This Loan Agreement (“Agreement”) is a contract between (i) the authorized individual acting on behalf of the business identified above as the Merchant (as applicable, each individually or collectively, “Merchant,” “you,” or “your”), (ii) Celtic Bank Corporation (“Bank”), as the originator and issuer of your loan, and (iii) Square Capital, LLC (“Square Capital”) as the service provider to Bank, and (iv) collectively Merchant, the Bank and Square Capital (“Parties”). You must read, agree with, and accept all terms and conditions contained in this Agreement.
In consideration of the promises and the respective representations, warranties, covenants, agreements and conditions contained below and on the following pages, the Parties hereby enter into this Agreement and agree with the terms and conditions set forth herein.
“Bank” has the meaning set forth in the first paragraph of this Agreement.
“Business Day” means any day of the week from Monday through Friday. Federal legal public holidays specified in 5 U.S.C. § 6103(a) (or any successor to this section) are excluded.
“Cancellation Period End Date” means the date, specified in the summary box above prior to which you may cancel this Agreement.
“Collateral Agent” means the party who will administer and service this Loan.
“Execution Date” means the date you enter into this Agreement, and is set forth in the summary box above. “Existing Obligation Amount” is the amount that will be deducted from the Loan Amount under this Agreement to satisfy an existing loan through the Square Capital program pursuant to this Agreement and specified in the summary box above.
“Linked Account” means any valid U.S. bank or other business-purpose transaction account or accounts, you provide to Square Capital for the purpose of the deposit of the Loan Amount and repayment of your Loan via ACH withdrawal. “Loan Amount” is the dollar amount of funds extended to you by Bank, in the amount specified in the summary box above.
“Loan Balance” is the amount you are obligated to pay under Section 2.1.2 as specified in the summary box above.
“Loan Funds Available” means the net amount available and deposited to your Linked Account after deductions of the Existing Obligation Amount, if any, from your Loan Amount, pursuant to this Agreement, and specified in the summary box above.
“Loan Term” means the total period of time, reflected in months, that your obligation is scheduled for full repayment, in the amount specified in the summary box above.
“Merchant” has the meaning set forth in the first paragraph of this Agreement. “Origination Date” means the date the loan is approved and funds are disbursed to the Linked Account, as identified in the summary box above. “Origination Fee” means the fee assessed by Bank for entering into this Agreement, in the amount specified in the summary box above.
“Parties” has the meaning set forth in the first paragraph of this Agreement.
“Partner” means the entity specified in the summary box of terms above.
“Payment Frequency” means the recurrent interval between payments due over the Loan Term, as specified in the summary box above.
“Prohibited Industries” means any of the following businesses or business activities: (1) any illegal activity or goods, (2) paraphernalia that may be used for illegal activity (3) buyers or membership clubs, including dues associated with such clubs, (4) credit counseling or credit repair agencies, (5) credit protection or identity theft protection services, (6) direct marketing or subscription offers or services, (7) infomercial sales, (8) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit, including re-importation of pharmaceuticals from foreign countries), (9) unauthorized multi-level marketing businesses, (10) inbound or outbound telemarketers, (11) prepaid phone cards or phone services, (12) rebate based businesses, (13) up-sell merchants, (14) bill payment services, (15) betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races, (16) manual or automated cash disbursements, (17) prepaid cards, checks, insurance or other financial merchandise or services, (18) sales of money-orders or foreign currency, (19) wire transfer money orders, (20) high-risk products and services, including telemarketing sales, (21) automated fuel dispensers, (22) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material), (23) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury (24) internet/mail order/telephone order of age restricted products (e.g., tobacco), (25) occult materials, (26) hate or harmful products, (27) escort services, (28) bankruptcy attorneys or collection agencies engaged in the collection of deb or (29) merchants who self-identify as nongovernmental organizations, charities, and political organizations.
“Repayment Start Date” means the date your repayment obligation begins, and is specified in the summary box above.
“Scheduled Payment” means the amount due on your loan as of each Scheduled Payment Due Date as set forth in the summary box above.
