FUNDERA TERMS OF SERVICE

Last Revised: November 2017

Fundera, Inc. ("Fundera") matches small businesses and small business owners (for a business purpose as provided in Section 8.2) with alternative lenders and other sources of funding ("Funding Providers"), as described further in the section of this Agreement titled The Service.

These Terms of Service ("Agreement") constitute a legally binding agreement between you and 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.

  1. Acceptance of Agreement
  2. Amendments
  3. Definitions and Interpretation
  4. Privacy Policy
  5. Electronic Communications
  6. Accuracy of and Changes to Your Information
  7. The Service
  8. Your Use of the Service
  9. Indemnification
  10. Warranties and Disclaimers
  11. Term and Termination
  12. General Terms

1. ACCEPTANCE OF AGREEMENT. By accessing the Site and by using the Service, you agree to, and are bound by, the terms and conditions of this Agreement for as long as you continue to use the Site or Service. If you do not agree to be bound by this Agreement, do not use the site or the service. You may not use the Site or 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 Service; or (c) you are not a U.S. resident. Please note that certain uses of the Service may be subject to a separate agreement ("Secure Application Service Agreement") that will be provided to you prior to Referral to a Matched Funding Provider pursuant to Section 6 of this Agreement. No Referrals will be provided to you prior to signing a Secure Application Service Agreement.

2. AMENDMENTS. Fundera reserves the right to amend this Agreement, Fundera's Privacy Policy described in Section 4 below, or the Fundera E-Sign Consent Agreement described in Section 5 below, at any time with notice that is reasonable according to the extent of the amendment, as determined by Fundera in its sole discretion. Fundera will post notice of any amendment on the Site. For a substantial amendment, including a change to the fee structure outlined herein, Fundera may also notify you as outlined in the Disclosure and Consent to Electronic Communications section of the separate Fundera E-Sign Consent Agreement. You should check this Agreement, Fundera's Privacy Policy, and the Fundera E-Sign Consent Agreement regularly. By continuing to use the Site or Service after such notice is provided, you accept and agree to such amendments. If you do not agree to any amendment to any of these agreements, you must stop using the Site and Service. If you have any questions about the terms and conditions in this Agreement, Fundera's Privacy Policy or the Fundera E-Sign Consent Agreement, please contact us at support@fundera.com.

3. DEFINITIONS AND INTERPRETATION.

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

  • 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.
  • 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.
  • 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.
  • 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.
  • Profile Information means the information you provide to us to register for the Service, 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 Service, as such information shall change from time to time.
  • Service means the service provided by Fundera to you, as described further in Section 6.1.

3.2 Interpretation. References to Sections and Appendices are to be construed as references to the Sections of, and Appendices to, this Agreement, unless otherwise indicated. The singular includes the plural, and the plural includes the singular. All references to hereof, herein, hereunder and other similar compounds of the word here shall mean and refer to this Agreement as a whole rather than any particular part of the same. The terms include and including are not limiting. Unless designated as Business Days, all references to days shall mean calendar days.

4. PRIVACY. You agree to Fundera's Privacy Policy (available at https://www.fundera.com/privacy), which is incorporated by reference into this Agreement as if it were set forth herein in its entirety. The Privacy Policy describes our collection and possible use of information provided by you. By using the Site or Service, you agree to, and are bound by, the terms of the Privacy Policy.

5. ELECTRONIC COMMUNICATIONS. You agree to Fundera's E-Sign Consent Agreement, which is incorporated by reference into this Agreement as if it were set forth herein in its entirety. The E-Sign Consent Agreement constitutes your consent to receive disclosures and other information in electronic form. In connection with the Service, Fundera is required by law to provide you with certain disclosures. Without your consent, Fundera is not permitted to provide those disclosures to you online.

6. ACCURACY OF AND CHANGES TO YOUR INFORMATION. You agree to provide accurate Profile Information and Account Information. You further agree to promptly update all your Profile Information or Account Information whenever the information provided to us is no longer accurate. You can update your information by visiting your profile page on the Site. If you need help in changing your information, please email us at support@fundera.com. We are not responsible for any payment processing errors or fees or other Service-related issues arising from your failure to keep your Profile Information current. If we determine, in our sole discretion, that you have failed to maintain current and accurate Profile Information or Account Information, we may suspend or terminate your access to the Site and Service.

