Fundera Secure Application Service Agreement

Last Revised: August 2017

This Secure Application Service Agreement (“Agreement”) is a legally binding agreement between you and Fundera, Inc. (“Fundera”) (each a “Party,” and collectively the “Parties”). As used in this Agreement, the words “you” and “your” refer to you, the user of Fundera’s website or applications, as the party agreeing to this Agreement. The words “we,” “us,” “our” and any other variation thereof refer to Fundera. Any reference to Fundera in this Agreement includes our directors, officers, employees, contractors, owners, agents, licensors, or licensees. As used in this Agreement, the term “Site” includes all websites and applications that we operate that link to this Agreement, pages within each such website or application, any equivalent mirror, replacement, substitute or backup website or application, and pages that are associated with each such website or application. The use of the word “including” in this Agreement to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive list of the topics covered.

You must read this Agreement in its entirety and indicate your acceptance of the terms and conditions contained herein. Before you continue, you should print or save a copy of this Agreement for your records.

1. Acceptance of Agreement.

By using the Secure Application Service, you agree to, and are bound by, the terms and conditions of this Agreement. If you do not agree to be bound by this Agreement, do not use the Secure Application Service. You may not use the Secure Application Service or accept this Agreement; if (a) you are not of legal age to form a binding contract with Fundera; (b) you are prohibited by law from receiving or using the Secure Application Service; or (c) you are not a U.S. resident.

2. Definitions

2.1 Defined Terms.

Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:

(a) “Account Information” means information about accounts you maintain at third party sites, including, as applicable, your accounts at any financial institution, as provided by you to Fundera.

(b) “Affiliate” means, with respect to a Party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with such Party.

(c) “Applicable Law” means all federal and state laws, including regulations, applicable to the activities and obligations contemplated under this Agreement, including without limitation the federal Truth-in-Lending Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, the Gramm-Leach-Bliley Act, Dodd Frank Act, CAN-SPAM Act and all applicable state licensing, consumer credit and privacy laws, as the same may be amended and in effect from time to time during the Term.

(d) “Business Day” means any day (other than a Saturday, Sunday or legal holiday) on which federally-insured financial institutions in New York, New York are permitted to be open to conduct substantially all of their business.

(e) “Profile Information” means the initial information you provide to us to provisionally pre-qualify you to receive funding under a Funding Provider’s terms and conditions, including as applicable, business name and address, amount and intended purpose of funding sought, certain financial information regarding the business, and certain information regarding the business owner, as well as the username and password that allow you to access the Secure Application Service, as such information shall change from time to time.

(f) “Secure Application Service” means the secure application service provided by Fundera to you, as described further in Section 4.

3. General

3.1 Fundera Contact Information.

The company you are working with is Fundera, a Delaware corporation. Fundera’s contact information is as follows:

Address: 123 William Street, 21st Floor, New York, NY 10038
Telephone Number: 1 (800) FUNDERA (386-3372)
Email: support@fundera.com
Internet Address: https://www.fundera.com/

4. Services to be Performed For You by Fundera

4.1 The Secure Application Service.

This Agreement applies to the following service (the “Secure Application Service”), which Fundera will perform upon your request:

Identifying you to alternative lenders and other sources of funding (each one, a “Funding Provider”; once matched, a “Matched Funding Provider”) and furnishing Matched Funding Providers with information and documents submitted by you to Fundera, including but not limited to, your business name and address, amount and intended purpose of funding sought, certain financial information and documents regarding the business, and certain information and documents regarding your business owner (the “Application Information”). You may also be asked to provide tax returns or to synch Fundera to your bank’s transactional data (the “Verified Data”). If any of the Application Information you provide is inconsistent with information derived from Verified Data, we will automatically substitute the inconsistent Application Information with information from Verified Data. Each identification of you to a Matched Funding Provider constitutes a “Referral”.

5. Services to Be Performed For You By Matched Funding Provider.

Once Fundera makes a Referral to any Matched Funding Provider, the Matched Funding Provider will initiate its underwriting process based on the Application Information and will determine, according to its own terms and conditions, whether to provide funding to you. If a Matched Funding Provider chooses to provide funding to you, the Matched Funding Provider will provide you with detailed information about your funding options, including loan amounts, interest rates, points, fees and other terms. Fundera has no role in a Matched Funding Provider’s decision to provide or not provide funding to you or the terms and conditions under which the Matched Funding Provider chooses to offer you a loan

6. Your Use of the Secure Application Service.

6.1 The Secure Application Service.

Use of the Secure Application Service in Accordance with Agreement and Applicable Law. You will not use the Secure Application Service for any illegal purpose. You will only use the Secure Application Service in accordance with the terms and conditions of this Agreement and any Applicable Law.

