Cardholder Agreement & TOS

Last revised: August 23rd, 2023

The following additional terms and conditions apply if you use the Cushion Card and related Cushion Card Services.

This Cardholder Agreement (“Agreement”) outlines the terms and conditions under which the Cushion Card has been issued to you by Patriot Bank, N.A. (Member FDIC) pursuant to a license from Mastercard®. This card can be used everywhere Mastercard is accepted. Use of this card constitutes acceptance of the terms and conditions stated in this Cardholder Agreement.

The Cushion Card is a virtual card that is issued to eligible users upon signing up for our Services. The card is designed to be used for bill payments and is generally accepted everywhere Mastercard is accepted, subject to the terms and conditions set forth in this Cardholder Agreement.

NOTICE: THIS AGREEMENT REQUIRES ALL DISPUTES TO BE RESOLVED BY WAY OF BINDING INDIVIDUAL ARBITRATION. THE TERMS OF THE ARBITRATION CLAUSE APPEAR AT THE END OF THIS AGREEMENT.

A. Using the Services

1. Definitions – In this agreement “you,” and “your,” refers to the individual, company or legal entity and/or entities that you represent. “Issuer” refers to Patriot Bank, N.A. “We”, “us”, “our” and “Cushion” refers to Cushion Inc. and the Issuer. “Partner banks” refers to our bank partners that provide non-card financial services to us, such as the banks we may use to perform ACH debits or payment card acquiring transactions to fund your purchases. Depending on the context, “partner banks” may also include the Issuer.

The “Cushion Card Services” (or “Services”) consist of Cushion software that provides you with the opportunity to apply for and use a Cushion Mastercard debit card (the “Cushion Card”), including one or more virtual Cushion Cards, in connection with your “Cushion Account”. “Cushion Account” refers to your user profile and relationship with us.

Cushion is not a bank, and we do not offer banking services as defined by the United States Department of Treasury. You must be a Cushion customer before accessing the Cushion Card Services.

“Card” or “Cushion Card” means the Mastercard payment card issued to you by our partner bank. The Card is not a gift card, nor is it intended for gifting purposes. Funds are not stored on the Card or in any corresponding account, and there is no way to earn interest through Cushion products.

2. About the Program – By using the Cushion Card Services, you agree to be bound by the Cushion Terms of Service (https://cushion.ai/terms/), this Cardholder agreement (“Cushion Cardholder Agreement and Terms of Service”), and all other terms, policies and guidelines applicable to the Services used (including but not limited to the Cushion Privacy Policy): www.Cushion.com/privacy ).

This Cushion Card will be linked to your Cushion Account and funded by an account you own and control at a U.S. depository institution (“Funding Account”). Purchases made with your Cushion Card will automatically be listed on your Cushion dashboard. You will be responsible for settling with Cushion the cost of the purchases you make using the card. To assist you with this obligation, Cushion will debit your Funding Account in an amount equal to each card transaction and applicable fees. Cushion reserves the right to debit your account for individual transactions or for a batch of transactions.

You can use the Cushion Card to make bill payments for the vendor types listed in section 5.

3. Fees – Your purchases may be subject to additional fees from your Funding Account provider or from individual merchants. These fees are not assessed or received by Cushion.

Below is a list of all fees for the Cushion Card. All fees assessed by us are deducted from the available balance in your Card Account. If your Card Account does not have sufficient funds available to cover a fee, the amount of such fee will be deducted from any funds subsequently loaded to your Card Account. The fees that apply to your Card
Account are as follows

Contact Cushion Card Services by emailing [email protected] or by submitting a request directly on the website at cushion.ai.

4. Requirements to use the Card Services – In order to access the Cushion Card Services, you represent that:

• You are either a legal resident of the United States, a United States citizen or a business entity authorized to conduct business by the state(s) in which you operate and that you are an authorized signatory for the business.
• You are at least 18 years old.
• You have not been previously banned from using our Services, and that you have not previously violated our Terms of Service.
• You have not been barred from receiving similar services under the laws of the United States.

By accepting these terms, you also represent that:

• You have the capacity to be bound by them.
• Any information you provide in connection with the Cushion Services accurately and truthfully represents your identity and the identity of any associated business.
• You and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you.
• You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services.

