CCB1/2021

Bread Comenity Terms of Use ("Terms of Use")

Last Updated: August 1st, 2021

PLEASE READ THESE TERMS OF USE CAREFULLY. THESE TERMS OF USE CONTAIN AN AGREEMENT TO ARBITRATE AND DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY. PLEASE PAY SPECIAL ATTENTION TO CAPITALIZED PROVISIONS. YOU SHOULD PRINT A COPY OF THESE TERMS OF USE FOR YOUR RECORDS.

This Terms of Use is a contract between you ("you" or "Member") and Lon Operations LLC (d/b/a Bread) (collectively, along with its affiliates, successors and assigns, "Bread", "we", "us", or"our"). By accessing Bread’s website at www.breadpayments.com, including any subdomain (collectively, the "Site"), or using any Bread online product or services (as defined below, the "Bread Services"), you signify that you have read, understand and agree to be bound by these Terms of Use.

TABLE OF CONTENTS

  1. ESign Consent
  2. Bread Services
  3. Communications
  4. Arbitration and Jury Trial Waiver
  5. Restrictions, Privacy and Security
  6. General Terms

1. ESIGN Consent

You are agreeing to transact business with us electronically. This means you will not receive paper copies of important notices, agreements and disclosures. By checking a box or clicking on a button, you will be providing your consent as if you had given your signature on a piece of paper.

You agree to receive electronically all disclosures, communications, notices, and other information that Bread may send to you or be required to send to you under applicable law or otherwise (the "Bread ESign Consent") pursuant to the terms and conditions set forth.

Scope of Consent

Your Bread ESign Consent applies to: (a) any transactions undertaken by you with us or any of our agents or representatives, including use of the Bread Services; (b) any communication from us or our representatives or agents to you including billing statements, payment reminders and updates to your Account; and (c) all disclosures, notices, and other information required to be given to you under applicable law, and any other information required by law to be provided either before or after your loan is issued or you complete your deferred payment purchase, including attempts to collect any debt arising from your transactions, (the "Disclosures"), in each case, pertaining to any transaction with us or any use of the Bread Services, whether now or in the future (collectively, the "Communications").

Means of Communication

We may send any Communications to you via email to the email address that you have provided (or may provide later) to us or via text message to the cellular telephone number that you have provided (or may provide later) to us. We may also post Communications on the Member Portal under your account or on the Site and will inform you of the posting of such Communications. You agree that Bread is not responsible for your failure to receive any Communications sent via text message or email that is not caused by our failure to send the Communication to the cellular number or email address that you would have provided to us.

Minimum Requirements

Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described:

We will notify you of any changes to these requirements that create a risk that you may not be able to receive Communications directly.

Withdrawing Consent

You may withdraw your consent to receiving Disclosures electronically subject to your Bread ESign Consent at any time by contacting us via email at support@getbread.com or calling (844) 992-7323. The legal effectiveness, validity, and enforceability of all agreed to terms and conditions and any prior Disclosures will remain in effect. Any withdrawal of your consent will be effective only after we have a reasonable period of time to process your withdrawal. If you decide to withdraw your consent, your account with Bread may be closed or access to your account and Bread Services may be limited. You agree to pay any amount owed to Bread even if you withdraw your consent and we close or limit access to the account.

Changes to Your Contact Information

You agree to keep us informed of any changes in your email address or cellular number so that you can continue to receive all Communications in a timely fashion. If your registered email address or cellular number changes, you must notify us of the change by sending an email to support@getbread.com or calling (844) 992-7323. You also agree to update your registered residence address in the Member Portal if it changes. Your failure to update your contact information may result in missed Communications which could relate to changes in account terms, fees or other important notices.

Requesting Paper Copies

To request paper copies of any Disclosures, please send an email to support@getbread.com or calling (844) 992-7323 within a reasonable time after we first provided the Disclosure to you. Bread may also send you Disclosures in paper form at their option.

Acknowledging Your Ability to Access Disclosure

You agree and acknowledge that you can access, receive and retain all Communications electronically sent via email or to your cellular number or posted on the Site.

Legal Effect

Your Bread ESign Consent means that any Communications shall have the same meaning as if provided in paper form. Any Communications sent to you via email or text message shall be deemed delivered once sent to your device. By pressing the button "View Your Plans", "Place Order", "Submit", "Confirm", "Verify", "I agree" or similar buttons indicating your authorization, you are providing your electronic signature with the same effect as if your signature had been provided on paper. You waive any and all defenses you may have that the Bread Services, the Bread Comenity Terms of Use, the Bread Privacy Policy or any Disclosures were supplied to you in electronic form or that your signature or agreement to the Bread Services or to the loan agreement and/or purchase agreement was obtained electronically.

