Updated: October 12, 2021
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BEFORE YOU AGREE TO THESE TERMS.
I. Acceptance of Terms
II. Applicability of Terms
Portions of the Lendsmart Platform are available to the general public and do not require a password or other mechanism to access such publicly available portions of the Lendsmart Platform (the “Public Information”). If you only access the Lendsmart Platform for purposes of reviewing and accessing the Public Information, these Terms apply to such access and use as applicable.
Other portions of the Lendsmart Platform are only available to individuals that sign up for an account with Lendsmart that enables them to access the password-protected portions of the Lendsmart Platform. If you have created an account, you are deemed a “User”.
Some Users will have access to the Lendsmart Platform subject to a separate services agreement (each, a “Subscription Agreement”) between Lendsmart and: (a) such User; (b) the User’s employer; or (c) another entity with whom the User is affiliated or on whose behalf such User is performing services. Any User whose access to the Lendsmart Platform is subject to a Subscription Agreement is referred to in these terms as a “Subscribing User”. Notwithstanding any provisions to the contrary herein, in the event of any conflict between these Terms and a Subscription Agreement, the terms of the applicable Subscription Agreement will control.
III. User Accounts
To utilize certain parts of the Lendsmart Platform, you will be required to create an account through the Lendsmart Platform. If you create any account, you must provide true, accurate, current, and complete information about you as may be prompted by any registration forms. If any information that you provide Lendsmart changes, you must promptly update the relevant registration information.
By opening an account and becoming a User, you certify to Lendsmart that: (a) you are at least 18 years of age; (b) you have the legal capacity to agree to these Terms as a binding contract; and (c) you are not a person barred from receiving or using any part of the Lendsmart Platform under federal, state, local or other laws.
You are prohibited from using a false identity to create an account, creating an account for or on behalf of any other person, or otherwise misrepresenting your identity on the Lendsmart Platform.
You are responsible for maintaining the confidentiality of your passwords. Lendsmart has the right to assume that anyone accessing the Lendsmart Platform using a valid password associated with your account has your authorization to do so. You will be solely responsible for the activities of anyone who accesses the Lendsmart Platform using a valid password associated with your account, even if the individual is not in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it using the functionality provided through the Lendsmart Platform. In addition, we encourage you to exit from your account at the end of each session and notify us if you become aware of any unauthorized use of your password or account.
IV. Acceptable Use of the Lendsmart Platform
Your use of the Lendsmart Platform must comply with these Terms and the applicable Third-Party Terms. Without limiting anything in these Terms or the applicable Third-Party Terms, your use of the Lendsmart Platform must comply with the following (“Acceptable Use Restrictions”):
- You shall not upload to, transmit through, or display via the Lendsmart Platform any content that:
- is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene, or otherwise objectionable (as determined by Lendsmart in its sole discretion), or infringes Lendsmart’s or any third party’s intellectual property or other rights;
- contains confidential, proprietary, or trade secret information of anyone that you do not have the right to disclose through the Lendsmart Platform;
- violates the rights of others, including, without limitation, any privacy rights or rights of publicity;
- impersonates any person or entity or falsely states, or otherwise misrepresents, your affiliation with any person or entity, or uses any fraudulent, misleading, or inaccurate email address or other contact information;
- violates any applicable laws or regulations;
- makes any statement, express or implied, that you are endorsed by Lendsmart;
- harms minors in any way, including, but not limited to, depicting content that violates child pornography laws, child sexual exploitation laws, and laws prohibiting the depiction of minors engaged in sexual conduct;
- contains any unsolicited promotions, political campaigning, advertising, or solicitations; or
- in Lendsmart’s sole judgment, is inappropriate or objectionable or which restricts or inhibits any other person from using and enjoying the Lendsmart Platform or which may expose Lendsmart and/or any of its officers, directors, employees, or other Users to any harm or liability of any type.
- You shall not use the Lendsmart Platform to engage in any of the following activities:
- accessing, using, or uploading content to, or attempt to access, use, or upload content to another User’s account without permission;
- violating any federal, state, local, or other laws;
- violating the Third-Party Terms;
- transmitting, uploading, or downloading any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs, or other items of a destructive nature;
- engaging in commercial activity, including, without limitation, commercial use of the Lendsmart Platform, except for the purposes of engaging in the activities for which the Lendsmart Platform was designed; or
- creating User accounts by automated means or under false, misleading, or fraudulent pretenses.
