Figure Pay Terms of Service
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
- Are You a User or Merchant? You may either enter into these Terms on your own behalf for personal use or on behalf of your employer. If you are entering into these Terms on your own behalf for personal use, you are a “User” under these Terms. If you are entering into these Terms on behalf of your employer, your employer is a “Merchant” under these Terms and any reference to “you” will be deemed to mean your employer.
- BY CLICKING “I ACCEPT,” INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SERVICE, YOU ARE REPRESENTING TO US THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, YOU ARE OVER THE AGE OF 18 (OR OLDER IF YOU RESIDE IN A STATE WHERE THE MAJORITY AGE IS OLDER), AND ARE EITHER CONSENTING TO BE LEGALLY BOUND BY THESE TERMS ON YOUR OWN BEHALF AS A USER OR ON BEHALF OF A MERCHANT AS AN AUTHORIZED REPRESENTATIVE OF THAT MERCHANT. IF YOU ARE CONSENTING ON BEHALF OF A MERCHANT, THEN YOU FURTHER REPRESENT TO US THAT YOU HAVE THE AUTHORITY TO BIND THE MERCHANT TO THESE TERMS AND THAT THE MERCHANT AGREES TO BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS OR CANNOT MAKE THESE REPRESENTATIONS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND FIGURE’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY FIGURE AND BY USER OR MERCHANT, AS APPLICABLE, TO BE BOUND BY THESE TERMS.
- ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND FIGURE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. See Section 18.
1. Service and Account Overview. The Service allows you to, either directly or through a third party (such as a bank or payment network), receive, store, track, and transfer (collectively, “Use”) money in your Figure Pay-branded demand deposit account (your “Account”) held at UMB Bank, n.a. and, if applicable, the Figure Pay loan. Figure uses virtual, cryptographic entries to track transfers of money in and out of your Account. Once you create an Account, you can choose to receive and store money in your Account. The dollar amount shown in your Account at any given time represents the U.S. Dollars in one or more accounts with UMB Bank, n.a. that are connected to Figure Pay. The Service may allow you to authorize Figure to reduce the amount of money in your Account to reflect a transfer of funds from your Account. If your Account contains an insufficient amount of money to fulfill your request, Figure will not be required to fulfill it. Title to any money stored in your Account will remain with you at all times and will not transfer to us, and, as the owner of money in your Account, you bear all risk of loss of that money.
2. Account Application. You must apply on the Service to be approved for and use your Account. When applying for your Account on the Service, you will be required to provide us with some information about yourself, such as your email address, home address, a valid, government-issued photo ID, and other contact information. You agree that: (a) the information you provide to us is accurate and that you will keep it accurate and up to date at all times; (b) you are solely responsible for maintaining the confidentiality of your Account and for restricting access to it; and (c) you accept responsibility for all activities that occur in your Account or under your access credentials. You acknowledge and agree that Figure is not responsible for any third-party access to your Account that results from theft or misappropriation of your Account. You agree to immediately notify us at email@example.com Opens a new window. of any unauthorized use of your access credentials or otherwise of your Account or any other known or suspected breach of security. We will not be liable for any loss or damage arising from your failure to comply with this section.
3. Applying for Loans. You may be presented with the opportunity to apply for a loan or other product through the Service. All loans offered through the Service are offered by our affiliate Figure Lending LLC. When applying for a loan, you agree to provide current, complete, and accurate information about yourself. If any information you provide is untrue, inaccurate, not current, or incomplete, Figure or its affiliate has the right to terminate your loan application and your loan and to decline to provide any and all future use of the Service. We and our affiliates reserve the right to decline your application for a loan or other product.
4. Payments and Authorization. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Figure reserves the right to determine pricing for the Service, including any features of the Service or products offered through the Service. Figure will make reasonable efforts to keep pricing information published on our website up to date. We encourage you to check our website periodically for current pricing information. Figure may change the fees for any feature of the Service, including additional fees or charges, if Figure gives you advance notice of changes before they apply. Figure, at its sole discretion, may make promotional offers with different features and different pricing to any of Figure’s users and merchants. These promotional offers, unless made to you, will not apply to your offer or these Terms. You authorize Figure to charge all sums for any Use of your Account that you confirm through the Service (including through features of the Service, such as QR codes), any orders you make, and any level of Service you select as described in these Terms or published by Figure, including all applicable taxes, to the payment method specified in your Account. If you pay any fees with a credit card, Figure may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase or requested transmission of funds in or out of your Account. Figure may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5. License to Service. Subject to your complete and ongoing compliance with these Terms, Figure grants a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control (“Device”); and (b) access and use the Service, solely for User’s personal, non-commercial use or solely for Merchant’s internal business purposes, as applicable. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
6. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service or Account (“Feedback”), then you grant Figure a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up, fully sublicensable, and transferable right to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and exploit the Feedback without restriction.
