Payment Agreement for Take 5 Payment Plan (US)
Last Updated: January 2020
THESE PAYMENT AGREEMENT TERMS GOVERNING YOUR TAKE 5 PAYMENT PLAN INCLUDE 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 Scratchpay Take 5 Payment Plan (“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. We pay the Provider on your behalf for the goods or services you purchase, and you agree to repay those amounts to Scratchpay in accordance with this Agreement and the specific terms presented to you at the time of purchase. 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 payment is charged when you sign up for your Plan.
- There are no interest charges with the Plan, and no fees when you follow your automatic payment schedule.
- If you do not use all of the funds associated with 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 goods or services you have purchased using the Plan are not provided within 7 days of purchase, we will promptly refund any amounts that you have paid to your original payment method.
- 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.
You may not use or permit your Plan to be used to make any illegal transaction.
The following Payment Agreement Terms apply between Scratch Financial, Inc. (“Scratchpay,” “we,” or “us”) and the user of the Plan (“you”). In addition to these Payment Agreement Terms, your use of the Plan is governed by the following agreements (collectively, together with these Payment Agreement Terms, the “Terms”):
- Scratchpay Terms of Service
- Electronic Communications Agreement
- Consent to Receive Calls & SMS Text Messages
If you do not agree to the Terms, you must not use the Plan. The Terms are a contract between you and Scratchpay.
Description of the Plan:
The Plan gives you the option to pay for your purchase with a credit or debit card in five payments. You will make your payments directly to Scratchpay using your card. Scratchpay does 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. The final amount of your Payment Plan is the amount reported by your Provider to Scratchpay after the goods have been delivered or the services have been rendered.
We will charge your card for the first payment (1/5th of the Plan Amount) at the time you sign up for the Plan, and we will automatically charge your card for the next 4 payments every 14 days after that, according to your scheduled Due Dates (see the “Due Dates” section below). We will collect the first payment, to the extent required by law, as the Provider’s limited collection agent.
If, after your first payment is charged, the Provider determines that the actual amount of your purchase is less than the initial Plan Amount, your first payment will remain the same, but we will reduce your next 4 payments equally. For example, if your initial Plan Amount is $1,000, we will charge $200 to your card at the time you sign up for the Plan and 4 payments of $200 each every 14 days after that. If the Provider subsequently determines that the actual amount of your purchase is only $500, your first payment of $200 will remain, but we will reduce your next 4 payments to $75 each.
If the actual amount of your purchase is less than the amount of your first payment, we will refund you the difference. The actual amount of your purchase will never be more than the estimated amount, so your subsequent payments will never be greater than the estimated payments. If goods or services you have purchased using the Plan are not provided within 7 days of purchase, we will promptly refund any amounts that you have paid to your original payment method.
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.
Your first payment will be charged when you sign up for the Plan. The next 4 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 before the scheduled Due Date.
If you have more than one Plan, each Plan will have its own Due Dates.
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 corrected within your courtesy 10-day grace period. However, the aggregate sum of Late Payment Fees and any Extension Fees (see “Extending Due Date” below) associated with your Plan will not exceed 25% of the purchase 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 think 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 [email protected] before your courtesy grace period expires. If you choose to extend a Due Date, you will be charged a non-refundable $5 fee (an “Extension Fee”), which will be added to the amount due on the extended Due Date. 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 a payment, and may only use this option twice for any 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 Payment Agreement Terms.
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.
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, Scratchpay may: (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 Scratchpay and/or the debt collection agency; (c) report default information to credit bureaus; and (d) terminate your access to a Plan in the future.
Storing Card Details:
You authorize Scratchpay to store your card details in our systems. We will use this information to authorize future payments under these Terms. 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 Scratchpay obtains updated card information from the card issuer, you agree that we may use this updated information in our system. You may cancel your authorization by contacting us at [email protected] and providing alternative card information, provided that the new card has adequate balance for future payments. Any changes to these Payment Agreement Terms will be posted on our website at http://www.scratchpay.com/legal.
Debit Card Transactions:
If you use a debit card, you authorize Scratchpay to initiate preauthorized transfers from the related account. 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. If you would like to cancel preauthorized transfers from your account you may change your payment card or contact your financial institution. You agree these Payment Agreement Terms will serve as your copy of your authorization for Scratchpay 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 transaction is less than the initial amount of the Plan).
You understand and agree that Scratchpay may, without further notice or warning and in our discretion, monitor or record telephone conversations with you or anyone acting on your behalf has with Scratchpay or its service provider or agents for quality control and training purposes or its protection. You acknowledge and understand that, while your communications with Scratchpay may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Scratchpay, and Scratchpay does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
No Liability in the Transaction:
Scratchpay is not engaged in the sale of any goods or services supplied by any Provider. Scratchpay does not have control of, or liability for such products or services.
You agree to defend, indemnify and hold Scratchpay, our parent, affiliates and the officers, directors, agents, joint venturers, employees and suppliers of Scratchpay 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 this Agreement, your improper use of the Scratchpay services, 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.
You may not transfer or assign any rights or obligations you have under this Agreement without Scratchpay’s prior written consent. Scratchpay reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
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: Take 5. If you have a complaint relating to the delivery or quality of the goods or services you purchased, please contact the Provider.
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:
If you and we have a dispute, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or a jury. This Mandatory Individual Arbitration provision (the “Arbitration Provision”) identifies the terms by which you and we agree to resolve any disputes.
