Refund Advance Services Agreement

Please read this Refund Advance Services Agreement (the “Refund Advance Agreement”) carefully, as it contains important information about the legal rights and obligation that we and you have in connection with our Refund Advance service, as described below. As used in these Terms, the words “you” and “your” will refer to the person who accepts these Terms and who we may allow to utilize our Refund Advance Service. The words “we,” us,” and “our,” refer to Apace Refunds LLC, also known as Fastback.

THIS REFUND SERVICES AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY LIMIT CERTAIN OF YOUR LEGAL RIGHTS IF YOU HAVE A DISPUTE WITH US, INCLUDING LIMITATIONS RELATING TO YOUR RIGHT TO FILE A LAWSUIT AGAINST US, TO HAVE YOUR DISPUTE HEARD BY A JURY, AND A LIMITATION ON YOUR RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AGAINST US. YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION AS DESCRIBED BELOW.

YOU ACKNOWLEDGE AND UNDERSTAND THAT THERE MAY BE TAX IMPLICATIONS TO YOU FROM RECEIVING A REFUND ADVANCE FROM US. YOU AGREE THAT WE HAVE NOT PROVIDED YOU WITH ANY TAX OR LEGAL ADVICE REGARDING SUCH IMPLICATIONS. SEE SECTION XX FOR MORE INFORMATION.

As described in more detail below and subject to the terms and conditions of this Refund Advance Agreement, we may, at our sole discretion, agree to provide certain money to you. If we do provide funds to you, you will have no obligation to repay or return any such amounts. However, we will not provide any additional funds to you if you do not first forward to us the entire amount of all funds that we may have previously provided to you and otherwise comply with our eligibility requirements. You expressly acknowledge and agree that any funds you receive in connection with this Agreement are not a loan or extension of credit and that any payments you choose to make to us will be wholly voluntary. Additionally, if you cause us to incur any of the following losses, you agree to reimburse us for the actual amount of our loss: (1) if we incur losses due to any fraud you have committed against us or against any third-party or due to your making any materially false or misleading representations to us, or (2) if we incur any actual fees as a result of a return of a voluntary payment you make to us for any reason, including as a result of insufficient funds being available to complete such payment.

In addition to this Refund Advance Agreement, you must agree to each of the following to use our Refund Advance Service: our Online Account Terms and Conditions (the “Online Terms”), our Privacy Policy, and our Electronic Communications Policy (together, the “Additional Agreements”).

We may update or amend this Refund Advance Agreement or any of the Additional Agreements at any time and for any reason by posting updated versions of any of the Agreements on our website. Such amendments or updates will become effective immediately unless we expressly describe a later effective date in such updated agreement. If we make material changes to this Refund Advance Agreement, we will provide you notice of such changes before they become effective. By continuing to maintain your Account after the effective date of any such amendment or update, you expressly agree to be bound by the updated terms. You must terminate each of your accounts with us immediately if you do not agree to be subject to any updated Agreement.

You acknowledge and agree that you have read, understood, and agree to be bound by this Refund Advance Agreement and each of the Additional Agreements. You hereby expressly agree to the terms and conditions of this Refund Advance Agreement and of each of the Additional Agreements. You acknowledge and agree that this Refund Advance Agreement will govern all matters relating to or arising out of any of the Refund Advance services and any other services that we may provide to you in connection with this Refund Advance Agreement.