2. Bread Services

The Bread Services include:

EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AND JURY TRIAL WAIVER SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BREAD WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. IF YOU ARE A COVERED BORROWER UNDER THE MILITARY LENDING ACT, 10 U.S.C. § 987, THE ARBITRATION AND JURY TRIAL WAIVER SECTION DOES NOT APPLY TO YOU.

In addition, you acknowledge and agree that you have read and consent to Bread Privacy Policy and Notice, and the Bank Privacy Notice (collectively, the "Additional Terms") regardless of whether you are a registered Member of the Bread Services or have completed an application for a Loan. If you do not agree to these terms, please do not access the Site or use the Bread Services. The Additional Terms are hereby incorporated into these Terms of Use by reference.

In addition to these Terms of Use and the Additional Terms, you may enter into other agreements with us or the Bank that will govern your use of the Bread Services. If there is a conflict between these Terms of Use and another agreement that you enter into with us and/or the Bank (including, without limitation, your Loan agreement with the Bank), such other agreement will take precedence with respect to the specific aspects of the Bread Services to which it applies.

Please read these Terms of Use carefully and in their entirety.

Changes to these Terms of Use

We may change these Terms of Use at any time in our sole discretion. You agree to review these Terms and Conditions periodically to ensure you are aware of any changes.If you continue to use the Bread Services after the Terms of Use have been updated, you are agreeing to the new Terms of Use.

We may make changes, including adding or removing provisions, to these Terms of Use from time to time in our sole discretion. If we take such action, we will post the changed or amended Terms of Use on the Site and will indicate at the top of this page the date the Terms of Use were last revised. Any such changes will be effective upon posting. If any such changes impose additional obligations on you that we deem material, we will take reasonable steps to inform you of these changes. If any changes are made to the Arbitration and Jury Trial Waiver section of these Terms of Use, that notice will include the option to opt out of the changes. Your continued use of the Bread Services or the Site after we have made any such changes will constitute your acceptance of the new Terms of Use.

Eligibility

To access this Site or use the Bread Services you must have reached the age of majority in your state (generally 18) and be a legal resident of the United States. You must not have been denied a Loan using the Bread Services in the last 90 days. We must also be able to verify you are who you say you are.

The Bread Services and this Site are intended solely for Members who are natural persons, eighteen (18) years of age or older (nineteen (19) years of age for residents of Alabama and Nebraska), and residents of the United States. We do not make any representations that the Bread Services or the Site are appropriate for or comply with the laws or regulation of any other jurisdiction. In addition, if you apply for a SplitPay Loan, you must have (1) a valid, unexpired credit or debit payment card (a "Payment Card") associated with an Account which you are authorized to use; (2) sufficient capacity on such Payment Card as determined by Bread, and (3) no more than the maximum allowed SplitPay Loans permitted by Bread, which may vary from time to time. If you have been denied a Loan from the Bank using the Bread Services during the preceding ninety (90) days, you are ineligible to submit a new application under the Bread Loan Program. You must also pass Bread’s fraud prevention checks which Bread may modify from time to time. By using the Bread Services or accessing this Site, you represent and warrant that you are eligible to do so. We reserve the right to verify your identity and share your information with third party service providers to assist us in doing so. If you misrepresent your eligibility to us you may be prohibited from using the Bread Services in the future. Bread Services are available only in the United States in jurisdictions where the Bread Loan Program is available.

Site Jurisdiction

This Site is controlled and/or operated from the United States, and is not intended to subject Bread to non-U.S. jurisdiction or laws, except as otherwise expressly stated in these Terms of Use. The Site may not be appropriate or available for use in some jurisdictions outside of the United States. If you access or use the Site, you do so at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.

Collecting Information About You

By accessing this Site or by using the Bread Services, you authorize us to collect and store information about you and the device you are using to access the Bread Services. Please see the Bread Privacy policies for more information. These procedures will include information that we will obtain and verify, on behalf of the Bank, pursuant to Section 326 of the USA PATRIOT ACT.