5. Your Agreement on Card Use – With each transaction you process through the Cushion Card Services you represent, warrant and agree that:

• The Card transaction represents a bona fide bill payment;
• You will fulfill all of your obligations to the merchant and will resolve any dispute or complaint directly with the merchant; and
• You and the Card transaction comply with all federal, state, and local laws, rules, and regulations applicable to you, including any applicable tax, wage and hour, and tip laws and regulations.
• You will not use the Service in a fraudulent, disruptive, aggressive, manipulative or any other inappropriate matter.

You agree to use Cushion Card Services to make payments to merchants that fall under the following categories:

• Mortgage
• Rent
• Auto Loan
• Utilities
• Auto Insurance
• Cable & Internet
• Buy Now Pay Later (“BNPL”)
• Health Insurance
• Mobile Phone
• Alarm & Security
• Life Insurance
• Streaming Services
• Subscription Services
• Other Acceptable Recurring Bills

6. Prohibited Uses – You may not, nor may you permit any third party, directly or indirectly, to:

• Export the Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
• Use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement.
• Use the Service in conjunction with automated purchasing software programs
• Use the Service to exploit new user, referral programs, promotions offered by other merchants, or otherwise use the Service to violate the terms and conditions of a merchant.
• Act as a payment facilitator or otherwise resell the Cushion Card Services to any third party.
• Use the Cushion Card Services to handle, process or transmit funds for any third party.
• Withdraw cash at ATMs or at a point of sale.
• In addition, you may not, nor may you permit any third party, directly or indirectly, to use the Cushion Card Services for the following businesses or activities:
  • Any illegal activity or goods,
  • Paraphernalia that may be used for illegal activity
  • Unauthorized multi-level marketing businesses,
  • Rebate based businesses,
  • Betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races,
  • Manual or automated cash disbursements,
  • Prepaid cards or checks,
  • Sales of money-orders or foreign currency,
  • Wire transfers or money orders, or
  • High-risk products and services, including telemarketing sales.

7. Authorized Users – You are responsible for all authorized transactions initiated and fees incurred by use of your Cushion Card. If you permit another person to have access to your Card or Card number, this will be treated as if you authorized such use and you will be liable for all transactions and fees incurred by those persons. You are wholly responsible for the use of each Card according to the terms and conditions of this Agreement.

B. Payment Authorizations

1. Adding a Funding Source – In order to use the Cushion Card Services, you must first add an eligible funding source to your account via the Cushion website or mobile app. By entering your funding source information on the Cushion site or app, you will have signed the ACH authorization. You may want to print and save a copy for your records. You can change a funding source on the Cushion site or app.

When you add a funding source to your Cushion Account, you agree that:

• You are the owner of the Funding Account
• You are authorized to transfer funds from that Funding Account
• You authorize us to initiate debits from your Funding Account according to your instructions
• You will maintain a balance or available credit limit in the specified Funding Account that is sufficient to fund all payments you initiate.

2. Bank Account Information and Authorized Actions – If you choose to add a bank account as your Funding Account for your Cushion Card Services, you will be asked to provide access credentials (such as a username and password) that allow you to gain online access to your account at that third-party financial institution (your “Authorized Bank Account”).

Cushion works with Third Party Services, including but not limited to Plaid Technologies, Inc. (“Plaid”), who will securely store pursuant to industry standards any Authorized Bank Account access credentials that you provide and will access your Authorized Bank Accounts for the purposes of providing and improving the payment services. You may only provide account access credentials for and authorize us to access valid accounts that you hold in your own name. You may not provide access credentials for an account that is held by a third person.

If you choose to provide your Authorized Bank Account credentials to us, you authorize us to use this information to provide you with the Services. This authorization will remain in effect until you notify us that you wish to revoke this authorization, which may affect your ability to receive the Services. Plaid’s services and use of your information, including on or through the Cushion Card Services, are governed by its Terms of Use and its Privacy Policy located at https://plaid.com/legal.

3. Your Electronic Funds Transfer and ACH Debit Authorization – When you use the Cushion Card Services you authorize the Issuer to debit your Funding Account by the amount of any transactions made using a Cushion Card including any applicable fees on the agreed upon payment cycle. Your authorizations will remain in full force and effect until you close a Card or your Cushion Account is closed or terminated. Any attempt by you to revoke this authorization will result in your inability to use the Cushion Card Services

If you provide us with the ACH routing and account information for your Funding

Account, you authorize Cushion and our partner bank to initiate electronic transfers (via the Automated Clearing House (“ACH”) of NACHA – The Electronic Payment Association (“NACHA”)) from your Funding Account. You agree that ACH transactions you authorize comply with all applicable laws.