7. Ownership. The Service is owned and operated by Figure. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (including of Your Account) (collectively, “Materials”) provided by Figure are protected by intellectual property and other laws. All Materials included in the Service are the property of Figure or its third-party licensors. Except as expressly authorized by Figure, you may not make use of the Materials. Figure reserves all rights to the Materials not granted expressly in these Terms.
8. Third-Party Services and Software. Figure may provide tools through the Service that enable you to export information to third-party services, including through features that allow you to link your Account with an account on the third-party service, such as your bank account, or through our implementation of third-party buttons. By using one of these tools, you agree that Figure may transfer that information to the applicable third-party service. Third-party services are not under Figure’s control, and, to the fullest extent permitted by law, Figure is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Figure’s control, and Figure is not responsible for their content. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components. Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining those third-party components under the applicable third-party licenses or to limit your use of those third-party components under those third-party licenses.
9. Other Services or Hardware Required. To use the Service, you will need: (a) a Device with biometric identification capability (e.g., Face ID for Apple devices and its equivalent for other devices) and iOS or Android compatibility and may need data carrier coverage; and (b) an account with a financial institution (collectively, “Other Services”). You are solely responsible for providing any Other Services and paying any attendant fees. Figure will not provide, or pay any fees related to, Other Services.
(a) Overview. Your acceptance of the Electronic Communications Policy is required to create your Account. By accepting these Terms, you expressly consent to be contacted by us or our affiliates at any telephone number, e-mail address, mailing address, or physical or electronic address you provide or at which you may be reached in accordance with these Terms. You agree that we, our affiliates, agents, or service providers may contact you in any way, including by e-mail, SMS messages (including text messages, subject to these Terms), calls using pre-recorded messages or artificial voice, and calls and messages delivered using automatic telephone dialing systems (auto-dialer) or an automatic texting system at any phone number you have provided to us, including any mobile phone number, as well as any address in our records or in public or nonpublic databases. In addition, we may contact other people who may provide employment, location, or other contact information for you. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative of ours calls you, he or she may also leave messages on your answering machine, voice mail, or send messages via text. You can revoke your consent at any time by contacting us at firstname.lastname@example.org. Opens a new window. You certify, warrant, and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number. You are responsible for any and all charges imposed by your communications service provider. You agree that we and our agents, representatives, affiliates or anyone calling on our behalf may contact you on a recorded or monitored line and that any incoming calls may also be recorded and monitored.
(c) Push Notifications. You agree to receive alerts about your Account activity, balances on your Account, payments, suspicious activities, and other matters involving your use of the Service through push notifications to your Device. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. Figure is not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content, or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted, and may include your name and information pertaining to your Account or use of the Service. Figure may terminate your use of push notifications at any time without notice. You may choose to discontinue receiving push notifications by updating your preferences on your Device.
(d) Email. We may send you emails concerning the Service and our other products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
11. Identity Verification and Information Sharing
(a) Socure Consent. Figure uses services offered by Socure Inc. and its affiliates (collectively, “Socure”) for identity verification purposes. By accepting these Terms, you are consenting to Figure sharing information you provide to Figure under these Terms with Socure for identity verification purposes. This is required in order to use the Service. You may revoke your consent at any time by sending an email to email@example.com. Opens a new window. If you revoke your consent, your information will no longer be collected, but you will no longer be permitted to use the Service.
12. Your Obligations
(a) Compliance with Laws. You agree that you will not use the Service in any unlawful manner or for any unlawful purpose. You may not use or otherwise export or re-export the Service except as authorized by U.S law. Figure does not represent that the Service is appropriate or available for use in any geographical location. Any entity choosing to use the Service is solely responsible for compliance with all applicable laws. The Service is subject to U.S. export controls and may not be downloaded, exported, or re-exported: (i) into (or to a national or resident of) Burma, Cuba, Iran, North Korea, Sudan, Syria, Libya, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or included in General Order 3 (15 C.F.R. Part 736, Supplement 1) (collectively, “U.S. Prohibited Party Lists”). By downloading and/or using the Service, you represent and warrant to Figure that you are not: (A) located in or a national or resident of any country noted above that is subject to U.S. trade sanctions, or that has otherwise been designated by the U.S. government as a “terrorist supporting” country; or (B) on any U.S. Prohibited Party List or acting on behalf of any person or entity on any such list.