As used in these Terms, the terms “dispute” and “claim” has the broadest possible meaning. They include any and all disputes or claims involving the parties, including all claims even indirectly related to your application and agreements with us. They include claims related to information you previously gave us and all past agreements. They include claims related to extensions, renewals, refinancings, or payment plans, as well as related to collections, privacy, and customer information. The terms “dispute” and “claim” also include claims related to any attempt to set aside this Arbitration Provision, and claims about the Arbitration Provision’s validity, scope, and whether to arbitrate. They include claims under any legal theory, including contract, tort, statutory, or regulatory.
NOTWITHSTANDING THE FOREGOING, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT, AND NOT BY ARBITRATION, IF YOU OPT OUT OF THIS ARBITRATION PROVISION WITHIN 60 DAYS FROM (A) THE DATE YOU FIRST USE THE SCRATCHPAY SERVICES OR (B) OTHERWISE ACCEPT THE TERMS AFTER THE TERMS HAVE GONE INTO EFFECT (THE “OPT OUT DEADLINE”). YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY FULLY COMPLETING, SIGNING, AND DATING THE ARBITRATION OPT-OUT NOTICE FORM LOCATED AT https://drive.google.com/a/scratchpay.com/file/d/1nsAROVmkd5t6Rwt2KDzW7VQqvBTdEzxJ/view?usp=sharing, AND BY MAILING IT TO SCRATCHPAY VIA FIRST-CLASS MAIL AT THE FOLLOWING ADDRESS: Scratch Financial, Inc., Attn: Arbitration Opt-Out, 225 S. Lake Avenue, Suite 250, Pasadena, CA 91101. ANY ARBITRATION OPT-OUT NOTICE RECEIVED AFTER THE OPT-OUT DEADLINE WILL NOT BE VALID AND YOU MUST PURSUE YOUR CLAIM IN ARBITRATION OR SMALL CLAIMS COURT.
Prohibition of Class and Representative Actions Relief:
YOU AND SCRATCHPAY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SCRATCHPAY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS).
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, discovery is more limited, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual, including monetary damages, and injunctive or declaratory relief. An arbitrator also must follow the Terms as a court would.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, except any rules or procedures providing for class-wide arbitration, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Arbitration Provision. Under the AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim. The AAA’s rules and a form for initiating arbitration proceedings are available on the AAA’s website at www.adr.org.
The arbitration shall be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. Attendance at an in-person hearing may be made by telephone by you and/or Scratchpay, unless the arbitrator requires otherwise. If the value of the relief sought is $10,000 or less, either you or Scratchpay may elect to have the arbitration conducted based solely on written submissions pursuant to the AAA’s Procedures for the Resolution of Disputes through Document Submission. This election shall be binding on you and Scratchpay, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant.
Costs of Arbitration:
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules, unless otherwise stated in this Arbitration Provision. If the value of the relief you are seeking is $10,000 or less, Scratchpay will reimburse your filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Scratchpay should be submitted by mail to the AAA along with your Demand for Arbitration, and Scratchpay will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Scratchpay for all fees associated with the arbitration that Scratchpay paid on your behalf and that you otherwise would be obligated to pay under the AAA’s rules.
If the arbitrator’s award to you exceeds our last settlement offer, we will pay the greater of the award amount or $7,500, in addition to your attorney’s fees and reasonable costs, if any.
Each party has the right to go to small-claims court, instead of arbitration, if the small-claims court has the power and jurisdiction to hear the dispute or claims. Arbitration will solve all disputes and claims the small-claims court does not have the power and jurisdiction to hear. If there is an appeal from small-claims court, or if a dispute or claim changes so that the small-claims court loses the power and jurisdiction to hear it, then the dispute, claim, or appeal will only be heard by an arbitrator under this Arbitration Provision.
Each party has the right to use lawful self-help remedies. This includes set-off or repossession and sale of any collateral. Both parties may seek remedies that don’t claim money damages. This includes pre-judgment seizure, injunctions, or equitable relief, but only to the extent such relief does not conflict with this Arbitration Provision.
IF FOR ANY REASON A DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE RELATIONSHIP BETWEEN YOU AND SCRATCHPAY PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND SCRATCHPAY EACH WAIVE ANY RIGHT TO A JURY TRIAL TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.
Future Changes to the Arbitration Provision:
Notwithstanding any provision in these Terms to the contrary, you and Scratchpay agree that if we make any change to this Arbitration Provision (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Scratchpay prior to the effective date of the change. You may reject any change we make to this Arbitration Provision by sending us notice within 60 days of the change using the procedures in the opt-out provision above. If you do, the most recent version of this Arbitration Provision before the change you rejected will apply.
This Arbitration Provision stays effective unless the parties sign an agreement stating it doesn’t. The Arbitration Provision 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 Arbitration Provision remains effective, despite a transaction’s termination, amendment, expiration, or performance
Conflict with AAA Rules:
The terms of this Arbitration Provision govern to the extent they conflict with the AAA’s Rules.
If any part of this Arbitration Provision is found to be illegal or unenforceable, the remainder will remain in effect (with an arbitration award issued before any court proceeding begins), except that if a finding of partial illegality or unenforceability would allow for class-wide or representative arbitration, this Arbitration Provision will be unenforceable in its entirety.