Last Updated October 2020
These Terms constitute a legal agreement between you and Silver Cloud Financial, Inc (“we”, “us”, or “our”) that sets forth the terms and conditions for your use of this Site. The words “you” and “your” refer to any person who uses the Site. Use of the Site indicates your assent to these Terms; if you do not agree with these Terms you should not use the site. If you obtain a loan from us, that loan and your relationship with us will be governed by the Consumer Loan and Arbitration Agreement (the “Loan Agreement”); if you have obtained a loan from us and there is a conflict between these Terms and the Loan Agreement, the Loan Agreement will control. You can print or save a copy of these Terms to your computer or other device. You also may request a copy of these Terms and we will provide them to you in a form which allows you to store and reproduce the information (for example, by email).
To use this Site you must (i) be a resident of the United States; (ii) have full legal capacity to enter into a contract; and (iii) be an individual at least 18 years old. Loan eligibility is subject to meeting the lender’s underwriting criteria.
We may, at any time, amend these Terms (a “Change”) and will notify you of any such Change by posting the revised Terms on the Site. You will be deemed to have accepted the Change if you continue to use the Site after the Change to the Terms. All Changes take effect upon posting. You should periodically review these Terms for Changes. Continued use of the site after a Change to the Terms constitutes acceptance of the new Terms.
The URLs representing the Silver Cloud Financial, Inc. website(s), “Silver Cloud Financial, Inc.,” and all related logos of our products and services described in our website(s), as well page headers, custom graphics, button icons, scripts, and the Site itself, are the intellectual property of Silver Cloud Financial, Inc. You may not copy, imitate, modify, alter, amend or use them without our prior written consent. All rights, title and interest in and to the Silver Cloud Financial, Inc. website and any content thereon is the exclusive property of Silver Cloud Financial, Inc. and the Habematolel Pomo of Upper Lake.
Limitation of Use
In connection with your use of our Site, or in the course of your interactions with Silver Cloud Financial, Inc., you agree to use the content and Site only for lawful purposes. You are prohibited from using the content or Site to violate any law, statute, contract, or regulation (including, without limitation, those governing financial services including anti-money laundering, consumer protections, unfair competition, anti-discrimination and false advertising), breach these Terms, act in a manner that is obscene, defamatory, libelous, hateful, unlawfully threatening or unlawfully harassing; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; or provide false, inaccurate or misleading Information. Any unauthorized use of the Site, including but not limited to unauthorized entry into Silver Cloud Financial, Inc. systems, misuse of passwords, or misuse of any information posted on the Site is strictly prohibited.
If you access this Site from outside of the United States, you are solely responsible for ensuring compliance with all local laws. Your eligibility for products or services is subject to review by Silver Cloud Financial, Inc.
You represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
While Silver Cloud Financial, Inc. has no obligation to monitor you, you acknowledge and agree that Silver Cloud Financial, Inc. has the right to monitor the Site electronically from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation, or other governmental request, to operate the Site, or to protect itself or other users of the Site.
Our failure to enforce any rights under these Terms shall not be construed as a waiver of those rights.
Limitations of Liability
IN NO EVENT WILL SILVER CLOUD FINANCIAL, INC. BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES LOSSES OR EXPENSES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR SYSTEM FAILURE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SILVER CLOUD FINANCIAL, INC. OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.
Disclaimer of Warranties
We provide services to you without any warranty or condition, express or implied, except as specifically stated in these Terms. Silver Cloud Financial, Inc. does not guarantee continuous, uninterrupted or secure access to any part of our Site. We shall not be liable for any delay in the failure in our provision of our obligations under these Terms. You acknowledge your access to the Site may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. We make every effort to ensure that the information contained in our correspondence, reports, on the website(s) and given verbally by our directors, officers and staff is accurate to the best of our belief at the time the information is provided. However, we cannot guarantee the accuracy of all such information in all circumstances and contexts, and no reliance should be placed on such information by you. You must check all correspondence between us carefully and tell us as soon as possible if it includes something which appears to you to be wrong or not made in accordance with your instructions.
You alone are responsible for understanding and complying with any and all laws, rules and regulations of your specific jurisdiction that may be applicable to you in connection with your use of the Site.
You agree to indemnify and hold harmless Silver Cloud Financial, Inc., its affiliates, officers, employees, agents, representatives and third parties, from and against any losses, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) relating to or arising out of your use of or inability to use the Site, any user postings or transmissions, your violation of any of these Terms or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. You further agree that you will cooperate fully in the defense of any such claims. Silver Cloud Financial, Inc. reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate in asserting any available defenses.
This section describes how disputes between you and Silver Cloud Financial, Inc. are handled. It affects your rights and you should read it carefully. This section may be referred to as the “Arbitration Agreement.” By your use of the Site you are agreeing to be bound by it. If you enter into a Consumer Loan and Arbitration Agreement with Silver Cloud Financial, Inc., the dispute resolution provision in that Agreement will supersede this Arbitration Agreement.
