- WHAT ARE YOU AGREEING TO?
The Parties to this Agreement. These Terms of Service describe a contractual relationship (“Agreement”) between you (“you” or “your”) and Tua Financial Technologies Ltd., (including its subsidiaries and affiliates, including Tua Financial Technologies Holdings Inc. (“Tua,” “we,” “us,” “our”), regarding:
(1) your use of this website (“Website”) or any mobile application offered by or marketed by or on behalf of Tua or any other technology platform offered by Tua, (each an “Tua App”),
(2) your use of the Website, an Tua App, or a third-party website in connection with a product or service offered directly by Tua, as applicable,
(3) your use of “Additional Tools” as described below in Section 2,
(4) your use of any other service(s) offered through the Website or an Tua App, as applicable, and
(5) your access to your Tua account information and access to any service through the Website or an Tua App
(collectively, the “Tua Service(s)” or “Service(s)”).
We may partner with banks (each, a “Bank Partner”) to offer certain products and services and we offer certain products and services directly to you. If you are approved for a product offered through Tua by one of these Bank Partners, or through other partnerships with Bank Partners, you will enter into an agreement with the Bank Partner. Notwithstanding any other provision of this Agreement, any agreement you enter into with a Bank Partner (and not this Agreement) will control with respect to the associated Bank Partner product.
Changes to this Agreement. Tua may unilaterally decide to change this Agreement from time to time, provided, however, that such changes will not impose additional obligations on you with respect to actions you took before the change became effective unless you specifically agree to such changes (for example, by confirming a loan). Additionally, YOU AGREE TO ACCEPT ANY CHANGES TO THIS AGREEMENT BY USING THE TUA SERVICES AFTER CHANGES HAVE BEEN POSTED. If Tua makes any changes to this Agreement that it deems to be material, Tua will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted to our website from time to time to see if it has been changed.
Your Eligibility To be eligible to use the Services, you must be at least 18 years old (19 years old in Alabama or if you are a ward of the state in Nebraska) and a resident of the United States or its territories. Loans originated by a Bank Partner may not be available in all states. You represent and warrant that you are eligible to use the Services.
- HOW TUA WILL SERVE YOU
Pay with Tua: When you pay with Tua you may be offered a closed-end installment credit/loan product with terms as expressed in your BNPL/Loan Agreement. Interest bearing installment loans may be offered by a Bank Partner through Tua’s technology platform or by Tua directly through Tua’s technology platform or through a third-party website. Loan term options may vary based on purchase price and merchant and may not be available in all states. Tua’s services allow you to purchase goods or services offered by merchants (“Merchants”) for personal use. If you pay with Tua, either Tua or Bank Partner (the “Lender”), depending on the product or service, Tua will pay the Merchant on your behalf in exchange for your promise to repay the same amount plus a finance charge, where applicable.
Your Promise to Pay: Before completing any transaction on your behalf through any Tua Services, Tua will secure your promise to pay by disclosing the terms and conditions applicable to that transaction and securing your affirmative consent to those terms for that transaction, including your promise to pay the Total Payments amount to Lender or its assigns, by asking you to click the button to confirm your payment option and loan.
Interest Rates: Rates range from 0% to 30% fixed Annual Percentage Rate (“APR”), depending on your creditworthiness and/or the type of product or service offered (0% APR may only be offered at select merchants). Loans are simple interest loans, which means that interest, if any, accrues daily on the unpaid principal balance, up to the amount of the finance charge, until you pay the loan in full.
Finance Charge: Loans may be subject to a finance charge based on the applicable interest rate. The Lender will always disclose the specific finance charge before you agree to any loan.
Late Payment Fee: You will be charged the following late fees when you pay with Tua:
Buy Now, Pay Later Option: If an installment payment is not paid on or prior to the due date specified in the Final Payment Schedule of your Credit/Loan Agreement, a late fee will be imposed, up to a maximum of $7.00 and which in no event will exceed the maximum late fee permitted by applicable state law.
Interest Bearing Installment Loan Option: If an installment payment is not paid on or prior to the due date specified in the Final Payment Schedule of your Credit/Loan Agreement and remains unpaid for a period of 15 days after the due date (or such additional grace period required by applicable law), a late fee will be imposed, up to a maximum of $7.00 and which in no event will exceed the maximum late fee permitted by applicable state law.