“Scheduled Payment Due Date” means the date a Scheduled Payment is due starting on the Repayment Start Date and then repeating according to the Payment Frequency for the Loan Term. Your first payment will be due one month after the Origination Date of your loan and monthly thereafter. If your loan is originated on the 29th, 30th, or 31st, your Scheduled Payment Due Date will be the 1st of the month after next. For example, if your loan is accepted on January 29th, then your Repayment Start Date will be due on March 1st, and Scheduled Payment Due Dates after that will be due on the 1st of the following months.
“Square Capital” has the meaning set forth in the first paragraph of this Agreement.
II. Information About Your Loan
2.1 Extension of Credit. Bank is extending the Loan Amount plus the Origination Fee (“Loan Balance”) specified in the summary box above. In exchange, you agree as follows:
2.1.1 Business Purpose. You acknowledge and agree that funds received under this Agreement are for business purposes only and any proceeds from this Agreement, including the Loan Amount, will be not be used for personal, family or household purposes. You understand that you are not receiving a consumer loan, and that statutory and regulatory protections for consumers will not apply to your loan. You also understand that Bank (and/or its agents and assignees) will not confirm whether the use of any funds provided conforms to this section. You agree that a breach of the provisions of this section will not affect the Bank’s (and/or any of its agents or assignees) right to (i) enforce your promise to pay for all amounts owed under this Agreement, regardless of the purpose for which the funds are in fact obtained or (ii) use any remedy legally available to Bank (and/or its agents and assignees), even if that remedy would not have been available had the funds been provided for consumer purposes.
2.1.2 Obligation to Repay. You agree to repay the Loan Amount plus the Origination Fee (“Loan Balance”) and direct Bank (including its agent and assignees) to debit each Scheduled Payment and/or each other amount due hereunder from your Linked Account on or after each Scheduled Payment Date while you have an outstanding Loan Balance. Your repayments shall be applied to and reduce the amount of your Loan Balance until such balance is paid in full. Your repayments begin on the Repayment Start Date.
2.1.3 ACH Authorization. You authorize Bank (including its agents and assignees), to make recurring debits to your Linked Account in accordance to the terms of this Agreement. You further authorize Bank (including its agents and assignees) to make an initial credit to your Linked Account to fund your loan or where applicable pursuant to this Agreement. In the event that any debit attempt to your Linked Account fails, you hereby authorize Square Capital to make new debit attempts in an amount less than the amount then currently due or an amount reduced from the previous debit. In the event you decide to prepay your Loan Balance or need to make a payment for other amounts due under the terms of this Agreement, you authorize Bank (including its agents and assignees) to debit any Linked Account. You acknowledge and agree to be bound by NACHA’s rules for business-related ACH debits and credits.
2.1.4 Early Repayment. You may repay your outstanding Loan Balance in full or in part at any time by (i) contacting the Square Capital Support Center to arrange for repayment, or (ii) sending a check to: Square Capital Program Attn: Capital Servicing 1455 Market Street, Suite 600 San Francisco, CA 94103.
2.1.5 Late Payments. You will be charged a 2% fee, assessed monthly, on any past due Scheduled Payment. A Scheduled Payment will become past due when it is not paid by the next Scheduled Payment Due Date. Any amounts paid by you or collected by Collateral Agent will be applied (i) first to any late fees owed, (ii) then to past due Scheduled Payment(s), (iii) then to the current Scheduled Payment due, and (iv) then toward any remaining Loan Balance.
2.1.6 Cancellation Period. You may cancel this Agreement by contacting the Square Capital Program through the Square Capital Support Center anytime prior to the Cancellation Period End Date. If you cancel, Bank (including its agents and assignees) will debit the Loan Amount from your Linked Account, less amounts used to satisfy any existing obligations pursuant to 6.8 that will be reinstated. Your loan will not be deemed cancelled if the debit to your Linked Account is unsuccessful. You will return the Loan Amount to Bank, less amounts used to satisfy any existing obligations pursuant to 6.8 that will be reinstated, even if you no longer have the funds in your bank account. In the event that you have any existing obligations pursuant to 6.8 and you elect to cancel this Agreement (anytime prior to the Repayment Start Date), you hereby agree that any (i) Existing Obligation Amount remains due and payable, and (ii) terms, conditions, representations and covenants agreed to under any existing agreement will apply immediately upon cancellation of this Agreement.