Definitions.
1. An “Approved Online Retailer” is an online retailer that is identified in our online list of Approved Online Retailers and regarding which we may agree to provide a Refund Advance to you.
2. An “Authorized Bank Account” is a transaction account that you maintain at a US-based financial institution that you have authorized us to obtain transactional or other information about or that you reasonably expect that you will use in connection with a Refund Advance, including, but not limited to, (i) to make a purchase from an Approved Online Retailer, (ii) into which you expect an Approved Online Retailer to transmit Refund Amounts, (iii) from which you may wish to authorize us to process payments that you make to us, if any, or (iv) into which you may want us to remit the amount of any Refund Advance.
3. An “Expedited Transfer Fee” is the fee that is charged if you choose to receive Refund Advance funds via the Expedited Transfer Process.
4. The “Expedited Transfer Process” is an optional service that we offer by which you can choose to pay an Expedited Transfer Fee to us to receive Refund Advance funds faster than would be likely using our Standard Transfer Process.
5. A “Refund Amount” is the amount of money that an Approved Online Retailer has expressly agreed to refund to you in connection with your online purchase of merchandise and in connection with which you are requesting a Refund Advance. If the amount of a refund you receive from an Approved Online Retailer is less than the Refund Advance we provided to you in connection with such expected refund and if we determine, at our sole discretion, that you have acted in good-faith to obtain and forward to us as much of the Refund Amount as you were reasonably able to obtain from the Approved Online Retailer under the circumstances, then the Refund Amount will be equal to the amount of the refund that you received.
6. A “Refund Advance” is a grant of money that we may provide to you in advance of your expected receipt of a Refund Amount from an Approved Online Retailer.
7. A “Retailer Account” is your online account with an Approved Online Retailer from which you are expecting a refund in connection with a Refund Advance, if any.
8. The “Standard Transfer Process” is our standard process for sending your Refund Advances. We do not charge a fee for sending you Refund Advances using our Standard Transfer Process.
9. An “Online Account” is defined in the Online Terms.
Refund Advance Eligibility Requirements. You will not be eligible for a Refund Advance if any of the following is true:
1. You have breached any of your obligations to us under this Agreement or under any of the Additional Agreements, or if any of the representations or warranties made to us in this Agreement or in any of the Additional Agreements is not true and correct.
2. You have received one or more Refund Amounts from an Approved Online Retailer and you have not sent the full amount of each such Refund Amount to us.
3. We are unable to determine if you have received one or more Refund Amounts by accessing the transaction history of your Authorized Bank Account(s) as described below in Section 5 (“Information Sharing Requirements”).
Refund Advances.
1. Subject to the terms of this Refund Advance Agreement and the Additional Agreements, if you are eligible for a Refund Advance, we may permit you to request a Refund Advance from us. If we, at our sole discretion, agree to do so, we may provide a Refund Advance to you.
2. You may submit a Refund Advance request only in connection with purchases that you have made from an Approved Online Retailer using an Authorized Bank Account.
3. Refund Advances are not intended to be, and should not be construed as, a loan or extension of credit. You have no legal or other obligation at any time to return, pay, repay, remit, or otherwise send to us any funds or any other thing of value, including, but not limited to, the amount of any Refund Advance, any Refund Amounts, any Expedited Transfer Fees, or any other amounts that we may provide to you under this Refund Advance Agreement.
Your Representations and Warranties When Submitting a Request for a Refund Advance. Each time you submit a request to us for a Refund Advance, you represent and warrant to us that each of the following is true as of when you make such request:
1. That each of the representations and warranties that you made to us when you opened your Online Account were true and correct, and without any material omission, and that each such representation and warranty is true, correct, and without any material omission as of when you submit a request for a Refund Advance.
2. That you are the original purchaser of the merchandise that is being returned to the Approved Online Retailer and to whom the Refund Amount will be paid.
3. That the merchandise you are returning for the expected Refund Amount was purchased using an Authorized Bank Account.