When your checking account is used as your funding source for a transaction, you are requesting that the Issuer or another of our partner banks initiate an electronic transfer on your behalf from your bank account. You agree that we may resubmit any ACH debit you authorized that is returned for insufficient or uncollected funds, except as otherwise provided by NACHA’s rules, or applicable law.

For all other payment methods, such as debit card funding, you authorize Cushion to transmit payment details to a bank acting under Cushion’s instructions to charge your Funding Account. You agree to maintain funds in the specified Funding Account that are sufficient to cover all of your activities with the Cushion Card Services.

You indemnify and hold us and our partner banks harmless from any claims by any other owner of the account. You are responsible for confirming the accuracy of the information you provide about each payment.

4. Inability to Access Funds from your Funding Account – If we are unable to access funds from your specified Funding Account to complete a transaction that you request for any reason (for example, if there are insufficient funds or credit available in your Funding Account to cover the requested transaction), the transaction may not be completed. In such case, you agree:

• You will reimburse Cushion immediately, upon demand, the transaction amount to the extent that Cushion sent a payment to the Payee on your behalf;
• You may be required to reimburse Cushion for any fees imposed on us as a result of the failed transaction; and
• You may be required reimburse us for any fees we incur in attempting to collect the amount of the failed transaction from you.
• We are not responsible for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) that result from your failure to maintain a balance or available credit in the Funding Account that is sufficient to fund all payments you initiate.

C. Our Rights Regarding the Services

1. Modifications to this Agreement – You agree that Cushion and the Issuer may modify this Agreement, or any other Cushion terms, policies, or guidelines at any time in our sole discretion. Any new agreement will be effective immediately, by posting a new agreement and updating the “Last Updated” date at the top of these terms. You agree that even if you have not personally visited the website with the new terms of this agreement, that they have full force immediately. To the extent permitted by applicable law, you agree to waive any right you may have to receive additional notice of such changes.

Your continued use of the Services following the posting of changes or modifications will confirm your acceptance of such changes or modifications. You should frequently review this Agreement and all applicable terms, policies and guidelines to understand the terms and conditions that apply to your use.

If you do not agree to the amended terms, you must stop using the Services. Any use of the Services in violation of this Agreement may result in, among other things, termination or suspension of your right to use the Services. You agree that your use of the Services will always be subject to the most current version of this Agreement at the time of such use.

2. Limits on Your Use of the Card Services –You acknowledge that Cushion or our partner banks may impose limits on your use of the Card Services. We may not allow payment from all types of funding sources, and we may otherwise limit payments and/or payees at our discretion. You cannot use virtual cards in any way beyond their intended purpose.

For security and fraud protection, Cushion will impose limits on the dollar amount that you can authorize in a transaction, and over a period of time. In addition to these set limits, Cushion and its partner banks retain the right to impose additional limits at our discretion.

3. Investigations, Account Suspensions and Termination – Cushion and our partner banks reserve the right to investigate your use of the Service for compliance with this Agreement, and in order to comply with law, regulation, legal process or government request.

We may refuse to process any transaction that we believe violates the terms of this Agreement, the Cushion Terms of Service, any other agreements between you and Cushion or any applicable network rule or law.

The Cushion Card is the property of the Issuer and must be surrendered upon demand. The Card is nontransferable and it may be canceled, repossessed, or revoked at any time without prior notice.

If we suspect you of violating any applicable Terms of Service, network rule or law, Cushion or Issuer may suspend or terminate your ability to access the Services under any or all of your accounts. Cushion reserves the right to determine whether or not you have access to these services.

4. Identity Verification – To help the government fight the funding of terrorism and money laundering activities, federal law requires us to help the Issuer obtain, verify, and record information that identifies each person who requests to use the Cushion Card Services.

When you register for the Cushion Card Services we will ask you for your name, address, date of birth, your Social Security number, and other information that will allow us to identify you. You authorize us and our partners to make inquiries that we consider appropriate and use third party services to help us verify your identity and determine if we should open, maintain, collect or close your account.

We may make additional requests for information at any time. We may require you to provide all of a taxpayer identification number, take steps to confirm ownership of your email address or financial instruments, provide a copy of an identifying ID card, such as a driver’s license or passport, and verify information you provide against third party databases or through other sources.

We, and our partner banks may also report the status, history and/or closure of your account to third-party services.

