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ClearGage Arbitration/Dispute Resolution Agreement Version - 032421

READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.

BY CLICKING TO ACCEPT OR AGREE TO THIS DISPUTE RESOLUTION AGREEMENT WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THE TERMS AND CONDITIONS OF THIS DISPUTE RESOLUTION AGREEMENT, AND ACKNOWLEDGE THAT YOU HAVE DOWNLOADED OR PRINTED A COPY OF IT FOR YOUR OWN RECORDS. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS DISPUTE RESOLUTION AGREEMENT AS PROVIDED IN PARAGRAPH (2) BELOW.

If you are a "Covered Borrower" as defined by the federal Military Lending Act regulations (32 CFR §232, as amended from time to time) at the time of entering into this Agreement, then this Dispute Resolution Agreement does not apply to you, and you do not need to opt out or take any action to ensure inapplicability of this Dispute Resolution Agreement.

  1. Either party to this Dispute Resolution Agreement, or any subsequent holder, 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 Dispute Resolution Agreement, unless you opt out as provided in Section (II) below. As used in this Dispute Resolution Agreement, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or any subsequent holder (or persons claiming through or connected with us and/or the subsequent holders) on the other hand, relating to or arising out of this Dispute Resolution Agreement, any loan agreement and promissory note(s), the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of Section (VI) below) the validity or enforceability of this Dispute Resolution Agreement, any part thereof, or the Dispute Resolution Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Dispute Resolution Agreement is to be given the broadest possible interpretation that is enforceable.
  2. You may opt out of this Dispute Resolution Agreement for all purposes by sending an arbitration opt out notice to ClearGage LLC, 3810 Northdale Blvd., Ste. 210, Tampa, FL, 33624 Attention: Legal Department, which is received at the specified address within 30 days after the date of your electronic acceptance of the terms of this Dispute Resolution Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Dispute Resolution Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt out notice in any manner you see fit, as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Dispute Resolution Agreement. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.
  3. If a Claim arises, 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. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to legal@cleargage.com at any time, or by calling 800-236-3206 from Monday - Saturday 8:30 AM - 10:00 PM ET.
    The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or Judicial Alternatives and Mediation Services ("JAMS"). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Dispute Resolution Agreement or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1-800-778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1-800-352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Dispute Resolution Agreement, this Dispute Resolution Agreement shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
  4. If we elect arbitration, we shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We 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, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, then these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
  5. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitration administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Dispute Resolution Agreement and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act ("FAA"), and may be entered as a judgment in any court of competent jurisdiction.
  6. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court of limited jurisdiction that does not allow class action litigation, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not: (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section (VI), 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 (VI) shall be determined exclusively by a court and not by the administrator or any arbitrator.
  7. This Dispute Resolution Agreement is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Dispute Resolution Agreement. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
  8. This Dispute Resolution Agreement shall survive: (i) suspension, termination, revocation, closure, or amendments to this Dispute Resolution Agreement and the relationship of the parties; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or loan agreement or promissory note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Dispute Resolution Agreement other than Section (VI) is deemed invalid or unenforceable, the remaining portions of this Dispute Resolution Agreement shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section (VI) are finally adjudicated pursuant to the last sentence of Section (VI) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Dispute Resolution Agreement.

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 DISPUTE RESOLUTION AGREEMENT, EXCEPT THAT EITHER PARTY MAY PURSUE A CLAIM IN SMALL CLAIMS COURT. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT - EXCEPT FOR SMALL CLAIMS COURT - BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.