350 Main Street Seal Beach,
This Agreement describes a contractual relationship between you, the merchant accessing the Website and/or utilizing the Services (“you” or “your”), Finanswr, LLC, as Administrator, and, Administrator, on behalf of the third-party license provider (“Licensor”) as its authorized agent.
Subject to the terms and conditions of this Agreement, and in consideration thereof, you are submitting an application to be a member of a program pursuant to which Administrator will introduce you to financing programs that you and the providers thereof may market to your customers. In addition to the terms and conditions of the specific financing programs made available to you through the providers thereof, the terms and conditions if this Agreement shall govern the relationship between you and Administrator, and with respect to the provisions herein applicable to it, the Licensor.
Subject to the terms and conditions of this Agreement, you are granted a non-exclusive, non-transferable, fully revocable limited license to use the Platform (the “License”).
You acknowledge and agree that by accepting the License, you will not:
(a) engage in any activities related to the Platform that are contrary to this Agreement, any applicable law or regulation, or the terms of any agreements you may have with Licensor and/or Administrator;
(b) provide, furnish, or enter any false, inaccurate or misleading information;
(c) provide information belonging to any person other than yourself without express written consent of such person and such person’s agreement to be bound by the terms and conditions of this Agreement;
(d) use any device, software, routine, file or other tool or technology, including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Platform or to surreptitiously intercept or expropriate any system, data or personal information from the Platform;
(e) breach this Agreement or any other agreement or policy that you have agreed to with Licensor and/or Administrator;
(f) commit unauthorized use of the Platform including but not limited to unauthorized entry into the Website or systems, misuse of passwords, or misuse of any information posted to a site; and
(g) take any action that imposes an unreasonable or disproportionately large load on the Platform infrastructure, including but not limited to denial of service attacks, “spam” or any other such unsolicited overload technique.
Licensor may immediately and at any time terminate all of your rights under the License granted in this Agreement directly or through the Administrator and all such rights shall automatically revert to Licensor and you shall immediately discontinue the use of Platform and thereafter shall no longer use or have the right to use the Platform.
Licensor, by or through the Administrator, shall have the right, in its absolute discretion, to change or discontinue any aspect or feature of the Platform and may unilaterally decide to change or otherwise modify this Agreement, or any part hereof from time to time; provided, however, that such changes will not impose additional obligations on you with respect to actions you took before the change became effective unless you specifically agree to such changes (for example by clicking on the “Confirm Charge” button below the updated Agreement). If this Agreement is changed, Licensor, by or through the Administrator, will give notice to you by posting a new version of this Agreement on the Website 7 days before that version becomes effective. If Licensor makes any changes to this Agreement that it deems to be material, Licensor, by or through the Administrator, will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted to the Website from time to time to see if it has been changed. Any access or use of the Platform by you after such date shall be deemed to constitute your acceptance of such changes.
The Website is an online lending B2B exchange that connects sellers of products or services that are intended to reach consumers or businesses (“Merchants”) to finance companies and vice versa. Through the Platform, Merchants may complete an online application which includes, among other things, the type of financing desired by the Merchant and whether the Merchant wishes an exclusive, open or “second-look” relationship and the Platform forward a notification, along with a brief summary of the Merchant’s business, to finance companies, who are signed up with the Platform network (“FCs”). FC’s are able to notify Merchants through the Platform if they wish to proceed with the potential match, either exclusive or open, request additional information from the Merchant or reject the Merchant as a potential source of financing. If you, as a Merchant, submit a contract via the Platform, then you are agreeing to pay a $99 monthly membership fee (the “Membership Fee”) each month to have access to the Platform, including the online Order Tracker to process contracts. The Membership Fee shall be debited from your checking account, credit card or debit card that you have provided to the Administrator. You may cancel your License at any time prior to the time the next Membership Fee is due and such cancellation shall be effective at the end of the calendar month in which the Administrator receives your cancellation notice. There will be no refunds for partial months use. You may not submit any contracts after cancellation, but may use the Order Tracker until membership terminates. You shall also pay Administration, on behalf of Licensor, a servicing fee (the Servicing Fee) which is tied to a percentage of the amount financed for each contract funded by an FC. The Servicing Fee shall be debited to your checking account, credit card or debit card that you have provided to the Administrator. The specific Servicing Fee will be disclosed to you and agreed to by you in advance of completion of the match with a FC.