If you do not provide this information or we cannot verify your identity, we will refuse to allow you to use the Services, or suspend or terminate your account. If you allow someone else to use your Cushion Account, you are responsible and liable for all transactions, withdrawals, deposits and fees that arise out of such use.

D. Refunds, Errors and Disputes

1. Payment History – When you use your Cushion Card, a record of the transaction will be automatically recorded in the Cushion App. You should also receive a receipt directly from the Merchant.

Except as required by law, you are responsible for:

• Compiling and retaining permanent records of all transactions and other data associated with your Cushion Account and your use of the Cushion Card Services, and

• Reconciling all transactional information that is associated with your Cushion Account.

If you believe that there is an error or unauthorized transaction activity is associated with your Cushion Account, you must contact us immediately.

2. Refunds and returns – If you are entitled to a refund or credit for any reason for goods or services obtained with your Card, the return and refund will be handled by the merchant. If the merchant credits your Card, the credit may not be immediately available. While merchant refunds post as soon as they are received, please note that we have no control over when a merchant sends a credit transaction and the refund may not be available for a number of days after the date the refund transaction occurs. Refunds will be recorded along with your transactions in the Cushion App.

Neither the Issuer nor Cushion is responsible for the delivery, quality, safety, legality or any other aspects of the goods or services you purchase from others with the Card. If you have a problem with a purchase you made with the Card, or if you have a dispute with the merchant, you must handle it directly with the merchant.

3. Information About Your Rights to Dispute Errors – You agree to comply with the payment dispute resolution procedure described below for any payments made using a Cushion Card. If you’re unable to resolve a transaction related issue directly with a merchant, please notify us as soon as possible. This is our process for resolving disputes.

A. Contact [email protected] directly to open a dispute case within sixty (60) days of the date of the transaction in question. Your notice must include the following information:

1. Your name, and Cushion Account email address
2. The Cushion Card you’re referring to
3. Why you believe there is an unauthorized transaction or other error, and the dollar amount involved
4. Approximately when the unauthorized transaction or other error took place.

Depending on your claim (item not received or refund not received), we may ask you to wait 10 business days from the transaction date to proceed with the payment dispute.

1. If you tell us orally, we may require that you send us your complaint or questions. In writing within ten (10) business days.
2. We will determine whether an error occurred within ten (10) business days after we heard from you and will correct any promptly.  If we need more time, however, we may take up to forty-five (45) days to investigate your complaint or question.  If we decide to do this, we will credit your account within ten (10) business days for the amount you think is in error, so that you will have use of the money during the time it takes us to complete our investigation.  If we ask you to put your complaint or question in writing and we do not receive it within ten (10) business days, we may not credit your account.
3. For errors involving new accounts, point-of-sale or foreign initiated transactions, we may take up to ninety (90) days to investigate your complaint or question.  For new accounts, we may take up to twenty (20) business days to credit your account for the amount you think is in error.
4. Cushion will tell you the results within three (3) business days after completing the investigation. If Cushion decides that there was no error, Cushion will send you a written explanation. Copies of the documents used in the investigation may be obtained by contacting Cushion at [email protected].

4. Your Liability for Unauthorized Transfers – If you believe your Cushion Card has been lost or stolen or you believe a transaction has been made without your permission using information from your Card, or Cushion Card Account or you believe your Cushion Account Credentials have been used without your permission tell us AT ONCE, and FREEZE the relevant card(s). Reporting your Card lost or stolen, and any unauthorized or unexpected activity to [email protected] as soon as possible is the best way of limiting potential losses.

We may suspend or cancel your Card and corresponding Cushion Account in the event of excessive reports of Card loss or theft. You agree that any unauthorized use does not include use by a person to whom you have given authority to use the Card or PIN and that you will be liable for all such uses by such person. For example, if you have given your Card or Card information to another person to use, such as a friend or relative, you are responsible for that person’s transactions with your Card, and if you have given your Card information to a merchant for a transaction, you have given authority to that merchant to debit the Card for that transaction.

If you tell us within two business days after you learn of the loss or theft of your Cushion Card, you can lose no more than $50 if someone used your Cushion Card without your permission. If you do NOT tell us within two business days after you learn of the loss or theft of your Cushion Card, and we can prove that we could have stopped someone from using your Cushion Card, without your permission if you had told us, you could lose as much as $500.

