Arbitration Agreement |

ARBITRATION AGREEMENT AND JURY TRIAL WAIVER

Background and Scope

What is arbitration?	An alternative to court.	In arbitration, a third party (“Arbiter“) solves Disputes in a hearing (“hearing“). You, related third parties, and we, waive the right to go to court. Such “parties” waive jury trials.
Is it different from court and jury trials?	Yes.	The hearing is private and less formal than court. Arbiters may limit pre-hearing fact finding, called “discovery“. The decision is final, and court review of arbitration decisions is limited.
Who does the Clause cover?	You, Us, and Others.	This Clause governs the parties, their heirs, successors, assigns, and third parties related to any Dispute.
Which Disputes are covered?	All Disputes.	In this Clause, the word “Disputes” has the broadest possible meaning. This Clause governs all “Disputes” involving the parties that arise out of or directly or indirectly relate to the Loan Documents. This includes, but is not limited to: all issues concerning the transaction in connection with which this Arbitration Agreement and Jury Trial Waiver (“Arbitration Agreement”) is attached; initial claims, counterclaims, cross-claims, and third-party claims, whether arising in law or equity, and whether based upon federal, state or local law; contract; tort; fraud or other intentional tort; the law of unconscionability or interest rate permissibility; constitution; common law; or statute, except as set forth below; any issue as to whether any such claims, controversies, or disputes are subject to arbitration; and any claims, controversies, or disputes that would otherwise be subject to class actions. This means that all claims, controversies or disputes that are the subject of class actions will also be subject to binding arbitration under the FAA and this Arbitration Agreement.
Are you waiving rights?	Yes.	YOU KNOWINGLY AND VOLUNTARILY WAIVE YOUR RIGHTS TO: HAVING A JURY TRIAL IN COURT TO RESOLVE ANY CLAIM OR DISPUTES ALLEGED AGAINST US OR RELATED THIRD PARTIES; HAVING COURTS, OTHER THAN SMALL CLAIMS COURTS, RESOLVE ANY CLAIM OR DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW; SERVE AS A REPRESENTATIVE, PRIVATE ATTORNEY GENERAL OR IN ANY OTHER REPRESENTATIVE CAPACITY, LIKE A CLASS REPRESENTATIVE, FOR A DISPUTE AND/OR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST US AND/OR RELATED THIRD PARTIES.
Is there a public injunctive relief exception?	Yes.	You or we may, but are not required to, submit claims for public injunctive relief under any state or federal statutes that specifically provide for such relief to arbitration under this Arbitration Agreement. In the event that either you or we elect to pursue such a claim through court proceedings, all other claims between us shall remain subject to the provisions of this Arbitration Agreement.
Are you waiving class action rights?	Yes.	COURTS AND ARBITERS WON’T ALLOW CLASS ACTIONS. You waive your rights to be in a class action, as a representative and a member. Only individual arbitration, or small-claims courts, will solve Disputes. You waive your right to have representative claims. Unless reversed on appeal, if a court invalidates this waiver, the Clause will be void.
What law applies?	The Federal Arbitration Act (“FAA”).	This transaction involves interstate commerce, so the FAA governs. If a court finds the FAA doesn’t apply, and the finding can’t be appealed, then your state’s law governs. The Arbiter must apply substantive law consistent with the FAA. The Arbiter must follow statutes of limitation and privilege claims.
Can the parties try to solve Disputes first?	Yes.	We can try to solve Disputes if you call us at 1-833-805-5626. If this doesn’t solve the Dispute, mail us notice, within 100 days of the Dispute date. In your notice, tell us the details and how you want to solve it. We will try to solve the Dispute. If we make a written offer (“Settlement Offer”), you can reject it and arbitrate. If we don’t solve the Dispute, either party may start arbitration. To start arbitration, contact an Arbiter or arbitration group listed below. No party will disclose settlement proposals to the Arbiter during arbitration.
How should you contact us?	By email or phone.	Send an email to notices@smartpayloans.com or call 1-833-805-5626.
Can small-claims court solve some Disputes?	Yes.	Each party has the right to arbitrate, or to go to small- claims court if the small-claims court has the power to hear the Dispute. Arbitration will solve all Disputes that the small-claims court does not have the power to hear. If there is an appeal from small-claims court, or if a Dispute changes so that the small-claims court loses the power to hear it, then the Dispute will only be heard by an Arbiter.
Do other options exist?	Yes.	Both parties may use lawful self-help remedies. This includes set-off or repossession and sale of any collateral. Both parties may seek remedies which don’t claim money damages. This includes pre-judgment seizure, injunctions, or equitable relief.
Will this Clause continue to govern?	Yes, unless otherwise agreed.	The Clause stays effective, unless the parties sign an agreement stating it doesn’t or you opt-out as permitted below. The Clause governs if you rescind the transaction. It governs if you default, renew, prepay, or pay. It governs if your contract is discharged through bankruptcy. The Clause remains effective, despite a transaction’s termination, amendment, expiration, or performance.