Credit Reporting Authorization and Reporting

By providing your information and agreeing to these Terms of Use, you expressly authorize Comenity Capital Bank, a Utah state-charted bank, and Bread to obtain your credit report and other information from one or more consumer reporting agencies for the purposes (as applicable) of processing your Loan application, evaluating your Prequalification (as defined below) request, and/or administering your Account including, without limitation, when: (1) you submit a request to pre-qualify for a Loan (for example, by clicking on the "View Your Plans" button or a similar button) and, at the Bank’s or Bread’s discretion, from time to time thereafter; and (2) you apply for a Loan (for example, by clicking on the "Place Order" button or a similar button) and, at the Bank’s or Bread’s discretion, from time to time thereafter while your application is pending and/or during the servicing and/or collection of any Loan the Bank extends to you. In addition, you also expressly consent to the release of your income and employment information from one or more consumer reporting agencies to the Bank and Bread as part of your credit report, and if applicable, to periodically re-validate this information prior to or during the term of your Loan.

You also understand and acknowledge that this written authorization permits the Bank and Bread to make "soft inquiries" for your credit report from one or more consumer reporting agencies. Soft inquiries do not impact your credit score.

You certify that the information you have provided as part of the application for financing is true and correct. You authorize the Bank and Bread to verify the information you have provided, including contacting third parties to do so. You represent and certify that you intend to use the Bread Services to finance a purchase for your personal, family, or household use only, and not for any commercial or business use.

You authorize the Bank and Bread, at their sole discretion, to report to consumer reporting agencies their credit experiences with you and information about your Loan from time to time. Information reported to consumer reporting agencies may appear on your consumer report and may impact your credit score.

Late payments, missed payments, or other defaults on your Account may be reflected in your credit report.

Prequalification, Application, and Checkout

The financing for your purchase is provided through a fixed rate, closed-end, unsecured Loan issued by Comenity Capital Bank. The Bank will pay the Loan proceeds, minus any fees owed by the Merchant, directly to the Merchant on your behalf.

Prior to submitting an application for financing to the Bank, you must request an initial determination of your eligibility and the terms that may be available to you ("Prequalification"). The Prequalification terms are not the final terms on which financing will be available and may change when the Loan agreement from the Bank is presented to you. At or after thirty (30) days from the date of your Prequalification, we or the Bank may obtain your most recent credit report from the consumer reporting agencies, which may result in new terms or denial of credit terms.

If Prequalification determines that you are initially eligible, you may submit an application to the Bank. If the Bank approves you, financing will be available to you through a closed-end, fixed rate, unsecured installment Loan from the Bank with terms specified in your Loan agreement with Comenity Capital Bank.

At Prequalification, upon submitting an application to the Bank, or at any other time, you may be denied use of the Bread Services by us or the Bank for any reason permitted by applicable law, including, but not limited to, your creditworthiness, suspected fraud, your history of using the Bread Services, or your violation of any agreement with us or the Bank, including these Terms of Use. Any transaction may be held as pending, delayed for processing, or canceled at any time prior to the issuance of your Loan by the Bank. All Loans are subject to final approval and funding by the Bank.

In the event that the goods or services you are attempting to purchase cost more than the amount of the Loan that may be offered to you, or that a Merchant wishes to collect some portion of the payment separately, you may be permitted to pay, separately, the remaining portion of the transaction directly to the Merchant through a third-party payment processor by credit or debit card (each such transaction a "Split Payment"). Split Payments are not available for every transaction.

In the event that the Merchant issues a partial refund to your Account, the Split Payment portion of the total order will be refunded to you prior to any refunds or changes to the amount of your Loan. A cancellation will result in a repayment of Split Payment funds to the card used to complete the Split Payment portion of checkout.

Your Loan Agreement with the Bank

If a Loan is issued to you by the Bank, you will have a Loan agreement with the Bank which you will agree to at the time you authorize a transaction on a Merchant website using the Bread Services. The Loan agreement has important terms, which you should read. A copy of the Loan agreement will be provided to you before you complete your purchase so you can review the terms of the agreement and decide whether to accept the terms offered.

The interest on the amount you borrow to finance your purchase will start accruing only once the Loan has been issued, as determined by the Bank. The Bank will make the determination as to whether and when your Loan is originated. Using the Bread Services does not guarantee a Loan by the Bank

Depending on the Merchant through which you check out, there may be some delay in the issuance of Loan proceeds to the Merchant, or Loan proceeds may be issued to the Merchant before they have fulfilled shipment of the goods to you. The terms of your Loan are set out in your Loan agreement with the Bank and apply regardless of the timing of Merchant fulfillment of goods or services. Therefore, interest may start accruing on your Loan or your payments may become due before you have received your goods or services from the Merchant. You should notify the Merchant if there are any unexpected delays or issues with your order. Please see the "Refunds and Cancellations" section on how to resolve disputes with the Merchant.

