These Terms of Service (the “Terms of Service”) govern your use of the websites provided by Fundera, Inc. and its affiliates (“Fundera”, “we” or “ us”) whether accessed via computer, mobile device or otherwise (individually and collectively, the “Sites,”) as well as any products and services provided by Fundera (the “Fundera Service”) (the Sites, together with the Fundera Service, collectively referred to as the “Service”).
Fundera matches small businesses and small business owners with alternative lenders and other sources of funding (“Funding Providers”), as described further in Section 4.1 of this Agreement.
1. ACCEPTANCE OF AGREEMENT.
THESE TERMS OF SERVICE SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICE. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE SERVICE, YOU (“USER” OR “YOU”) ARE ACCEPTING THESE TERMS OF SERVICE (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF SERVICE. YOU MAY NOT ACCESS OR USE THE SITES OR SERVICE OR ACCEPT THE TERMS OF SERVICE 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. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE, DO NOT ACCESS AND/OR USE THE SITES OR SERVICE.
PLEASE BE AWARE THAT THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION (SECTION 13.3) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Your use of, and participation in, the Service may be subject to additional terms (collectively, “Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.” If applicable, you may be subject to a separate secure application service agreement (“Secure Application Service Agreement”) with respect to the offering of certain products.
3. DEFINITIONS AND INTERPRETATION.
3.1 Defined Terms. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
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. 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. 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.
4. THE SERVICE.
4.1 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 prequalify 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 Fundera Service at any time by providing Fundera certain 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 sync 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 Fundera 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.
4.2 License. Subject to this Agreement, Fundera grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own business purpose, and solely as permitted by and in compliance with the Terms and Applicable Law.
4.3 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to this Agreement. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof. You will not use the Sites or Service for any illegal purpose.
4.4 Modification. Fundera reserves the right, at any time, to modify, suspend, or discontinue the Sites (in whole or in part) with or without notice to you. You agree that Fundera will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Sites or any part thereof.
4.5 No Support or Maintenance . You acknowledge and agree that Fundera will have no obligation to provide you with any support or maintenance in connection with the Sites or Services.
4.6 Ownership. Excluding any content that you may provide, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service and its content are owned by Fundera or Fundera’s suppliers. Neither the Agreement (nor access to the Service) transfers to you or any other third party any rights, title, or interest in or to such intellectual property rights, except from the limited access rights expressly set forth in Section 4.2. Fundera and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
4.7 Trademarks. Fundera and other related graphics, logos, service marks and trade names used on or in connection with the Sites or the Service are the trademarks of Fundera and may not be used without permission or as directed by Fundera. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
4.8 Fundera Funding Provider Referrals. If you meet 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 Fundera 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. We may share your Application Information with certain Matched Funding Providers for consideration for underwriting (each such identification, a “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. You further acknowledge and agree that we may receive compensation from certain providers in exchange for Referrals.
4.9 Referrals. If you express an interest in other third-party services and are matched with a provider, we may identify such provider or providers to you, along with information regarding each provider’s use of the Service, including general details regarding the services provided, and other relevant information about the services the provider offers. If we make a referral to a provider, the provider will determine initiate its qualification process based on the information provided and will determine, according to its own terms and conditions, what services you may qualify for and whether to provide services to you. You acknowledge and agree that Fundera has no role in a provider’s decision to provide or not provide services to you, and that Fundera provides your information to the provider at your direction and on your behalf.
4.10 Applying for Funding. Once we make a Referral, 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.
4.11 Fee Information. Most of our Services are provided with no fee or charge to you. We receive compensation from certain providers we may identify to you. Our compensation varies depending on the type of services provided to you, the total amount of funding provided to you when a Matched Funding Provider funds the loan, or the quantity of applicants whose information is shared with a provider for consideration. Fundera does not control a 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 provider. Ultimately, however, funding terms and conditions are entirely and solely within the provider’s discretion.
4.11.1 Additional Fee Information Specific to Certain Referrals . You agree to pay us certain fees for Referrals made to procure an SBA Loan. The payment of such fees, interest and other amounts are subject to a separate Secure Application Service Agreement that will be provided to you prior to Referral to a Matched Funding Provider.
4.12 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.