4. That the Approved Online Retailer has agreed to provide you with the Refund Amount in connection with which you are requesting a Refund Advance, and you reasonably expect that the Refund Amount will be equal to or less than the amount of the Refund Advance you have requested from us.
5. That you have fulfilled, or intend to fulfill, the retailer’s requirements to be eligible to receive the Refund Amount from the retailer.
6. That you are not currently subject to any legal obligations that prohibit you from receiving the Refund Amount or returning to us the full amount of the Refund Advance, should you voluntarily choose to do so.
7. That you have the legal right and authority to request and receive Refund Advances, and to be bound by the terms of this Agreement.
8. That you will not use the proceeds of a Refund Advance for any illegal purpose or in any manner that violates any contractual or legal obligation you may have to us or to any third party (including, but not limited to, the applicable return or refund policies of any merchant or retailer and the applicable terms and conditions of any payment or other accounts that you use in connection with the Services).
9. That you are a US citizen or a permanent resident of the United States and that you are a US resident.
Information Sharing and Authorized Bank Accounts. To maintain your eligibility for a Refund Advance, we require certain information from you or about you. You therefore agree to each of the following:
1. You must provide us with ongoing authorization to obtain transaction-related information about each of your Authorized Bank Account(s). To the extent permitted by applicable law, we will use transactional information from your Authorized Bank Account(s) to confirm your eligibility for a Refund Advance, for example, to confirm information about the purchase regarding which you are expecting a Refund Amount and/or the date and amount of any Refund Amount that you receive from an Approved Online Retailer.
2. You must also provide us with ongoing authorization to obtain information about any other financial and transactional accounts that you have or that are maintained on your behalf so that we can form a reasonably complete understanding of your financial situation and form an opinion regarding your willingness and ability to voluntarily forward to us the required amounts necessary for you to maintain your eligibility for additional Refund Advances.
3. You must be the primary owner of each Authorized Bank Account, or, if you are not the primary owner of such Authorized Bank Account, you must have the express authority of the owner of the Authorized Bank Account to use such account as described herein.
4. You must update your Authorized Bank Account information within a reasonable period of time, not to exceed thirty-days if: (i) you obtain any new account that is an Authorized Bank Account, (ii) you stop using any previously Authorized Bank Account for any of the purposes described above, or (iii) if any other change occurs in connection with any Authorized Bank Account or any other account that you may have that can reasonably be expected to impair our ability to obtain and use information from such account for any of the purposes described herein.
5. You must designate a primary Authorized Bank Account into which we will transmit any Refund Advance funds that we may grant to you. If you do not designate a primary Authorized Bank Account, or if we are unable for any reason to initiate any debits or credits from your designated Authorized Bank Account, we may, at our sole discretion, cancel any pending Refund Advance or transmit the Refund Advance funds into any of your other Authorized Bank Accounts.
6. When you request a Refund Advance, we may, at our sole discretion, require you to provide to us with any information or documentation that we request. If such information or documentation is primarily accessible by electronic means, we may require that you provide us with authorization to access such information electronically or to allow us to view and record an online session in which you electronically access the requested information or documentation, including, but not limited to, by accessing any applicable Retailer Account. Information or documentation that we may request may include, but shall not be limited to, information or documentation of: (i) the Approved Online Retailer’s sale of the merchandise being returned to you and/or agreement to provide the Refund Amount to you; (ii) information regarding the Authorized Bank Account you used to make the purchase; (iii) information regarding the Authorized Bank Account into which you are expecting the Refund Amount to be deposited; and (iv) information about you, your financial situation, and your request to us for a Refund Advance. You hereby expressly authorize us to view and record each such online session to the extent not prohibited by any applicable law.
