Terms of Service
Last Updated: January 9, 2019
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE AND DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY. PLEASE PAY SPECIAL ATTENTION TO CAPITALIZED PROVISIONS. YOU SHOULD PRINT A COPY OF THESE TERMS OF SERVICE FOR YOUR RECORDS.
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”) at www.getbread.com, including any subdomain (collectively, the “Site”), or using any Bread online product or services (as defined below, the “Bread Services”), you (“you” or the “Member”) signify that you have read, understand and agree to be bound by these Terms of Service or this Agreement.
The Bread Services include:
- Bread’s technology interface, which may be used on a third party website operated by a merchant either on an e-commerce website, in a retail store, by phone, or by any other method through which the Bread Services are made available (each, a “Merchant”), and through which you may determine potential eligibility and submit an application for a loan from Cross River Bank, a New Jersey state-chartered bank, Member FDIC (the “Bank” or “Cross River Bank”) (such technology being the “Bread API” and program under which one may request, obtain and manage a loan issued by the Bank, the “Bread Loan Program”);
- The portal by which you may access information and manage your Bread Loan Program account (your “Account”), including scheduling payments and accessing important information with respect to your loan (such portal the “Member Portal”); and
- Our interactions with you in the course of providing services to, and on behalf of, Cross River Bank in connection with your Account or your loan with the Bank, including electronic, written and telephone communication (“Bread Communications”).
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.
In addition to these Terms of Service and the Additional Terms, you may enter into other agreements with us or the Bank that will govern your use of the Bread Services. If there is a conflict between these Terms of Service and another agreement that you enter into with us and/or the Bank (including, without limitation, your loan agreement with the Bank), such other agreement will take precedence with respect to the specific aspects of the Bread Services to which it applies.
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 Terms of Service carefully and in their entirety.
Changes to these Terms of Service
We may change these Terms of Service at any time in our sole discretion. If you continue to use the Bread Services after the Terms of Service have been updated, you are agreeing to the new Terms of Service. The date on the top of this page shows when the Terms of Service was last updated.
We may make changes, including adding or removing provisions, to these Terms of Service from time to time in our sole discretion. If we take such action, we will post the changed or amended Terms of Service on the Site and will indicate at the top of this page the date the 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 Terms of Service, that notice will include the option to opt-out of the changes. Your continued use of the Bread Services or the Site after we have made any such changes will constitute your acceptance of the new Terms of Service.
To access this Site or use the Bread 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 not have been denied a loan using the Bread Services in the last 90 days. We must also be able to verify you are who you say you are.
The Bread Services and this Site are intended solely for Members who are natural persons, eighteen
(18) years of age or older (nineteen (19) years of age for residents of Alabama and Nebraska), and residents of the United States. We do not make any representations that the Bread Services or the Site are appropriate for or comply with the laws or regulation of any other jurisdiction. In addition, if you have been denied a loan from the Bank using the Bread Services during the preceding ninety (90) days, you are ineligible to submit a new application under the Bread Loan Program. By using the Bread 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 Services in the future. Bread Services are available only in the United States in jurisdictions where the Bread Loan Program is available.
Prequalification and Application and Checkout
The financing for your purchase is provided through a fixed rate, closed-end, unsecured loan issued by Cross River Bank. The Bank will pay the loan proceeds, minus any fees owed by the Merchant, directly to the Merchant on your behalf.
You expressly authorize Cross River Bank, a New Jersey State Chartered Bank, Member FDIC, and Lon Operations LLC (“Bread”) to obtain your credit report and other information from one or more consumer reporting agencies for the purposes (as applicable) of processing your loan application, evaluating your prequalification request, and/or administering your Account including, without limitation, when: (1) you submit a request to pre-qualify for a loan (for example, by clicking on the “Get My Rate” button) and, at Cross River Bank’s or Bread’s discretion, from time to time thereafter; and (2) you apply for a loan (for example, by clicking on the “Accept and Check-Out” button) and, at Cross River Bank’s or Bread’s discretion, from time to time thereafter while your application is pending and/or during the servicing and/or collection of any loan Cross River Bank extends to you.
You understand and acknowledge that applying for a loan from Cross River Bank may require a “hard inquiry” on your credit report. The number of hard inquiries on your credit report is one of the factors that consumer reporting agencies consider when assessing your creditworthiness and, therefore, a hard inquiry may impact your credit score.
You also understand and acknowledge that this written authorization permits Cross River Bank and Bread to make multiple “soft inquiries” for your credit report from one or more consumer reporting agencies. Soft inquiries do not impact your credit score.
You certify that the information you have provided as part of the application for the Bread Services (as defined in the Terms of Service as agreed to between you and Bread) is true and correct. You authorize Cross River Bank and Bread 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 Services to finance a purchase for your personal, family, or household use only, and not for any commercial or business use.
You authorize Cross River Bank and Bread, at their sole discretion, to report to consumer reporting agencies their credit experiences with you and information about your Account from time to time. Information reported to consumer reporting agencies may appear on your consumer report and may impact your credit score.
