporting that you are questioning your bill. We must tell you the name of anyone to whom we reported you as delinquent, and we must let those organizations know when the matter has been settled between us.
If we do not follow all of the rules above, you do not have to pay the first $50 of the amount you question even if your bill is correct.
Your Rights If You Are Dissatisfied With Your Credit Card Purchases
If you are dissatisfied with the goods or services that you have purchased with your credit card, and you have tried in good faith to correct the problem with the merchant, you may have the right not to pay the remaining amount due on the purchase.
To use this right, all of the following must be true:
1. The purchase must have been made in your home state or within 100 miles of your current mailing address, and the purchase price must have been more than $50. (Note: Neither of these are necessary if your purchase was based on an advertisement we mailed to you, or if we own the company that sold you the goods or services.)
2. You must have used your credit card for the purchase. Purchases made with cash advances from an ATM or with a check that accesses your credit card account do not qualify.
3. You must not yet have fully paid for the purchase.
If all the criteria above are met and you are still dissatisfied with the purchase, contact us in writing or electronically at:
First Electronic Bank c/o Afterpay
760 Market St. Floor 2, Unit 2.03, San Francisco, CA 94102
While we investigate, the same rules apply to the disputed amounts as discussed above. After we finish our investigation, we will tell you our decision. At that point, if we think you owe an amount and you do not pay, we may report you as delinquent.
10. Arbitration Agreement
Sutton Bank is not a party to this Agreement, but is a third party beneficiary of the arbitration provision below.
a) To expedite resolution and to minimize the cost of any claims and disputes arising out of or relating to this Afterpay Plus Card Account Agreement or any Afterpay Plus Card Loan Agreement originated pursuant to this Afterpay Plus Card Account Agreement (“Dispute(s)”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided to our service provider through your Afterpay account. Notices you send may be directed to us through our service provider at: Afterpay US Services, LLC, 760 Market St. Floor 2, Unit 2.03, San Francisco, CA 94102, Attention: Legal, or by email to [email protected]. Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.
b) IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, AFTER 30 DAYS FROM THE DATE OF THE FIRST NOTICE, THE PARTIES AGREE THAT ALL DISPUTES SHALL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. THE ARBITRATOR SHALL ALSO DECIDE ANY ISSUES RELATING TO THE MAKING, VALIDITY, ENFORCEMENT, OR SCOPE OF THIS ARBITRATION AGREEMENT, ARBITRABILITY, DEFENSES TO ARBITRATION INCLUDING UNCONSCIONABILITY, OR THE VALIDITY OF THE JURY TRIAL, CLASS ACTION OR REPRESENTATIVE ACTION WAIVERS (COLLECTIVELY, “ARBITRABILITY” ISSUES). YOU HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY. FURTHER, UNLESS YOU OPT OUT OF ARBITRATION, YOU ALSO AGREE TO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION.
c) The arbitration will be commenced and conducted in San Francisco County, California under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
d) The parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any suit to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any suit to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or (3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Aforementioned Disputes shall be brought in San Francisco County, California unless the parties agree otherwise. In addition, either party may assert claims, if they qualify, in small claims court in any United States county where you live or work.
e) You agree that this agreement to arbitrate may be enforced by us or our affiliates, subsidiaries, or parents, and each of their officers, directors, employees, and agents and governs disputes between you and each such party. This arbitration agreement is made pursuant to a transaction involving interstate commerce. The Federal Arbitration Act (9 U.S.C. §§1-16) (the “FAA”) shall govern this agreement to arbitrate including all arbitrability issues. No state law respecting arbitrability issues shall govern this agreement to arbitrate. Subject to and without limiting the foregoing, federal law shall apply to all other issues that arise under federal law and applicable state law as set forth in Section 11 below shall apply to all other issues that arise under state law (without reference to a state’s choice of law rules). YOU MAY OPT OUT OF ARBITRATION BY SENDING US WRITTEN NOTICE WITHIN 30 DAYS OF SIGNING THIS AGREEMENT STATING THAT YOU WISH TO “OPT OUT OF THE AGREEMENT TO ARBITRATE DISPUTES.” THE OPT-OUT NOTICE SHOULD BE SENT TO US THROUGH OUR SERVICE PROVIDER THROUGH THE FOLLOWING ADDRESS: Afterpay US Services, LLC, 760 Market St. Floor 2, Unit 2.03, San Francisco, CA 94102, Attention: Legal or by electronic mail at [email protected], Attention: Legal, and include (i) your Afterpay account identification, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration. If you do not opt out, but any part or parts of your agreement to arbitrate are unenforceable then we and you agree that such specific part or parts shall be of no force or effect and shall be severed, but the remainder of this agreement to arbitrate shall continue in full force and effect. If, however, the entire agreement to arbitrate or your waiver of the right to participate in class, representative or to arbitrate injunctive relief claims is unenforceable then the agreement to arbitrate shall be of no force or effect.