7. By maintaining an Online Account and requesting a Refund Advance, you expressly and knowingly appoint us to be your agent to obtain the information described in this Section, and you authorize us to take such steps are we believe are reasonably necessary in order to access such information, from each entity or third-party that has possession or control of such information, and that we may do so ourselves or through a third-party service provider. We shall not be obligated to review any information that we receive about you or from you for any purpose, including, but not limited to, its accuracy, legality, or non-infringement. You agree that we, our third-party service providers, and each entity or third party from which we obtain information will be entitled to rely on the foregoing appointment as your agent and/or the authorization granted by you, and on the information obtained hereunder.
Sending Refund Advance Funds to You. Refund Advance funds can only be sent to you, and not to any third-party on your behalf. Refund Advance funds can only be sent to Authorized Bank Accounts that are located in the United States. You may choose to receive Refund Advances in one of the following two ways:
1. Standard Transfer Process. If we agree to grant you a Refund Advance, we will instruct our payment processor to initiate an automated clearinghouse (“ACH”) transaction before the end of the second business day after we notified you of our decision to provide the Refund Advance to you. Refund Advance funds will be transmitted to the Authorized Bank Account that you designated, or, if we are unable to successfully transfer funds to such account, we may, at our sole discretion, cancel the Refund Advance or attempt to transfer the Refund Advance funds to any of your other Authorized Bank Accounts. This is our Standard Transfer Process.
2. Expedited Transfers. You may request that we send the Refund Advance funds via our Expedited Transfer Process, in which case we will deduct an Expedited Transfer Fee from the amount of the Refund Advance we will send to you.
  We will clearly and conspicuously disclose to you each of the following before you incur an Expedited Transfer Free: (i) the manner in which the Expedited Transfer Process will send the funds to you; (ii) when we reasonably expect that the Refund Advance funds will become available to you; and (iii) the amount of the Expedited Transfer Fee. Although the Expedited Transfer Fee will be deducted from the Refund Advance funds that we send to you, it will not reduce the amount of the Refund Advance that we must receive in order for you to be eligible for any additional Refund Advances. We will not take any adverse action against you or treat you differently at any time or in any way if you do not choose to incur an Expedited Transfer Fee or to receive Refund Advance Funds via the Expedited Transfer Process.
  Important: You are not required to pay any portion of the Expedited Transfer Fee to us at any time. However, until we receive the full amount of the Refund Advance from you, including the amounts that we deducted for any Expedited Transfer Fee that you agree to incur, you will be ineligible to receive any additional Refund Advances and to receive funds via the Expedited Transfer Process in connection with any Refund Advances that we may agree to provide to you.
  You expressly acknowledge and agree to each of the following in connection with each Expedited Transfer and each Expedited Transfer Fee:
3. That we have not required you to “repay” or forward any portion of an Expedited Transfer Fee to us.
4. That the Expedited Transfer Fee, should you choose to forward it to us, shall represent the reasonable fair-market price for services such as the Expedited Transfer Process, and that your payment of such amounts is entirely voluntary on your part as compensation to us for such value-added services, notwithstanding that the amount of the Expedited Transfer Fee may exceed our direct and indirect costs for providing such service to you.
5. That the Expedited Transfer Fee is not intended to be, and should not be construed as, interest or a finance charge in connection with a loan or extension of credit.
Sending Refund Amounts and Other Amounts to Us. You have no obligation to us at any time to repay or send us any money in exchange for, or in consideration of, any of the Refund Advance funds or other services that we may provide to you under this Refund Advance Agreement. If you voluntarily choose to forward any funds to us, including, but not limited to, the amount of any Refund Advances we provided to you, any Refund Amounts you may receive from an Approved Online Retailer, any Expedited Transfer Fees, or any other amounts that you may voluntary choose to send to us, you must initiate each such payment or payments to us through our online payment portal or by contacting us at payments@apacerefunds.com. We are unable to process payments transmitted to us in any other manner.