6.2 Business Purpose.

You will only use the Secure Application Service for a bona fide business purpose. You will not use the Secure Application Service for personal, family or household purposes. You may not use the Secure Application Service to obtain information about or make decisions about anyone but yourself and/or your business, or on behalf of a business which has provided documented authorization or consent.

6.3 Acknowledgements and Agreements.

(a) You agree to provide true, accurate, current and complete Application Information at all times.

(b) You agree to allow Fundera to automatically substitute Application Information that is inconsistent with Verified Data with Verified data.

(c) You acknowledge and agree that you are responsible for maintaining your Profile Information. If you believe that your Profile Information or a device that you use to access any Site has been lost or stolen, that someone is using the Service using your Profile Information without your authorization, or that an unauthorized transaction has occurred, you must notify us immediately at support@fundera.com.

(d) You acknowledge and agree that a Referral does not guarantee that you will receive funding from any Matched Funding Provider.

(e) You acknowledge and agree that the Funding Terms may differ from the terms and conditions that apply to funding you ultimately receive from a Matched Funding Provider.

(f) You acknowledge and agree that Fundera has no role in a Matched Funding Provider’s decision to provide or not provide funding to you, and that Fundera provides the Application Information to the Matched Funding Provider on your behalf.

7. Fees

7.1 No Fee for Your Use of the Secure Application Service.

We do not charge you any fee for the Secure Application Service. We only receive compensation from the Funding Providers. Our compensation from a Funding Provider varies depending on the total amount of funding provided. Funding Providers may include the fees paid to us as part of your terms of your funding. Fundera does not control a Funding Provider’s terms, but we use our best efforts to make clear the specific amount of any fees and interest rates charged to you by a Funding Provider. Ultimately, however, funding terms and conditions are entirely and solely within the Funding Provider’s discretion.

We do not charge you a fee for the use of our service. We earn our fees from the lender when you successfully secure a loan.

8.ADDITIONAL TERMS SPECIFIC TO SBA LOANS

8.1 Fee Information.

While Funding Providers generally compensate Fundera for Referrals, you agree to pay us certain fees for our assistance in helping you to procure an SBA Loan. Specifically, where Fundera refers a borrower directly to an SBA Loan Funding Provider, you agree to pay Fundera two fees: (1) a referral fee less than or equal to two percent (2%) of the SBA Loan amount; and (2) a packaging fee for preparing your application less than or equal to two percent (2%) of the SBA Loan amount. Funding Provider will disburse the referral fee and packaging fee to Fundera from your loan proceeds upon final closing of the loan. Please note that the Small Business Act does not require the use of an agent for referral or packaging services to apply for an SBA Loan.

8.2 SBA Loans For More Than $25,000.

If you apply for an SBA Loan of more than $25,000, please note that the Funding Provider will require a lien on business assets, including assets such as accounts receivable or inventory, as well as fixed assets such as new equipment purchased with loan proceeds, and commercial real estate owned by the business. The Funding Provider may require additional collateral as well.

9. Indemnification.

You agree to release, indemnify, and hold harmless Fundera and its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use the Secure Application Service; (b) your breach of this Agreement; (c) your violation of any rights of a third party; (d) your interaction with any Funding Provider; (e) any duties, responsibilities, or obligations you may have to a Funding Provider, including with respect to, but not limited to, a Referral; (f) your violation of any Applicable Law; (g) the violation of any Applicable Law by a Funding Provider; or (h) your failure to provide and maintain true, accurate, current and complete Application Information, Profile Information, Verified Data, and Account Information.

10. Warranties and disclaimers.

10.1 Limitation of Liability.

Under no circumstances shall Fundera, its subsidiaries, partners, or affiliates, be liable to you for (a) any indirect, incidental, consequential, special or exemplary damages arising from or relating to the use or inability to use the Secure Application Service (even if Fundera knows or has been advised of the possibility of such damages), including, but not limited to, damages for loss or corruption of data or documentation, service interruptions, or Fundera’s or your liabilities to third parties arising from any source; (b) except as required under applicable law, any indirect, incidental, consequential, special or exemplary damages, arising from or relating to the conduct of you or anyone else in connection with the use of the Secure Application Service, including, but not limited to, damages arising from your failure to provide Fundera with accurate information or to correct inaccurate Verified Data, or a third party’s failure to correctly verify such information.