f) CALIFORNIA RESIDENTS IF YOU RESIDE IN CALIFORNIA AND YOU OPT-OUT OF ARBITRATION, WE AND YOU AGREE THAT ANY DISPUTES WILL BE RESOLVED IN THE SUPERIOR COURT FOR THE COUNTY OF SAN FRANCISCO BY JUDICIAL REFERENCE PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE (“CCP”), § 638(a). YOU ACKNOWLEDGE AND AGREE THAT IN ANY SUCH JUDICIAL REFERENCE ACTION, ANY DISPUTE WILL BE HEARD BY A REFEREE AND NOT BY A SUPERIOR COURT JUDGE AND JURY AND HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A TRIAL IN FRONT OF A JUDGE AND JURY. The Referee shall be appointed pursuant to CCP § 640 in the absence of agreement on the selection. Upon request, we will pay your portion of the fees and expenses of the Referee.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF YOU RESIDE IN CALIFORNIA AND YOU DO NOT OPT-OUT OF ARBITRATION, YOU MAY SEEK PUBLIC INJUNCTIVE RELIEF IN ARBITRATION TO THE EXTENT PERMITTED BY APPLICABLE LAW. Alternatively, if your Dispute involves a claim for public injunctive relief under California law, you may bring that claim in court. If you bring such claim in court, you further agree that we may treat such a claim as a Dispute within the meaning of the arbitration agreement set forth in this Section 10, and that we would then have the right to demand arbitration, and if you refuse such demand, to move to enforce arbitration in accordance with the terms of the foregoing arbitration agreement pursuant to the FAA. If we lose our motion to compel arbitration, you agree to stay your claim in court for public injunctive relief pending (1) exhaustion of our right to appeal in court from the ruling against us, and (2) completion of arbitration of all other Disputes. If we win our motion to compel arbitration, your claims for injunctive relief will be decided in arbitration in accordance with the terms of the foregoing arbitration agreement, inclusive of the requirement that the arbitration may award injunctive relief only as is necessary to remedy your own alleged injury or to prevent future injury to you alone.
11.Applicable Law and Jurisdiction
Except as expressly provided in Section 9 above, this Afterpay Plus Card Account Agreement and any Afterpay Plus Card Loan Agreement originated pursuant to this Afterpay Plus Card Account Agreement shall be governed by, and will be construed under, the federal laws of the United States and, with respect to issues of interest exportation under federal banking laws and to the extent state law otherwise applies and is not preempted, the laws of the state of Utah without regard to choice of law principles.
12.No Warranties; Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN THIS AFTERPAY Plus Card ACCOUNT AGREEMENT OR, IN ANY AFTERPAY Plus Card LOAN AGREEMENT ORIGINATED PURSUANT TO THIS AFTERPAY Plus Card ACCOUNT AGREEMENT WITH RESPECT TO THE EXTENSION OF CREDIT OBTAINED UNDER SUCH LOAN AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT THE AGREEMENT MAY HAVE UPON YOUR FOREIGN, FEDERAL, STATE OR LOCAL TAX LIABILITY. You agree that if any lawsuit or court proceeding is permitted under this Afterpay Plus Card Account Agreement or any Afterpay Plus Card Loan Agreement originated pursuant to this Afterpay Plus Card Account Agreement, the aggregate liability of us, our subsidiaries, partners, and affiliates, assigns, and agents to you for all claims arising out of or related to this Afterpay Plus Card Account Agreement or your use or inability to use your Afterpay Plus Card Account will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount of any affected order(s) giving rise to such damages, or (b) the amount of five hundred U.S. dollars ($500.00). These limitations will apply even if the above stated remedy fails of its essential purpose.