It is your responsibility to ensure that you have sufficient funds available for each payment that you authorize us to process. You acknowledge, understand, and agree that your financial institution may charge you a fee for any payments that you choose to make to us, including in connection with any payments that are returned as a unpayable due to insufficient funds. We accept no responsibility for any such fees, even if we knew or should have known that processing a payment was likely to result in your incurring such fee, and you expressly and knowingly waive any and all claims that you may have against us with respect to any such fees.

In addition, if any payment from you cannot be completed, whether as a result of insufficient funds or otherwise, you agree to pay to us the actual amount of each fee that we are required to pay to our financial institution in connection with such returned payment. We may, at our discretion, require you to pay such amounts immediately or we may require that you forward such amount to us as a condition of your eligibility for additional Refund Advances and/or any of the other services that we may offer.

Our Rights. Although you are not required to repay any amounts that we provide to you in connection with this Refund Advance Agreement, note the following important information about our rights:‍
1. Important: We reserve the right to require you to reimburse us for any losses that we incur as a result of any fraud that you have committed, whether against us or against any third-party, or due to your intentionally, knowingly, or recklessly making any materially false or misleading representations or warranties to us, or through your intentional, knowing, or reckless failure provide us with timely, complete, and accurate information upon our reasonable request. ‍
2. We reserve the right to deny, modify, or only agree to only a portion of, any Refund Advance request you submit to us, for any reason or for no reason, at our sole and absolute discretion.
3. We may limit the maximum amount of a Refund Advance that you may request from us or that we may agree to provide to you. We may also limit the aggregate amount of all Refund Advances that you may request or receive from us in any given timeframe or in total.
Tax Implications of Refund Advances. You acknowledge and understand that potentially applicable tax laws, rules, and regulations may deem your receipt from us of a Refund Advance as a taxable event or as taxable income to you. If a Refund Advance is deemed to be income to you, you may incur additional tax liabilities, lose access to certain means-tested public benefits, be subject to higher periodic payments in connection with income-based student loans, or otherwise be subject to unexpected or unwelcome costs, fees, payments, or effects.