What is Arbitration. Arbitration is a confidential process in which persons with a dispute waive their rights to have disputes resolved by a court or jury. Instead, the parties agree to submit all claims and disputes to a neutral third person (an “arbitrator”) for an award or decision. Arbitration proceedings are private and less formal than court proceedings. Other rights that you or we might have in court, such as the right to appeal, generally are more limited in arbitration. A final arbitrator’s decision is binding on both you and us, except to the extent the decision may be vacated, modified, or corrected under the Federal Arbitration Act, 9 U.S.C. §§1-16 (“FAA”).
Agreement to Arbitrate. Unless prohibited by federal law, you and we agree to arbitrate all disputes and claims through confidential binding individual arbitration, except for claims regarding the validity, scope, or enforceability of this Arbitration Agreement, which will be determined in court.
What Rights You are Waiving. Since both you and we agree that we will resolve all disputes through individual arbitration, (a) WE ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL; and (b) ALL DISPUTES SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. YOU AND WE ARE WAIVING THE ABILITY TO SERVE AS A PRIVATE ATTORNEY GENERAL OR BRING A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING (the “Class Action Waiver”).
What is Covered. All claims asserted by us against you or your heirs, successors, representatives, or assignees. All claims asserted by you against us and/or any of our direct or indirect parent companies or entities, affiliated entities, vendors, or service providers, and each of their employees, agents, representatives, directors, officers, shareholders, governors, managers, members, and other affiliated persons (hereinafter collectively referred to as “related third parties”), including, without limitation, claims for money damages and/or equitable or injunctive relief.
Who is Covered. This Arbitration Agreement, in addition to us and you, covers our and your heirs, successors, representatives, and assigns, and our related third parties.
What Law Applies to This Arbitration Agreement. This Arbitration Agreement involves interstate commerce. It shall be governed by the FAA. The Arbitrator shall decide all issues relating to the merits of any claims, including among other things whether the Governing Law provision in the Loan Agreement is enforceable.
Opting Out of Arbitration. You (but not we) shall have the right to opt out of this Arbitration Agreement, at any time within 21 calendar days following your acceptance of this Agreement. To opt out of this Arbitration Agreement, you must provide us written notice either by certified, registered, or return-receipt requested mail to us at the following physical address: 635 East Highway 20, C, Upper Lake, CA 95485, Attention: Arbitration Opt Out or via email to email@example.com The written notice must include your full name, address, account number, phone number, and the statement that “I reject the Arbitration Agreement contained in my Loan Agreement” and be physically or electronically signed by you. Notice is considered delivered when postmarked if sent by mail or delivered if sent by email. If you opt out of this Arbitration Agreement, all other parts of the Loan Agreement remain in full force and effect.
Steps Before Arbitration. Before filing a claim, we each agree to attempt to resolve the dispute informally. The party that believes they have a claim should email or write the other party explaining the details of the potential claim and a proposed resolution. If you need to contact us, please email us at firstname.lastname@example.org. If you and we cannot resolve the dispute within 15 days of start of the informal process, either you or we may start arbitration. All settlement offers and discussions made during the informal process are confidential and neither you nor we can disclose them to the arbitrator.
Starting the Arbitration Process. If you or we (including a related third party) have exhausted informal options in resolving a dispute or claim, that party may send the other party by certified mail a written notice to commence arbitration. The written notice must describe all claims and the relief requested. Regardless of who demands arbitration, you have the right to choose between the American Arbitration Association (1‐800‐778‐7879) or http://www.adr.org; or JAMS (1‐800‐352‐5267) or http://www.jamsadr.com, to administer the arbitration. If one or more arbitration administrators or arbitrators are unable or refuse to act as an administrator or arbitrator, then the parties shall select a mutually agreeable administrator or arbitrator to address the claim(s). If you demand arbitration, you must inform us of the arbitration organization you have selected in your notice to arbitrate. If we or a related third party demand arbitration, you must notify us in writing of your choice for an arbitration organization with ten (10) days of receiving an arbitration notice. If you fail to choose an arbitration organization by the deadlines, we will have the right to choose one.
Responding to an Arbitration Request. The party receiving notice of arbitration shall respond in writing by certified mail within thirty (30) days or such other time period upon which the parties agree in writing.
Where Will the Arbitration Occur. For your convenience, you may choose to participate in any arbitration proceeding via telephone or other mutually agreed upon electronic platform. If you want to have the proceeding in person, you may request that the arbitration occur within thirty (30) miles of your residence or some other mutually agreed upon location or as the arbitrator dictates.
Who Pays for Arbitration Costs. Regardless of who demands arbitration, we will advance your portion of the arbitration expenses, including the filing, administrative, hearing and arbitrator’s fees (“arbitration fees”) at your request. Each party shall bear his or her own attorneys’ fees and expenses, unless otherwise provided by applicable law. If the arbitrator finds in your favor, you will not need to reimburse us the arbitration fees. If the arbitrator does not find in your favor, then you may be required to repay the arbitration fees. However, if you are required to repay the arbitration fees, the amount will not exceed the filing fee(s) and other costs you would have paid had the dispute been adjudicated in court.
