Payment Agreement for Scratch Plan Bi-Weekly (formerly Take 5) (US)

Payment Agreement for Scratch Plan Bi-Weekly (Previously Take 5)

Last Updated: January 2023

THIS PAYMENT AGREEMENT GOVERNS YOUR SCRATCH PLAN BI-WEEKLY AND INCLUDES AN ARBITRATION PROVISION. IN THE EVENT OF A DISPUTE, THE ARBITRATION PROVISION WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS, INCLUDING YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION.

HOW IT WORKS:

The Scratch Plan Bi-Weekly ("Plan") allows you to pay for the goods or services you purchase from authorized clinics, merchants and other providers ("Providers") with a series of payments over time. The Plan will pay the Provider on your behalf for the goods or services you purchase, and you agree to repay those amounts to us in accordance with this Agreement and the specific terms presented to you at the time you sign up for a Plan. You may not use or permit your Plan to be used for any unlawful purposes.

Use your own valid debit or credit card to pay (no prepaid cards).
The first down payment is charged when you sign up for your Plan.
We do not charge any interest charges on the Plan, and we do not charge any fees when you follow your automatic payment schedule.
The issuer of your card may charge interest or fees under your agreement with them. If you have any questions about those charges contact your card issuer.
If you do not use all of the funds initially approved for your Plan, we will reduce the amount you owe us. If you have paid us for more than the total amount of the goods or services related to your Plan, we will refund the balance back to your original payment method.
If the Provider does not request payment from us within 13 days after you sign up for your Plan, or the goods or services you have purchased using the Plan are not provided within 13 days of the purchase, we will cancel your Plan and promptly refund any amounts that you have paid to your original payment method.

You may not use or permit your Plan to be used to make any illegal transaction.

COMPLETE TERMS:

The following Payment Agreement for Scratch Plan Bi-Weekly is between WebBank, an FDIC-insured bank located in Salt Lake City, Utah that is the lender under the Plan (“we,” “us,” or “our”), and the user of the Plan ("you"). Scratch Financial, Inc. will service your Plan. In addition to this Payment Agreement, your use of the Plan is governed by the following agreements (collectively, together with this Payment Agreement, the "Terms"):

If you do not agree to the Terms, you must not use the Plan. The Terms are a contract between you and us. Each time you enter a Plan, you must agree to the version of these Terms as then in effect, and available at http://www.scratchpay.com/legal.

Description of the Plan and Your Promise to Pay Us:

The Plan is a loan that allows you to pay for your purchase with a credit or debit card in five payments, starting with an initial down payment due immediately when you sign up for a plan followed by four installment payments. We will pay the Provider on your behalf for the goods or services you purchase. You promise to repay the amount of that purchase directly to us under your Plan. By agreeing to these Terms, you instruct us to pay the Provider on your behalf at the time and in the amount reported to us by the Provider.

We do not charge you any interest to use the Plan, but the issuer of your card may charge interest or other fees under the terms of your card agreement.

When you sign up for a Plan, the total amount of the payments under the Plan (the "Plan Amount") is based on the estimated amount of your purchase as indicated by you. The Plan Amount is reduced by the first down payment you make at the time you sign up for the Plan, and by any further adjustments necessary to reflect the actual amount reported by your Provider to us after the goods have been delivered or the services have been rendered. We will collect the first down payment from you. We will then automatically charge your card for the next 4 installment payments every 14 days after the date you sign up for the Plan, according to your scheduled Due Dates (see the "Due Dates" section below).

If, after your first down payment is charged, the Provider determines that the actual amount of your purchase is less than the initial estimated Plan Amount, your initial down payment will remain the same, but we will reduce your next 4 installment payments equally. For example, if your initial Plan Amount is estimated to be $1,000, we will charge a down payment of $200 to your card at the time you sign up for the Plan and 4 installment payments of $200 every 14 days after that. If the Provider reports the actual amount of your purchase to be only $500, your initial down payment of $200 will remain, but we will reduce your next 4 installment payments to $75 each.

If the actual amount of your purchase is less than the amount of your initial down payment, we will refund you the difference. The actual amount owed under your Plan will never be more than the estimated Plan Amount (even if the Provider reports an amount greater than your Plan Amount), so your payments will never be greater than the estimated payments at the time you sign up for a Plan (but you will be responsible to pay to your Provider for any amounts due over your Plan Amount). If the Provider does not request payment from us within 13 days after you sign up for your Plan, or the goods or services you have purchased using the Plan are not provided within 13 days of purchase, we will cancel your Plan and promptly refund any amounts that you have paid to your original payment method; in such case, you will be responsible for making other payment arrangements with the Provider, if necessary. Your Provider may pay us a fee in connection with your Plan. This does not reduce the amount you owe us.

Accepted Cards:

We may limit the types of cards we accept at our discretion. Most valid credit and debit cards that are scheduled to expire after the remaining repayment period are accepted. If a type of card is not accepted you will be notified before the purchase is completed. We do not accept prepaid cards.