4.13 State Disclosures. NORTH CAROLINA USERS: For disclosures required by your state, please view the document linked here . NEBRASKA USERS: For disclosures required by your state, please view the document linked here . If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
4.14 Feedback. If you provide Fundera with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Fundera all rights in such Feedback and agree that Fundera will have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Fundera will treat any Feedback you provide to Fundera as non-confidential and non-proprietary. You agree that you will not submit to Fundera any information or ideas that you consider to be confidential or proprietary.
6. ACCOUNT; ACCURACY OF AND CHANGES TO YOUR INFORMATION .
6.1 Account Creation. In order to use certain features of the Service, you must register for an account (“Account”) and provide certain information about yourself. 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 Service. You may delete your Account at any time, for any reason, by following the instructions on the Service. If you need help in changing your information, please email us at email@example.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 Sites and Service.
6.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and all activities that occur under your Account. You agree to immediately notify Fundera of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Fundera cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
6.3 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.
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 Service, 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:
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 Sites 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 website.
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 the Service, whether or not you have received the email or retrieved the Communication from the Service. An electronic Communication by email is considered to be sent at the time that it is directed by Fundera’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 the “Account; Accuracy of and Changes to Your Information” section. 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 computer’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 firstname.lastname@example.org and stop using the Sites 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. THIRD-PARTY LINKS, PRODUCTS AND APPLICATIONS.
8.1 Third-Party Links and Applications. The Service may contain links to third-party websites, services, products and applications for third parties (collectively, “Third-party Links and Applications”). Such Third-party Links and Applications are not under the control of Fundera, and Fundera is not responsible for any Third-party Links and Applications. Fundera provides access to these Third-party Links and Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-party Links and Applications. You use all Third-party Links and Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-party Links and Applications, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-party Links & Applications.
8.2 Release. You hereby release and forever discharge Fundera (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, our partners or any other third party or any Third-party Links and Applications). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
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 Sites 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; (h) any harm to your business suffered as a result of obtaining or not obtaining a loan; or (i) your failure to provide and maintain true, accurate, current and complete Application Information, Profile Information, Verified Data, and Account Information.
10. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER.
10.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL FUNDERA (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITES OR SERVICE, EVEN IF FUNDERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES OR SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER, 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, AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF ONE HUNDRED US DOLLARS (U.S. $100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10.2 No Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SITES AND THE SERVICE PROVIDED HEREUNDER BY FUNDERA IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND FUNDERA (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITES AND THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, AND/OR FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE AND THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
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 THE SITES IS INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL FINANCIAL ADVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10.3 Not a financial planner, investment adviser or tax advisor. NEITHER FUNDERA NOR THE SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE. FUNDERA IS NOT A FINANCIAL OR TAX PLANNER, AND DOES NOT OFFER LEGAL ADVICE TO ANY USER OF THE SERVICE. ALTHOUGH THE SERVICE MAY PROVIDE DATA, INFORMATION, OR CONTENT RELATING TO INFORMATIONAL SERVICES FOR U.S. BASED SMALL BUSINESS OWNERS INCLUDING INFORMATION AND REFERRALS FOR CERTAIN FINANCIAL SERVICES, YOU SHOULD NOT CONSTRUE ANY SUCH CONTENT AS TAX, LEGAL, FINANCIAL, OR INVESTMENT ADVICE.
11. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Sites or use the Service (the “Term”). We may suspend or terminate your rights to use the Sites or use the Service at any time for any reason at our sole discretion, including for any use of the Sites or the Service in violation of this Agreement. You may terminate this Agreement at any time by ending your use of the Sites and the Service and notifying Fundera at email@example.com. Except as set forth in any Supplemental Terms, upon termination of your rights under this Agreement, your right to access and use the Sites and the Service will terminate immediately. Fundera will not have any liability whatsoever to you for any termination of your rights under this Agreement. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12. SMALL BUSINESS ADMINISTRATION REQUIRED DISCLOSURES.
To comply with legislation passed by the Congress and Executive Orders issued by the President, Federal executive agencies, including the Small Business Administration (“SBA”), must notify you of certain information. You can find the regulations and policies implementing these laws and Executive Orders in Title 13, Code of Federal Regulations (“CFR”), Chapter 1, or the SBA’s Standard Operating Procedures (“SOPs”). In order to provide the required notices, the following is a brief summary of the various laws and Executive Orders that affect SBA’s Disaster Loan programs. A glossary of terms can be found at disasterloan.sba.gov.