If we reasonably believe that we are required to do so under any applicable law, we may (1) require you to provide us with any additional information that we believe is necessary or appropriate to enable us to comply our legal obligations; and (2) submit information returns or forms, or otherwise provide to any applicable tax authorities information about you and about any Refund Advances or other funds or services we may have provided to you. You acknowledge and agree that we are not responsible for, and you will hold us harmless from, any tax or other liabilities that you may incur because of your receipt of a Refund Advance or any other product or service we provide to you. You agree that we have not provided you with any legal or tax advice and that you have had the opportunity to consult with a legal or tax advisor regarding the tax treatment of your receipt of any Refund Advances from us.
Disputes And Complaints. All disputes or complaints relating to this Refund Advance Agreement must be submitted to us by [INSERT DISPUTE SUBMISSION PROCEDURE]. Such disputes, include, but shall not be limited to, disputes relating to any of the following: the amount or delivery of any Refund Amount, any information that we require from you, any determination or decision we make with respect to your eligibility for any Refund Advance, of if you believe that you or we are or may have been the victim of any fraud or identity theft arising from or relating to this Refund Advance Agreement.
Arbitration Agreement.
1. Notice and Cure. Prior to initiating any lawsuit or arbitration against us or against any other person that relates to or arises from this Refund Advance Agreement, you must first provide to us written notice of your claim (a "Claim Notice") and a reasonable opportunity, not less than 30 days, to resolve your claim. Prior to initiating any lawsuit or arbitration against you, we will provide you with a Claim Notice and a reasonable opportunity, not less than 30 days, to resolve our claim. If we are sending you a Claim Notice, we will send it to you at the most recent email and/or physical mail address appearing in our records or, if you are known to be represented by an attorney, to your attorney's office address. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You and we agree to reasonably cooperate in providing to each other any information or documentation relevant to the allegations described in the Claim Notice and to act in good faith to resolve the allegations before filing any lawsuit or arbitration.
2. Except as expressly provided in this Arbitration Agreement, you and we agree that any past, present, or future claim, dispute, or controversy, regardless of the legal theory on which it is based, arising out of, relating to, or in connection with this Advance Refund Agreement, or that arises from or is related to any relationship resulting from this Advance Refund Agreement (a “Claim”), may be submitted to and resolved on an individual basis by binding arbitration under the Federal Arbitration Act, 9 U.S.C. §§1 et seq. (the “FAA”), before the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules (the “AAA Rules”), in effect at the time the arbitration is brought, unless we and you agree in writing to arbitrate before a different party. If the AAA is unable to serve as administrator—and we and you cannot agree on a replacement—a court with jurisdiction will select the administrator or arbitrator. The AAA Rules are available online at http://www.adr.org or you can contact the AAA at 800-778-7879. If a Claim is arbitrated, it will be resolved by a neutral third-party arbitrator, and not by a judge or a jury, and you and we knowingly and voluntarily waive the right to a jury trial on such Claim.
3. The party bringing the Claim may elect arbitration of the Claim by initiating an arbitration in accordance with the AAA Rules. The other party may elect arbitration by giving written notice of an election to arbitrate. This notice may be given after a lawsuit has been filed and may be given in papers or motions in the lawsuit. If such a notice is given, the Claim shall be resolved by arbitration under this Arbitration Agreement and the AAA Rules then in effect. It will be up to the party bringing the Claim to commence the arbitration proceeding. Even if all parties have opted to litigate a Claim in court, we or you may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative, or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Agreement. The arbitrator will be selected under the AAA Rules.
4. “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). For purposes of this Arbitration Agreement the term “we” or “us” includes (a) Apace Refunds LLC; (b) any successor, successor-in-interest, transferee, assignee, affiliated fund, agent, designee, service provider, or any person or entity acting at our request or on our behalf in connection with this Refund Advance Agreement; (c) any affiliates, subsidiaries, and/or parent of the persons and entities referenced in (a) or (b); (d) the officers, directors, employees, stockholders, members, affiliates, subsidiaries, and parents of all of the foregoing in (a) through (c); and (e) any party named as a co-defendant with us in a Claim asserted by you.
5. Notwithstanding the above, if a Claim that you or we wish to assert against the other is cognizable in a small claims court (or your state’s equivalent court) having jurisdiction over the Claim and the parties, you or we may pursue such Claim in that small claims court; however, if the Claim is transferred, removed, or appealed to a different court, it may be resolved by arbitration as described herein. Nothing in that small claims court lawsuit shall constitute a waiver of any party’s rights under this Arbitration Agreement with respect to Claims asserted in any related or unrelated lawsuits.