13.Express Written Consent to Receive Short Message Service (“SMS”) Communications & Email Communications and Marketing
a) Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our assigns, agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to this Afterpay Plus Card Account Agreement or any Afterpay Plus Card Loan Agreement originated pursuant to this Afterpay Plus Card Account Agreement, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS and text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. You also expressly consent to the receipt of electronic communications in connection from the merchant, our service providers, or any third party, including TrueAccord Corp., that is engaged by us or our service providers to collect any amount owed under this Agreement.
b) You consent to receive SMS and text messages, calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your application, this Afterpay Plus Card Account Agreement, any Afterpay Plus Card Loan Agreement originated pursuant to this Afterpay Plus Card Account Agreement, and/or your Afterpay Plus Card account. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number.
c) By signing this Afterpay Plus Card Account Agreement, you are providing express written consent to receive SMS and text messages to each telephone number provided by you to us regarding this Afterpay Plus Card Account Agreement, any Afterpay Plus Card Loan Agreement originated pursuant to this Afterpay Plus Card Account Agreement, and/or your Afterpay Plus Card account. You agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.
d) If you wish to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from us at any time by emailing us via our service provider at [email protected]. Upon receipt of your message, we will process the request and it will be effective only after we have a reasonable period of time to process your request. If you fail to provide or if you withdraw your consent to receive SMS communications as set forth in this section, we and our service providers reserve the right to restrict, deactivate or close your Afterpay Plus Card Account and you agree that you may be prevented from using certain features of your Afterpay Plus Card Account.
e) You agree that we may send you marketing communications to the email address you have provided including but not limited to targeted offers, introduction of new features, or other special announcements. You may opt out of these marketing communications at any time by using the “unsubscribe” link within a marketing email.
14.Miscellaneous
This Afterpay Plus Card Account Agreement is effective until all amounts due under the Afterpay Plus Card Account Agreement and all Afterpay Plus Card Loan Agreements you have obtained are paid in full or otherwise cancelled or refunded AND your Afterpay Plus Card Account has been closed. If any provision of this Afterpay Plus Card Account Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Afterpay Plus Card Account Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Afterpay Plus Card Account Agreement. This Afterpay Plus Card Account Agreement, including all documents incorporated by reference, constitutes and contains the entire agreement between you and us with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements.
15. Electronic Transactions
THIS AFTERPAY Plus Card ACCOUNT AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES PREVIOUSLY PROVIDED.
Exhibit A: Form of Installment Agreement
Afterpay In-Store Installment Agreement
Payment Schedule*
Your payments may be less if your purchase is for less than your preapproved amount.
Down Payment
Due Date
[Purchase Date]
Amount
[Down Payment Amount]
Remaining Payment Schedule
Due Date
[1st Installment Date]*
[2nd Installment Date]*
[3rd Installment Date]* (Maturity Date)
Amount
[Installment Amount]*
[Installment Amount]*
[Installment Amount]*
Total
$[Transaction Amount]* Paid to your selected merchant
Finance Charge (the dollar amount the credit will cost you): $0
Annual Percentage Rate (the cost of your credit as a yearly rate): 0%
Amount Financed (borrowed); and Total of Payments (amount you will pay excl. down payment): $[Transaction Amount - Down Payment]
Applicable Fees: A late fee, as permissible under applicable state law, with respect to any missed payment amount will be assessed to you if all or any portion of any required payment is not received by us within 10 days after its scheduled due date (subject to any additional grace period required by applicable law).
* Means an estimate. The dates listed for the down payment and the remaining payments and the payment amounts in the above Payment Schedule are estimates only based upon the best information reasonably available at the time of your purchase, including the purchase amount shown during Afterpay checkout. Your actual down payment and payment dates may be later than the dates identified in the above Payment Schedule. Likewise, your actual down payment and payment amounts may be more or less depending on the final purchase amount confirmed by the merchant. Afterpay will deliver a Final Payment Schedule as a supplement to this Agreement when you complete your purchase with the merchant that will contain your actual down payment, payment amounts and due dates. There may be a delay between the time of your purchase and the delivery of your Final Payment Schedule and subsequent charging of the down payment to your Payment Method.
Document ID: [Installment Agreement Unique Identifier]
Installment Agreement Terms
This Afterpay Plus Card Loan Agreement (“Agreement”) governs your financing of a particular purchase using the Afterpay Plus Card Account, and includes: (i) the invoice, receipt, or other similar statement of total purchase price provided to you by the merchant in connection with the financed transaction; and (ii) the Final Payment Schedule that is sent after you complete your purchase with the merchant that will contain your actual down payment, payment amounts and due dates with respect to the financed transaction. The Final Payment Schedule will supersede and replace the Payment Schedule shown above. The merchant’s invoice, receipt, or other similar statement of total purchase price are expressly incorporated into the terms of this agreement to the extent that they address the total amount due.
As a condition of the disbursement of proceeds hereunder you agree to make the down payment identified above which shall be due prior to disbursement of any proceeds described below.