For legal reasons, we also need to verify who you say you are. On behalf of the Bank, we may ask for some basic information when you apply for a loan and have a third party verify this information.
Prior to submitting an application for financing to Cross River Bank, you must request an initial determination of your eligibility and the terms that may be available to you (“Prequalification”). The Prequalification terms are not the final terms on which financing will be available and may change when the loan agreement from the Bank is presented to you. At or after thirty (30) days from the date of your Prequalification, we or the Bank may obtain your most recent credit report from the consumer reporting agencies, which may result in new terms or denial of credit terms.
If Prequalification determines that you are initially eligible, you may submit an application to Cross River Bank. If the Bank approves you, financing will be available to you through a closed-end, fixed rate, unsecured installment loan from Cross River Bank with terms specified in your loan agreement. Bread Loan Program loans are issued by the Bank, who will pay the loan proceeds on your behalf to the Merchant, minus any fees owed by the Merchant.
At Prequalification, upon submitting an application to the Bank, or at any other time, you may be denied use of the Bread Services by us or the Bank for any reason permitted by applicable law, including, but not limited to, your creditworthiness, suspected fraud, your history of using the Bread Services, or your violation of any agreement with us or the Bank, including these Terms of Service. Any transaction may be held as pending, delayed for processing, or canceled at any time prior to the issuance of your loan by the Bank. All loans are subject to final approval and funding by the Bank.
In the event that the goods or services you are attempting to purchase cost more than the amount of the loan that may be offered to you, or that a Merchant wishes to collect some portion of the payment separately, you may be permitted to pay, separately, the remaining portion of the transaction directly to the Merchant by credit or debit card (each such transaction a “Split Payment”). Although Bread’s technology may permit a Split Payment for a particular transaction, the Split Payment is a payment to the Merchant through a third-party payment processor, and is not a down payment, a payment towards principal or interest, or any other payment associated with your loan, or a transmission of money through Bread. Split Payments are not available for every transaction.
In the event that the Merchant issues a partial refund to your Account, the Split Payment portion of the total order will be refunded to you prior to any refunds or changes to the amount of your loan. A cancellation will result in a repayment of Split Payment funds to the card used to complete the Split Payment portion of checkout.
If a loan is issued to you by Cross River Bank, you will have a loan agreement with the Bank which you will agree to at the time you authorize a transaction on a Merchant website using the Bread Services. The loan agreement has important terms, which you should read. A copy of the loan 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.
The interest on the amount you borrow to finance your purchase will start accruing only once the loan has been issued, as determined by the Bank. The Bank will make the determination as to whether and when your loan is originated. Using the Bread Services does not guarantee a loan by the Bank.
Depending on the Merchant through which you check out, there may be some delay in the issuance of loan proceeds to the Merchant, or loan proceeds may be issued to the Merchant before they have fulfilled shipment of the goods to you. The terms of your loan are set out in your loan agreement with Cross River Bank and apply regardless of the timing of Merchant fulfillment of goods or services. Therefore, interest may start accruing on your loan or your payments may become due before you have received your goods or services from the Merchant. You should notify the Merchant if there are any unexpected delays or issues with your order. Please see the “Refunds and Cancellations” section on how to resolve disputes with the Merchant.
After the loan has been issued by the Bank, you also will receive a notice at the email address you provided as part of your registration that will contain instructions on how to access the Member Portal, where you can view your Account information and your final loan agreement.
Outages and Disruptions of the Bread Services
Although Bread will make commercially reasonable efforts to make the Bread 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, delays in approval by the Bank, 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 and the loan is originated, you are responsible for repaying your loan according to the terms of your loan agreement. If you wish to ask for a refund on your purchase, you should contact the Merchant. If the Merchant processes your refund, the Merchant will then contact us and your loan amount will be reduced by the amount of the refund. If the refund is for the entire borrowed amount, you may still owe finance charges depending on when the Merchant notifies us of the refund. If a refund is processed between you and the Merchant before the loan is issued, your loan will be issued in the reduced amount or your loan will be canceled in its entirety if the reduced amount is equal to the full amount of the loan. If a refund is processed between you and the Merchant after the loan has been issued, the refunded amount will be used to reduce the monthly payments on your loan. We may rely solely on the Merchant for the amount of the refund. You will still be responsible for any outstanding balance on your loan. You may also owe other amounts (such as late fees or non-sufficient funds fees) that accrued prior to issuance of the refund and were not paid. Please review your loan agreement with the Bank for further details.
Any disputes pertaining to the product or service, the amount you were charged, delivery, or any other aspect of your retail transaction with the Merchant 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 loan. 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 your loan balance, and you will remain responsible for any outstanding amount.
Disputes regarding the Bread Services or your loan with Cross River Bank may be directed to Bread through any method indicated on our Site.
It is important that you make timely payments on your loan. We are here to help you with any questions on repayment methods.
You may also log into the Member Portal at https://members.getbread.com or call (844) 992-7323 to make a payment via electronic fund transfer (ACH or debit card) or mail a check (which should include your loan number) to:
PO Box 783186
Philadelphia, PA 19178-3186
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 important 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 Services in the future or may result in the closure of your Account.