- Without limiting the foregoing, you shall not engage in, or attempt to engage in, any of the following:
- reproducing, copying, displaying, storing, performing, reposting, publishing, transmitting, distributing, selling, offering for sale, licensing, modifying, creating derivative works of, or otherwise using any portion of the Content (as defined herein) offered on the Lendsmart Platform other than for internal business purposes or as provided in the Subscription Agreement (if applicable);
- reformatting or framing any portion of the Lendsmart Platform that are provided as a website;
- copying or modifying any code (including, but not limited to, HTML code) used to generate the Content or otherwise make the Lendsmart Platform accessible;
- using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of the Lendsmart Platform;
- taking any action that imposes, or may impose in Lendsmart’s sole discretion, an unreasonable or disproportionately large load on our IT infrastructure;
- modifying, adapting, translating, or reverse engineering any portion of the Lendsmart Platform;
- disrupting or otherwise interfering with the Lendsmart Platform or the networks or servers used by Lendsmart;
- impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity;
- collecting or storing, or attempting to collect or store, personal information about other users of the Lendsmart Platformother than as provided in the Subscription Agreement (if applicable); or
- or engaging in any activity that is illegal under federal, state, local, or other laws.
Lendsmart is providing you with the information and functionality on the Lendsmart Platform. Access to the Lendsmart Platform requires access to the Internet. You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless or other connection and service fees associated with such access. Using the Lendsmart Platform may allow you to receive Content on your mobile phone or other wireless device. The manner in which that Content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges form your wireless carrier. MESSAGE AND DATA RATES MAY APPLY. You, not Lendsmart, will be solely responsible for any carrier charges associated with your use of the Lendsmart Platform.
Unless otherwise set forth in the Subscription Agreement (if applicable), Lendsmart reserves the right (but not the obligation) to terminate your access to the Lendsmart Platform at any time without notice for any reason whatsoever.
YOU WILL BE RESPONSIBLE FOR ANY COST, EXPENSE, FEE, LIABILITY OF ANY KIND, AND ATTORNEY’S FEES THAT LENDSMART INCURS IF YOU BREAK THE LAW, VIOLATE THE THIRD-PARTY TERMS, MISUSE THE LENDSMART PLATFORM, OR BREACH THESE TERMS. IF YOU BREAK THE LAW, VIOLATE THE THIRD-PARTY TERMS, MISUSE THE LENDSMART PLATFORM, OR BREACH THESE TERMS, IN ADDITION TO, AND CONSISTENT WITH, OTHER INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU WILL REIMBURSE, INDEMNIFY, AND HOLD HARMLESS LENDSMART AND ITS PAST, PRESENT, AND FUTURE SUBSIDIARIES, PARENTS, AFFILIATED COMPANIES, AND THE EMPLOYEES, DIRECTORS, OFFICERS, INSURERS, AND AGENTS OF ALL AFOREMENTIONED COMPANIES, FROM ANY MONEY DAMAGES, COSTS, EXPENSES, LOSSES, LIABILITIES, AND ATTORNEY’S FEES RESULTING FROM ANY CLAIM, THREAT, DEMAND, SUIT, OR INVESTIGATION BROUGHT BY ANOTHER PERSON, ENTITY, OR GOVERNMENT. Without waiving any of these rights, Lendsmart may, at its sole discretion, defend itself against any such claim, threat, demand, suit, or investigation without your consent. All of your obligations in this Section survive and continue after any termination of these Terms.
Lendsmart will terminate your access to the Lendsmart Platform if, under appropriate circumstances, you are determined to be a repeat infringer of these Terms or otherwise a nuisance to the Lendsmart.
V. Ownership of the Lendsmart Platform
All right title and interest in and to the Lendsmart Platform, including, but not limited to, all of the software and code that comprise and operate the Lendsmart Platform and all of the text, photographs, images, illustrations, graphics, audio, video, audio-video clips, URLs, advertising copy, and other materials provided through the Lendsmart Platform (collectively, the “Content”) are owned by Lendsmart or by third parties who have licensed their content to us. The Lendsmart Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret, and other intellectual property laws. In addition, the Content of the Lendsmart Platform is a collective work under United States and international copyright laws and treaties, and Lendsmart owns the copyright in the selection, coordination, arrangement, and enhancement of the Content of the Lendsmart Platform.