III. Consent for Electronic Signatures
3.1 Electronic Signature. In order to receive the Loan Amount through the Square Capital Program, Bank must provide certain disclosures required by law. By submitting your application, which you hereby adopt as your electronic signature, you consent and agree that:
3.2 Access to Disclosures. You understand that in order to access and retain the electronic disclosures you will need the following:
- A computer or mobile device with Internet or mobile connectivity.
- For desktop website-based Communications:
- Latest web browser that includes 256-bit encryption.
- The browser must have cookies enabled. Use of browser extensions may impair full website functionality.
- Minimum recommended browser standards are Mozilla Firefox latest version (see http://www.mozilla.com for latest version), Apple Safari latest version (see http://www.apple.com/safari for latest version), or Chrome latest version (see http://www.google.com/chrome for latest version).
- For mobile-based Communications:
- A latest device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and
- The latest version of Safari or Chrome on iOS or the latest version of Chrome for Android.
- Access to the email address used to create your Square Account.
- Sufficient storage space to save Communications and/or a printer to print them.
- Use of spam filters may block or re-route emails from senders not listed in your email address book.
3.3 Confirmation. You hereby confirm that you have access to the necessary equipment to receive, access and print any disclosures that may be provided in electronic form. You understand that withdrawing your consent to receive electronic communications will be deemed a breach of your obligations under Section 7.3.
IV. Merchant Covenants
4.1 Merchant Covenants. Merchant agrees to comply with the performance covenants set forth in this Section IV (the “Merchant Covenants”). In this regard, Merchant irrevocably agrees that during the term of this Agreement, Merchant shall:
4.1.1 No Transfer. Not sell, transfer, assign or grant a security interest in the Linked Account or any proceeds of the foregoing to another party;
4.1.2 Terms of Service. Comply with any applicable terms of service or required terms as required by Partner and not engage in any Prohibited Industry, in each case, for the duration of this Agreement;
4.1.3 Purpose of Business. Maintain your business in substantially the same manner as it existed as of the date of this Agreement unless you provide prior written notification to Bank;
4.1.4 Business Conduct. Conduct your business in a manner consistent with past practice unless you provide prior written notification to Bank and its agents and assignees’
4.1.5 Business Name. Conduct your business under the name provided herein and maintain any and all of your physical or virtual places of business, unless you provide prior written notification to Bank and the Collateral Agent;
4.1.6 Control of Business. Not allow another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of Merchant’s business or business location, whether physical or virtual;
4.1.7 Sale of Business. Not sell, dispose, convey or otherwise transfer any of Merchant’s business or assets (other than inventory in the ordinary course of business), or grant any lien not in effect on the date of this Agreement on the business assets of the Merchant, without Collateral Agent’s prior written consent;
4.1.8 Requests from Bank or its Service Providers. Respond to Bank (including its agents and assignees) and its service providers within two (2) Business Days, or such longer period determined solely in Bank’s (including its agents, and assignees and service providers) discretion, of receiving a reasonable request from Bank (including its agents, and assignees and service providers) for information and provide all such requested information;
4.1.9 Cooperation. Cooperate fully with Bank (including its agents, assignees and service providers) to take all necessary actions to effectuate each of its obligations hereunder, including but not limited to signing any and all documents Bank deems necessary and furnishing Bank (including its agents, assignees and service providers) with such information (including updated financial statements) as Bank may reasonably request from time to time;
4.1.10 Inspection. Permit Bank (including its agents, and assignees and service providers) , at such party’s discretion, to perform a site inspection of Merchant’s business, at any reasonable time during the term of this Agreement without notice to you;
4.1.11 Taxes. Promptly pay all applicable federal, state and local taxes, including but not limited to employment, sales and use taxes; and
4.1.12 Loan Default. Repay your Loan Balance as agreed in Section II, including satisfying each obligation to make a Scheduled Payment.