PROMISE TO PAY: The Agreement governs your repayment to us in connection with funds we disbursed at your direction and on your behalf through your use of the Afterpay Plus Card Account to make a particular purchase transaction through which you acquire certain merchandise or services that you have selected from a merchant. You promise to pay the total purchase price (inclusive of all taxes and fees) indicated on your merchant’s invoice, receipt, or other similar statement of total purchase price in connection with the transaction for which you presented your Afterpay Plus Card Account number or alternative means of account access for payment, plus all other charges accruing under this Agreement until paid in full. Your total obligation will be the sum of your down payment (if applicable, as indicated in the Payment Schedule) and your remaining payments under this Agreement. Your down payment, if applicable, will be due immediately upon your use of your Afterpay Plus Card Account number or alternative means of account access. Your remaining payments will be due in two-week intervals from the date of your down payment, in amounts substantially equal to 25% of the total purchase price. You understand that the actual amounts and due dates of your “Down Payment” and the payments in your “Remaining Payment Schedule” will be provided to you electronically as a supplement to this Agreement (the “Final Payment Schedule”) that will be made available to you through our service provider in your Afterpay Account when you use your Afterpay Plus Card Account for a financed transaction that we approve.
THERE ARE NO FINANCE CHARGES AND NO INTEREST PAYMENTS ASSOCIATED WITH THIS AGREEMENT. The issuer of your Payment Method (defined below) may charge interest or other charges in accordance with the terms and conditions of the agreement between you and your Payment Method issuer.
Please note that Section 10 of this Agreement includes provisions that govern how claims we may have against each other are resolved. These provisions limit our liability and may require arbitration for a dispute that you assert against us. The Agreement includes important terms regarding your rights related to fees, dispute resolution and governing law.
This Agreement incorporates by reference all terms and conditions of our Privacy Policy (FEB policy) or the U.S. Terms of Service (available at: https://www.afterpay.com/terms-of-service) U.S. Privacy Policy (available at: https://www.afterpay.com/privacy-policy) of our service provider in connection with the Afterpay Plus Card Account unless explicitly superseded by this Agreement. In the event of a conflict with our Privacy Policy or the U.S. Terms of Service or U.S. Privacy Policy of our service provider, this Agreement shall govern with respect to the subject matter of such conflicting terms.
1.Use of Proceeds and Disbursement Authorization
By electronically accepting this Agreement through use of your Afterpay Plus Card Account number or alternative means of account access to complete a purchase, you agree to pay the down payment amount to us or our service provider, and we agree to disburse the proceeds under this Agreement to the merchant that you select by using the Afterpay Plus Card Account at checkout. You promise to repay us the amount of your purchase as indicated by the merchant at checkout. Your final payment schedule including your future payment schedule will be provided to you electronically as a supplement to this Agreement (the “Final Payment Schedule”). You also agree to pay any applicable Late Fees and NSF or Returned Payment Fees (each, as defined below) you incur under this Agreement. Please be aware that by entering this Agreement you are incurring a personal obligation for goods and/or services for personal use.
If your purchase is in a foreign currency, we will convert the amount of your purchase in a foreign currency into U.S. dollars based on the conversion rate we received from a third party as of the end of the prior business day. This rate may differ from other exchange rates and may differ from the rates in effect in the wholesale markets on the date you made the purchase. If you return your purchase, we will process the return based on the currency conversion rate used to determine the purchase price.
2.Installment Payments
In connection with use of your Afterpay Plus Card Account number or alternative means of account access to enter into this Agreement, you will have identified your preferred method of payment, designating an eligible US-issued credit or debit card as your “Payment Method.” In addition to any required down payment, you must make three (3) payments to us (each, an “Installment Payment”) in the amounts shown in your Final Payment Schedule identified as “Remaining Payment Schedule”. You are responsible for ensuring that you have sufficient funds available to make Installment Payments on the dates specified in your Final Payment Schedule.
If you make all Installment Payments in full on their due dates, your final payment will be made on the Maturity Date identified in the Final Payment Schedule. You may prepay all amounts due under this Agreement in whole or in part at any time without a penalty and may make any payment early, in whole or in part, without penalty or premium at any time.
If you would like to change your Payment Method or make alternate payment arrangements, you are able to do so online or if the specific feature is not available, or if you have further issues or questions, you may contact us through our service provider at [email protected]. The Payment Method you select and any necessary authorization will not affect your obligation to pay when due all amounts payable under this Agreement. The foregoing authorization is in addition to, and not in limitation of, any rights of setoff we may have under applicable law.