Lendsmart hereby grants you a limited, revocable license to download and print copies of any portion of the Content of the Lendsmart Platform to which you have properly gained access, but only for (a) if you are an individual accessing the Lendsmart Platform on your own behalf, your own personal, non-commercial use, and (b) if you are accessing the Lendsmart Application on behalf of an entity authorized to use the Lendsmart Platform, the entity’s internal business purposes, and in each case only if you do not remove, modify, or obscure any copyright, trademark, or other proprietary notices from the Content you download or print. The foregoing license is subject to these Terms and does not include the right to use any data mining, robots, or other automatic or manual device, software, program, code, algorithm, or methodology to access, copy, or monitor any portion of the Lendsmart Platform, or in any way reproduce or circumvent the navigational structure or presentation of any part of the Lendsmart Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by to you through the Lendsmart Platform. We reserve the right to take measures to prevent any such activity. This license is revocable at any time without notice and with or without cause. You may not permit others to copy, distribute, perform or display publicly, prepare derivative works based on, broadcast, exploit, or use any part of the Content on the Lendsmart Platform as expressly provided in these Terms. Nothing in these Terms shall be construed as transferring any right, title, or interest in the Lendsmart Platform to you or anyone else, except the limited license to use the Lendsmart Platform on the terms expressly set forth herein.
Notwithstanding the foregoing, and specifically with regard to trademarks, the Lendsmart names and logos (including, but not limited to, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing within the Lendsmart Platform, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of Lendsmart and/or those of its affiliates (collectively, the “Lendsmart Marks”). All other trademarks, product names, company names, logos, service marks, and/or trade dress mentioned, displayed, cited, or otherwise indicated within the Lendsmart Platform are the property of their respective owners. You are not authorized to display or use the Lendsmart Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks, and/or trade dress of third parties features within the Lendsmart Platform without the prior written permission of such third parties. The use or misuse of the Lendsmart Marks or other trademarks, product names, company names, logos, service marks, and/or trade dress or any other materials contained therein, except as permitted herein, is expressly prohibited.
VI. User Provided Content
The Lendsmart Platform allows certain sharing of information by Users which may be seen by other Users. Where settings are made available by Lendsmart, Lendsmart will honor the choices Users make about who can see content or information, including any data, information, or material pertaining to a User or any third party, disclosed, provided, or submitted to Lendsmart in connection with the Lendsmart Platform (“User Data”). Lendsmart is not obligated to publish any information or content on the Lendsmart Platform, including any User Data, and may remove it in Lendsmart’s sole discretion, with or without notice.
You shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of User Data you provide through the Lendsmart Platform, including through integration between the Lendsmart Platform and any relevant financial accounts through which you provide bank statements, transaction history or relevant tax information (such as Form 1099s). You warrant that you have the right to possess and use all User Data you upload, submit, or otherwise provide through the Lendsmart Platform, including the right to disclose User Data to Lendsmart and use User Data in connection with the Lendsmart Platform. You further represent and warrant that, prior to uploading, submitting, or otherwise providing any User Data through the Lendsmart Platform or otherwise in connection with these Terms that: (a) you have received all required consents or authorizations with respect to such User Data referencing any individual; and (b) you will use, store, and transfer all User Data in accordance with all laws applicable to you or, if applicable, your business (which may include, but is not limited to, the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) (as amended from time to time, the “GLB Act”) and any state law equivalents of counterparts thereof and all regulations promulgated under any of them).
You are prohibited from disclosing information that you do not have the right to disclose, including the information of any third party, or that would result in the violation of anyone’s intellectual property rights.
As between you and Lendsmart, you own the User Data and any other content and information that you submit or post to the Lendsmart Platform, provided that you grant Lendsmart a worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish, and process, without any further consent, notice and/or compensation to you or others, any User Data and other information and content you provide through the Lendsmart Platform.