V. Merchant Representations and Warranties
5.1 Merchant represents and warrants that as of the date on the face of this Agreement and during the term of this Agreement:
5.1.1 Organization and Capacity. Merchant is a validly organized business under applicable state law and the individual executing this Agreement has the legal capacity to do so, is at least 18 years of age, and is authorized on behalf of the Merchant to do so, with all necessary power and authority to bind Merchant to this Agreement.
5.1.2 Reliance on Information. Merchant acknowledges that the Bank (including its agents, assignees and service providers) has and will continue to rely upon the validity, accuracy and completeness of all information (financial and otherwise) provided by or on behalf of Merchant in connection with Bank’s obligations hereunder.
5.1.3 Approvals. Merchant possesses and is in compliance with all permits, licenses, approvals, consents and any other authorizations necessary to conduct its business. Merchant is in compliance with, and the execution of this Agreement and consummation of the transaction contemplated herein will not conflict with, (i) any and all applicable federal, state and local laws and regulations, (ii) any agreements to which Merchant is a party, and (iii) Merchant’s articles or certificate of incorporation, bylaws, or other organizational documents. Merchant possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged.
5.1.4 Authorization. Merchant has the power and authority to enter into and perform Merchant’s duties and obligations under this Agreement and any documents required to facilitate the transactions contemplated by this Agreement. Merchant is not a party to any contract or aware of any existing situation that would prevent Merchant from entering into or performing its obligations under this Agreement. Merchant has taken all necessary action to authorize their respective execution and delivery of, and performance under, this Agreement.
5.1.5 Other Proceedings and Bankruptcy. There is no action, suit, claim, investigation or legal, administrative, or arbitration proceeding pending or currently threatened whether at law or in equity or before any federal, state, local, foreign or other court, governmental department, commission, board, bureau, agency or instrumentality (collectively, “Governmental Authorities”) against Merchant. Merchant has not declared bankruptcy within the past seven years and neither is currently contemplating the filing of a bankruptcy proceeding or closing or materially modifying Merchant’s business. Merchant is solvent and financially capable of fulfilling its obligations under this Agreement.
5.1.6 Good Standing. Merchant is validly existing and in good standing under any applicable laws of its state of organization. Merchant has all requisite power and authority to own, lease, pledge and operate its properties and assets and to carry on its business as presently conducted.
5.1.7 Conflicts With Other Agreements. The execution and delivery of, the consummation of the transactions contemplated hereunder, and compliance with the provisions of this Agreement, do not and will not conflict with other agreements to which Merchant is a party or beneficiary, or result in any of the following: (i) violation or default of other agreements to which Merchant is a party; (ii) entitlement of any person or entity to receipt of notice or right of consent; (iii) a right of termination, cancellation or acceleration of any obligation or to loss of a benefit; (iv) any increased, additional, accelerated or guaranteed rights or entitlement of any person or entity; or (v) creation of any claim on the properties or assets of Merchant.
5.1.8 Compliance With Laws. Merchant is in compliance with all statutes, rules, regulations, orders or restrictions of all applicable Governmental Authorities and all Network Rules. All federal, state, local and foreign tax returns and tax reports, and all taxes due and payable arising there from required to be filed by Merchant have been or will be filed and paid, on a timely basis (including any extensions). All such returns and reports are and will be true, correct and complete. Merchant has no material liabilities and, to the best of its knowledge, knows of no material contingent liabilities, except current liabilities incurred in the ordinary course of business.
5.1.9 Loan Purpose. Merchant is applying for credit solely for business purposes and not for personal, family or household use. Any credit extended under this Agreement, including the Loan Amount, is solely for business purposes and not for personal, family or household use.
VI. Additional Terms
6.1 Merchant’s Transactional Information. Merchant hereby agrees to provide to Bank and Square Capital, from time to time upon request, transaction files maintained by Merchant, and any other information related to past payment processing volumes or the transactions contemplated by this Agreement, whether formed for the purpose of audit or otherwise.