3.Late Payments and Returned Payments
There are no finance charges or interest associated with this Agreement.
However, if an Installment Payment is not paid on or prior to the due date specified in the Final Payment Schedule and remains unpaid for a period of ten (10) days after the due date (or such additional grace period required by applicable law), the Late Fee indicated above in the Payment Schedule (if any) will be imposed, up to a maximum of $8.00 and which in no event will exceed the maximum late fee permitted by applicable state law. Additionally, the aggregate sum of Late Fees associated with a particular order will not exceed 25% of the order value at the time of purchase. Thus, lower value purchases may be subject to fewer or lesser Late Fees in the event of late payment.
In addition, if any payment you make to us is returned unpaid for any reason, including but not limited to there being insufficient funds in your payment account at the time of payment, an NSF or Returned Payments Fee equal to [fee amount] will be imposed.
4.Delinquency and Default
If you fail to make any payment when due in the manner required by this Agreement, you will be delinquent. If you are delinquent, have filed or have instituted against you bankruptcy or insolvency proceedings or are in breach any other material term of this Agreement, we may, to the extent and at the time permitted by applicable law, deem you in default and accelerate the maturity of this Agreement and all payments due hereunder. If you fail to make a payment required under this Agreement or your Afterpay Plus Card Account, or if your use of your Afterpay Plus Card account is in breach of the Afterpay Plus Card Account Agreement, we reserve the right to limit, restrict, suspend or terminate your access to your Afterpay Plus Card Account.
5.Approval and Cancellation
When you use your Afterpay Plus Card Account number or alternative means of account access to make a purchase, you are requesting credit from us and submitting an application for our review. All applications for credit are subject to our approval. We may, in our sole discretion, not approve your application, or cancel an approved application before the goods or services are delivered or supplied. If we cancel your previously approved application:
a)We will apply a full refund of any amounts you have paid (excluding any chargebacks or fees incurred in relation to your payment), and will cancel any future payments related to that order;
b)The merchant providing the merchandise will not be obliged to deliver the goods (or provide any related services); and
c)You will have no obligation to make any further payments to us, or continue any other ongoing relationship with us, with respect to your application.
You agree that we may make any inquiries to assess your eligibility to use the services including of third parties. This includes consent for us or our service provider, Afterpay US Services, LLC, to obtain one or more credit reports or other consumer reports from consumer reporting agencies for use in determining my eligibility for an Afterpay Plus Card Loan Agreement, reviewing and servicing my Afterpay Plus Card Account, marketing Afterpay Plus Card or other Afterpay products or services to me, and for other permissible purposes under the Fair Credit Reporting Act.
6.Pre-Authorizations
As part of our approval process and our assessment as to whether or not you have the ability to fulfill your obligation to pay when due all amounts owed under this Agreement, we reserve the right to conduct a pre-authorization of your Payment Method. This may involve placing funds in the account linked to your Payment Method on hold each time you make an online purchase, obtain authorization for an in-store purchase or add a Payment Method to your Afterpay Plus Card Account. For online purchases, we immediately instruct your bank to void this pre-authorization transaction. For in-store purchases, where an authorization is obtained but there is no completed purchase, we instruct the bank to void the pre-authorization if the authorization is cancelled or expires. No funds are received by us or our service provider, Afterpay, during this process. We cannot guarantee the time it takes for your bank to process the void action and make your funds available.
PLEASE NOTE: In most circumstances, relevant banks will void a pre-authorization transaction within a few hours of the pre-authorization transaction being conducted by us or our service provider, Afterpay. However, in some observed instances, banks have taken up to fourteen (14) days to finalize this process. Unfortunately, we do not have any control or influence over the timing of your bank’s ability to finalize this process and neither we nor our service provider, Afterpay, make any representations on this subject matter.
For online purchases:
(i)the pre-authorization amount will not exceed your first Installment Payment (plus one cent) owed to us for that purchase; and
(ii)we immediately instruct your bank to void this pre-authorization transaction.
For in-store purchases:
(i)the pre-authorization amount will not exceed 25% of the value of the authorization (plus one cent); and
(ii)where an authorization is obtained but there is no completed purchase, we instruct the bank to void the pre-authorization transaction.
No funds are received by us or our service provider, Afterpay, during the pre-authorization process.