Nonsufficient Funds Fee: If your deposit account lacks sufficient available funds to pay a check, preauthorized transfer, automatic clearing house or other debit activity presented for payment, Tua may return such item for non-sufficient funds and will charge you up to a maximum of $50.00 non-sufficient funds fee, and which in no event will exceed the maximum fee permitted by applicable state law.
Delays in Processing: In some cases, when you pay with Tua to make a purchase, the transaction may be held as pending or be otherwise delayed for processing and confirmation by either Tua or the merchant and can be cancelled at any time until it is confirmed by Tua.
Extended Ship Date: If when paying with Tua, one or more items in your order has an extended ship date, your loan payment(s), including interest, may be due before the merchant ships the item(s). Please note that you may not receive a rebate of any interest that may have already accrued on an amount that later gets refunded.
Tua-Originated Loans. Loans may be offered directly by Tua. Refer to your Credit/Loan agreement for details.
Tools We May Offer: We may from time to time offer you the ability to access certain financial management tools. Examples of such tools include financial calculators, customized financial analyses, bill payment reminders, dashboards with information about your debts (including debts you may owe others) and/or assets, and other similar services. Unless we indicate otherwise, these tools will be provided free of charge and are provided exclusively for personal use.
Autofill of Information: In order for you to have a more seamless experience while using your payment instrument with another financial institution, we will store some of the information that you provide to us, or that you authorize a third party to provide to us, or that a third party provides to us about you, and use that information to autofill different forms for you during your payment journey. More detail on how it works is below. While using the Services, we may ask for your personal information and contact details such as name, address, telephone number, email, VCN card details, debit/credit card details (excluding CVV), and billing address for those cards, or you may authorize our service providers to provide us with information about you, such as details about your financial accounts, transactions, and credit history. We will keep this information in our systems so that when you return to us, you will only need to provide basic details in order for us to automatically fill in the remaining fields to complete your transaction. When you pay a merchant directly from an Tua App, we can autofill your details on the merchant’s site. This is enabled when you log in to an Tua App so that we know it is you purchasing something with that merchant. If you no longer want to use the autofill feature for payments, you can go to the Profiles Tab in the Tua mobile app and remove your payment instrument under Payment Methods.
Limitations on Tools: You agree that we may modify the tools or cease making them available to you at any time without notice. We have no obligation to continue to make any particular tool available to you or to do so without charge. If we modify a tool or cease to make a tool available to you, you understand that you may lose access to any information that you may have supplied in connection with your use of the tool and have no rights to obtain such information from us. To the extent that the tools present information regarding financial accounts you may have with other lenders or financial institutions, you understand that the information may not be up to date. Before acting on any such information, you should confirm its accuracy with the lender or financial institution holding the account. There may be times when a tool we offer is unavailable or not properly functioning, and you agree that we have no liability to you if this occurs or in connection with the tools generally. You may need certain hardware or software to utilize the tools, and you understand that your failure to have such hardware or software will result in your not being able to use the tools or some tool functionality. You understand that some tools or some tool functionality may only be available to consumers who have relationships with certain lenders, service providers or financial institutions or who have certain financial products. If you do not have such relationships or products, you understand that you may not be eligible to use a tool or all of its functionality. You agree that we may use information we gather through the tools to market other products and/or services to you, including those of third parties.
Third Party Providers: We may rely on third party providers to assist us in making a tool or other Tua Service available to you. By linking your bank account to a tool or Service, you authorize us and our third party providers to access your financial accounts on your behalf, and to gather information about you. You give us and our third party providers a limited power of attorney, and appoint us and our third party providers as your true and lawful attorney-in-fact and agent to act on your behalf and access, transmit, and use your information as necessary to provide the tools and other Services. You agree to the transfer, storage, and processing of your information by these third party providers in accordance with their respective privacy policies. We have no liability to you for any damages you may suffer as a result of any such third party’s actions or inactions or from inaccurate account information.