After the Loan has been issued by the Bank, you also will receive a notice at the email address you provided as part of your registration that will contain instructions on how to access the Member Portal, where you can view your Account information and your final Loan agreement.

Merchants

Although the Bread Services may be used in connection with the sale of goods and services on Merchant websites, you acknowledge that Bread is acting as an unaffiliated third party to the Merchant and is not responsible for any defect or warranty associated with such goods or services. Bread is not responsible for your use of the goods or services and you acknowledge and agree that you will not hold Bread liable under any theory of products liability, personal injury, or breach of warranty for your purchase from the Merchant. Likewise, Bread is not responsible for the content of or your use of Merchant websites, which are governed by the Merchants’ own terms of use and privacy policies.

Outages and Disruptions of the Bread Services

Although Bread will make commercially reasonable efforts to make the Bread Services available to you, delays may result from: first or third-party service outages, hardware failure, telecommunications issues, software failure, overloading of system capacities, acts of God (including weather, fire, water damage, explosion, and natural disasters), pandemics, epidemics, changes in government or regulatory restrictions, issues with Merchant technology or fulfillment, delays in approval by the Bank, or for other reasons outside of Bread’s control. Bread is not responsible for any such delays.

Refunds and Cancellations

Once you complete your purchase and the Loan is originated, you are responsible for repaying your Loan according to the terms of your Loan agreement. If you wish to ask for a refund on your purchase, you should contact the Merchant. If the Merchant processes your refund, the Merchant will then contact us and your Loan amount will be reduced by the amount of the refund. If the refund is for the entire borrowed amount, you may still owe finance charges depending on when the Merchant notifies us of the refund. If a refund is processed between you and the Merchant before the Loan is issued, your Loan will be issued in the reduced amount or your Loan will be canceled in its entirety if the reduced amount is equal to the full amount of the Loan. If a refund is processed between you and the Merchant after the Loan has been issued, the refunded amount will be used to reduce the payments on your Loan. We may rely solely on the Merchant for determining the amount of the refund. You will still be responsible for any outstanding balance on your Loan. You may also owe other amounts (such as late fees or non-sufficient funds fees) that accrued prior to issuance of the refund and were not paid. Please review your Loan agreement with the Bank for further details.

Any disputes pertaining to the product or service, the amount you were charged, delivery, or any other aspect of your retail transaction with the Merchant must be first directed to the Merchant. If you are unable to resolve a retail transaction issue with the Merchant you may submit a formal dispute to Bread, along with any supporting evidence. Bread will review such disputes in accordance with its internal policies and review of all relevant information submitted by you and the Merchant. Bread may determine in its sole discretion that the Merchant has complied with its refund and cancellation policies, in which case you will remain obligated for the full amount of your Loan. If Bread determines that the Merchant has not complied with its policies, Bread may request that the Merchant issue a refund to your Account in accordance with those policies. Any refund issued by a Merchant will be applied to your Account to reduce your Loan balance, and you will remain responsible for any outstanding amount.

Disputes regarding the Bread Services or your Loan with the Bank may be directed to Bread through any method indicated on our Site.

Repayment

It is important that you make timely payments on your Loan. We are here to help you with any questions on repayment methods.

You may also log into the Member Portal at member-portal.breadpayments.com/login or call (844) 992-7323 to make a payment via electronic fund transfer (ACH or debit card for Installment Loans; debit or credit card for SplitPay Loans).

For SplitPay Loans, you acknowledge that you consent to enrolling in Autopay at the time of checkout, and authorize Bread to authorize recurring charges to your Payment Card on your due date. You can unenroll in Autopay or change your registered Payment Card at any time by logging into the Member Portal or calling the customer support number above.

If you attempt to complete a purchase using a SplitPayLoan, you authorize us to authorize a debit or charge to your Payment Card equal to up to half the amount of your purchase. You acknowledge that any unpaid portion of that authorization which is canceled or refunded to you may take several days to be reflected on your Payment Card account and that we are unable to control when that amount will be credited back to you. You should refer to your SplitPay Loan agreement for further information on your payment options and the authorization of payments.

3. Communications

Bread Communications

By providing your contact information, you agree that Bread and any party acting on our behalf may communicate with you electronically, by phone, or in writing. Any electronic communications will be considered to be received by you at the time we email it to you or otherwise sent it to your attention (such as via SMS or other online or mobile notification). Bread may monitor or record telephone conversations you or anyone acting on your behalf has with Bread or its agents for quality control and training purposes. We may use the email address you provided or may provide in the future to send you electronic communications in accordance with the Bread ESign Consent in Section 1.