If you are a Subscribing User whose employer or another entity has entered into a Subscription Agreement, you acknowledge and agree that the party to the applicable Subscription Agreement with Lendsmart (the “Subscribing Party”) has the right to control your access to the Lendsmart Platform and to receive reports on your use of the Lendsmart Platform. In the event of any dispute between a Subscribing Party and a Subscribing User regarding rights to User Data, Lendsmart shall not be responsible for the resolution thereof, and Lendsmart shall be entitled to follow all reasonable instructions of the Subscribing Party with respect thereto.
You understand and agree that foregoing limited non-exclusive license grants Lendsmart the right to share User Data relating to you with other Users in connection with the Lendsmart Platform, subject to the same limitations set forth above.
You acknowledge and agree that the Lendsmart Platform is used by third parties who may receive and retain certain information about you, including copies of your User Data, even though you have deleted such information from the Lendsmart Platform. Lendsmart is not responsible for the use or retention by such third parties of such information or User Data, and refers you to each such third parties respective privacy policies for the terms and conditions associated therewith.
To the extent you provide Lendsmart with any ideas, suggestions, or other feedback regarding the Lendsmart Platform (“Feedback”), you hereby agree that Lendsmart shall have the full and unencumbered right to use that Feedback (and any intellectual property rights therein) for any commercial or non-commercial purpose.
Lendsmart may include your entity name in listings of its current customers, provide that you retain all right, title and interest in and to all of your logos, promotional graphics and related marketing designs, subject only to Lendsmart’s worldwide, royalty-free, non-exclusive license to use the foregoing and your corporate and/or trade name for purposes of fulfilling its obligations hereunder and marketing Lendsmart’s products and services to third parties.
VII. Lendsmart’s Role
The Lendsmart Platform is an administrative platform only, designed to facilitate the document assembly, communication, and collaboration between Users through mortgage and other loan processes. Lendsmart does not offer or provide loans directly and you acknowledge and agree that Lendsmart is not a broker, agent, or insurer and has no control over the conduct of, or any pricing or other information provided by other Users. You acknowledge and agree that Lendsmart is not a party to any transactions or agreements you enter into related to your use of the Lendsmart Platform.
Without limiting any provision of these Terms, Lendsmart does not (a) guarantee or ensure any loan amount, transaction fees, offer, or availability of any offer between you and other Users of the Lendsmart Platform; (b) collect or process payment or transfer of title or security liens on behalf of Users, or otherwise act as an agent for any party to a loan, real estate or insurance transaction; (c) personally endorse any third party, including, but not limited to, any lender, borrower, real estate agent, or insurance agent; (d) make any guarantee, express or implied, that any information provided through the Lendsmart Platform by a User is accurate; (e) verify the information that Users supply; (f) guarantee or warrant the performance of any loan products, real estate services or insurance services and/or products provided by Users of the Lendsmart Platform; (g) verify or represent that information provided by Users comply with applicable laws; or (h) control how any User uses another User’s information.
You acknowledge and agree that Lendsmart is a passive conduit for the collaboration amongst Users and has no responsibility for, or any involvement in, any transactions amongst and between Users and other third parties. You further acknowledge and agree that any transaction you enter into with another User will be governed by terms agreed upon between you and such other User. You must determine the value and appropriateness of any transaction you enter into with another User. Lendsmart expressly disclaims any and all liability or responsibility for the success and compliance with applicable laws of any transaction you enter into with another User.
VIII. Service Provider Referrals
In connection with its provision of the Services, Lendsmart may provide you the option to receive service provider referrals, or to otherwise be contacted by certain service providers referred by Lendsmart. Examples of types of service providers include real estate agents and insurance agents. If you opt to receive a referral or be contacted by a referred service provider, you agree (a) that Lendsmart may provide your User Data to such referred service provider and (b) that Lendsmart makes no representations or warranties regarding, and will have no liability whatsoever regarding, the services provided by such service provider. Further, you acknowledge and agree that Lendsmart, where permitted by applicable law, may have a referral agreement with such service providers and that you will have no right in, or interest with respect to, such referral agreements (if any). The terms and conditions of any referral agreement will be strictly between Lendsmart and its applicable service provider.
IX. Additional Privacy Terms
X. Third Party Websites and Advertising
The Lendsmart Platform may contain links to, integrate with, and/or provide functionalities that permit connection to websites and services that are owned or controlled by third parties. Lendsmart has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party website or service and you expressly agree that Lendsmart does not need to give you notice that you are leaving the Lendsmart Platform or are connecting to a third party service. In addition, Lendsmart will not, and cannot, censor or edit the content of any third party website or service. By using the Lendsmart Platform you expressly relieve Lendsmart from any and all liability arising from your use of any third party website or service. We encourage you to be aware that when you leave the Lendsmart Platform and to read the terms and conditions of each other website that you visit.