Also, if you become aware of and/or your periodic statement shows transactions you did not make, notify Cushion at once following the procedures stated in the Section of this Agreement titled “Disputes”. If you do not notify Cushion within sixty (60) days after you become aware of the transaction and/or after the statement was made available to you, you may not get back any value you lost after the sixty (60) days if Cushion can prove that we could have stopped someone from taking the value if you had notified Cushion in time. If a good reason (such as a long trip or hospital stay) kept you from telling us, Cushion may extend the time periods. If the Card has been lost or stolen, the Card will be blocked to limit potential losses.

You agree to cooperate reasonably with us and the Issuer in our attempts to recover funds from, and to assist in the prosecution of, any unauthorized users of your Card.

5. Additional Limits on Liability Under Mastercard Rules. –

Under Mastercard Rules, you will not be liable for any unauthorized transactions using your Cushion Card if you can demonstrate that you have exercised reasonable care in safeguarding your Card from risk of loss or theft. You must notify us within two (2) days after the electronic statement was made available to you showing unauthorized transaction(s) in order to take advantage of any such limited liability provisions.

E. Other Terms

1. Notices (E-Sign disclosure) – As part of your use of the Services provided by Cushion and the Issuer, you are entitled by law to receive certain information in writing. The federal ESIGN Act allows us to provide this information to you electronically, instead, with your prior consent. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, Communications) that we and the Issuer provide in connection with your Cushion account (Account) and your use of our services. We, or the Issuer, will provide these Communications to you by posting them on www.cushion.ai, pushing notifications through the Services, and/or by emailing them to you at the email address registered to your account.

Electronic disclosures and notices have the same meaning and effect as if they had been provided to you as paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we, or the Issuer, receive notice that the email was not delivered.

If you wish to withdraw your consent to receive Communication electronically, you may do so by emailing us at [email protected]. Please note, however, that if you withdraw your Electronic Consent, you may no longer use our service.

YOU MUST KEEP YOUR EMAIL OR ELECTRONIC ADDRESS CURRENT WITH US

in order for us to be able to provide you with important notices and other information from time to time, and you must ensure that the contact information, including the email address registered to your account, is current.

2. Address or Name changes – You are responsible for notifying us of any change in your name, physical address, mailing address, email address, or phone number. Requests for address or name changes may be subject to additional verification requirements.

We will attempt to communicate with you only by use of the most recent contact information you have provided to us. You agree that any notice or communication sent to you at an address noted in our records shall be effective unless we have received an address change notice from you.

We cannot accept responsibility for any email messages not received by you or for any delay in the receipt or delivery of any email notification. If you make your email account available to any other individual, you agree that you are responsible for any release of any Account information to such individual.

3. Confidentiality – You acknowledge and agree that the Issuer and Cushion may, subject to applicable law, share information regarding you, your Card, your Cushion Account, your Card request and Card transaction activity as necessary to provide customer service, service the Card or your Cushion Account, investigate and act on the Card or your Cushion Account and/or your Card- or Cushion Account-related claims and as necessary to comply with applicable law. Information about the Card, your Cushion Account, or the transactions you make with any of them may be disclosed to third parties:

• Where it is necessary for completing transactions;
• In order to verify the existence and condition of the Card for a third party, such as a merchant;
• In order to comply with government agency, court order, or other legal, regulatory or administrative reporting requirements;
• In order to prevent, investigate or report possible illegal activity;
• In order to issue authorizations for transactions on the Card;
• If you consent by giving us your written permission;
• To service providers who help us administer and provide the Card and related Cushion Services;
• To our employees, auditors, affiliates, service providers, or attorneys as needed;
• As permitted by applicable law;
• As necessary to fulfill our obligations under this Agreement; or
• As set forth in the Cushion Privacy Policy and Issuer Privacy Policy.

4. No Warranty Regarding Goods or Services as Applicable – Cushion and the Issuer are not responsible for the quality, safety, legality, or any other aspect of the transactions underlying any bill payments made with a Cushion Card

5. No Warranty of Availability or Uninterrupted Use – From time to time the Card services may be inoperative, and when this happens, you may be unable to use your Card or obtain information from your Card, including your Cushion Account. Please notify us immediately at [email protected] if you have any problems using your Card. You agree that the Issuer, Cushion, and their respective affiliates, employees, or agents are not responsible for any interruption of service.

6. Miscellaneous –

A. Assignment: To the extent permitted by applicable law, we may assign this Agreement without obtaining your consent. You may not assign or transfer your Card, or this Agreement without our prior written consent.