Your withdrawal of consent to electronic communications will be managed in accordance with the Bread ESign Consent in Section 1. You acknowledge and agree that you can only limit certain disclosures being provided to you by email and that we may continue to provide you with transactional emails related to your Account. Notwithstanding this provision, Bread’s delivery of any disclosures governed by the Bread ESign Consent shall be governed by your consent or withdrawal of consent to receiving such disclosures in electronic form.

Mobile Communications

By providing your mobile number, you agree that Bread, its affiliates, and service providers may communicate with you about your account and any Bread Service through phone calls or texts, including any such telephonic communications that may be made or generated using an automatic dialer system, automatic telephone dialing system, pre-recorded voice message, or artificial voice. Message and data rates may apply. The frequency of text messages may vary. We may contact you at the cellular phone number you provided to us at the time of application or any other phone number you may provide to us in the future. You represent that you are the owner, or authorized user of the mobile device you use and are authorized to consent to receive texts and other communications.

How to Opt-out of Text Communications for Account Servicing Purposes.

You may opt-out of future account servicing texts by replying "STOP" to any account servicing text we send you. Opting out of account servicing text messages will not opt you out of other text messages that we may send you, such as texts we may send you if we suspect fraud, if you have missed a payment and are in default, or marketing texts you may have separately elected to receive.

Safeguarding your Mobile Phone.

Anyone with access to your mobile phone may be able to view texts that we send you. If you do not want anyone to view your Bread texts, you should safeguard your mobile phone. You accept full responsibility for safeguarding any communications that we may send to your mobile phone.

Third Party Providers.

You authorize your wireless operator to disclose your mobile number, name, address, email, network status, customer type, customer file, billing type, mobile device identifiers (IMSI and IMEI) and other subscriber status and device details, if available, to our third party service provider, solely to verify your identity and prevent fraud for the duration of the relationship. See Bread’s Privacy policy for how we treat your data.

Text Carriers and Delivery.

We do not guarantee that you will receive servicing texts. Circumstances beyond our control may result in your not receiving texts. Supported carriers for text messages may change from time to time. Not all carriers may support Bread’s texts messages. Your carrier may not deliver texts while you are roaming, out of the country, or otherwise outside of its service area.

Fees.

We do not charge any fees for text messages we send, however your carrier’s message and data rates apply. Contact your wireless carrier for information about your messaging plan.

Support/Help.

For questions, call (844) 992-7323. You may also text "HELP" for more information.

Contact Information

You agree to provide us with updates to your contact information. If your billing address, email or phone number changes, please contact us immediately.

You agree to provide us true and accurate information at all times. You agree to keep us informed of any changes to your email address or cellular number so that you can continue to receive all disclosures in a timely fashion. If your registered email address or cellular phone number changes, you must notify us of the change by sending an email to support@breadpayments.com or calling (844) 992-7323.

Restricted Activity

The items listed below are a non-exclusive list of prohibited activities when using Bread Services (each a "Restricted Activity").

As a condition to accessing the Site or using the Bread Services, you agree that you will not:

We reserve the right, at all times, to prevent your access to the Site or to the Bread Services or cancel your Account, including if we have reason to believe that you have committed any of the Restricted Activities.

Account Security

You share responsibility with Bread for the security and privacy of your own Account. If you think your Account has been compromised, please contact us immediately.

Your Account on the Member Portal will include personal and sensitive information about you and your Account. You agree to maintain the security of your username and password and restrict access to your Account by unauthorized persons. You agree that you are fully responsible for any activity that occurs on your Account in the Member Portal by anyone you have given your access credentials to or have permitted to access your Account. You agree to keep your contact information on file with us updated. If you have reason to believe that the security of your Account has been compromised or if you need to update your personal information, you agree to contact us immediately by sending an email to support@breadpayments.com or calling us at (844) 992-7323.

Third Party Access

If you authorize a third party to access your Account or share your Account information with them, you acknowledge that Bread may disclose information about your Account with such third party. You acknowledge that granting a third-party authorization to take action on your behalf or using your information does not relieve you of any responsibilities under these Terms of Use or any Loan agreement. You acknowledge that payments made on your behalf from third parties, including those whom you authorize to access your Account may be accepted and reflected in your Account.