7. DISCLOSURE AND CONSENT TO ELECTRONIC COMMUNICATIONS.

7.1 Consent to Electronic Communications. You understand and agree that you are entering into this E-Sign Consent Agreement electronically and you specifically agree to receive and/or obtain certain categories of information ("Communications") from Fundera by electronic means (i.e., via email, through the Service by displaying links to notices generally on the Site, or to your mobile device), unless and until you withdraw your consent as described below. The categories of Communications that may be provided by electronic means include:

  • this E-Sign Agreement, the Fundera Terms of Service, FunderaÂ’s Privacy Policy and any amendments, modifications, or supplements thereto.
  • disclosures or notices provided in connection with the Service, including any required by Applicable Law (including initial disclosures, initial and annual privacy notices, opt-out notices, and change-in-terms notices).
  • any customer service communications, including communications with respect to claims of error or unauthorized use of the Site or Service; and
  • any other communication related to the Site or Service.

Although Fundera reserves the right to provide Communications in paper format at any time, you agree that Fundera is under no obligation to do so. All Communications in either electronic or paper format will be considered to be "in writing." You should print a paper copy of this E-Sign Agreement and any Communication that is important to you and retain the copy for your records. If you do not wish to receive this E-Sign Agreement or the Communications electronically, you may not use the Site or Service.

7.2 Consent to Short Message Service (SMS) Communications. As part of your consent to electronic Communications, you agree to receive SMS messages to each telephone number provided by you to Fundera regarding products and services offered by or on behalf of Fundera and its affiliates. You understand that such SMS may be placed using an automatic telephone dialing system or may include automated SMS messages and that your consent is requested only to allow Fundera or a Fundera affiliate to contact you and is not required to use the Fundera.com site.

7.3 Timing of Communications. Any electronic Communications will be deemed to have been received by you no later than 5 Business Days after Fundera sends it to you by email or posts it on a Site, whether or not you have received the email or retrieved the Communication from the Site. An electronic Communication by email is considered to be sent at the time that it is directed by FunderaÂ’s email server to your email address. You agree that these are reasonable procedures for sending and receiving electronic Communications.

7.4 Updated Contact Information. You agree to promptly update your Profile Information if your email address changes so that Fundera may contact you electronically. You may update your Profile Information, such as your email address, as described in “Accuracy of and Changes to Your Information”, Section 5 of the Fundera Terms of Service. You understand and agree that if Fundera sends you an electronic Communication but you do not receive it because the email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Fundera will be deemed to have provided the Communication to you.

7.5 System Specifications. In order to access, view, and retain electronic Communications that Fundera makes available to you, you must have access to: (a) a computer with an Internet connection; (b) a current web browser that includes 128-bit encryption (e.g. Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled; (c) Adobe Acrobat Reader version 8.0 and above to open documents in .pdf format; (d) sufficient electronic storage capacity on your computerÂ’s hard drive or other data storage unit to save past Communications and/or an installed printer to print them; and (e) an email account with an Internet service provider and email software. Your access to this page through your device verifies that your device meets these requirements.

7.6 Withdrawal of Consent to Electronic Communications. If you have registered as a user with Fundera and you wish to withdraw your consent to have Communications provided electronically, you must deregister by contacting support@fundera.com and stop using the Site and Service. There are no fees to deregister with Fundera. Any withdrawal of your consent to receive electronic Communications will be effective only after Fundera has a reasonable period of time to process your withdrawal, which period of time shall be no longer than fifteen (15) days, or such other time as is appropriate under the circumstances, as determined by Fundera in its sole discretion.

7.7 Withdrawal of Consent to SMS Communications. If you have registered as a user with Fundera and you wish only to withdraw your consent to have Communications provided via SMS, you may opt-out of receiving SMS from us at any time by texting the word “STOP” to 1 (646) 760.3048. You may also reply “STOP” to any message you receive from us. Upon receipt of your “STOP” message, we will send you a SMS message to confirm that you have been unsubscribed. At that point, you will no longer receive any further SMS messages from Fundera. If you need any assistance, you can always text the word “HELP” to 1 (646) 760.3048 or reply "HELP" to any message you receive from us. Upon receipt of your "HELP" message, we will respond with "STOP" instructions and a link to these Terms of Service. As always, you agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier

7.8 Reservation of Rights. Fundera reserves the right, in its sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which Fundera provides electronic Communications. Fundera will provide you with notice of any such termination or change as required by law.

8. THE SERVICE.

8.1 Description of the Service. Fundera matches users with Funding Providers using a combination of the user's Profile Information and criteria mutually agreed upon by each Funding Provider and Fundera which, if met, would provisionally pre-qualify the user to receive funding under such Funding Provider's terms and conditions (the "Prequalification Criteria"). You may request provisional prequalification for funds using the Service at any time by providing Fundera information and documents, including but not limited to 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 transactional data (the "Verified Data"). You agree to provide true, accurate, current and complete Application Information and Verified Data. If any of the Application Information you provide is inconsistent with information derived from the Verified Data, we will automatically substitute the inconsistent Application Information with information from the Verified Data. By providing the Application Information and the Verified Data, you also authorize us to obtain information, including from third-party sources, to allow you to verify certain fields of your Application Information based on external information (the "External Data"). Fundera reserves the right to obtain External Data at any time during your use of the Service until either you or Fundera terminate its rights under this Agreement pursuant to Section 11. If any of the Application Information does not match the External Data, you will have an opportunity to modify any of the Application Information. You also agree that we may contact you, including by telephone or by SMS, to verify the Application Information or to provide additional Application Information.