7.Merchandise Refunds and Other Adjustments Subsequent to Disbursement of Funds
Processing refunds and any merchandise exchanges or modifications are subject to the discretion of the merchant to whom you directed us to disburse funds under this Agreement. Neither we nor our service provider, Afterpay, are able to override merchant return, refund and exchange policies. If you decide to return goods acquired using funds we have disbursed under this Agreement and request a refund, or a return and refund are otherwise accepted or permitted by law, you will remain obligated to make all payments still outstanding under this Agreement when due. However, for any amounts that a merchant returns directly to us in connection with such returned or exchanged merchandise, we shall retain such amounts and reflect an equivalent credit to reduce your outstanding obligation to us under this Agreement or, where applicable, refund to you any amounts already paid. In the event of a partial refund, the credit will be applied against your last payment first. If, for any reason, we are unable to apply a refund to the order to which it corresponds, we may in our discretion apply the refund to any method of payment you have on file with us. You will remain obligated to make payments still outstanding when due.
8.Transfers or Assignments
We may transfer, assign or sell this Agreement, and any rights under this Agreement, to a third party without your consent. You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. You hereby waive demand, notice of non-payment, protest and all other notices or demands whatsoever, and hereby consent that without notice to and without releasing the liability of any party, the obligations evidenced by this Agreement may from time to time, in whole or part, be renewed, extended, modified, accelerated, compromised, settled, canceled or released by us.
9.Express Written Consent to Receive Short Message Service (“SMS”) Communications & Email Communications and Marketing
a) Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to this Agreement, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS and text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. You also expressly consent to the receipt of electronic communications in connection from the merchant, our service provider, Afterpay, or any third party, including TrueAccord Corp., that is engaged by our service provider, Afterpay, to collect any amount owed under this Agreement.
b) You consent to receive SMS and text messages, calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your application, this Agreement and/or your account. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number.
c) By signing this Agreement, you are providing express written consent to receive SMS and text messages to each telephone number provided by you to us regarding this Agreement and your Afterpay Plus Card Account You agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.
d) If you wish to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from us at any time by emailing us at [email protected]. Upon receipt of your message, we will process the request and it will be effective only after we have a reasonable period of time to process your request. If you fail to provide or if you withdraw your consent to receive SMS communications as set forth in this section, we reserve the right to restrict, deactivate or close your Afterpay Plus Card Account and you agree that you may be prevented from using certain features of your Afterpay Plus Card Account.
e) You agree that we may send you marketing communications to the email address you have provided including but not limited to targeted offers, introduction of new features, or other special announcements. You may opt out of these marketing communications at any time by using the “unsubscribe” link within a marketing email.
10.Miscellaneous
This Agreement is effective until all amounts due under the Agreement are paid in full or otherwise cancelled or refunded. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. This Agreement, including all documents incorporated by reference, constitutes and contains the entire agreement between you and us with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements.
11. Electronic Transactions
THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES PREVIOUSLY PROVIDED.
12.State Specific Disclosures
For Florida customers:
Florida documentary stamp tax required by law in the amount of $[VARIABLE FIELD] has been paid or will be paid directly to the Department of Revenue. Certificate of Registration No. 78-8018194724-3.
For Maryland customers:
This loan is made pursuant to the Credit Grantor Closed-end Credit Provisions of Title 12, Subtitle 1 of the Maryland Commercial Law Article (Md. Code Ann., Com. Law § 12-1001 et seq.).
For North Dakota customers:
NOTICE: MONEY BROKERS ARE LICENSED AND REGULATED BY THE DEPARTMENT OF FINANCIAL INSTITUTIONS, 2000 SCHAFER STREET, SUITE G, BISMARCK, NORTH DAKOTA 58501-1204. THE DEPARTMENT OF FINANCIAL INSTITUTIONS HAS NOT PASSED ON THE MERITS OF THE CONTRACT AND LICENSING DOES NOT CONSTITUTE AN APPROVAL OF THE TERMS OR OF THE BROKER'S ABILITY TO ARRANGE ANY LOAN. COMPLAINTS REGARDING THE SERVICES OF MONEY BROKERS SHOULD BE DIRECTED TO THE DEPARTMENT OF FINANCIAL INSTITUTIONS.
For Oklahoma customers:
You should refer to the relevant sections of this Agreement for information about nonpayment, default, the right to accelerate the maturity of this Agreement, prepayment and penalties.
For South Dakota customers:
If there are any improprieties in the making of this loan or in any loan practices, please refer to the South Dakota Division of Banking: South Dakota Division of Banking 1714 Lincoln Avenue, Suite 2, Pierre, South Dakota 57501; (605) 773-3421.
NOTE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