6. Any dispute concerning the validity or enforceability of this Arbitration Agreement or any part thereof (including, without limitation, the class action waiver below) must be decided by a court; any dispute concerning the validity or enforceability of the Refund Advance Agreement as a whole is for the arbitrator. Any arbitration hearing that you attend will take place in a location that is reasonably convenient for you. If you cannot obtain a waiver of the AAA’s or arbitrator’s filing, administrative, hearing, and/or other fees, we will consider in good faith any request by you for us to bear such fees. Each party will bear the expense of its own attorneys, experts, and witnesses, regardless of which party prevails, unless applicable law or this Refund Advance Agreement gives a right to recover any of those fees from the other party. The arbitrator shall follow applicable substantive law to the extent consistent with the FAA, applicable statutes of limitation, and privilege rules that would apply in a court proceeding, and shall be authorized to award all remedies available in an individual lawsuit under applicable substantive law, including, without limitation, compensatory, statutory, and punitive damages (which shall be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive, and other equitable relief, and attorneys’ fees and costs. Upon the timely request of either party, the arbitrator shall write a brief explanation of the basis of his or her award. The arbitrator’s award will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Agreement.
7. This Arbitration Agreement shall survive the termination of this Refund Advance Agreement, your fulfillment or default of your obligations under this Agreement, and/or your or our bankruptcy or insolvency (to the extent permitted by applicable law). In the event of any conflict or inconsistency between this Arbitration Agreement, the AAA Rules, or any other provisions of any of the Additional Agreements, this Arbitration Agreement will govern.
8. Nothing in this Refund Advance Agreement precludes You from filing a complaint, or a charge with any governmental agency, or from participating in an administrative investigation of a charge before any appropriate government agency.
9. CLASS ACTION WAIVER: NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER.
10. Further, unless both you and we agree otherwise in writing, the arbitrator may not join or consolidate Claims with claims of any other persons. The arbitrator shall have no authority to conduct any class, private attorney general, or other representative proceeding, and shall award declaratory or injunctive relief only in favor of the party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator shall have no authority to issue any relief that applies to any person or entity except you or us individually. If any portion of this Arbitration Agreement cannot be enforced, the rest of the Arbitration Agreement will continue to apply, except that (a) if a determination is made in a proceeding involving us and you that the class action waiver is invalid or unenforceable with respect to a claim that does not seek public injunctive relief, only this sentence of this Arbitration Agreement will remain in force and the remainder of this Arbitration Agreement shall be null and void, provided that the determination concerning the class action waiver shall be subject to appeal, and (b) if a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the class action waiver prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case, the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.
11. This Arbitration Agreement does not apply if you are a member of the Armed Forces or a dependent of a member covered by the federal Military Lending Act. If you would like more information about whether you are covered by the Military Lending Act please contact us at agreements@apacerefunds.com‍
12. Right To Opt-Out of Arbitration: You may opt-out of this Arbitration Agreement by agreements@apacerefunds.com within 30 calendar days after the date of this Refund Advance Agreement. Any rejection notice must include your name, address, email address, telephone number, and account or contract number. If you reject this Arbitration Agreement, no other provision of this Refund Advance Agreement will be affected.
13. Waiver of Jury Trial. YOU ACKNOWLEDGE AND AGREE THAT, INASMUCH AS THE PURPOSE OF THIS ARBITRATION AGREEMENT IS TO REQUIRE THAT ALL CLAIMS MAY BE RESOLVED BY BINDING ARBITRATION, EXCEPT TO THE EXTENT THAT THIS WAIVER IS PROHIBITED BY ANY APPLICABLE LAW, NO PARTY TO THIS RETAIL INSTALLMENT CONTRACT SHALL BE ENTITLED TO A TRIAL BY JURY IF SUCH ARBITRATION AGREEMENT IS IN EFFECT. MOREOVER, TO THE EXTENT YOU TIMELY AND ADEQUATELY REJECT THIS ARBITRATION AGREEMENT, OR IF FOR ANY OTHER REASON A CLAIM IS NOT ARBITRATED, WE AND YOU KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, EXCEPT TO THE EXTENT THAT THIS WAIVER IS PROHIBITED BY APPLICABLE LAW.
Miscellaneous.
1. Disclaimer of Representations, Warranties, and Limitations of Liability.
  1. Each Refund Advance, and any other services that we may provide to you pursuant to the terms of this Refund Advance Agreement (the “Services”), are provided as-is. To the fullest extent permitted by any applicable law, we do not make any express or implied guarantees, representations, or warranties to you or to any third parties in connection with any of the Services. To the fullest extent permitted by any applicable law, we hereby expressly disclaim all representations or warranties of any kind, express or implied, as to the Services. We expressly disclaim all guarantees, warranties, conditions, and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, and title or non-infringement. In no event shall we or any of our owners, officers, employees, agents, service providers, or affiliates (the “Parties”) be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on, our Services, this website (including information and other content) or any third party websites or the information, resources or material accessed through any such websites.
    
