FUNDERA TERMS OF SERVICE

Last Revised: July 2018

Fundera, Inc. (“Fundera”, “we” or “us”) matches small businesses and small business owners with alternative lenders and other sources of funding (“Funding Providers”), as described further in the section of this Agreement titled “The Service.” The Fundera website is located at https://www.fundera.com (the “Site,” and the Site, together with any products and services provided by Fundera, the “Service”).

  1. Acceptance of Agreement
  2. Amendments
  3. Definitions and Interpretation
  4. The Service
  5. Privacy Policy
  6. Account; Accuracy of and Changes to Your Information
  7. Disclosure and Consent to Electronic Communications
  8. Third-Party Links and Applications
  9. Indemnification
  10. Limitation of Liability and Warranty Disclaimer
  11. Term and Termination
  12. General Terms

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 SITE 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 SITE OR SERVICE.

PLEASE BE AWARE THAT THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION (SECTION 12.2) 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.” 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 4 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 5 below, or the Fundera E-Sign Consent Agreement described in Section 7 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 Service. 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 4.

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 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 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 Service until either you or Fundera terminate its rights under this Agreement pursuant to Section 10. 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 Site or Service for any illegal purpose.

4.4 Modification. Fundera reserves the right, at any time, to modify, suspend, or discontinue the Site (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 Site 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 Site.

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 these Terms (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 Site 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 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.

4.9 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.

4.10 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.

4.11 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.

4.12 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.

4.13 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.

5. 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.

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 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.

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:

  • this E-Sign Agreement, the Fundera Terms of Service, Fundera’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 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 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. THIRD-PARTY LINKS AND APPLICATIONS.

8.1 Third-Party Links and Applications. The Service may contain links to third-party websites, services 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 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.

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 SITE OR SERVICE, EVEN IF FUNDERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE 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 FIFTY US DOLLARS (U.S. $50). 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 SITE 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 SITE 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 THIS SITE 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.

11. TERM AND TERMINATION.

Subject to this Section, this Agreement will remain in full force and effect while you use this Site or use the Service. We may suspend or terminate your rights to use the Site or use the Service at any time for any reason at our sole discretion, including for any use of the Site or the Service in violation of this Agreement. 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. Upon termination of your rights under this Agreement, your right to access and use the Site and the Service will terminate immediately. Fundera will not have any liability whatsoever to you for any termination of your rights under this Agreement. Even after your rights under this Agreement are terminated, the following provisions of this Agreement will remain in effect: Sections: 4.6, 4.7, 4.13, 8, 9, 10.1, 11 and 12.

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 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Fundera and affects your rights. It contains procedures of MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

12.2.1. 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.

12.2.2. 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.

12.2.3. 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.

12.2.4. 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.

12.2.5. 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.

12.2.6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Fundera, and the dispute 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 AAA Rules, and the 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 Fundera.

12.2.7. 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.

12.2.8. 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.

12.2.9. 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.

12.2.10. 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.

12.2.11. 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.

12.2.12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.

12.2.13. Small Claims Court. Notwithstanding the foregoing, either you or Fundera may bring an individual action in small claims court.

12.2.14. 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.

12.2.15. 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.

12.2.16. 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.

12.3 Third Party Beneficiaries. Except as limited by Section 12.3, 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 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.

12.5 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.

12.6 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.

12.7 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.

12.8 Contact Information: Fundera, Inc. Attn: Fundera Legal

William St, Fl 21
New York, NY 10022
(800) 386-3372support@fundera.com