Procedural Rules. The arbitration will proceed according to the rules and procedures used by the applicable arbitration organization for consumer disputes, to the extent those rules and procedures do not contradict the express terms of this Arbitration Agreement. You may obtain a copy of the rules and procedures by contacting the arbitration organization listed above.
The arbitrator shall apply the laws of the Tribe and applicable U.S. federal law (the “Governing Law”) including applicable statutes of limitation, and shall honor claims of privilege permitted by the Governing Law. The arbitrator may decide, with or without a hearing, any motion that is substantially similar to a motion to dismiss for failure to state a claim or a motion for summary judgment. The arbitrator shall not be bound by rulings and awards in prior arbitrations involving different customers. If an arbitrator, appellate arbitrator(s), or a final non‐appealable judgment of a court having jurisdiction over this transaction and the parties finds, for any reason, that the FAA does not apply to this transaction, then this Arbitration Agreement shall be governed by the laws of the Habematolel Pomo of Upper Lake (“Tribal Law”), specifically, Chapter 8 of the Habematolel Pomo of Upper Lake Judicial Code.
What Damages are Available. The arbitrator may award the same damages as a court including without limitation statutory, punitive, or treble damages if allowed by the Governing Law. The arbitrator may award injunctive relief in favor of the individual party seeking relief, but not in favor of others. The arbitrator may not award class, representative, or public injunctive relief. Arbitrators may award you reasonable attorneys’ fees and expenses if allowed by the Governing Law. We cannot recover our attorneys’ fees and costs in arbitration unless the arbitrator decides that your Claim is frivolous and the arbitration rules allow it. If a court decides that these limits on injunctive relief are not enforceable, then after all appeals from that decision have been exhausted, the Claim for injunctive relief must be severed from the arbitration. The Claim may then be brought in court after arbitration of the remaining Claims is completed
The Arbitrator’s Award. The arbitrator shall issue a reasoned award or decision. You or we may request that the arbitrator explain his or her decision in writing, if such a request is made within 14 days of the decision. The arbitrator’s award shall not be considered final until appellate rights have been exhausted or the time for filing the notice of appeal pursuant to this Arbitration Agreement and the Appellate Rules has expired.
Appealing an Award. You and we agree that the arbitrator’s award or decision may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules or the JAMS Optional Arbitration Appeal Procedures (“Appellate Rules”). Following the appeal process or expiration of the time in which to appeal, the decision or award rendered by the appeal arbitrator(s) is final, binding, confidential, and may be entered in the United States District Court for the federal judicial district in which you reside.
Grounds for an Appeal. Appeals must satisfy at least one of three criteria to succeed. The arbitrator(s) who issued the award must have made one or more of the following:
(a) An error of law that is material and prejudicial.
(b) Determination(s) of fact that is/are clearly erroneous.
(c) The arbitrator’s award is arbitrary or capricious.
What Happens During an Appeal. Once an appeal has been timely filed:
(a) The award is not considered final for purposes of seeking relief from a court as provided by the FAA.
(b) The time period for filing judicial proceedings is tolled while the appellate process is pending.
(c) The parties are required to ask the court to stay any already-initiated judicial proceedings until the conclusion of the appeal.
Appellate Decisions. The appellate arbitrator(s) will issue a decision within 30 days of oral argument or such period as the arbitrator(s) require. The majority decision of the appellate arbitrator(s) may arrive at three potential outcomes:
(a) confirm the initial award.
(ii) issue a new award or decision.
(iii) request additional information and extend the period for issuing a final decision by 30 days.
Enforcing an Award. If needed, enforcing arbitration or a final arbitration award may be accomplished in your choice of either Tribal Court or the United States Court for the judicial district in which you reside (either a “Chosen Forum”). Silver Cloud Financial, Inc. hereby provides a limited waiver of its sovereign immunity for such an enforcement action when made by you and no other party, regarding only your use of the site, for an action in only a Chosen Forum, and which expires six months after you access this Site.
What is the Term of this Arbitration Agreement. Unless you have followed the procedure for opting out of arbitration, this Arbitration Agreement continues in full force and effect, even if your obligations have been paid or discharged through bankruptcy. Unless superseded by a Consumer Loan and Arbitration Agreement you enter into with Silver Cloud Financial, Inc., this Arbitration Agreement survives any cancellation, termination, amendment, expiration or performance of any transaction between you and us and continues in full force and effect unless you and we otherwise agree in writing. If any part of this Arbitration Agreement other than the Class Action Waiver is held invalid or unenforceable, the remainder shall remain in effect, valid and enforceable. If the Class Action Waiver is held to be invalid or unenforceable, this entire Arbitration Agreement shall be null and void.
Confidential Process. All arbitration proceedings under this Arbitration Agreement and all associated decisions and awards of the arbitrator and appellate arbitrator(s) shall be confidential except to the extent required to enforce or confirm the arbitrator’s award or decision in an allowed court. Any party filing information or documents regarding the arbitration in such court shall follow the court’s procedures to make such filings under seal, unless the court denies the filing party’s request to make such filings under seal for reasons other than failure to comply with the applicable rules governing filings under seal.
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