Tools are Provided for Informational Purposes Only: Financial information provided through the tools is provided for informational purposes only and is not a substitute for individualized professional advice. We are not a credit repair or credit services organization as defined under federal or state law, including any credit repair or credit services organization acts. We do not provide “credit services” or “credit repair” services. We do not advise or assist you with “rebuilding” or “improving” your credit. We make no representation that we will improve or attempt to improve your credit record, history or rating. The tools are not intended to provide financial, legal or tax advice, and we are not a financial planner, broker or tax advisor. The tools are intended only to provide general assistance in organizing your finances. Before making any financial decisions or implementing any strategy, you should consider obtaining additional information and advice from your accountant or other financial advisers who are fully aware of your individual circumstances.
Accuracy, Reliability and Timeliness of Information: YOUR USE OF THE TOOLS IS AT YOUR SOLE RISK. INFORMATION PROVIDED THROUGH THE TOOLS IS ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR INFORMATIONAL PURPOSES ONLY. WE MAKE NO WARRANTY THAT THE TOOLS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE OR RELIABLE.
Credit Report Authorization and Reporting. You expressly authorize Tua and each of Tua’s Bank Partners to obtain (for itself or on behalf of Tua or a Bank Partner) consumer reports from consumer reporting agencies about you (1) when you request offers or apply for a loan, (2) periodically throughout the term of your loan (including in the month following the month when you pay off or otherwise satisfy the loan), and (3) from time to time in connection with any other services that we offer or that you may obtain from us, including, without limitation, your Tua account, or services involving financial management, credit profile tools, and the marketplace.
In each case you expressly authorize us and each Bank Partner to use such consumer report about you, and information derived therefrom, in connection with:
(i) your payment service or loan, including determining your eligibility, servicing or maintaining your payment, loan or account, verifying your identity, verifying information you provide to Tua or a Bank Partner, and for collecting any amount you owe us or a Bank Partner or any of our respective successors or assigns;
(ii) marketing, including pre-qualifications and other forms of marketing, for payment services or loans that may be provided by us or a Bank Partner and any other service we offer or you obtain from us or any Bank Partner through the Tua Services, such as financial management tools or the marketplace;
(iii) our internal use, including statistical analyses and to develop, improve, analyze, study, and maintain products and services we or any Bank Partner offers or may offer through the Tua Services; and
(iv) providing you with information or Tua Services, including information about your credit profile and to deliver services upon your request (such as financial management tools and credit profile tools).
If you request offers or apply for multiple or additional loans or an additional Tua Service, you further authorize us and our Bank Partners to share with each other information it has about you (including a consumer report), in order to determine your eligibility in connection with such offers or applications.
You understand that Tua and/or any of its Bank Partners may report information about your payment service or loan (such as on-time, late, and missed payments; any defaults; and the fact you paid off your loan) to consumer reporting agencies, and that such information may be reflected in your credit report or other consumer reports about you.
Servicing & Collection. You agree to allow Tua to send you payment reminders from time-to-time. Notwithstanding whether you have consented or withdrawn your consent to the Tua E-Sign Consent, you agree that payment reminders may take the form of any available communication, subject to applicable law. You also agree that if you fail to pay an amount owed to Tua pursuant to this Agreement or any other agreement you have with us or any Bank Partner, Tua may engage in collection efforts to recover such amounts from you. These collection efforts may involve contacting you directly, submitting your information to a collections agency, or taking legal action. FAILURE TO PAY MAY AFFECT YOUR CREDIT SCORE.
Communication & Notification. You agree that Tua may provide you communications about your account and any Tua Service electronically or through phone calls or in writing to any contact information we have on file for you. Standard mobile, message, or data rates may apply and you are responsible for any such fees. Tua reserves the right to close or limit access to your account or the Service and immediately collect all due amounts if you withdraw your consent to receive electronic or other communications or if you revoke access to any third party site on which the Tua Service relies or if any such service should revoke or cancel your account on that site. Any electronic communications will be considered to be received by you at the time we email it to you or otherwise send it to your attention (such as via sms or other online or mobile notification). We may assume you have received any communications sent to you by postal mail 3 business days after we send it. If we need to contact you to service your account or to collect amounts you owe to us, you give direct consent to us, as well as servicers, agents, contractors and collectors of your account, to communicate with you in any way, such as calling, texting, or email via:
- a mobile phone or landline you provide to us, use to contact us, or at which we believe we can reach you (even if it is not yours),
- any email address you provide to us, one of our Bank Partners, service providers, or one of our Merchants,
- automated dialer systems and automatic telephone dialing systems,
- pre-recorded or artificial voice messages and other forms of communications.