6.2 Termination of Agreement. Except as otherwise stated herein, this Agreement shall remain in full force and effect until the entire Loan Balance has been repaid to Bank or its agents and assignees, as applicable.
6.3 Effect of Merchant Breach. If you breach any of your obligations in Section II, the covenants in Section IV or any of your representations, warranties or covenants found in this Agreement, Bank or its agent and assignee shall be entitled, upon written notice to you, demand immediate repayment of the Loan Balance and effectuate such demand by a debit to your Linked Account. You agree to pay the outstanding Loan Balance within five (5) Business Days after receipt of such notice, or such longer period of time as requested by Bank or its agent and assignees.
6.4 Transfer of Servicing. In the event Square Capital transfers the servicing of your loan, you hereby agree that you will (i) continue making Scheduled Payments on the agreed upon Scheduled Payment Due Dates during the remainder of the Loan Term, and (ii) comply with alternative payment timing, instructions and methods as provided by the designated service provider. In the event that alternative payment timing, instructions and methods are required, you will be provided with reasonable notification of those requirements, including a statement reflecting your outstanding Loan Balance and any change to your Scheduled Payment Due Dates, to be delivered within a reasonable time.
6.5 Satisfaction of Existing Obligation. In order to receive funds under this Agreement, you must fully satisfy any Existing Obligation Amount. Funds under this Agreement will not be made available until you have fully satisfied such Existing Obligation Amount. If you have an Existing Obligation Amount on a loan through Square Capital, in order to receive this loan you hereby agree to make full repayment on any such other loan. The Existing Obligation Amount due on your existing loan will be deducted from the Loan Amount for such repayment before any remaining loan proceeds are made available to you.
6.6 Effect of Breach. Bank and its agents and/or assigns each has the right to enforce the repayment of your Loan Balance pursuant to the terms of this Agreement, and in the instance of nonpayment of your Loan Balance will enforce those rights solely against Merchant’s business assets. This does not limit your duties and performance obligations under this Agreement, including but not limited to your payment obligation in Section 2.1.2 and the Bank’s enforcement rights.
7.1 Modifications; Amendments. Except as otherwise expressly provided in this Agreement, any provision of this Agreement may be modified or supplemented only by an instrument in writing signed by Bank, Square Capital and Merchant or as otherwise agreed to by Square Capital, as agent of Bank and Merchant.
7.2 Waiver. Bank’s (or its agent’s or assignee’s) failure to assert, or delay in exercising, any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
7.3 Notices. Consequences of Merchant’s Withdrawal of Consent to Receipt of Electronic Communications. Merchant agrees that Bank and Square Capital may provide communications relating to this Agreement and the transactions contemplated herein electronically as described in Section I of this Agreement and Square, Inc.’s E-Sign Consent policy. If Merchant withdraws its consent to receive electronic communications, such withdrawal shall be treated in all respects by Bank as a breach by Merchant of a covenant in Section IV of this Agreement, and which shall entitle Bank to exercise the remedies set forth in Section VI of this Agreement (and which, in turn, shall obligate Merchant to pay the outstanding Loan Balance in full). Except as otherwise stated, notices to Bank or Square Capital must be sent by postal mail to: Square Capital Program, 1455 Market Street, Suite 600, San Francisco, California 94103.
7.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Merchant, Bank, Square Capital and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Bank, which consent may be withheld in Bank’s sole discretion. Each of Bank (including its agents, assignees and service providers) and Square Capital reserves the right to sell, transfer or assign this Agreement and any obligation hereunder with or without prior notice to Merchant. Square Capital may, at Bank’s direction, sell, transfer or assign its obligations as the service provider with or without prior notice to Merchant.
7.5 Costs to Enforce Payable by Merchant. Bank and Square Capital shall be entitled to receive from Merchant, and Merchant shall pay, all reasonable costs associated with a breach by Merchant of any of its obligations, covenants (including but not limited to the Merchant Covenants) or any of the representations and warranties of Merchant under this Agreement and the enforcement thereof, including but not limited to court costs and attorneys’ fees. For this purpose, “reasonable costs” shall include the costs, including attorneys’ fees, associated with defending, protecting, or enforcing Bank’s rights under this Agreement including in any bankruptcy proceeding. If Merchant files an action or commences arbitration against either Bank or Square Capital and the matter is dismissed, or Bank or Square Capital prevails in the matter, Merchant agrees to pay all of the other Party’s (or Parties’ if both Bank and Square Capital are involved) attorneys’ fees and costs incurred in the matter, whether in court or arbitration.
