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Last Updated: 10/08/2020
I. Acceptance of Terms
These Terms of Use (the “Terms”) govern your use of the Masada Business Funding (the “Company”) services available through our website located at https://www.masadafunding.com/ (the “Website”), including any content, functionality and services offered on or through the Website or any of the Company’s sub-domains.
II. Eligibility
PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING, BROWSING OR USING THE WEBSITE, YOU REPRESENT (1) THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU REPRESENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE WEBSITE.
III. Changes to Terms of Use
Please note that the Terms are subject to change by the Company in its sole discretion at any time. When changes are made, the Company will make a new copy of the Terms available on the Website. We will also update the “Last Updated” date at the top of these Terms. Any changes to the Terms will be effective immediately for users of the Website. The Company may require you to provide consent to the updated Terms in a specified manner before further use of the Website is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop navigating the Website; otherwise, your continued use of the Website constitutes your acceptance of such change(s). Please regularly check the Website to view the most current Terms.
IV. Third Party APIs
Our Website incorporates information from third-party marketplace platforms using Application Programming Interfaces (“APIs”) that may be owned and maintained by that third party. These APIs provide your personal information and other data to the Company. These third-party sites may contain their own terms of use, and you remain responsible for your compliance with any terms governing your use of the third-party site and the information you provide Company through that third party’s API. By linking a third-party account to the Company via API, you represent and warrant that you have the necessary authority to grant us access to the information provided through that API. You acknowledge and agree that Company is not responsible for the availability of, or any content located on or through, any third-party site, or any services provided by third parties, including the third-party APIs. You further acknowledge that any reliance on representations and warranties provided by any party other than Company will be at your own risk. You expressly agree to hold us harmless for any claims of damage arising from any content, product or service provided by any third party.
V. Certain Restrictions
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or services (collectively, the “Company Properties”) or any portion of the Company Properties; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Company Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Company Properties; and (i) you shall not use the Company Properties for any illegal or unlawful purpose. Any unauthorized use of the Company Properties terminates the licenses granted by the Company pursuant to the Terms.
VI. Ownership Rights and License
As between you and Company, the Company Properties, including any design, layout, logo, text, code, and graphics contained within the Website (the “Company Content”) is, and shall remain the sole property of Company and is subject to protection under U.S. and foreign copyright or trade mark laws. Other trademarks, logos, and images that are available in connection with our Service are the property of their respective owner (each an “Owner”), which may or may not be affiliated with, connected to, or sponsored by Company.
VII. Communications
The Company reserves the right to contact you from time to time for feedback about the services, including for feedback and reviews and for service and support related issues. We reserve the right to contact you through email and text messages, or notices posted on the Website. Notices will be deemed effective at the time they are sent by the Company or as of the date they are posted, regardless of whether you actually read any such notices.
VIII. No Warranty
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PROPERTIES, SERVICES, AND ANY COMPANY CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE COMPANY PROPERTIES, SERVICES AND ANY COMPANY CONTENT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE COMPANY PROPERTIES AND ANY COMPANY CONTENT, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE COMPANY PROPERTIES WILL BE CORRECTED, OR THAT THE SERVICE WILL BE AVAILABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. EXCLUDING THE COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE COMPANY HEREBY DISCLAIMS ALL DAMAGES TO YOUR PERSONAL AND REAL PROPERTY ARISING FROM REASONABLE WEAR AND TEAR OR ORDINARY CARELESSNESS OF THE COMPANY, INCLUDING, WITHOUT LIMITATION, LOST KEYS. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY MAY UTILIZE THIRD PARTY APPS, AND OTHER THIRD PARTY SERVICE PROVIDERS TO PERFORM THE SERVICES, AND THAT THE COMPANY HAS NO CONTROL OR ABILITY TO CONTROL SUCH THIRD PARTY APPS OR THIRD PARTY SERVICE PROVIDERS. ACCORDINGLY, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY WITH RESPECT TO SUCH THIRD PARTY APPS AND THIRD PARTY SERVICES.
IX Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE COMPANY PROPERTIES, ANY COMPANY CONTENT, ANY INFORMATION AVAILABLE ON THE SERVICE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH ANY REPRESENTATIVE OF THE COMPANY, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNTS PAID BY YOU TO COMPANY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) AND/OR OMISSION(S) GIVING RISE TO SUCH DAMAGE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
X. Credit Application Disclaimer
Your submission of an electronic funding application through the Website shall have the same force and effect as if the application bore an inked original signature. You certify that your Account will be used solely for business and commercial purposes. The applicant, or the person submitting the application if not the applicant, hereby represents and warrants that the applicant(s), owner(s) and indemnitor(s) (if any) have expressly authorized the applicant to enter into contracts on behalf of the business, and that Company and its assigns, including select other finance companies, may consider this information as true, accurate, and complete in all respects, until the undersigned provides the Company with a written notice of change. Each applicant authorizes the Company to: (1) obtain at any time, now or in the future, investigative reports and credit reports through a credit agency chosen by the Company, and (2) investigate any references or other information obtained from or about the applicant and the business (including contacting the current payment processor of the business to verify processing history) for purposes of the application. The applicant acknowledges that, based upon such information and other factors which may apply, the Company, in its sole discretion, may either grant or decline to provide funding. By submitting an electronic application, the applicant agrees to receive updates from the Company and its partners regarding the application via US mail, telephone, fax, or email. If the applicant has provided a mobile device number, applicant expressly agrees to receive voice and/or text message communications at that number from the Company and its authorized agents. If your funding application is approved and you choose to accept funding from the Company, you will be required to enter into a separate funding agreement with the Company.
XI. Prohibited Uses
You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:
Additionally, you agree not to:
XII. Arbitration; Applicable Law
PLEASE READ THIS ABITRATION AGREEMENT CAREFULLY. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Except for a claim by Company against you, any and all disputes between you and Company arising under or related in any way to these Terms must be resolved through binding arbitration as described in this Section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Website.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this Section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Company must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in New York, New York. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New York. Claims of infringement or misappropriation of Company’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in New York, New York.
The laws of the State of New York, excluding its conflicts of laws rules that would result in the laws of a State other than New York, govern this license and your use of the Service.
XIII. Disclaimer of Warranties
You understand that we cannot and do not guarantee, represent, or warrant that files available for downloading from the Internet or the Website will be free of viruses or other destructive code. You are solely responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
XIV. Limitation on Liability
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
XV. Indemnification
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, any use of the Website’s content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website.
XVI. Governing Law and Jurisdiction
All matters relating to the Website and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in a federal or state court located in New York, New York, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your jurisdiction or any other relevant jurisdiction. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
XVII. Legal Compliance
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
XVIII. Release
You hereby release the Company and its successors from claims to the extent permissible by applicable law, of all demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Company Properties, including but not limited to, any interactions with third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Company Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, 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.
XIX. Termination
Company may cancel, suspend or block your use of the Service without notice if there has been a violation of these Terms. Your right to use the Service will end once your registration is terminated, and any data you have stored on the Service, unless Company is required to retain it by law. You may terminate your registration at any time. Company is not responsible or liable for any records or information that is made unavailable to you as a result of your termination of registration. YOU AGREE THAT COMPANY WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SERVICES.
XX. Consumer Complaints
If you are a California resident, in accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1920 E. Hallandale Beach Blvd. Suite 503 Hallandale Beach, FL, 33009 , or by telephone at (718) 635-3181
XXI Miscellaneous
Company’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All contracts completed electronically will be deemed admissible for all legal purposes to be in writing and legally enforceable as a signed writing.