You also agree that these communications are not unsolicited for purposes of any state or federal law, and you understand that this may result in additional mobile, text message, or data charges.
You understand and agree that Tua may monitor or record telephone conversations you or anyone acting on your behalf has with Tua or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with Tua may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Tua, and Tua does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
Notwithstanding this provision, Tua’s delivery of any Disclosures governed by the Tua E-Sign Consent shall be governed by your consent or withdrawal of consent to receiving such Disclosures in electronic form.
Working with Third Parties. If you grant express permission to a third party to take specific actions on your behalf, or access particular information about your account, either through your use of the third party’s product or service or through your Tua account, you acknowledge that Tua may disclose the information about your account that is authorized by you to this third party. You also acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. Further, you acknowledge and agree that you will not hold Tua responsible for, and will indemnify Tua from, any liability arising from the actions or inactions of this third party in connection with the permissions you grant.
Waitlist and Future Products. Tua may offer you a chance to join a waitlist in which you will be notified about future or prospective products. An offer to join a waitlist is not a guarantee that you will be offered or that you will receive the future product. Waitlisted products, when available, may have additional limitations, restrictions, and qualifications and you may not meet those qualifications. Additionally, Tua reserves the right to change the terms of any future product before it is offered to you. Tua also reserves the right not to offer one or more future or prospective products at all, without providing any additional notice to you. Waitlisted products may be offered by Tua or by one of Tua’s partners. A partner may impose additional restrictions on your ability to obtain the product.
Agreement to Provide Accurate Information.
- YOUR USE OF TUA
When you provide information to Tua or in connection with the Tua Services, you agree to provide only true, accurate, current and complete information about yourself and you agree not to misrepresent your identity or your account information. You further agree to keep your account information and contact information up to date and accurate, and to promptly notify us of any changes to such information.
User Responsible for Fees.
If you use the Tua Services, you are responsible for any fees or other amounts that your phone service provider charges, such as fees for SMS, data services, and any other fees that your phone service provider may charge.
You may use one of the acceptable methods of payment set forth in your BNPL / Loan agreement to make one-time transactions to pay your account as payments become due or you may set up automatic account payments. Furthermore, nothing in this Agreement will be construed as applying to the extent inconsistent with the BNPL / Loan Agreement related to your product or service including any payment service or loan originated directly by Tua. By agreeing to these Terms of Service you also acknowledge that you cannot use any form of health insurance or benefits coverage to pay for your purchase using TuaPay.
Access to Your Account.
You are responsible for maintaining the secrecy of the login credentials to your Tua account and any other access credentials you may use to access your Tua account (e.g., the password to your mobile device you use to access an Tua App). You must notify us immediately if you believe your login credentials or the security of your Tua account has been compromised or stolen. You are responsible for any activity taken on your Tua account using your login credentials, except as expressly provided by applicable law. You agree to establish reasonable security procedures and controls to limit access to your password or other identifying information to authorized individuals, which includes choosing passwords and other credentials in a manner that will protect the security of your information. Your credentials include your username and password to your Tua account and to any third party account you have used to login to your Tua account. You are also responsible for maintaining the accuracy of the information in your Tua account.
Website & App Content.
Information on the Tua website and in Tua platforms is for information purposes only. It is believed to be reliable, but Tua does not make any promises as to its completeness, timeliness or accuracy. The information and materials contained in the Website, and in this Agreement, are subject to change without notice.
Access to the Services may from time to time be unavailable, delayed, limited or slowed due to, among other things:
Links to Other Websites.
- servers, networks, hardware failure (including your own computer), telecommunication lines and connections, and other electronic and mechanical equipment;
- software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents or other content;
- overload of system capacities;
- damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters;
- interruption (whether partial or total) of power supplies or other utility of service; strike or other stoppage (whether partial or total) of labor;
- governmental or regulatory restrictions, exchange rulings, court or tribunal orders or other human intervention; or
- any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of Tua.