10.2 No Warranties.

Except as expressly set forth in this agreement, the Secure Application Service provided hereunder by Fundera is provided "as is" with all faults and without any representations or warranties. The entire risk as to satisfactory quality, performance, accuracy, and effort is with you. Fundera does not represent or warrant that the Secure Application Service will be available, accessible, uninterrupted, timely, secure, accurate, complete, or entirely error-free. This disclaimer of warranty extends to you and each buyer and is in lieu of all warranties and conditions whether express, implied, or statutory, including the implied warranties of merchantability, fitness for particular purpose, title, and non-infringement with respect to the Secure Application Service, and any implied warranties arising from course of dealing or course of performance. No advice or information provided by Fundera shall constitute any warranty with respect to your use of the Secure Application Service. Fundera does not guarantee or assume any responsibility for any service advertised or offered by any third party service relating to either Fundera or any funding provider. Fundera makes no guarantee as to the number of funding providers with whom you may be matched using the Secure Application Service, nor does Fundera guarantee that you will be able to obtain business funding in any amount using the Secure Application Service, including from any funding provider for whom your verified information provisionally prequalifies you for such funding. You understand and agree that Fundera is neither a funding provider nor a financial advisor, and nothing on this site is intended to be a substitute for professional financial advice.

11. Term and Termination.

11.1 Term.

This Agreement shall commence on the date signed until the date that the funding requested closes, or until either Party terminates this Agreement in accordance with the terms hereof, whichever is earlier (the “Term”).

11.2 Termination Rights of Fundera.

Fundera may terminate this Agreement at any time in its sole discretion.

11.3 Your Termination Rights.

You may terminate this Agreement at any time by ending your use of the Secure Application Service and notifying Fundera at support@fundera.com.

12. General Terms.

12.1 Waiver.

The waiver by Fundera of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.

12.2 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.

This Agreement will be deemed entered into in New York and will be governed by and interpreted in accordance with the laws of the State of New York, excluding: (i) that body of law known as conflicts of law, and (ii) the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree that any dispute arising under this Agreement will be resolved in the state or federal courts in New York County, New York, and the Parties hereby expressly consent to jurisdiction therein. The parties irrevocably waive any and all rights to a trial by jury.

12.3 Third Party Beneficiaries.

Except as limited by Section 12.7, this Agreement and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the Parties and their successors and permitted assigns, any of the rights hereunder.

12.4 Entire Agreement

This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each Party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.

12.5 Survival.

All provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, Sections 8, 9, and 10.3 and definitions herein as applicable to interpretation of the foregoing shall survive the termination of this Agreement.

12.6 Severability.

If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.

12.7 Assignment.

Neither this Agreement nor any rights hereunder may be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Fundera may assign this Agreement or any rights hereunder without consent: (i) to an entity that acquires substantially all of its stock, assets or business; or (ii) to an Affiliate. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.

12.8 Headings.

The headings, captions, headers, footers and version numbers contained in this Agreement are intended for convenience or reference and shall not affect the meaning or interpretation of this Agreement.

13. Information for Users in the State of Nebraska.

You have five business days in which you may cancel this agreement for any reason by mailing or delivering written notice to the loan broker. The five business days shall expire on July 23rd, 2018 , and notice of cancellation should be mailed to 123 William Street, 21st Floor, New York, NY 10038. If you choose to mail your notice, it must be place in the United States mail properly addressed, first-class postage prepaid, and postmarked before midnight of the above date. If you choose to deliver your notice to the loan broker directly, it must be delivered to the loan broker by the end of the normal business day on the above date. Within five business days after receipt of the notice of cancellation, the loan broker shall return to you all sums paid by you to the loan broker pursuant to this agreement.


The contact information for Fundera, Inc’s agent registered for service of process in Nebraska is as follows:
Address:
CSC – Lawyers Incorporating Service Company
233 South 13th St (Suite 1900)
Lincoln, NE 68508
Telephone Number: (302) 636 5400
Email: webhelp@cscinfo.com


IN WITNESS WHEREOF, the Parties hereto have executed this Secure Application Service Agreement as of July 18th, 2018.


FUNDERA, INC.

Signature: _______________

Printed Name: _______________


BORROWER

Signature: _______________

Printed Name: _______________