Privacy

Please review the Bread Privacy policy that is incorporated into these Terms of Use by reference. By accessing the Site or using the Bread Services, you are consenting to have your personal data transferred to and processed by Bread in accordance with the Bread Privacy Policy. However, under no circumstances does Bread guarantee that particular information will be recorded and retained.

User Content; Feedback

With respect to the content, data or other materials you upload or otherwise submit through the Bread Services (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to such User Content. By uploading or otherwise submitting any User Content, you hereby grant and will grant Bread and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Bread Services.

You acknowledge and agree that Bread may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Use; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Bread, its users and the public. You understand that the technical processing and transmission of the Bread Services, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

From time to time we may ask you to provide feedback on the Bread Services, for example in the form of customer surveys, or you may affirmatively provide us with feedback information based on your experience with us. Unless otherwise indicated, any content submitted to Bread via the Site shall be deemed and remain the property of Bread. You agree that any comments, ideas, or feedback you provide us are non-confidential and may be used by us without any restriction or compensation owed to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by our employees, or obtained from other sources.

Links to Other Web Sites and Content

The Bread Services may appear on other websites, including Merchant websites, and our Site may contain links to, or you may be directed to, other websites (including Merchant websites) ("Third Party Sites"), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the "Third Party Content"). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites or any Third Party Content posted on the Site, including without limitation the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sites or the Third Party Content. If you decide to leave the Site and access any Third Party Sites (including accessing any Third Party Content on Merchant websites while you use the Bread Services), you do so at your own risk and you should be aware that our terms and policies no longer govern. You further acknowledge and agree that Bread will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Content or any content, goods or services available on or through any Third Party Site. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site.

4. Arbitration and Jury Trial Waiver

Key provisions: Please read the following important provisions carefully. Pay special attention to Paragraphs:

A. Jury trial waiver

To the extent permitted by law, you and we waive any right to trial by jury in the event of a lawsuit arising out of or related to these Terms of Use. This jury trial waiver shall not affect the Arbitration Provision below (including the jury trial waiver contained therein). You and we each represent that this waiver is given knowingly, willingly and voluntarily.

B. Notice and cure

Prior to bringing a lawsuit or initiating an arbitration that asserts a claim arising out of or related to these Terms of Use (as further defined below, "Claim"), the party asserting the Claim ("Claimant") shall give the other party ("Defendant") written notice of the Claim ("Claim Notice") and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you shall be sent to the address we have in our records (or any updated address you subsequently provide to us). Any Claim Notice to us shall be sent by mail to C/O Bread Compliance, PO Box 11499, Tampa, FL 33680 (or any updated address we subsequently provide). Any Claim Notice you send must provide your name, address and Loan number and explain the nature of the Claim and relief demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. No third party, other than a lawyer you have personally retained, may submit a Claim Notice on your behalf. The Claimant must reasonably cooperate in providing any information about the Claim that the Defendant reasonably requests.

C. Arbitration provision

Read this provision carefully. If you do not reject it in accordance with Paragraph C.1 below, it will be part of these Terms of Use and will have a substantial impact on the way you or we will resolve any Claim you or we have against each other now or in the future.

  1. Right to Reject: If you don’t want this Arbitration Provision (and any prior arbitration agreement between you and us ("Prior Arbitration Agreement")) to apply, you may reject it by mailing us a written rejection notice which gives your name and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of these Terms of Use. The rejection notice must be sent to us at C/O Bread Compliance, PO Box 11499, Tampa, FL 33680. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within 30 calendar days after the date of the Loan. Your rejection of this Arbitration Provision will not affect any other provision of these Terms of Use or your ability to obtain credit.

  2. Parties: Solely as used in this Arbitration Provision (and not elsewhere in these Terms of Use), the terms "we," "us" and "our" mean (a) Comenity Capital Bank and its successors and/or assigns, as well as any parent, subsidiary or affiliate of theirs and their employees, officers and directors (the "Bank Parties"); and (b) any other person or company that provides any services in connection with these Terms of Use if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.

  3. Covered Claims: "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to these Terms of Use, any other documents referenced in these Terms of Use, the Loan, and/or any prior agreement or Loan. "Claim" includes disputes arising from actions or omissions prior to the date of the Loan, including the advertising related to, application for or approval of the Loan. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 ("Class Action Waiver"), Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of these Terms of Use as a whole is for the arbitrator, not a court, to decide.

  4. Starting an Arbitration: Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.

  5. Choosing the Administrator: "Administrator" means the American Arbitration Association ("AAA"), 120 Broadway, 21st Floor, New York, NY 10271, www.adr.org; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver.