12.1 Freedom of Information Act (5 U.S.C. § 552). This law provides, with some exceptions, that the SBA must make records or portions of records contained in SBA files available to persons requesting them. This generally includes aggregate statistical information on SBA disaster loan programs and other information such as names of borrowers (and their officers, directors, stockholders or partners), loan amounts at maturity, the collateral pledged, and the general purpose of loans. The SBA does not routinely make available to third parties your proprietary data without first notifying you, required by Executive Order 12600, or information that would cause competitive harm or constitute a clearly unwarranted invasion of personal privacy.
12.2 Freedom of Information Act (“FOIA”). FOIA requests must describe the specific records you want. For information about the FOIA, contact the Chief, FOI/PA Office, 409 3rd Street, SW, Suite 5900, Washington, DC 20416, or by e-mail at firstname.lastname@example.org.
12.3 Privacy Act (5 U.S.C. § 552a). Anyone can request to see or get copies of any personal information that the SBA has in your file. Any personal information in your file that is retrieved by individual identifiers, such as name or social security number is protected by the Privacy Act, which means requests for information about you may be denied unless the SBA has your written permission to release the information to the requestor or unless the information is subject to disclosure under the Freedom of Information Act. The information you complete grants permission under the Agreements and Certifications section of the SBA form which contains written permission for the SBA to disclose the information resulting from this collection to state, local or private disaster relief services. The Privacy Act authorizes SBA to make certain “routine uses” of information protected by that Act. One such routine use for SBA’s loan system of records is that when this information indicates a violation or potential violation of law, whether civil, criminal, or administrative in nature, SBA may refer it to the appropriate agency, whether federal, state, local or foreign, charged with responsibility for or otherwise involved in investigation, prosecution, enforcement or prevention of such violations. Another routine use of personal information is to assist in obtaining credit bureau reports, on the SBA disaster loan applicants and guarantors for purposes of originating, servicing, and liquidating disaster loans. See, 69 F.R. 58598, 58617 (and as amended from time to time) for additional background and other routine uses. Under the provisions of the Privacy Act, you are not required to provide social security numbers. (But see the information under Debt Collection Act below) The SBA uses social security numbers to distinguish between people with a similar or the same name for credit decisions and for debt collection purposes. Failure to provide this number may not affect any right, benefit or privilege to which you are entitled by law, but having the number makes it easier for the SBA to more accurately identify to whom adverse credit information applies and to keep accurate loan records. Note: Any person concerned with the collection, use and disclosure of information, under the Privacy Act may contact the Chief, FOI/PA Office, 409 3rd Street, SW, Suite 5900, Washington, DC 20416 or by e-mail at email@example.com for information about the Agency’s procedures relating to the Privacy Act and the Freedom of Information Act.
12.4 Debt Collection Act of 1982; Deficit Reduction Act of 1984; Debt Collection Improvement Act of 1996 1996 & other titles (31 U.S.C. 3701 et seq.). These laws require the SBA to aggressively collect any delinquent loan payments and to require you to give your taxpayer identification number to the SBA when you apply for a loan. If you receive a loan and do not make payments when they become due, the SBA may take one or more of the following actions (this list may not be exhaustive):
12.5 Right to Financial Privacy Act of 1978 (12 U.S.C. § 3401 et seq.). This notifies you, as required by the Right to Financial Privacy Act of 1978 (Act), of the SBA’s right to access financial records held by financial institutions that were or are doing business with you or your business. This includes financial institutions participating in loans or loan guarantees. The law provides that the SBA may access your financial records when considering or administering Government loan or loan guaranty assistance to you. The SBA must give a financial institution a certificate of SBA compliance with the Act when the SBA first requests access to your financial records. No other certification is required for later access. The SBA’s access rights continue for the term of any approved loan or loan guaranty. The SBA does not have to give you any additional notice of the SBA’s access rights during the term of the loan or loan guaranty. The SBA may transfer to another Government authority any financial records included in a loan application or about an approved loan or loan guaranty as necessary to process, service, liquidate, or foreclose a loan or loan guaranty. The SBA will not permit any transfer of your financial records to another Government authority except as required or permitted by law.