B. Severability: This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect. Neither the Issuer or Cushion will waive its rights by delaying or failing to exercise them at any time. This Agreement will be governed by the law of the State of Connecticut except to the extent governed by federal law.

C. Language: This Agreement was drafted in English. In the event that this agreement, or any part thereof, is translated to a language other than English, the English-language version shall control in the event of a conflict.

D. Section Headings: Section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any provision of this Agreement.

E. Cancellation: The Issuer or Cushion may cancel or suspend the Card or this Agreement at any time. You may cancel this Agreement by returning the Card to the Issuer, or contacting [email protected]. Your termination of this Agreement will not affect any of the Issuer’s or Cushion’s rights or your obligations arising under this Agreement prior to termination. In the event your Card is cancelled, closed or terminated for any reason, any remaining available funds associated with the Card would revert to your Funding Account.

F. Entire Agreement: This Agreement comprises the entire agreement between you and Cushion with respect to the above subject matter and supersedes and merges all prior proposals, understandings and contemporaneous communications.

7. Indemnification – You agree to defend, indemnify, and hold harmless Cushion and Issuer, our parents, subsidiaries, and other affiliated companies and parties with whom we contract in order to offer the Cards, and our and their employees, contractors, officers, and directors against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) that arise from your violation of this Agreement, applicable law, or any third-party rights or your fraud or willful misconduct. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.

8. Limitation of Liability- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS

AGREEMENT OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, NONE OF

Cushion, ISSUER, OUR AFFILIATES, AND THE PARTIES WITH WHOM WE

CONTRACT IN ORDER TO OFFER THE CARDS, YOUR Cushion ACCOUNT, AND

RELATED SERVICES ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY

INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE

DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE CARDS, THE

Cushion CARD SERVICES, ANY PRODUCTS OR SERVICES PURCHASED USING A Cushion CARD, OR THIS AGREEMENT (AS WELL AS ANY RELATED OR PRIOR AGREEMENT THAT YOU MAY HAVE HAD WITH US).

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL

LIABILITY OF Cushion AND ISSUER IS LIMITED TO THE GREATER OF (A) THE

AMOUNT OF FEES EARNED BY Cushion IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY OR (B) $10.

9. Survival – The provisions related to indemnification, limitation of liability, arbitration and any other provisions necessary to give effect to a party’s rights shall survive the termination of the Agreement; the bankruptcy of any party, any transfer, sale or assignment of the Card; or expiration of the Card.

F. Arbitration

1. Agreement to Arbitrate – You, Cushion and Issuer agree to arbitrate any and all disputes with Cushion, Issuer, or the parties with whom Cushion contracts to offer the Cards, or otherwise arising from your attempted or actual use of the Card Services (“Dispute”) by a neutral arbitrator who has the power to award the same damages and relief that a court can.

ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN

INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE

ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND

CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST Cushion AND ISSUER.

If any section of these arbitration provisions is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).

ARBITRATION OF YOUR CLAIM IS MANDATORY AND BINDING. NEITHER PARTY

WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN

ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE AAA CODE OF PROCEDURE.

Your agreement to arbitrate and these related terms are made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (9 U.S.C. 1-16), and not any state arbitration law.

2. Limitation on Time to Initiate a Dispute –Any action or proceeding by you relating to any Dispute must commence within 90 days after the cause of action accrues.

3. Process for Arbitration of Disputes – All disputes shall be FINALLY and

EXCLUSIVELY resolved by binding individual arbitration conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules under in your state of residence at a location that is reasonably convenient for both parties. For a copy of the procedures, to file a Claim or for other information about the AAA, contact: AAA, 335 Madison Avenue, New York, NY 10017 or at www.adr.org.

The Issuer will pay the initial filing fee to commence arbitration. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county where you reside. Otherwise, any arbitration hearing will occur in New York County, New York, or another mutually agreeable location.

Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.

You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

All determinations as to the scope, interpretation, enforceability and validity of this Agreement shall be made final exclusively by the arbitrator, which award shall be binding and final. Judgment on the arbitration award may be entered in any court having jurisdiction.

IF YOU DO NOT AGREE TO THE TERMS OF THESE ARBITRATION PROVISIONS, DO NOT ACTIVATE OR USE THE CARD, OR IF IT HAS ALREADY BEEN ACTIVATED, CANCEL IT.

YOU MAY CANCEL THE CARD BY CONTACTING CUSTOMER SERVICE AT [email protected].