Process

How does arbitration start?	Mailing a notice.	Either party may mail the other a request to arbitrate, even if a lawsuit has been filed. The notice should describe the Dispute and relief sought. The receiving party must mail a response within 20 days. If you mail the demand, you may choose the arbitration group. Or, your demand may state that you want the parties to choose a local Arbiter. If related third parties or we mail the demand, you must respond in 20 days. Your response must choose an arbitration group or propose a local Arbiter. If it doesn’t, we may choose the group.
Who arbitrates?	AAA, JAMS, or an agreed Arbiter.	You may select the American Arbitration Association (“AAA”) (1-800-778-7879) http://www.adr.org or JAMS (1-800-352-5267) http://www.jamsadr.com. The parties may also agree in writing to a local attorney, retired judge, or Arbiter in good standing with an arbitration group. The Arbiter must arbitrate under AAA or JAMS consumer rules. You may get a copy of these rules from such group. Any rules that conflict with any of our agreements with you, don’t apply. If these options aren’t available, and the parties can’t agree on another, a court may choose the Arbiter. Such Arbiter must enforce your agreements with us, as they are written.
Will the hearing be held nearby?	Yes.	The Arbiter will order the hearing within 30 miles of your home or where the transaction occurred.
What about appeals?	Appeals are limited.	The Arbiter’s decision will be final. A party may file the Arbiter’s award with the proper court. Arbitration will solve appeals of a small-claims court judgment. A party may appeal under the FAA. If the amount in controversy exceeds $10,000.00, a party may appeal the Arbiter’s finding. Such appeal will be to a three-Arbiter panel from the same arbitration group. The appeal will be de novo, and solved by majority vote. The appealing party bears appeal costs, despite the outcome.
Can you discuss the proceedings?	Arbitration is subject to confidentiality.	If either party requests confidentiality, all aspects of the arbitration proceedings and any arbitration award or decision will remain strictly confidential, except only for the purpose of appealing or obtaining confirmation of the final arbitration award in the appropriate court of law. In addition, if either party requests confidentiality, all non-public documents, testimony, and information produced, received, heard, or used in the arbitration will be used only for purposes of the arbitration and will not be disclosed to any person. Confidential information may, however, be disclosed to the parties to the arbitration, their respective attorneys and their staff, the arbitrator and personnel of the American Arbitration Association, court reporters, and any person retained as an expert witness in the arbitration if the expert witness agrees to maintain all documents, information, and testimony in strict confidence. Nothing in this provision prohibits the confidential information from being disclosed to those who received or participated in the creation of the confidential information at the time it was created. Nothing in this paragraph will prevent either of us from disclosing information regarding the arbitration if necessary to enforce an arbitration award, the parties further agree to cooperate in obtaining the arbitrator’s agreement to preserve the confidentiality of the arbitration and information produced or used in the arbitration.

Arbitration Fees and Awards

Will we advance Arbitration Fees?	Yes, but you pay your costs.	We will advance your “Arbitration Fees” if you ask us to. This includes filing, administrative, hearing, and Arbiter’s fees. You pay your attorney fees and other expenses.
Are damages and attorney fees possible?	Yes.	The Arbiter may award the same damages as a court. Arbiters may award reasonable attorney fees, and expenses, if allowed by law.
Will you pay Arbitration Fees if you win?	No.	If the Arbiter awards you funds, you don’t reimburse us the Arbitration Fees.
Will you ever pay Arbitration Fees?	Yes.	If the Arbiter doesn’t award you funds, then you must repay the Arbitration Fees. If you must pay Arbitration Fees, the amount won’t exceed state court costs.
What happens if you win?	You could get more than the Arbiter awarded.	If an Arbiter’s award to you exceeds our last Settlement Offer, we will pay 3 amounts. We will pay the award, plus 10% of such amount (“bonus payment”). We will pay your attorney the attorney fees conferred, plus 10% of such amount (“attorney premium”). If the Arbiter orders, we will pay reasonable expert witness costs and other costs you incurred (“cost premium”). If we never made a Settlement Offer, we will pay the bonus payment, attorney premium, and any cost premium. If a law allows you more, this Clause won’t prevent such award. We won’t seek attorney fees and expenses.
Can an award be explained?	Yes.	A party may request details from the Arbiter, within 14 days of the ruling. Upon such request, the Arbiter will explain the rule in writing.

Other Options

If you don’t want to arbitrate, can you still get a transaction?

Yes. You can get our services and decide not to arbitrate.

Consider these choices:

Informal Dispute Resolution. Contact us, and attempt to settle any Disputes.
Small-claims Court. Seek to solve Disputes in small-claims court, within state law limits.
Opt-Out of Arbitration. Sign and then timely opt-out.

Can you opt-out of the Clause?

Yes. Within 60 days.

Write to us within 60 calendar days of signing your agreement to opt-out of the Clause for that agreement. List your name, address, account number and date. List that you “opt out”. If you opt out, it will only apply to that agreement.

If you are a “Covered Borrower” as defined by the Military Lending Act (32 CFR §232, as amended from time to time) at the time of entering into this Agreement, this Arbitration Agreement is not applicable, and you do not need to opt-out of or take any action to ensure inapplicability.