7.6 Indemnification. In addition to all rights and remedies available to the parties hereto at law or in equity, Merchant shall indemnify Bank (and its respective employees, directors, agents, affiliates and representatives) and Square Capital (and its respective employees, directors, agents, assignees, affiliates and representatives) (collectively, the “Indemnified Persons”), and hold harmless from and against and pay on behalf of or reimburse each such Indemnified Person, as and when incurred, for any and all loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of any claims by or on behalf of such Indemnified Person or any third party, including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing (including all reasonable attorneys’ fees and expenses incurred in connection with the enforcement of this Section), that any such Indemnified Person may suffer, sustain, incur or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any misrepresentation or breach of warranty of Merchant under this Agreement; or (ii) any non fulfillment, default or breach of any covenant or agreement of Merchant in this Agreement.
7.7 Enforceability of Representations. All representations, warranties and covenants herein will be enforceable upon the execution and delivery of this Agreement and will continue in full force and effect until this Agreement has been terminated.
7.8 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Network Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement. In the event that any provision of this Agreement is held to be invalid, illegal, prohibited or unenforceable for any reason in any jurisdiction, such provision, as to such jurisdiction, shall, to the fullest extent permitted by applicable law, be ineffective without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
7.9 Complete Agreement. This Agreement, and any addendum and forms provided herewith, along with any other Square Capital or Partner agreement referenced herein, contains the complete agreement and understanding between Merchant, Bank, Square Capital, and Partner and supersedes all prior contracts and understandings relating to the matter of this Agreement unless otherwise specifically reaffirmed or restated herein.
7.10 Governing Law. This Agreement and any dispute arising hereunder will be governed by Utah law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Utah, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
7.11 Survival. This Section and Sections 7.4 (Binding Effect), 7.5 (Costs to Enforce Payable by Merchant), 7.6 (Indemnification), 7.8 (Severability), 7.9 (Complete Agreement), 7.10 (Governing Law), 7.12 (Limitation on Time to Initiate a Dispute) and 7.14 (Binding Individual Arbitration) shall survive after you repay your Loan Balance in full, including after the termination of this Agreement.
7.12 Limitation on Time to Initiate a Dispute. Unless otherwise required by law, an action or proceeding by Merchant relating to any dispute arising under this Agreement must commence within one year after the cause of action occurs or becomes enforceable.
7.13 Merchant’s Disputes. If Merchant has any dispute of any kind with Bank under this Agreement, Merchant agrees to promptly notify Square Capital in writing of the dispute and all related facts.
7.14 Binding Individual Arbitration. You, Bank and Square Capital agree to arbitrate all disputes arising under or in connection with this Agreement. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST BANK OR SQUARE CAPITAL. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) according to this provision and the applicable arbitration rules. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in San Francisco, California. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any dispute against Bank, Bank will pay all the arbitration fees, which fees will be added to any award in favor of Bank. For any dispute against Square Capital, Square Capital will pay all the arbitration fees. For purposes of this arbitration provision, references to you, Bank and Square Capital also include respective subsidiaries, affiliates, agents (including Square Capital as an agent and service provider to Bank), employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Square Capital Program and Square, Inc. processing services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.
7.15 Register. You agree that Square Capital, solely on your behalf, will be allowed to and will maintain a register, recording the owner and amount of your Loan Balance (including any assignee, participant or transferee, if any, who becomes the subsequent owner of any portion of your Loan Balance) (the “Register”). The Parties agree that the person whose name is recorded in the Register as the current owner of your Loan Balance, is treated as the owner of your Loan Balance. The Register must be updated for any transfer of ownership of your Loan Balance to occur.