    To the fullest extent permitted by applicable law, you hereby knowingly and voluntarily waive any and all rights, claims, damages, or actions, including for any attorneys’ fees, against each of the Parties that may arise from any of our Services or from this Refund Services Agreement.
    
    Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. In such states liability is limited to the extent permitted by law. Accordingly, some of the above limitations of this sections and the previous section may not apply to you.
    
    To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless each of the Parties from and against any and all claims, losses, expenses, demands or liabilities, including reasonable attorneys’ fees arising out of or relating to:
    1. your access to, use of, or alleged use of the Services;
    2. your violation of this Refund Advance Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation;
    3. your violation of any third party right, including any intellectual property right, publicity, confidentiality, property or privacy right; or
    4. any disputes or issues between you and any third party.
  2. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without our prior written consent if such settlement does not release us from all present or future, and known or unknown, liabilities that each of the parties thereto has or could come to have in the future with respect to any of the Services.
  3. Conflicts. In the event of any conflict between this Refund Advance Agreement and any of the Additional Agreements, the terms of this Refund Advance Agreement shall be controlling.
  4. Automatic Communications. We may use automated telephone dialing, text messaging systems, and electronic mail to provide messages to you about your Online Account, any Refund Advance that you have requested from us, and/or about any other service we provide to you under this Refund Advance Agreement. The telephone messages may be played by a machine automatically when the telephone is answered, whether answered by you or someone else. These messages may also be recorded directly in your voicemail without causing your telephone to ring or otherwise notify or alert you of an incoming telephone call. You give us your permission to call or send text messages to any telephone number you provide us now or in the future and to play pre-recorded messages or send text messages over the phone. You also give us permission to communicate such information to you via electronic mail. You agree that we will not be liable to you for any such calls or electronic communications, even if information is communicated to an unintended recipient. You understand that, when you receive such calls or electronic communications, you may incur a charge from the company that provides you with telecommunications, wireless, and/or internet services. You agree that we have no liability for such charges. You agree that this authorization constitutes a bargained-for exchange. To the extent you have the right under applicable law to revoke this authorization, you agree you may do so only by updating your preferences through your Online Account or by contacting us at agreements@apacerefunds.com.
  5. Telephone and Screen Recording. You understand and agree that we may monitor and/or record any of your phone conversations with us. You understand and agree that we may monitor and/or record your interactions with our website. You understand and agree that, with your prior consent, we may monitor and/or record your interactions with the websites of certain Authorized Online Retailers as described herein.
  6. Amendments. We may update or amend this Refund Advance Agreement or any of the Additional Agreements at any time and for any reason by posting updated versions of any of the Agreements on our website. Such amendments or updates will become effective immediately unless we expressly describe a later effective date in such updated agreement. If we make material changes to this Refund Advance Agreement, we will provide you notice of such changes before they become effective. By continuing to maintain your Account after the effective date of any such amendment or update, you expressly agree to be bound by the updated terms. You must terminate each of your accounts with us immediately if you do not agree to be subject to any updated Agreement.
  7. Governing Law. The validity, interpretation, construction, and performance of this Refund Advance Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto and thereto shall be governed, construed, and interpreted in accordance with the laws of the State of Florida, without giving effect to principles of conflicts of law. Notwithstanding the foregoing, federal law shall govern the Arbitration Agreement portions of this Refund Advance Agreement.
  8. Entire Agreement. This Refund Advance Agreement, together with the Additional Agreements, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings, and agreements, whether oral or written, between you and us relating to the subject matter hereof.
  9. Successors And Assigns. Except as otherwise provided in this Refund Advance Agreement or any of the Additional Agreements, the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective permitted successors, assigns, heirs, executors, administrators, and legal representatives. We may sell, assign, or otherwise transfer any of our rights, economic benefits, or obligations under this Refund Advance Agreement. You may not assign, whether voluntarily or by operation of law, any of your rights, economic benefits, or obligations under this Refund Advance Agreement, except with our prior written consent.
  10. Notices. Any notice, demand, or request required or permitted to be given under this Refund Advance Agreement shall be in writing and, except as otherwise provided, shall be deemed sufficient when sent by email or 2 Business Days after being deposited in the U.S. mail as certified or registered mail with postage prepaid. Notices to us shall be sent to us at agreements@apacerefunds.com, or in accordance with such other notification requirements that we may provide to you in writing. Notices to you will be sent to the email and/or physical mail addresses you provided in your application for an Online Account or to any other email and/or physical address that you provide to us, unless you have subsequently informed us that such email or physical address is invalid and have provided us with an updated email and/or physical address.
  11. Severability. Except as set forth in the Arbitration Agreement, if 1 or more provisions of this Refund Advance Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision(s) in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision(s), then (i) such provision(s) shall be excluded from this Refund Advance Agreement, (ii) the remaining portions of the Refund Advance Agreement shall be interpreted as if such provision(s) were so excluded, and (iii) the remaining portions of the Refund Advance Agreement shall be enforceable in accordance with their terms.
  12. Execution; Electronic Transactions. This Refund Advance Agreement may be executed electronically or manually. Execution may be completed in counterparts (including both counterparts that are executed on paper and counterparts that are electronic records and executed electronically), which together constitute a single agreement. Any copy of this Refund Advance Agreement (including a copy printed from an image of this Refund Advance Agreement that has been stored electronically) shall have the same legal effect as an original.
  13. Independent Decision to Enter Into This Agreement. You agree that this Promissory Note is an arm’s-length transaction. You agree that we are not an agent or fiduciary or advisor in your favor in connection with the execution of this Refund Advance Agreement. You agree that we have not provided any legal, accounting, investment, regulatory, or tax advice with respect to this Refund Advance Agreement.

Payment Authorization.

This Payment Authorization agreement will apply to any payment(s) you voluntarily choose make to Apace Refunds LLC, our service providers, and our payment processors (together, referred to as “us,” “our,” or “we”) and authorizes us to process any payment(s) that you agree to make. After you enter the details regarding any payment(s) you choose to make, we will display the date and amount of the payment(s) that you are authorizing on a payment confirmation page on our website. The payment confirmation page is subject to, and shall be part of, this Payment Authorization Agreement.

The payment confirmation page will have an “I Agree” button. By clicking “I agree” on the payment confirmation screen, you will be electronically signing this Payment Authorization and authorizing us to electronically withdraw funds from the bank account on the dates and in the amounts described on the payment confirmation page. You also authorize us to (a) make any withdrawals or other adjustments that we reasonably believe are necessary to ensure that each authorized withdrawal is free from any error; and (b) deposit into your authorized account any electronic credits that we may initiate to you. This Payment Authorization is subject to the terms of your ESIGN Consent. Your authorization will remain in effect until you cancel it, which you can do at any time via the Settings section of your account or by sending us a written cancellation notice. Cancellations may take up to three days to be processed, so you must notify us at least three days before any scheduled payment if you wish your cancellation to apply to that upcoming payment. We may cancel this Authorization if we are unable to complete any withdrawal when scheduled. You represent and warrant that you are the owner or authorized user of the bank account from which you are authorizing us to withdraw the funds specified in this authorization.