Due Date:

Your initial down payment will be charged when you sign up for the Plan. The next 4 installment payments will be automatically charged to your card every 14 days after the first payment is charged. Such scheduled due dates for payments ("Due Dates") are disclosed in Pacific Time. You can make payments any time and in any amount before the scheduled Due Date.

If you have more than one Plan, each Plan will have its own Due Dates.

Late Payment:

If we are unable to charge your selected payment method for the amount due on your Due Date, we will provide you a courtesy 10-day grace period so that you can ensure enough funds are available on your selected payment method or, to the extent permitted by us, update your payment method. If you update your payment method, we will attempt to collect the late payment immediately. Otherwise, we will attempt to charge your original card again after the 10-day grace period. It is important you ensure enough funds are available to complete your payment on the Due Date. If you fail to make a payment by the end of the courtesy 10-day grace period, you will be in default (assuming your Due Date has not been extended as described below). We may continue to attempt to collect overdue and currently due payments on subsequent Due Dates, or invoice you separately for the unpaid total.

Late Payment Fees:

We will charge you a $10 Late Payment Fee for each payment that is not made on its scheduled Due Date and has not been collected within your courtesy 10-day grace period. However, the sum of Late Payment Fees associated with your Plan will not exceed 25% of the Plan Amount. If you correct a payment failure within your courtesy 10-day grace period, you will not be charged a Late Payment Fee.

Extending Due Date:

If you are experiencing circumstances that make it difficult to make your payment on time or you believe you will need more time to update your payment method before your next Due Date (including the courtesy 10-day grace period), you have the option to extend the Due Date by an additional 2 weeks. You can do this by emailing your request to us at [email protected] before your courtesy grace period expires. When you extend a Due Date, any subsequent Due Date will also be extended by 2 weeks.

You may extend a Due Date only once with respect to any single payment and may only use this option twice over the term of the Plan. The ability to extend your Due Date is offered at our discretion and may not always be available. Extending a Due Date does not affect or limit your obligations, including your obligation to make the scheduled payments, under these Terms.

Returns:

Any returns or refunds credited to your purchase will reduce your outstanding balance but do not count as payments. You will need to continue to make your previously disclosed payments on scheduled Due Dates until your balance is paid in full. If you have a credit balance, you authorize us to credit the balance back to (a) your payment method, or any other card we have on file for you; (b)by check to your mailing address on file; or (c) by direct deposit to any of your bank accounts on file or stated on any check you presented to us for payment.

Default:

You will be in default if: (a) you fail to make any payment by the Due Date (including your courtesy 10-day grace period); (b) you become the subject of insolvency or bankruptcy proceedings; (c) you supply false, misleading, or incorrect information to us; (d) a payment is charged back or returned to us by your bank; or (e) you violate or are unwilling to comply with any provision of the Terms.

If you are in default, we may, subject to applicable law: (a) charge the outstanding balance on your Plan immediately, using any card or payment method we have on file for you or by a separate invoice; (b) employ a debt collection agency to receive payment and you will have to pay all reasonable costs (including attorney's fees) incurred by us and/or the debt collection agency; (c) report default information to credit bureaus; and/or (d) terminate your access to a Plan in the future.

Storing Card Details:

You authorize us to store your card details in our systems. We will use this information to authorize future payments for your Plan. You may not cancel or obtain a refund for any payments made under your Plan once the goods or services associated with the Plan have been supplied by the Provider. In the event we obtain updated card information from the card issuer, you agree that we may use this updated information in our system.

Card Transactions:

You authorize us to charge your card (if the card is a credit card) or initiate preauthorized transfers from the account related to your card (if your card is a debit card) for each payment on its Due Date, and for any other amounts that may become owing under these Terms. The amount of each transfer is disclosed at the time you sign up for your Plan. You agree we may initiate transactions in the amounts listed, or less, in the event that part of your purchase is returned or the final amount of the transaction is less than the initial amount of the Plan. Your final payment schedule will be emailed to you. You agree these Terms will serve as your copy of your authorization for us to initiate preauthorized transfers. We will provide notice within 2 days after each payment confirming that you have paid the amount listed in your payment schedule (or less, in the event part of the purchase is returned or the final amount of the transactions less than the initial amount of the Plan).

Alternate Payment Card

You may add an alternate card as a payment method by calling our customer support team at 855-727-2395, provided that the new card has adequate balance for future payments. You agree to extend your consent under the "Storing Card Details" section to any such newly added card. Please note that the new card does not replace the original card you presented to us as the payment method at the time you signed up for a Plan. If any payment is declined on the new card, we reserve the right to charge the original card we have on file. You may cancel your authorization on the original card by calling our customer support team at 855-727-2395. You must have a payment card authorized for payments at all times. You can also email us at [email protected] and ask us to reach out to you about adding an alternate card, but please make sure not to include sensitive information, including your card number, in your email.

Recording Calls:

You understand and agree that we may, without further notice or warning and in our discretion, monitor or record telephone conversations with you or anyone acting on your behalf with us or our service provider or agents for quality control and training purposes or its protection. You acknowledge and understand that, while your communications with us may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by us, and we do not guarantee that recordings of any particular telephone calls will be retained or retrievable.