12.6 Paperwork Reduction Act (44 U.S.C. Chapter 35). The SBA is collecting the information on its required forms in order to make disaster loans available to qualified small businesses. Their forms are designed to collect the information necessary for the SBA to make eligibility and credit decisions in order to fund or deny loan requests. The SBA will also use the information collected on their forms to produce summary reports for program and management analysis, as required by law. PLEASE NOTE: The estimated burden for completing the SBA form is 2 hours. Your responses to the requested information are required in order to obtain a benefit under SBA’s Disaster Business Loan Programs. However, you are not required to respond to any collection of information unless it displays a currently valid OMB approval number. If you have any questions or comments concerning any aspects of this information collection, please contact the U.S. Small Business Administration Information Branch, 409 3rd St., SW, Washington, DC 20416 and Desk Oﬃcer for SBA, Oﬃce of Management and Budget, Oﬃce of Information and Regulatory Aﬀairs, 725 17th St., NW, Washington, DC 20503. (3245-0017) PLEASE DO NOT SEND FORMS TO OMB.
12.7 SBA Policy Concerning Representatives and Their Fees. When you apply for an SBA loan, you may use an attorney, accountant, engineer, appraiser or other representative to help prepare and present the application to the SBA. You are not required to have representation. If an application is approved, you may need an attorney to help prepare closing documents. There are no “authorized representatives” of SBA, other than the SBA’s regular salaried employees. Payment of a fee or gratuity to SBA employees is illegal and will subject those involved to prosecution. SBA Regulations prohibit representatives from proposing or charging any fee for services performed in connection with your loan unless the SBA considers the services necessary and the amount reasonable. The SBA Regulations also prohibit charging you any commitment, bonus, broker, commission, referral or similar fee. The SBA will not approve the payment of any bonus, brokerage fee or commission. Also, the SBA will not approve placement or finder’s fees for using or trying to use influence in the SBA loan application process. Fees to representatives must be reasonable for services provided in connection with the application or the closing and based upon the time and effort required, the qualifications of the representative, and the nature and extent of work performed. Representatives must execute a compensation agreement. In the appropriate section of the application, you must state the names of everyone employed by you or on your behalf. You must also notify the SBA disaster office in writing of the names and fees of any representative you employ after you file your application. If you have any questions concerning payment of fees or reasonableness of fees, contact the Field Office where you filed or will file your application.
12.8 Occupational Safety and Health Act (29 U.S.C. 3651 et seq.). This legislation authorizes the Occupational Safety and Health Administration (“OSHA”) in the Department of Labor to require businesses to modify facilities and procedures to protect employees when appropriate. If your business does not do so, you may be penalized, forced to close or prevented from starting operations in a new facility. Because of this, the SBA may require information from you to determine whether your business complies with OSHA regulations and may continue operating after the loan is approved or disbursed. You must certify to the SBA that OSHA requirements applying to your business have been determined and that you are, to the best of your knowledge, in compliance.
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. This Agreement and all other aspects of your use of the Sites or the Services shall be deemed entered into New York and governed by and construed 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.
13.3 Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It require you to arbitrate disputes with Fundera and limits the manner in which you can seek relief from us. It is part of your contract with Fundera and affects your rights. It contains procedures of MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.3.1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by Fundera that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Fundera, and to any subsidiaries, Affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.3.2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Fundera should be sent to: 123 William St, Fl 21 New York, NY 10022. After the Notice is received, you and Fundera may attempt to resolve the claim or dispute informally. If you and Fundera do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
13.3.3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Fundera made to you prior to the initiation of arbitration, Fundera will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
13.3.4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
13.3.5. Time Limits. If you or Fundera pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
13.3.6. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Fundera. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.3.7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Fundera in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND FUNDERA WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
13.3.8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
13.3.9. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Fundera username (if any), the email address you used to set up your Fundera account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.3.10. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
13.3.11. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
13.3.12. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
13.3.13. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Fundera.
13.3.14. Small Claims Court. Notwithstanding the foregoing, either you or Fundera may bring an individual action in small claims court.
13.3.15. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
13.3.16. Claims Not Subject to Arbitration.. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
13.3.17. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.
13.3.18. Notwithstanding any provision in this Agreement to the contrary, we agree that if Fundera makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Fundera at the following address: Fundera, Inc., 123 William Street, Floor 21, New York, NY 10038.
13.4 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.
13.5 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.
13.6 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 Export. The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Fundera, or any products utilizing such data, in violation of the United States export laws or regulations.