Links to non-Tua websites are provided solely as pointers to information on topics that may be useful to users of the Services, and Tua has no control over the content on such non-Tua websites. Tua makes no warranties concerning the content of such websites, including the accuracy, completeness, reliability of said websites, nor does Tua warrant that such website or content is free from any claims of copyright, trademark or other infringement of the rights of third parties or that such site or content is devoid of viruses or other contamination. If you choose to follow a link to a website not controlled by Tua, you must do so at your own risk. Tua does not guarantee the authenticity of documents on the Internet. Links to non-Tua websites do not imply any endorsement of or responsibility for the opinions, ideas, products, information or services offered at such sites, or any representation regarding the content at such websites.
Closing Your Account.
Tua may close your account if you do not log in to your account or use the Tua Services for two or more years. Tua will retain your information in accordance with the section above.
Feedback You Provide.
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. If we accept your submission, 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 sources other than you.
- HOW YOU MAY NOT USE TUA
By using the Tua Services, you agree that:
- You will not engage in any activities related to the Services that violate any applicable law, statute, regulation, or ordinance or breach this Agreement or any other agreement or policy you have with Tua;
- You will not provide false, inaccurate or misleading information;
- You will not provide information belonging to any person other than yourself or use an account that belongs to another person for yourself or on behalf of another person;
- You will not use the Services to purchase:
o Ammunition, firearms, certain firearm parts or accessories, and certain weapons or knives regulated under applicable law;
o Narcotics, steroids, controlled substances, quasi-pharmaceuticals, or drug paraphernalia;
o Currency in any form, including virtual and digital currency; or
o Any goods or services deemed unacceptable by Tua or its Bank Partner(s), in their sole discretion.
- You will not use any device, software, routine, file or other tool or technology, including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Services or to surreptitiously intercept or expropriate any system, data or personal information from the Services;
- You will not use the Services to make payment(s) on an existing Tua loan(s). Unless otherwise expressly permitted by Tua, you will not use the Services for the purpose of payment for an existing loan(s) or line of credit from another institution;
- You will not use the Services to accomplish a cash advance, wire or money transfer;
- You will not commit unauthorized use of Tua’s Website and systems including but not limited to unauthorized entry into Tua’s systems, misuse of passwords, or misuse of any information posted to a site; and
- You will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, “spam” or any other such unsolicited overload technique.
Disputes with Tua.
- HOW TUA WILL RESOLVE DISPUTES
If a dispute arises between you and Tua, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact Tua through the Tua Customer Care Team at Care@tuafinancial.com or by calling 1-833-TUA-5636 or 1-833-882-5636 to try resolving your problem directly with us.
THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS OF SERVICE BY USING THE TUA SERVICE OR THE WEBSITE.
Unless you are a covered borrower as defined by the Military Lending Act, 10 U.S.C. § 987, and to the extent permitted by applicable law, except as explicitly provided in this Agreement, any dispute or claim relating in any way to your visit to the Website, your use of the Tua Services, a product offered or provided by or through the Website or Service, or otherwise arising out of or relating to this Agreement or the Services that cannot be resolved directly between you and Tua shall be resolved by binding arbitration under the Consumer Arbitration Rules (“the Consumer Rules”) of the American Arbitration Association (“AAA”), rather than in court. Except as otherwise explicitly provided in this Section, this broadly includes: any claims based in contract, statute, tort, fraud, consumer rights, misrepresentation, equity or any other legal theory; initial claims, counterclaims, cross-claims and third-party claims; federal, state and local claims; and claims which arose before the date of this Agreement. The Federal Arbitration Act (“FAA”) and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court and must apply and follow the terms of this Agreement as a court would. The arbitrator shall apply applicable statutes of limitations and honor privilege rules. Any judgment on the award rendered by the arbitrator will be final and may be entered in any court of competent jurisdiction.
YOU UNDERSTAND THAT ABSENT YOUR CONSENT TO ARBITRATION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A TRIAL BY JURY.