8.2 Referrals. If your Application Information meets the Prequalification Criteria set by one or more Funding Providers, we may identify such Funding Provider or Funding Providers to you (each one, a "Matched Funding Provider"), along with data regarding each Funding Provider's use of the Service, including general details regarding amount of funding provided, interest rate, time between application for funding and fulfillment, and timing of repayment of funding (the "Funding Provider Details"). We may limit the number of Funding Providers we identify to you based on our determination of which Funding Providers may be the best match for you based on our analysis of the Application Information. You may instruct us to identify you to one or more Matched Funding Providers, in which case we will identify you to such Matched Funding Providers and furnish them with your Application Information on your behalf (each such identification, a Referral). Referrals are subject to a separate Secure Application Service Agreement that will be provided to you prior to Referral. You acknowledge and agree that a Referral does not guarantee that you will receive funding from any Matched Funding Provider. You further 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.

8.3 Applying for Funding. Once we make 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. 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.

8.4 Our Use of the Account Information. You authorize us to use the Account Information for all purposes related to the Service, and to have continued access to your financial institution, provided that such access shall be used solely for the purpose of providing the Service to you. Account Information shall remain available to you during the Term, but any information obtained during the Term shall remain the property of Fundera.

8.5 Information Collection. You agree that we may monitor and record your telephone and electronic communications with us at any time, without further notice to you or any party to the communication.

8.6 Fee information. We do not charge you any fee for the Service. We only receive compensation from Funding Providers. Our compensation from a Funding Provider varies depending on the total amount of funding provided. Fundera does not control a Funding Provider's terms, but we use our best efforts to make clear the specific amount of any fees or 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.

8.7 Affiliates. The rights, duties and/or obligations of Fundera under this Agreement may be exercised and/or performed by Fundera and/or any of Fundera's Affiliates, or any of their subcontractors and/or agents. Fundera acknowledges and agrees that it shall be solely responsible for the acts or omissions of Fundera's Affiliates, and any subcontractor or agent of Fundera or any of Fundera's Affiliates, related to the subject matter hereof. You agree that any claim or action arising out of or related to any act or omission of any of Fundera or Fundera's Affiliates, or any of their respective subcontractors or agents, related to the subject matter hereof, shall only be brought against Fundera, and not against any of Fundera's Affiliates, or any subcontractor or agent of Fundera or any of Fundera's Affiliates. You acknowledge that under no circumstances shall a Funding Provider be considered an Affiliate for purposes of this Agreement.

8.8 State Disclosures. NORTH CAROLINA USERS: For disclosures required by your state, please view the the document linked here. NEBRASKA USERS: For disclosures required by your state, please view the the document linked here.

9. YOUR USE OF THE SERVICE.

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

9.2 Business Purpose. You will only use the Site or Service for a bona fide business purpose. You will not use the Site or Service for personal, family or household purposes. You may not use the Site or Service to obtain information about or make decisions about anyone but yourself and/or your business.

9.3 Responsibility for Account. You hereby 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

10. 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 Site or 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.

11. WARRANTIES AND DISCLAIMERS.

11.1 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 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 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.

11.2 No Warranties. Except as expressly set forth in this agreement, the 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 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 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 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 Service, nor does Fundera guarantee that you will be able to obtain business funding in any amount using the 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.

12. Term and Termination.

12.1 Term. This Agreement shall commence on the date You first access the Site or use the Service and remain in effect until either Party terminates this Agreement in accordance with the terms hereof (the Term).

12.2 Termination Rights of Fundera. Fundera may terminate this Agreement at any time in its sole discretion.

12.3 Your Termination Rights. You may terminate this Agreement at any time by ending your use of the Site and the Service and notifying Fundera at support@fundera.com.

13. GENERAL TERMS.

13.1 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.

13.2 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.

13.3 Third Party Beneficiaries. Except as limited by Section 13.7, 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.

13.4 Entire Agreement. This Agreement and each of its exhibits or appendices, constitute and contain 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.

13.5 Survival. All provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, Sections 6.4, 8, 9, and 11.3 and definitions herein as applicable to interpretation of the foregoing shall survive the termination of this Agreement.

13.6 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.

13.7 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.

13.8 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.