(b) Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO: (i) use the Service for any illegal purpose or in violation of any local, state, national, or international law; (ii) you must not attempt to access or search the Service or Materials or download Materials from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools and the like) other than the software or search agents provided by Figure or other generally available third-party web browsers; (iii) interfere with security-related features of the Service, including by disabling or circumventing features that prevent or limit use or copying of any content or reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; (iv) interfere with the operation of the Service, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; (v) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth; (vi) sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or (vii) attempt to do any of the acts described in this Section 12(b) or assist or permit any person in engaging in any of the acts described in this Section 12(b).
(a) Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will, unless otherwise stated, be effective 30 days after posting or notice to you of the revisions. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified terms, you should remove your Account and discontinue your use of the Service. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
(b) Modification of Service. Figure reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Figure will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service. Figure also reserves the right to make software updates to the Service and make those updates available to you. If Figure makes any software update to the Service available to you, you agree to install the update in order to continue using the Service. Any software update to the Service may be subject to additional terms and conditions made known to you at the time any such update is made available to you.
14. Term and Termination. These Terms will be effective upon the earlier of your acceptance of these Terms or use of the Service and will continue until terminated (the “Term”). If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Figure may, at its sole discretion, terminate these Terms or your Account, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your Account and these Terms at any time by contacting customer service at firstname.lastname@example.org. Opens a new window. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your Account or the Service; (c) you must pay Figure any unpaid amount that was due prior to termination; (d) Figure will, upon receiving written notice from you, return any funds in your Account to the bank account you last linked to your Account; and (e) Sections 6–9, 14(a)–(e), and 15–19 will survive.
15. Indemnification. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Figure, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (collectively, the “Figure Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
16. DISCLAIMERS; NO WARRANTIES
(a) USE OF YOUR ACCOUNT. YOU REPRESENT AND WARRANT TO US THAT YOU WILL NOT USE ANY MONEY IN YOUR ACCOUNT IN VIOLATION OF ANY APPLICABLE LAWS, INCLUDING ANY ANTI-MONEY LAUNDERING LAWS. WE RESERVE THE RIGHT, WITHOUT PRIOR NOTIFICATION, TO LIMIT YOUR USE OF THE ACCOUNT AND TO LIMIT THE SIZE AND FREQUENCY OF YOUR TRANSACTIONS IN THE ACCOUNT. YOU ABSOLVE US OF ANY RESPONSIBILITY TO MAINTAIN OR UPDATE YOUR ACCOUNT. FIGURE IS NOT, TO THE GREATEST EXTENT PERMITTED BY LAW, LIABLE FOR ANY LOSS OF ANY KIND SUFFERED BY YOU IN CONNECTION WITH OR ARISING FROM THE ACQUISITION, LOSS, FORFEITURE, OR ANY USE WHATSOEVER OF THE ACCOUNT BY YOU. WITHOUT LIMITING ANY OF THE FOREGOING, OUR MAXIMUM LIABILITY OR RESPONSIBILITY TO YOU IS TO REFUND THE MONEY LOST ONTO YOUR ACCOUNT.
(b) BANKING SERVICES. YOU ACKNOWLEDGE AND AGREE ON BEHALF OF YOURSELF AND, IF YOU ARE A MERCHANT, YOUR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, CONTRACTORS AND OTHER AGENTS (YOUR “HIRED PARTIES”) THAT: (I) FIGURE IS NOT A DEPOSITORY INSTITUTION, BANK, BRANCH OF A DEPOSITORY INSTITUTION NOR BANK ORGANIZED UNDER ANY DOMESTIC OR FOREIGN LAW; (II) FIGURE DOES NOT ACCEPT OR HOLD ANY DEPOSITS ON BEHALF OF YOU OR YOUR HIRED PARTIES AND, IN ITS PROVISION OF THE SERVICE, IS NOT PROVIDING ANY BANKING SERVICES TO YOU OR YOUR HIRED PARTIES; INSTEAD DEPOSITS ARE HELD IN AN OMNIBUS BANK ACCOUNT AT FIGURE’ PARTNER BANK ; (III) USE OF THE SERVICE AND YOUR ACCOUNT WILL BE SUBJECT TO APPLICABLE LAWS AND THE RULES OF ANY PAYMENT NETWORKS THROUGH WHICH TRANSACTIONS IN CONNECTION WITH THE SERVICE AND YOUR ACCOUNT MAY BE AUTHORIZED AND SETTLED (“CARD BRAND RULES”); AND (D) BY PROVIDING THE SERVICE, FIGURE IS NOT WARRANTING TO OR OTHERWISE GUARANTEEING YOUR COMPLIANCE OR ANY OF YOUR HIRED PARTIES’ COMPLIANCE WITH ANY APPLICABLE LAWS OR CARD BRAND RULES. YOU REPRESENT, WARRANT AND COVENANT TO FIGURE, ON BEHALF OF YOURSELF AND, IF YOU ARE A MERCHANT, YOUR HIRED PARTIES, THAT AT ALL TIMES, IN USING THE SERVICE AND YOUR ACCOUNT: (A) YOU WILL, AND WILL CAUSE YOUR HIRED PARTIES TO, COMPLY WITH ALL APPLICABLE LAWS (INCLUDING THOSE AIMED AT COMBATING MONEY LAUNDERING AND TERRORIST FINANCING) AND ALL CARD BRAND RULES; AND (B) YOU WILL, UPON FIGURE’S REQUEST, REASONABLY COOPERATE WITH FIGURE AND PROMPTLY PROVIDE FIGURE WITH ANY MATERIALS REASONABLY REQUIRED BY FIGURE TO ENABLE FIGURE TO PROVIDE THE SERVICE AND OTHERWISE FULFILL ITS OBLIGATIONS AND RESPONSIBILITIES UNDER THESE TERMS AND TO ENABLE FIGURE AND ITS THIRD-PARTY SERVICE PROVIDERS AND PARTNERS TO COMPLY WITH APPLICABLE LAWS AND CARD BRAND RULES. WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR POSSESSION, PERMITTED TRANSFER, AND USE OF MONEY THROUGH OR IN CONNECTION WITH THE SERVICE WILL SATISFY OR ENSURE COMPLIANCE WITH APPLICABLE LAWS.