  6. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: If you or we elect to arbitrate a Claim, you will not have the right to pursue that Claim in court or have a jury decide the Claim. Also, your ability to obtain information from us is more limited in arbitration than in a lawsuit. Other rights that you would have if you went to court may also not be available in arbitration.

  7. Prohibition Against Certain Proceedings (Class Action Waiver): If you or we elect to arbitrate a Claim: (1) neither you nor we may participate in a class action in court or in class-wide arbitration, either as a plaintiff, defendant or class member; (2) neither you nor we may act as a private attorney general in court or in arbitration; (3) Claims brought by or against you may not be joined or consolidated with Claims brought by or against any other person; and (4) the arbitrator shall have no power or authority to conduct a class-wide arbitration, private attorney general arbitration or multiple-party arbitration.

  8. Location and Costs: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.

  9. Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.

  10. Discovery: In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.

  11. Result and Appeals: Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA and/or the rules of the Administrator. Any finding, award or judgment from an arbitration of any Claim shall apply only to that arbitration. No finding, award or judgment from any other arbitration shall impact the arbitration of any Claim.

  12. Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under any Loan agreement governing your Loan any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision and the applicable arbitration rules or the other provisions of these Terms of Use, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement.

  13. Severability: If any portion of this Arbitration Provision is held to be invalid or unenforceable, the remaining portions shall nevertheless remain in force, subject to two exceptions. First, if a determination is made that the Class Action Waiver is unenforceable, and that determination is not reversed on appeal, then the Arbitration Provision shall be void in its entirety. Second, if a court determines that a public injunctive relief Claim may proceed notwithstanding the Class Action Waiver, and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated and the parties will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded.

  14. Special Payment: If (1) you submit a Claim Notice in accordance with Paragraph B above on your own behalf (and not on behalf of any other party); (2) we refuse to provide you with the relief you request before an arbitrator is appointed; and (3) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (plus any fees and costs to which you are entitled).

5. General Terms

Statute of Limitations

You and Bread both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms of Use (including the Additional Terms) must be filed within ONE (1) YEAR after such claim or cause of action arose or within the shortest limit permitted under applicable law or be forever barred, provided, however that any claims or causes of action arising out of related to your Loan agreement with the Bank (including with respect to any assignees of the Loan or the Bank’s rights under the Loan) is expressly excluded from this provision.

Proprietary Rights in Bread IP; Limited License

By using the Bread Services, you acknowledge that, as between you and Bread, Bread owns all right, title and interest in any software, code, system, technology, content, procedures and other intellectual property used or embedded in the Bread Services, the Site or through the Bread API including Bread’s name, logo and any other trademarked material but expressly excluding your User Content (the "Bread IP"). You will not use, display, rent, lease, loan, transfer, assign, sell, copy, reproduce, distribute, download, reverse engineer, frame, scrape or modify any of the Bread IP or to prepare a derivative work based on the Bread IP. In connections with your use of the Bread Services and Site, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Bread from accessing the Bread Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Provided that you are eligible for use of the Site and the Bread Services, you are granted a limited, revocable, nontransferable license to access and use the Bread IP and the Bread Services solely for your personal, noncommercial use (including to access any disclosures). Any other use of the Bread IP is strictly prohibited and will terminate the license granted herein. Any rights not expressly granted herein are reserved by Bread. Nothing in these Terms of Use should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Bread’s logos or other trademarks ("Trademarks") displayed on the Site or Bread Services, without our prior written permission in each instance. All goodwill generated from the use of Trademarks will inure to our exclusive benefit.

Limitation on Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING IN THESE TERMS OF USE TO THE CONTRARY, IN NO EVENT WILL WE, OUR AFFILIATES OR OUR RESPECTIVE DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF (OR INABILITY TO USE) THE SITE OR THE BREAD SERVICES OR OTHERWISE ARISING UNDER OR RELATING TO THESE TERMS OF USE (INCLUDING YOUR USE OF ANY PRODUCT PURCHASED USING THE BREAD SERVICES, THE UNAVAILABILITY OF THE BREAD SERVICES FOR ANY REASON, OR ANY SYSTEM FAILURE OR MALFUNCTION ASSOCIATED WITH THE BREAD SERVICES). THESE LIMITATIONS ON LIABILITY WILL APPLY EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. IN ALL OTHER INSTANCES AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING IN THESE TERMS OF USE TO THE CONTRARY, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU FOR THE BREAD SERVICES IN THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BREAD WOULD NOT PROVIDE THE BREAD SERVICES TO YOU WITHOUT SUCH LIMITATIONS.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTION TITLED "LIMITATION ON LIABILITY" IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Disclaimer of Warranties