By using the Bread Services, you consent to receiving communications from us, individually and on behalf of the Bank or its assigns, 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 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 marketing communications as a condition of purchasing 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 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, individually or on behalf of the Bank, 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 be contacted with payment reminders. It is important that you make timely payments. Failure to make payments on time may result in fees or negative consequences to your credit history.
On behalf of the Bank, we may assign accounts to third party collection agencies, report positive and/or negative information to the consumer reporting agencies, restrict your access to the Bread Services for future financings, or take any other action permitted by applicable law. You agree that we or any of our agents or third parties acting on our behalf may contact you periodically to send you reminders to pay your obligations through any of the communication methods provided above.
You may request to close your Account. We will treat closing your Account as a request to withdraw loan applications and prequalification requests pending with Cross River Bank and may, at our sole discretion, and as permitted by applicable law, limit your ability to access the Member Portal without creating a new Account. Any outstanding loans 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 Services.
Bread may also close your Account if you do not use the Member Portal or the Bread Services for more than two years or if you are found to have engaged in a Restricted Activity or to have otherwise violated these Terms of Service or for any other reason.
You acknowledge that we may report information about your loan to credit bureaus on behalf of Cross River Bank or any other holder of the loan. Late payments, missed payments, or other defaults on your Account may be reflected in your credit report.
The items listed below are a non-exclusive list of prohibited activities when using Bread Services (each a “Restricted Activity”).
As a condition to accessing the Site or using the Bread Services, you agree that you will not:
- Use the information of any other person to apply for financing or allow any other person to use your Account to apply for financing for themselves or others;
- Access another person’s Account with Bread or use another person’s account to apply for a loan from the Bank;
- Use the Bread Services for any illegal purpose
- Use the Bread Services to purchase (which restrictions may be waived by us in our sole discretion) 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 or Cross River Bank any misleading or false information, including in your application for a loan or in any of your communications, whether in writing or orally;
- Use any software, device, or technology to commit unauthorized use of the Site or attempt to gain unauthorized access to Bread systems or disrupt the Site or the Bread Services in any way;
- Otherwise engage in any activity that is illegal or in contravention of any agreement you have with Bread, including these Terms of Service;
- Use the Bread Services to purchase goods or services for other than personal, family or household purposes
- Use the Bread Services for competitive purposes, including to reverse engineer Bread’s technology or the Bread API or to engage in mystery shopping; or
- Use the Site or Bread 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 times, to prevent your access to the Site or to the Bread Services or cancel 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 phone number changes, you must notify us of the change by sending an email to email@example.com 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 firstname.lastname@example.org 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 Terms of Service or any loan 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 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 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 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 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 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 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 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 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 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.
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 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 related to your loan agreement with the Bank (including with respect to any assignees of the loan or the Bank’s rights under the loan) is expressly excluded from this provision.
Proprietary Rights in Bread IP; Limited License
By using the Bread 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 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 to prepare a derivative work based on the Bread IP. In connections with your use of the Bread 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 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 Services, you are granted a limited, revocable, nonsublicensable, nontransferable license to access and use the Bread IP and the Bread Services solely for your personal, noncommercial use (including to access any disclosures). 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 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 Services, without our prior written permission in each instance. All goodwill generated 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 disputes 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 1264, New York, NY 10276, which is effective if it is received at the specified address within 30 days of the date of your electronic acceptance of these Terms of Service. The opt out notice must clearly state that you are rejecting arbitration; identify the 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 event 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 1264, New York, NY 10276. 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 (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 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 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.
(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 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 under the loan and (iv) any transfer of any loan 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 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, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF (OR INABILITY TO USE) THE SITE OR THE BREAD SERVICES OR OTHERWISE ARISING UNDER OR RELATING TO THESE TERMS OF SERVICE (INCLUDING YOUR USE OF ANY PRODUCT PURCHASED USING THE BREAD SERVICES, THE UNAVAILABILITY OF THE BREAD SERVICES FOR ANY REASON, OR ANY SYSTEM FAILURE OR MALFUNCTION ASSOCIATED WITH THE BREAD 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 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 SERVICES IN THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BREAD WOULD NOT PROVIDE THE BREAD 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 NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Disclaimer of Warranties
YOUR USE OF THE SITE AND THE BREAD SERVICES IS AT YOUR SOLE RISK. THE SITE AND BREAD 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 LIMITED 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 SERVICES OR ON THE SITE AND ANY WARRANTIES REGARDING THE OPERABILITY OF THE BREAD SERVICES OR LIABILITY FOR ANY SERVICE INTERRUPTIONS OR SYSTEMS FAILURES THAT MAY AFFECT THE BREAD 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 WARRANTIES” 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 SECTIONS.
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 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 Terms of Service or your use of the Bread 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 Services.
Indemnity and Release
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 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 SECTIONS.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Bread Services from California are entitled to the following specific consumer rights 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.O. Box 1264, New York, NY 10276 or by phone at (844) 992-7323.