Either you or we can initiate arbitration through AAA, an alternative dispute resolution provider, or by filing a motion to compel arbitration of claims filed in court. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. If AAA cannot serve, a court with jurisdiction shall select the arbitrator, who will apply the AAA rules and procedures specified in this Section. Any arbitration will be governed by the then-current Consumer Rules of the AAA, and its Procedures for the Resolution of Disputes through Document Submission (“Document Submission Procedures”). The Consumer Rules are available at the AAA website: www.adr.org
. The Document Submission Procedures are included in the Consumer Rules. Your arbitration filing fees will be governed by the Consumer Rules. If it is determined by the arbitrator that you cannot afford such fees, Tua will pay all arbitration fees and expenses. The arbitration will be conducted solely based on written submissions. The arbitration will not require any personal appearance by the parties or witnesses unless the arbitrator determines that a telephonic or in-person conference or hearing is necessary based on the request of one or more of the parties. Disputes or controversies about the validity, enforceability, coverage or scope of this Section or any part thereof are for a court and not an arbitrator to decide; however, disputes or controversies about the Agreement as a whole are for an arbitrator and not a court to decide.
CLASS ACTION WAIVER:
You and Tua each agree that any arbitration will be conducted only on an individual basis and not as a class, consolidated or representative action. To the fullest extent permitted by law, (a) no arbitration will be joined or consolidated with any other; (b) there is no right or authority for any dispute to be arbitrated on a class-action or private attorney general basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. No arbitrator shall have the authority to issue any relief that applies to any person or entity other than Tua and/or you individually.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Even if all parties have opted to litigate a claim in court, a party 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 Section. You and Tua each agree that any disputes seeking to enforce or protect, or concerning the validity of intellectual property rights will not be subject to binding arbitration under this Section. In addition, pursuant to the Consumer Rules, any party may proceed with their individual claims in small claims court if that option is available in the applicable jurisdiction and the amount in controversy falls within the small claims court’s jurisdictional limits; but if that action is transferred, removed or appealed to a different court, arbitration can be elected. If any portion of this Section is inconsistent with the Consumer Rules or other provisions of this Agreement, this Section shall govern. This Section shall survive termination of this Agreement and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. No portion of this Section may be amended absent a written agreement signed by all parties. If any portion of this Section is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Section, except that: (A) If the Class Action Waiver is limited, voided or found unenforceable, then this Section (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 (B) 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 Section 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. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have a preclusive effect in an arbitration between the parties to this Section.
RIGHT TO OPT:
If you do not want this Section to apply, you must send Tua a signed notice within 30 calendar days after you agree to be bound by the Agreement as described above.
You must send the notice in writing (and not electronically) to Tua Financial Technologies Holdings Inc. 2101 S IH 35 Frontage road, Suite 400, Austin, TX, 78741 Attn: “Terms of Service Section 5 Opt Out”, . You must provide your name, address, and phone number and state that you “opt out” of Section 5 within the Tua Terms of Service. Opting out of this Mandatory Arbitration provision will not affect the other provisions of this Agreement. If you properly and timely opt out of Mandatory Arbitration as described herein, your opt out request will apply only to this Agreement and not any other agreement between us.
- MISCELLANEOUS PROVISIONS
Tua operates and controls the Services from its offices in the United States and Canada. Tua makes no representation that the Services are appropriate or available in other locations. The information provided on the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Tua to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
Software from the Services may be subject to United States export controls. Thus, no software from the Services may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods. This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Service-related materials obtained from the Service, Tua or any other website or source and paying all amounts you owe (including any fees or expenses incurred or imposed by Tua) in full. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from Tua if, in our sole discretion, you fail to comply with any term or provision of these Agreement. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. You may not assign these obligations under the Agreement without Tua’s prior written consent, but Tua may assign this Agreement and its rights and obligations hereunder to any party at any time without any notice to you. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon Tua’s request, you will furnish Tua any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Tua by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
Updating Your Information.
You agree that Tua is not responsible for any delay or failure in your receipt of any Disclosure, text message, or email notice that is not caused by Tua’s failure to send such a Disclosure or notice to the phone number or email address you have provided to us. We will not assume liability for non-receipt of notification of availability of electronic Documents in the event your mobile number, email address or other contact information on file is invalid; your email or Internet service provider filters the notification as “spam” or “junk mail”; there is a malfunction in your computer, mobile device, browser, Internet service, mobile connectivity and/or software; or for other reasons beyond our control.
Enforceability and Governing Law.