No Liability in the Transaction:

We are not engaged in the sale of any goods or services supplied by any Provider. We do not have control of, or liability for such products or services.

Indemnification:

You agree to defend, indemnify and hold us, Scratch Financial as servicer, and our respective parents and affiliates, and the officers, directors, agents, joint venturers, employees and suppliers of all the foregoing harmless from any claim or demand (including attorneys' fees) made or incurred by any third party due to or arising out of your breach of these Terms, your improper use of the Plan, and/or your violation of any law or the rights of a third party.

No Guarantee of **Approval**:

We evaluate each request to participate in a Plan independently. Your participation in a Plan does not guarantee future Plan participation.

Assignment:

You may not transfer or assign any rights or obligations you have under these Terms without our prior written consent. We may transfer or assign your Plan, these Terms, or any right or obligation under these Terms, in whole or in party at any time. Any person acquiring this Plan will be permitted to exercise any of your rights under these Terms. Our service providers, including Scratch Financial, may also exercise our rights.

Governing Law:

Except to the extent, if any, prohibited by applicable law, these Terms, your Plan, and all controversies related to them are governed by federal law and, to the extent state law applies, the laws of the state of Utah.

Severability:

The unenforceability of any provision of these Terms shall not affect the enforceability or validity of any other provision of these Terms.

Entire Agreement:

These Terms, including all documents incorporated by reference, constitute and contain the entire agreement between you and us with respect to the matters addressed in these Terms and supersede any prior or contemporaneous oral or written agreements.

Complaints:

If you have a complaint relating to your Plan, you may contact us via email at [email protected] or by regular mail at Scratch Financial Inc., 225 S. Lake Avenue, Suite 250, Pasadena, CA 91101, Attn: Attn: Scratch Plan Bi-Weekly. If you have a complaint relating to the delivery or quality of the goods or services you purchased, please contact the Provider.

No Waiver:

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

MANDATORY INDIVIDUAL ARBITRATION OF DISPUTES:

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY. UNLESS YOU OPT OUT IN ACCORDANCE WITH THE PROCEDURES DESCRIBED BELOW, IT WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS, INCLUDING YOUR RIGHT TO BRING OR PARTICIPATE IN A JURY TRIAL OR A CLASS ACTION.

You agree that any and all past, present or future disputes or claims, including without limitation (a) federal and state regulatory and statutory claims, (b) common law claims, (c) claims under local ordinances, (d) data breach or privacy claims and (e) claims based in contract, tort, intentional tort, fraud, misrepresentation or any other legal theory, arising out of or relating to Scratch’s Terms of Use (“Terms”), the Scratchpay loans including but not limited to: Scratchpay Take 5 (Bi-weekly), Scratchpay Downpayment (Pay over Time Agreement), or other agreements between you and Scratchpay, Services provided by Scratchpay, use of the Scratchpay App or Scratchpay payment platform, transactions you engage in, collection of amounts due, or the relationship between you and Scratchpay (Company) or WebBank and their agents, employees, officers, directors, predecessors in interest, and successors and assigns, shall – at the election of either you or us – be resolved exclusively through final and binding arbitration, as set forth in this Arbitration Provision, rather than in court before a judge or a jury. This Arbitration Provision is also binding upon and may be enforced by any third party who is named as a co-defendant with us in a claim asserted by you.

Notwithstanding the foregoing:

ARBITRATION PROVISION DESCRIBED:

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. Courts rarely overturn Arbiters.
Who does the Clause cover?	You, Us, and Others.	This Clause governs the parties, their permitted 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. This includes all claims even indirectly related to your application and agreements with us. This includes claims related to information you previously gave us. It includes all past agreements. It includes extensions, renewals, refinancings, or payment plans. It includes claims related to collections, privacy, and customer information. It includes claims related to setting aside this Clause. It includes claims about the Clause's validity and scope. It includes claims about whether to arbitrate.
Are you waiving rights?	Yes.	You waive your rights to: 1. Have juries solve Disputes. 2. Have courts, other than small-claims courts, solve Disputes. 3. Serve as a private attorney general or in a representative capacity. 4. Be in a class action.
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 855-727-2395. 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 mail.	Send mail to: Scratch Financial, Inc. 225 S. Lake Avenue, Suite 250, Pasadena, CA 91101. You can call us at 855-727-2395 or use certified mail to confirm receipt.
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 a 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 prejudgment 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. 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.

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, if allowed by law.	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 the greater of the award amount or $7500 in addition to your attorneys' fees and reasonable expert witness costs and other costs incurred.
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 ruling 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: 1. Informal Dispute Resolution. Contact us, and attempt to settle any Disputes. 2. Small-claims Court. Seek to solve Disputes in small-claims court, within state law limits. 3. Opt-Out of Arbitration. Sign and then timely opt-out.
Can you opt-out of the Clause?	Yes. Within 60 days.	Write 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.