YOUR USE OF THE SITE AND THE BREAD SERVICES IS AT YOUR SOLE RISK. THE SITE AND BREAD SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BREAD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, BREAD EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS OR OMISSIONS IN ANY INFORMATION PROVIDED AS PART OF THE BREAD SERVICES OR ON THE SITE AND ANY WARRANTIES REGARDING THE OPERABILITY OF THE BREAD SERVICES OR LIABILITY FOR ANY SERVICE INTERRUPTIONS OR SYSTEMS FAILURES THAT MAY AFFECT THE BREAD SERVICES AT ANY TIME. WE CANNOT GUARANTEE AND DO NOT WARRANT THAT YOUR ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT THE SITE WILL BE FREE OF COMPUTER VIRUSES.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTION TITLED "DISCLAIMER OF WARRANTIES" IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Governing Law; Venue and Jurisdiction

Except and to the extent the Arbitration Provision may apply to any dispute between the parties (in which case the terms of the Arbitration Provision shall apply with respect to governing law and venue), by accessing the Site or using the Bread Services, you agree that the laws of the State of New York, without regard to any principles of conflict of laws that would require or permit the application of the laws of any other jurisdiction, will govern these Terms of Use or your use of the Bread Services. You agree to the personal jurisdiction by and venue in the state and federal courts in New York County, New York, and agree and consent that such courts are the exclusive forum for litigation of any claim or cause of action arising out of or relating to your use of this Site or the Bread Services.

Indemnity and Release

You agree to release, indemnify and hold Bread, its affiliates, and each of their respective directors, employees and agents harmless from and against any and all loss, liability, damages, costs and expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind or injury arising out of or in connection with your use of the Site or the Bread Services, any User Content, as well as any claims based on breach of contract, tort, product liability, or breach of warranty, or any violation of the Terms of Use by you or any third party accessing the Site or the Bread Services using your Account. You agree to fully cooperate at your expense as reasonably required by Bread. Bread may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving Bread without the consent of Bread.

Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

NOTWITHSTANDING THE FOREGOING, IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTION TITLED "INDEMNITY AND RELEASE" IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Other

The failure of Bread or its affiliates to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance. Except as specified above, if any provision of these Terms of Use is held invalid, the remainder of these Terms of Use shall continue in full force and effect. The section headings used in the Terms of Use are for reference only and do not carry any legal significance. Upon our request, you will take any actions necessary to evidence your compliance with these Terms of Use. The Terms of Use are between you and Bread and these Terms of Use will not vest any rights, either on your behalf or otherwise, to any third party from your use of the Bread Services or the Site provided, however, that affiliates of Bread are intended third party beneficiaries of these Terms of Use (including in particular and without limitation, the "Arbitration", "Limitation of Liability", "Disclaimer of Warranties", and "Indemnity and Release" sections). The Bread Services and the use of the Site are only intended for residents of the United States and we do not make any representations that the Bread Services or the Site are appropriate or comply with the laws or regulations of any other jurisdiction. You agree that Bread, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Bread Services and remove and discard any content within the Bread Services, for any reason, including, without limitation, for lack of use or if Bread believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Bread Services, may be referred to appropriate law enforcement authorities. Bread may also in its sole discretion and at any time discontinue providing the Bread Services, or any part thereof, with or without notice. You agree that any termination of your access to the Bread Services under any provision of these Terms of Use may be affected without prior notice and acknowledge and agree that Bread may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or the Bread Services. Further, you agree that Bread will not be liable to you or any third party for any termination of your access to the Bread Services. You may not assign your rights or obligations under these Terms of Use to any other party without our prior written consent. Bread may freely assign its rights and obligations under these Terms of Use at any time without notice. Provisions of these Terms of Use, which by their nature and the context in which they appear would reasonably be expected to survive termination or expiration of these Terms of Use, including, but not limited to, those related to Arbitration, Proprietary Rights, Indemnity, Limitation on Liability and Governing Law, will survive its termination or expiration. The Terms of Use constitute the entire understanding between you and Bread about your use of the Site and Bread Services and supersede all prior understandings of the parties relating to the subject matter at hand but is subject to other agreements we may enter into with you specific to Bread Services.

Notice for California Users

Under California Civil Code Section 1789.3, users of the Bread Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Lon Operations LLC, P.O. Box 1264, New York, NY 10276 or by phone at (844) 992-7323.