Advertising may be presented to you when you use the Lendsmart Platform. You consent to receiving such advertisements. You also acknowledge and agree that Lendsmart is not responsible for any products or services provided by advertisers outside of Lendsmart, its subsidiaries, or its affiliated companies.
XI. Copyright Policy
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Lendsmart Platform infringe your copyrights, you may request removal of those materials (or access to them) from the Lendsmart Platform by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Lendsmart Platform, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
Brennan R. Block
Legal Counsel to Lendsmart, Inc.
BrownWinick Law Firm
666 Grand Avenue, Suite 2000 Ruan Center
Des Moines, IA 50309
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Lendsmart is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
If you believe that material you posted to the Services was removed or access to it was disabled by mistake or misidentification, or that you have the appropriate authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use any material that you uploaded or used, you may file a counter-notification with ss (a “Counter-Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter-Notice must include substantially the following:
- Your physical or electronic signature.
- An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
- A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Lendsmart Platform may be found) and that you will accept service from the person (or an agent of that person) who provided the agent designated above with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Lendsmart Platform was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the accounts of Users who are repeat infringers of our Copyright Policy.
XII. Dispute Resolution; Arbitration Agreement
PLEASE READ THIS CAREFULLY AS IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE LENDSMART PLATFORM YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST LENDSMART ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE LENDSMART PLATFORM OR SERVICES, OR YOUR DEALINGS WITH LENDSMART SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FEDERAL ARBITRATION ACT. 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. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND LENDSMART AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.
FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $15,000 OR LESS YOU MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR 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 $15,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN NEW YORK COUNTY, NEW YORK STATE. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. IN ANY ARBITRATION PROCEEDING BETWEEN YOU AND LENDSMART IN CONNECTION WITH THESE TERMS, YOUR USE OF THE LENDSMART PLATFORM, OR YOUR DEALINGS WITH LENDSMART, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES AND COSTS IN SUCH ARBITRATION FROM THE OTHER PARTY.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST LENDSMART ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, YOUR USE OF THE LENDSMART PLATFORM, OR YOUR DEALINGS WITH LENDSMART MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN NEW YORK COUNTY, NEW YORK STATE, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE LENDSMART PLATFORM AND YOUR RELATIONSHIP WITH LENDSMART. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1–16 (“FAA”), AND NOT BY STATE LAW.
IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 30 DAYS OF WHEN YOU FIRST USE THE LENDSMART PLATFORM, OR SUBMIT THROUGH THE LENDSMART PLATFORM A REQUEST FOR INFORMATION, YOU MUST SEND US AN EMAIL WITH THE SUBJECT LINE “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO THE FOLLOWING ADDRESS: firstname.lastname@example.org.
In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state and federal courts located within New York County, New York State, as appropriate, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. These Terms will be governed by the laws of the State of New York, without giving effect to any principles of conflicts of laws.