(c) GENERAL DISCLAIMER; NO WARRANTIES. YOUR POSSESSION, PERMITTED TRANSFER, AND USE OF ALL OR ANY PORTION OF THE SERVICE (INCLUDING YOUR ACCOUNT) IS ENTIRELY AT YOUR OWN RISK. THE SERVICE AND YOUR ACCOUNT ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIGURE AND ALL FIGURE ENTITIES DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING: (I) WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND YOUR ACCOUNT; AND (II) WARRANTIES THAT THE SERVICE AND YOUR ACCOUNT, AND ANY DATA PROCESSED THROUGH OR USING THE SERVICE IS SECURE, ACCURATE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF ANY OF THESE EXCLUSIONS DO NOT APPLY TO YOU OR ARE VOID WITH RESPECT TO YOU UNDER ANY APPLICABLE LAW, THEN ANY WARRANTY THAT CANNOT BE EXCLUDED IS LIMITED TO THE SHORTER OF: (A) 90 DAYS FROM THE DATE OF FIRST DELIVERY OF THE SERVICE; AND (B) THE SHORTEST PERIOD PERMITTED UNDER APPLICABLE LAW.
17. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) FIGURE’ AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR UNDER THESE TERMS WILL NOT EXCEED US$100 IF YOU ARE A USER AND WILL NOT EXCEED THE GREATER OF $100 AND TOTAL FEES PAID TO FIGURE BY MERCHANT IN THE LAST 12 MONTHS IF YOU ARE A MERCHANT; AND (B) FIGURE WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF ANY FIGURE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, OR FOR ANY DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, DATA CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF PROFITS OR INVESTMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
18. Dispute Resolution
(a) Generally. In the interest of resolving disputes between you and Figure in the most expedient and cost effective manner, and except as described in Section 18(b) and 18(d), you and Figure agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FIGURE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions of Section 18(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Opt-Out. If you are a User and do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to Figure Payments Corporation, Attention: Legal Department – Arbitration Opt-Out, P.O. Box 40534, Reno, NV 89504 that specifies: your full legal name, the email address associated with your Account, and a statement that you wish to opt out of arbitration in the Figure Pay Terms (“Opt-Out Notice”). Once Figure receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19(b). The remaining provisions of these Terms will not be affected by your Opt-Out Notice. Only a User, and in no event a Merchant, may exercise this opt-out right.
(d) Arbitrator. Any arbitration between you and Figure will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org Opens a new window., by calling the AAA at +1-800-778-7879, or by contacting Figure. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(e) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Figure’s address for Notice of Arbitration is: Figure Payments Corporation, P.O. Box 40534, Reno, NV 89504. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Figure may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Figure must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
(f) Fees. If you are a User and commence arbitration in accordance with these Terms, Figure will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Figure for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(g) No Class Actions. YOU AND FIGURE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Figure agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(h) Modifications to this Arbitration Provision. If Figure makes any future change to this arbitration provision, other than a change to Figure’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Figure’s address for Notice of Arbitration, in which case your account with Figure will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(i) Enforceability. If you are a User and Section 18(g) is found to be unenforceable or if you are a User or Merchant and the entirety of this Section 18 is found to be unenforceable, or if Figure receives an Opt-Out Notice from you as a User, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19(b) will govern any action arising out of or related to these Terms.
(b) Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Figure submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
(d) Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
(e) Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
(f) No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
(g) International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
(h) Notice Regarding Apple. This Section 19(h) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Figure only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (A) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.