The failure of Tua to exercise or enforce any right or provision of the terms in this Agreement does not constitute a waiver of such right or provision. These Terms of Service constitute the entire agreement between you and Tua with regard to your use of the Tua Services and any previous Terms of Service that may exist between you and Tua is hereby superseded. This Agreement cannot be changed or modified by you except as posted on the Services by Tua. Except as provided in Section 5 (Mandatory Arbitration), if any provision of this Agreement is held to be unenforceable, the unenforceable term or provision shall be replaced by an enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision and the remaining provisions shall be enforced. Except as provided in Section 5 (Mandatory Arbitration) the laws of the [State of Delaware govern your access to, and use of, the Services and the terms of this Agreement.
All content, design, graphics, compilation, magnetic translation, digital conversion and other matters to the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and owned by Tua or one of its affiliates. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.
“Tua” and “TuaPay” is the marketing name for certain financial services activities of Tua as operator of the Services. “Tua” and “TuaPay”is a trademark of Tua. Other featured words or symbols may be the trademarks of their respective owners.
You agree to indemnify, defend and hold Tua and its Affiliates harmless from any liability, including reasonable attorneys’ fees, related to your use of the Services or any violation of these Terms of Service.
DISCLAIMER OF WARRANTY.
TUA AND ITS AFFILIATES MAKE NO COMMITMENTS OR WARRANTIES ABOUT (i) THE CONTENT, RELIABILITY, OR AVAILABILITY OF THE SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES OR (ii) THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE WEBSITE, APP OR SERVICES. TUA AND ITS AFFILIATES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY REGARDING NON- INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TUA AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SERVICES.
LIMITATION OF LIABILITY.
TUA AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY PRODUCT AVAILABLE FROM OR THOUGH THE WEBSITE OR THE USE OF THE SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, TUA AND ITS AFFILIATES ARE NOT LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE; NOR ARE TUA AND ITS AFFILIATES LIABLE FOR ANY THIRD PARTY CLAIMS OF ANY NATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROM US FROM OR THROUGH THE WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. NEITHER TUA NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY.
Statute of Limitations.
No Third-Party Beneficiaries.
This Agreement is between you and Tua. No user has any rights to force Tua to enforce any rights it may have against you or any other user.
If you are a part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of any of our products or Services is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and any related software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Service by the Government shall be governed solely by these Terms.
Covered Borrowers under the Military Lending Act.
Notwithstanding any other provision of this Agreement, Sections 5 (Mandatory Arbitration), 6.7 (Limitations of Liability), and 6.8 (Statute of Limitations), and the waiver of defenses provision of Section 6.1 shall not apply to a “covered borrower” under the Military Lending Act, as defined in 32 C.F.R. § 232.3(g). Furthermore, nothing in this Agreement shall be construed as applying to a covered borrower to the extent inconsistent with the Military Lending Act.
Tua E-Sign Consent Agreement
- ELECTRONIC DISCLOSURES
In connection with the Tua Services, Tua, our software providers, our banking partners, and our payment servicing providers are required by law to provide you with certain disclosures in writing. Without your consent, Tua, our trust partners are not permitted to provide those disclosures to you online.
Electronic delivery of communications
By providing your consent as set forth below (“Consent”), you agree to the following:
- Tua and any Tua Partner may provide any or all Disclosures either electronically on the Tua Website or in any Tua platform, through a hyperlink provided on the Tua Website or in any Tua Platform, and, at its sole discretion electronically to the email address or mobile telephone number that you have provided to us, either directly or indirectly via the merchant to whom Tua or the Tua Partner will send funds on your behalf, or by making them accessible via our websites or applications.
- Tua and/or an Tua Partner may, but is not required to, notify you via email or text message when the Disclosures are available and how to view them, either via the hyperlink, email, or other electronic method described herein. The Disclosures will be provided to you in a format that can either be retained, printed or downloaded for your records.
- Your electronic signature on agreements and documents has the same effect as if you signed them in ink.
- Your Consent applies to any transaction undertaken through the Tua Services in the past, to all future disclosures and communications on your account, to all future transactions in which you use the Tua Services, at any time, to any transaction with us, and to other Disclosures that we provide to you by email.
