PLEASE BE AWARE THAT SECTION 17 OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND FM HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST FM TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN SECTION 17 OF THESE TERMS: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST FM ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 17 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 17 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION AND HOW TO OPT OUT OF ARBITRATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
3. Mobile Application.
Furthermore, with respect to any Mobile Application accessed through or downloaded from an App Store such as Google Play® store or the Apple’s® App Store® (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the Mobile Application from a third party App Store is also subject to the provisions of Section 12 (Third Party Links & App Store).
4. The Services are for Use by Individuals 18 years of age and older.
5. Services Use Restrictions.
Without our prior written consent, you may not:
• Use any automated means to access the Services or collect any information from the Services (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);
• Frame the Services in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any Services’ pages, or otherwise affect the display of any pages on the Services;
• Engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining content or other information;
• Use the Services in any manner that violates applicable law or that could alter, damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services; or
• Access, use, or monitor our Services for benchmarking or any direct competitive purposes.
6. User Representations.
Parts of the Services may be accessed only by registering for an account and creating a password. Keep your password secure. You are responsible for the activities on your account. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Services will violate or infringe upon the rights of any third party, including, without limitation, any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your account. We are not responsible for any losses resulting from unauthorized use of your account.
In addition, you agree not to use the Services to:
• Register for more than one User account (except where previously authorized in writing by us), or register or operate a User account on behalf of or for the beneﬁt of any person who is not eligible to register for or operate a User account in their own name;
• Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affliation with or authority to act on behalf of any person or entity;
• Upload, post, transmit, share, store, or otherwise make publicly available through the Services any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card or loan account numbers, unless expressly authorized to do so by that third party;
• Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, ﬁles, or programs designed to interrupt, destroy, or limit the functionality of the Services; or Use or attempt to use another’s account without authorization from that person, or create a false identity through the Services.
7. Information Posted through the Services.
You are solely responsible for the information that you post on or through the Services and your conduct regarding the Services. By posting information to or through the Services, you agree to (a) provide accurate, current, and complete information; (b) maintain the security of your password and identiﬁcation, to the extent you are provided a password and identiﬁcation; (c) promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the Services; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
8. Consent to Electronic Records and Communication.
By accessing the Services, you agree to the terms of our Consent to Electronic Records and Communication available here.
9. Consent to be Contacted.
To the extent required by applicable law, we ensure we make the proper disclosures and obtain consumer consent when collecting your contact information.
10. Intellectual Property.
The “FinMkt” names and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress in the United States. FM’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of FinMkt in each instance. Funding Banks use “FinMkt” under license in connection with the FinMkt® Programs.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“Submissions”), provided by you to us through the Services are non-conﬁdential and shall become the sole property of FM. FM shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
If you believe that any material on the Services infringes upon any copyright which you own or control, you may send a written notiﬁcation of such infringement to our designated agent as set forth below:
The FinMkt® Program Attn: FinMkt, Inc. Attn: Legal 1178 Broadway 4th 402 New York, NY 10001
To meet the notice requirements under the Digital Millennium Copyright Act, the notiﬁcation must be a written communication including the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identiﬁcation of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works at that site;
Identiﬁcation of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
A statement that the information in the notiﬁcation is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
11. Third-Party Links & App Store.
Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between FM and the App Store Owner, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty (if any) will be the sole responsibility of FM.
You and we acknowledge that, as between FM and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
You represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
We reserve the right to change any and all content within the Services and any service offered through the Services at any time without notice.
We provide the Services “AS IS” and assume no responsibility for any failure to provide the Services to you. The Services may be temporarily unavailable from time to time for maintenance or other reasons. We may discontinue the Services or any goods or services available through the Services at any time and for any reason. We are not responsible for any problems or technical malfunction of any telephone or cable network or lines, servers or providers, computer equipment, software, failure of email, or technical problems or traﬃc congestion on the Internet or on or through the Services, including injury or damage to Users or to any other person’s devices related to or resulting from use of the Services.
Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any user data, ﬁnancial damages, lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Services. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, and that we EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY.
13. Limitation of Certain Damage Types.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL FM, THE FUNDING BANKS, OR ANY OF THEIR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF THE CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF ANY OF US IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Limitation of Liability Amount.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR THE SERVICES OR PRODUCT AT ISSUE IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND $100. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR A SERVICE OR PRODUCT, YOU SHALL BE LIMITED TO, AT MOST, INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION.
NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
15. Disputes, Governing Law, Venue, and Jurisdiction.
16. Arbitration Agreement & Dispute Resolution.
Please read this Arbitration Agreement carefully. It is part of your contract with FM and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Scope of Arbitration Agreement (“Arbitration Agreement”). You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with FM will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or FM may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior Agreement. NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST FM ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH FM, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST FM IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, 251 Little Falls Drive, Wilmington, Delaware 19808. The arbitration will be conducted by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under its rules, including JAMS’ Consumer Arbitration Minimum Standards. The JAMS’ rules are available at www.jamsadr.com or by calling the JAMS at 1-800-352-5267. Payment of all ﬁling, administration, and arbitration fees will be governed by JAMS’ rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, FM will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor FM is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 16 (Disputes, Governing Law, Venue, and Jurisdiction) above.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.
FinMkt is committed to maintaining a culture and spirit of fair lending by facilitating access to any and all offers from its participating lenders and other providers on its platform that it makes available to all qualified applicants without discrimination on the basis of race, color, religion, sex, national origin, marital or familial status, age (over that of majority), handicap, sexual orientation, receipt of public assistance, or good faith exercise of rights under the Federal Consumer Protection Act (the “Prohibited Bases”) the Equal Credit Opportunity Act, and any other state or local fair lending laws and regulations. It is, and shall be, FinMkt’s policy to not discourage the completion or submission of an inquiry for credit by any applicant on any of the Prohibited Bases.