The defendant argues that the platform agreement was presented to the applicant under a “Clickwrap” agreement and that, as such, the platform agreement, including the compromise clause, is applicable. A Clickwrap agreement is a dialog box that appears on a website and requires a user to agree to certain conditions before allowing the user to continue using the site. Most courts have concluded that Clickwrap agreements are valid and enforceable contracts. Modified or hybrid clickwrap agreements, in which the user must agree to agreements provided by hyperlinks, are also regularly considered valid and enforceable contracts. Here, the platform agreement is a hybrid clickwrap agreement for which the applicant has agreed. Accordingly, the platform agreement, including the compromise clause, is applicable and the defendant`s request to impose an arbitration procedure must be accepted. Neither home loans nor real estate lines of credit (HELOC) fall under Upstart`s jurisdiction. However, the lender refers to its personal loan option as “home improvement loans,” with some differences described in the specific portion of the information. Upstart says in particular that you don`t need to use the equity in your home as one of the terms of the agreement. This is an advantage, but funding home additions or upgrades could be difficult if you plan to borrow more than $50,000 for the project. In addition, with maturities of three or five years, it is expensive to finance the maximum credit limit allowed by Upstart.
Homeowners who need to spread payments over longer periods of time might expect traditional home lenders, such as PNC Bank or Fifth Third Bank, to be able to take a look at them. The defendant submitted three statements and several exhibits, complaining that the plaintiff has accepted favourably the platform agreement and the compromise clause it contains. Anna Counselman, the defendant`s director of business and co-founder, stated in her sworn insurance that at the time of the loan application in July 2014, the Upstart platform “required her to accept the platform agreement and other agreements” “by checking an “I agree” box or by clicking the form on a “I agree” button. Adviser Aff.M. Counselman also stated that “the potential borrower cannot subscribe to the credit application or use the Upstart platform” without accepting the terms of the platform agreement and other agreements. Id. Counselman checked the defendant`s records and found that the complainant created his account and approved the platform agreement at 11:19 a.m. PST on July 10, 2014. Id.
The information contained in the adviser`s insurance under oath is reflected in the statement of the accused`s Director of Information Technology, Saikat Maiti. See Maiti Decl. In a second statement, Maiti provides a screenshot of the page showing the “I agree” field appeared in July 2014 (until 2015) when a user applied for a loan and had to accept the terms of the platform agreement. Maiti Second Decl. 1. In the specific text of the field “I agree”: “By clicking on the agreement, I confirm that I have read, understood and approved the terms of the debt title, the upstart platform agreement, the disclosure of credit points and the disclosure of the privacy of cross river Bank.” In addition, Maiti states that the “I agree” field provided a link to the platform agreement. Id. Upstart was first launched in April 2012 with a product from the Income Share Agreement (ISA) that allowed individuals to raise funds by monitoring a percentage of their future revenues.