- Your Consent means that Disclosures Tua and any the Tua Partner provides to you electronically shall have the same meaning and effect as if provided in paper form, regardless of whether you actually view those Disclosures.
- MINIMUM REQUIREMENTS.
You understand that, in order to view and/or retain copies of the Disclosures, you will need the following hardware and software:
- A computer or mobile device with an Internet connection or mobile connectivity and the ability to download and run the software described in this Section 2;
- For website-based Disclosures accessed by computer, the computer must have a current operating system and web browser (PCs should be running Windows 7 or higher and Microsoft Edge, Chrome, or Firefox; Macs should be running OSX and Safari, Chrome, or Firefox);
- For Disclosures accessed by mobile application or mobile website, the mobile device must have a current operating system and web browser (for Apple devices, the most current version of iOS or one prior, and for Android devices, the most current version of the Android operating system or one prior), and the most current version of the Tua App(s) through which you access or use the Tua Services;
- A current version of a program that accurately reads and displays PDF files (e.g., Adobe Acrobat Reader);
- A valid email address, and, if you use a spam filter that blocks or re-routes emails from senders not listed in your address book, you must permit messages from the @tuafinancial.com and @acct-admin.com domain in your spam filter;
- A working mobile telephone number that can receive text messages; and
- Sufficient storage space to save Disclosures or the capability to print the Disclosures from the device on which you view them.
We will notify you if our hardware or software requirements change and whether that change creates a material risk that you would not be able to access or retain your electronic Disclosures. Continuing to use the Tua Services after receiving notice of the change is the affirmative of your Consent.
- WITHDRAWING CONSENT.
You are free to withdraw your Consent at any time. If at any time you wish to withdraw your Consent, you can send us your request by submitting a written request to us at Tua Financial Technologies Holdings Inc. 2101 S IH 35 Frontage road, Suite 400, Austin, TX, 78741, Attn: Electronic Communications Delivery Policy, or by email at Care@tuafinancial.com
Subject: Electronic Communications Delivery Policy. Any withdrawal of your Consent will be effective after a reasonable period of time for processing your request. The legal effectiveness, validity and/or enforceability of electronic Disclosures we sent before your Consent is effective will not be affected. If you withdraw your Consent, Tua may close or limit access to your account and the Tua Services. You agree to pay any amount owed to Tua and/or the Partner Bank even if you withdraw your Consent and we close or limit access to your account.
- RIGHT TO REQUEST AND RECEIVE PAPER COPIES.
You agree that Tua may modify or change the methods of disclosure described herein, and that Tua and/or the Tua Partner may send you Disclosures in paper form at its option. You can obtain a paper copy of an electronic Disclosure at no charge, provided that such request is made within a reasonable time after we first provided the electronic Disclosure to you. To request a paper copy of a Disclosure, contact Tua Care at 1-833-TUA-5636 or 1-833-882-5636.
- UPDATING YOUR INFORMATION
You agree that it is your responsibility to notify Tua of any changes to your primary email address, phone number, or any other contact information so that Tua can communicate with you electronically. You agree that Tua is not responsible for any delay or failure in your receipt of any Disclosure, text message or email notice that is not caused by Tua’s failure to send such a Disclosure or notice to the phone number or email address you have provided to us. We will not assume liability for non-receipt of notification of availability of electronic Documents in the event your mobile number, email address or other contact information on file is invalid; your email or Internet service provider filters the notification as “spam” or “junk mail”; there is a malfunction in your computer, mobile device, browser, Internet service, mobile connectivity and/or software; or for other reasons beyond our control.
It is your responsibility to provide us with true, accurate and complete mobile number, e-mail address, contact, and other information related to the Tua Services, and to maintain and update promptly any changes in this information. To update your information, contact Tua Care at 1-833-TUA-5636 or 1-833-882-5636.
- YOUR CONSENT TO ELECTRONIC DISCLOSURES
Before using the Tua Services, you will be asked for your agreement to the Tua Terms of Service, including this Tua E-Sign Consent Agreement (contained herein), by clicking “I Agree.” This action constitutes your electronic signature and manifests your Consent and agreement to this Tua E-Sign Consent Agreement.
If you do not provide your Consent, you may not use the Tua Services and must discontinue your use of the Tua Services immediately.