In consideration, in part, for providing you access to the Platform network of FCs, you agree that during the term of this Agreement and 24 months after termination, you will not submit contracts to FCs that are members of the Platform network outside of the terms of this Agreement or otherwise to (among other things) avoid payment of the Membership Fee and/or Servicing Fee. You agree not to circumvent the business relationships of Licensor and/or Administrator with its Platform network of FCs.
Neither Licensor nor Administrator makes loans or otherwise extends credit through the Platform. You acknowledge and agree that FC’s are solely responsible for reviewing contracts, making decisions on contracts, making loans and otherwise extending credit and you agree that neither Licensor nor Administrator shall be liable for any damages or costs of any type arising out of or in any way connected with your interactions with any FCs.
The information on the Platform is for information purposes only. It is believed to be reliable, but neither Licensor nor Administrator makes any promises as to its completeness, timeliness or accuracy. The information and materials contained in the Platform are subject to change without notice. Access to the Services may from time to time be unavailable, delayed, limited or slowed due to, among other things: servers, networks, hardware failure (including your own computer), telecommunication lines and connections, and other electronic and mechanical equipment; software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents or other content; overload of system capacities; damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters; interruption (whether partial or total) of power supplies or other utility of service; strike or other stoppage (whether partial or total) of labor; governmental or regulatory restrictions, exchange rulings, court or tribunal orders or other human intervention; or any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of Licensor or Administrator.
Links to FC or other non-Licensor or Administrator websites are provided solely as pointers to information on topics that may be useful to you, and neither Licensor nor Administrator has control over the content on such websites. Neither Licensor nor Administrator makes any warranties concerning the content of such websites, including the accuracy, completeness, reliability of said websites, nor does it warrant that such website or content is free from any claims of copyright, trademark or other infringement of the rights of third parties or that such site or content is devoid of viruses or other contamination. If you choose to follow a link to a website not controlled by Licensor or Administrator, you must do so at your own risk. Neither Licensor nor Administrator does guarantee the authenticity of documents on the Internet. Links to non-Licensor or Administrator websites do not imply any endorsement of or responsibility for the opinions, ideas, products, information or services offered at such sites, or any representation regarding the content at such websites
Nothing on the Platform should be construed as granting, by implication, estoppel or otherwise, any license or right to use any service mark, trademark or trade name (individually and collectively, “Mark” or “Marks”) displayed on the Platform, without the prior written permission of Licensor nor Administrator. The Marks not may be used to disparage Licensor or Administrator, or the products or services of such parties, nor may they be used in any manner that may damage any goodwill in the Marks. Use of any Mark as part of a link to or from any site is prohibited unless such use is approved in advance by Licensor or Administrator in writing.
The Website contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, and video graphics, and the entire contents of the Website is copyrighted as a collective work under the laws of the United States. Administrator owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works or in any way exploit any of the content in whole or in part. Elements of the Website are protected by trade dress, trademark, unfair competition and other state and federal laws and may not be copied or imitated in whole or in part.
THE PLATFORM, WEBSITE AND THE INFORMATION, SOFTWARE AND SERVICES ASSOCIATED WITH IT ARE PROVIDED “AS IS”. FMC DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE WEBSITE AND ANY INFORMATION, SOFTWARE AND SERVICES PROVIDED HEREIN, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF THE PLATFORM, WEBSITE AND/OR SERVICES IS AT YOUR OWN RISK. NEITHER LICENSOR NOR ADMINISTARTOR IS LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR THE INABILITY TO USE THE PLATFORM, WEBSITE AND/OR THE SERVICES PROVIDED HEREUNDER, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAILS, ERRORS, DEFECTS, VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES CONTAINING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FMC RECORDS, PROGRAMS OR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE PLATFORM, WEBSITE OR THE SERVICES PROVIDED HEREUNDER, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRCT, NEGLIGENCE, TORTIOUS BEHAVIOR, STRICT LIABILITY OR OTHERWISE, EVEN IF FMC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND IN SUCH JURISDICTIONS SUCH EXCLUSIONS WILL NOT BE APPLICABLE.
