PLEASE READ THESE TERMS AND USE CAREFULLY. BY ACCESSING OUR SITES OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SITE OR SERVICES AND MUST DISCONTINUE YOUR USE OF THE SITES AND SERVICES.
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”).
1. ACCEPTANCE OF AGREEMENT.
THESE TERMS OF SERVICE SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICE. BY COMPLETING THE REGISTRATION PROCESS AND/OR BROWSING THE SERVICE, 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 THESE 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 12) 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 these Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental service. If these Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. These Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.
We reserve the right to update and revise this Policy at any time. You can determine if this Policy has been revised since your last visit by referring to the “Updated on” date at the top of this page. Your use of the Web site constitutes your acceptance of the terms of the Policy. You should review this Policy regularly to ensure that you are aware of future amendments.
3. DEFINITIONS AND INTERPRETATION.
3.1 Defined Terms. Unless the context requires otherwise, capitalized terms in these Terms of Service shall have the following meanings:
3.2 Interpretation. References to Sections are to be construed as references to the Sections in these Terms of Service, 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 these Terms of Service as a whole rather than any particular part of the same. Unless designated as Business Days, all references to days shall mean calendar days. The terms include and including are not limiting. The use of the word “including” in these Terms of Service 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 these Terms of Service are intended for convenience or reference and shall not affect the meaning or interpretation of these Terms of Service.
4. INTELLECTUAL PROPERTY
The Site is protected by United States and international copyright and trademark laws and other applicable intellectual property laws, and together with any material made available for download, any content, files, code, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site (collectively, the “Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved, in writing, by Fundera. You may not frame or utilize framing techniques to enclose, or deep link to, our names, trademarks, service marks, logos, Content or other proprietary information without our express written consent. You are authorized solely to view and retain a copy of the pages of the Site for your own personal, non-commercial use. Additionally, you agree that you will not (i) remove or alter trademark or other proprietary notice, or legend displayed on the Site (or printed pages produced from the Site); and (ii) make any other modifications to any documents obtained from the Site other than in connection with completing information required to transact business with Fundera.
6. STATE DISCLOSURES
NORTH CAROLINA USERS: DISCLOSURES REQUIRED BY NORTH CAROLINA LAW: The State of North Carolina has not reviewed and does not approve, recommend, endorse or sponsor any loan contract. The information contained in this disclosure has not been verified by the State of North Carolina. If you have any questions, see an attorney before you sign a contract or agreement.
As required by North Carolina law, Fundera, Inc. has secured a bond by International Fidelity Insurance Company, a surety authorized to do business in North Carolina. Fundera does not collect any fees from users or charge users to use the Fundera Service. If you secure a loan offer and decide to accept the loan through a lender, the lender will pay Fundera a variable origination fee. You may terminate your usage of the Fundera Service at any time. For access to the applicable disclosures, please view https://www.sosnc.gov/online_services/search/by_title/_loan_broker_registration and the document linked here.
NEBRASKA USERS: DISCLOSURES REQUIRED BY NEBRASKA LAW:
THE STATE OF NEBRASKA HAS NOT REVIEWED AND DOES NOT APPROVE, RECOMMEND, ENDORSE, OR SPONSOR ANY LOAN BROKERAGE AGREEMENT. THE INFORMATION CONTAINED IN THIS DISCLOSURE DOCUMENT HAS NOT BEEN VERIFIED BY THE STATE. IF YOU HAVE QUESTIONS, SEEK LEGAL ADVICE BEFORE YOU SIGN A LOAN BROKERAGE AGREEMENT.
You may cancel your agreement with Fundera for any reason by emailing Support@Fundera.com or by delivering written notice to Fundera at 123 William Street, 21st Floor, New York, NY 10038. You pay no fee to Fundera for the Fundera Service. You may cancel it at any time.
For additional information, please view the document linked here.
CALIFORNIA USERS: 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 1625 North Market Boulevard Suite N-112, Sacramento, CA 95814, or by telephone at (800) 952-5210.
7. ACCOUNT; ACCURACY OF AND CHANGES TO YOUR INFORMATION.
7.1 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 Sites. You may delete your Account at any time, for any reason, by following the instructions on the Sites. If you need help 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.
7.2 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.
7.3 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.
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 these Terms of Service; (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 THESE TERMS OF SERVICE (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 THESE TERMS OF SERVICE.
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 THESE TERMS OF SERVICE, 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. 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, Chapter 1, or the SBA’s Standard Operating Procedures. 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.
11.1 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.
11.2 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.
11.3 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.
11.4 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):
11.5 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.
11.6 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.
11.7 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.
11.8 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.
12. DISPUTE RESOLUTION BY BINDING ARBITRATION; CLASS ACTION WAIVER
12.1 Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires 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.
12.2 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 these Terms of Service or any prior version of these Terms of Service.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
12.7 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.
12.8 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.
12.9 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.
12.10 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 these Terms of Service 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.
12.11 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 these Terms of Service, to enforce an arbitration award, or to seek injunctive or equitable relief.
12.12 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.
12.13 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.
12.14 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Fundera.
12.15 Small Claims Court. Notwithstanding the foregoing, either you or Fundera may bring an individual action in small claims court.
12.16 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.
12.17 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.
12.18 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.
12.19 Notwithstanding any provision in these Terms of Service 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. 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. These Terms of Service 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 Third Party Beneficiaries. Except as limited by Section 13.6, these Terms of Service and the rights and obligations hereunder shall bind, and inure to the benefit of the parties and their successors and permitted assigns. Nothing in these Terms of Service, expressed or implied, is intended to confer upon any person, other than the parties and their successors and permitted assigns, any of the rights hereunder.
13.4 Entire Agreement. These Terms of Service constitute the entire agreement between you and Fundera with regard to your use of the Site and the Services. Any and all other written or oral agreements or understandings previously existing between you and Fundera with respect to such use are hereby superseded and cancelled.
13.5 Severability. If any provision of these Terms of Service (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of these Terms of Service 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 these Terms of Service.
13.6 Assignment. Neither these Terms of Service 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 these Terms of Service 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.
13.7 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.
13.8 Contact Information:
Attn: Fundera Legal
123 William St, 21st Floor
New York, NY 10038