XIII. Disclaimer of Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LENDSMART PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THE LENDSMART PLATFORM. THE LENDSMART PLATFORM, AND ALL OF THE INFORMATION, PRODUCTS, AND SERVICES MADE AVAILABLE THROUGH THE LENDSMART PLATFORM ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PORTION OF THE LENDSMART PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, INFORMATION, PRODUCTS, AND SERVICES MADE AVAILABLE THROUGH THE LENDSMART PLATFORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE AND OUR AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF THE LENDSMART PLATFORM; (D) THAT THE CONTENT OF THE LENDSMART PLATFORM IS ACCURATE, COMPLETE, CURRENT, OR RELIABLE; AND (E) THAT LENDSMART PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
LENDSMART DOES NOT ENDORSE, AND IS NOT RESPONSIBLE FOR, STATEMENTS, ADVICE, AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED LENDSMART SPOKESPERSONS. WE DO NOT ENDORSE, AND ARE NOT RESPONSIBLE FOR, ANY STATEMENTS, ADVICE, OR OPINIONS CONTAINED IN USER DATA, THIRD PARTY (SUCH AS A REFERRED SERVICE PROVIDER’S) STATEMENTS, OR ANY OTHER CONTENT PROVIDED BY A THIRD PARTY (SUCH AS A REFERRED SERVICE PROVIDER), AND SUCH STATEMENTS, ADVICE, AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE, AND OPINIONS OF LENDSMART. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
XIV. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS OR THE THIRD-PARTY TERMS, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN ANY WAY ARISING OUT OF YOUR USE OF OR ACCESS TO THE LENDSMART PLATFORM SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE GREATER OF (A) $50 OR (B) THE AMOUNT, IF ANY, THAT YOU HAVE PAID TO US FOR USE OF OR ACCESS TO THE LENDSMART PLATFORM IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO OUR LIABILTY.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE LENDSMART PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE LENDSMART PLATFORM.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You agree to defend, indemnify, and hold harmless Lendsmart, its past, present and future affiliates, licensors, advertisers, third party suppliers/vendors, other business partners, and service providers, and its and their respective officers, managers, directors, employees, contractors, agents, licensors, suppliers, successors, insurers and assigns (collectively, the “Lendsmart Indemnified Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorney’s fees) (collectively “Losses”) arising out of or relating to, directly or indirectly: (a) your violation or breach of these Terms; or (b) your use of the Lendsmart Platform, including, but not limited to: (i) Losses related to your negligence or misconduct in connection with your use of or access to the Lendsmart Platform; (ii) Losses related to any User Data you contribute to or submit through the Lendsmart Platform, including without limitation information associated with your account; (iii) Losses related to your violation or infringement of any intellectual property, privacy, publicity, confidentiality, proprietary or other rights of any person or entity; (iv) Losses related to your use of the Content ; or (v) Losses related to your violation of applicable laws (collectively, the “Claims”).
You are solely responsible for defending any such Claims, and for payment of any and all Losses resulting from the Claims. Lendsmart shall have the right, in its sole discretion, to select its own legal counsel to defend the Lendsmart Indemnified Parties from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all of Lendsmart’s reasonable attorneys’ fees incurred in connection therewith. You shall notify Lendsmart immediately if you become aware of any actual or potential claims, suits, actions, allegations, or charges that could affect your or Lendsmart’s ability to fully perform their respective duties or to exercise its rights under these Terms. You shall not, without the prior written approval of Lendsmart, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any of the Lendsmart Indemnified Parties.
You agree that Lendsmart, in its sole discretion, may suspend or terminate your account (or any part thereof) of use of the Lendsmart Platform and remove and discard any content within the Lendsmart Platform for any reason, including, but not limited to, lack of use or if Lendsmart believes you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Lendsmart Platform may be referred to appropriate law enforcement authorities.
You may terminate these terms at any time by closing your account and ceasing all access of the Lendsmart Platform. Further, if you are a Subscribing User, your account or access to the Lendsmart Platform may be terminated in accordance with, or at the direction of the other party to, the applicable Subscription Agreement.
You agree that any termination of your access to the Lendsmart Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Lendsmart may immediately deactivate your account and all related information and files in your account and/or bar any further access to the Lendsmart Platform. Further, you agree that Lendsmart will not be liable to you or any third party for any termination of your access to the Lendsmart Platform.
Lendsmart may also in its sole discretion and at any time discontinue providing the Lendsmart Platform, or any part thereof, with or without notice.
Upon termination or expiration of these Terms for any reason, all rights to the Lendsmart Platform granted by Lendsmart to you will immediately cease to exist and you shall discontinue all use of the Lendsmart Platform.
XVII. User Disputes
You agree that you are solely responsible for your interactions with any other User in connection with your use of the Lendsmart Platform and Lendsmart will have no liability or responsibility with respect thereto. Lendsmart reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User.
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.
No waiver by Lendsmart of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Lendsmart to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
The section headings and sub-headings contained in the Terms are for convenience only and have no legal or contractual effect.
XXI. Entire Agreement
These Terms, together with any documents and agreements specifically referenced and incorporated herein, constitute the sole and entire agreement between you and Lendsmart regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.
If you have any questions or concerns about the Lendsmart Platform, any of our Services, these Terms, or the Third-Party Terms, including to report potential violations of the Terms or Third-Party Terms by others, please email us at email@example.com.