Licensor or Administrator may elect to electronically deliver all information related to the Platform and your requests for Services. You hereby agree to receive all current and future notices, communications and information, and to do business with Licensor and/or Administrator electronically via the email address you provided to Administrator, which may, from time to time, be changed by you by notifying Administrator. You agree that you meet the below technical requirements and are able to access and retain copies of notices and information sent or made available electronically:
– Internet access with 128 bit encryption
– Adobe Acrobat Reader 8 or higher
– Internet Explorer 8 or higher
As a condition of the use of the Platform, the Website and the Services, You agree to indemnify Licensor and Administrator, their officers, members, and employees from and against any and all liabilities, expenses (including attorneys’ fees) and damages arising out of claims resulting from your use the Platform, the Website, or the Services, including, without limitation, any claims alleging facts that if true would constitute a breach by you of this Agreement. In no event will Licensor or Administrator have any liability to you in excess of compensatory damages and you hereby agree to waive any claim for consequential, punitive or exemplary damages.
If you breach the non-circumvention provisions of this Agreement or otherwise agree to transact business directly with Licensor and/or one or more FCs to avoid the provisions of this Agreement (an “LD Breach”), you agree to pay Administrator, as damages, three (3%) percent of the amount financed for each contract funded by an FC or otherwise through the Licensor for a period commencing on your LD Breach and continuing for 2 years thereafter. You acknowledge and agree that the sums payable under section shall constitute liquidated damages and not penalties and are in addition to all other rights of the Investor, including the right to call a default. You further acknowledge and agree that (i) the amount of loss or damages likely to be incurred is incapable or is difficult to precisely estimate, (ii) the amounts specified in this section bear a reasonable relationship to, and are not plainly or grossly disproportionate to, the probable loss likely to be incurred in connection with an LD Breach, (iii) one of the reasons for you and Administrator reaching an agreement as to such amounts was the uncertainty and cost of litigation regarding the question of actual damages, and (iv) you and Administrator are sophisticated business parties and have been represented by sophisticated and able legal counsel and negotiated this Agreement at arm’s length.
Any claim or controversy arising out of or relating to the use of the Platform, or the relationship of either you or FC with Licensor or Administrator, or to any acts or omission for which you may contend that Licensor or Administrator is liable, including, but not limited to, any claim or controversy as to arbitrability (“Dispute”) shall be finally, and exclusively, settled by arbitration. The arbitration shall be held before one arbitrator under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall take place in Orange County, California or such other location as the parties may select. Any judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of disputes or claims or any non-party, regardless of the nature of the issues or disputes involved. No arbitration under this Agreement shall be joined to an arbitration involving any other party subject this Agreement, whether through class arbitration or otherwise.
Should a Dispute arise and should the arbitration provisions become inapplicable or unenforceable, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Orange County, California.
The prevailing party in any Dispute or lawsuit shall be entitled to recover reasonable attorneys’ fees.
You, Licensor and Administrator each agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
This Agreement is between you, Licensor and Administrator. No other person has any rights to force Licensor and Administrator to enforce any rights it may have against any you or any other user.
This Agreement constitutes the entire agreement between you and Licensor and Administrator with respect to the subject matter hereof and it supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between you and Licensor and/or Administrator with respect to the Platform, the Website and the Services, information and software associated with it. This Agreement shall be subject to and construed in accordance with the laws of the state of Georgia, excluding the conflict of laws principles thereof. If any portion of this Agreement is determined to be invalid or unenforceable, then the invalid provisions will be deemed superseded by a valid provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. A printed version of this Agreement and any notice given in electronic form shall be admissible in any judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally maintained in printed form.
You will be responsible for paying, withholding, filing, and reporting all taxes and other governmental assessments associated with your activity in connection with the Platform and the Services.
If you have any questions, comments, or concerns regarding this Agreement, please contact us at email@example.com
Updated date: 9/1/2022