Terms of Use

Effective as of: November 4, 2014

1. INTRODUCTION AND ACCEPTANCE

Welcome to the 1st Merchant Funding (the “Company” or “1st Merchant Funding”) website (“Web Site”) and the PowerForce® portal (“Portal”). These Terms of Service (“Terms” or “Agreement”) set forth our obligations as a service provider and your obligations as a user.

CAREFULLY READ THESE TERMS AND APPLICABLE ADDITIONAL TERMS BEFORE USING THE WEB SITE BECAUSE THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. BY REGISTERING, USING AND/OR VISITING THIS WEBSITE, USING THE POWERFORCE® PORTAL, RECEIVING AND/OR PROVIDING SERVICES TO THE COMPANY VIA THE WEB SITE OR MOBILE DEVICE, YOU SIGNIFY YOUR ASSENT TO BOTH THIS AGREEMENT AND THE PROVISIONS OF THE 1ST MERCHANT FUNDING’S PRIVACY POLICY, WHICH ARE PUBLISHED VIA A LINK ON http://www.1stMerchantFunding.com, AND ARE INCORPORATED HEREIN BY REFERENCE. THESE TERMS ALSO REQUIRE YOU TO GRANT US CERTAIN CONSENTS, RIGHTS AND LICENSES AND LIMIT OUR LIABILITY TO YOU. BY USING THE WEB SITE, YOU AGREE TO THESE TERMS. DO NOT USE THE WEB SITE IF YOU DO NOT AGREE.

These Terms are supported by good and valuable consideration that includes, without limitation, your use of the Web Site or Portal, and the materials and information available on the Web Site or via a mobile device.

2. INTELLECTUAL PROPERTY

The trademarks, trade names, trade dress, logos, and service marks (collectively, the “Trademarks”) displayed on this Web Site are the registered and/or unregistered Trademarks of 1st Merchant, or such other third party that may own the displayed Trademarks. Nothing contained on this Web Site or in the Terms serves to grant to you, by implication or otherwise, any license or right to use any Trademarks displayed on this Web Site without the written permission of 1st Merchant or such other third party that may own the displayed Trademarks.

Site Contents and Copyright.

The text, Trademarks, logos, images, graphics, photos, video files, application functionality, or any other digital media, and their arrangement on this Web Site (“Content”) are all subject to patent, copyright, trademark and other intellectual property protection. Content may not be copied for unauthorized commercial use or redistribution. Access to and uses of this Web Site are solely for your purchase of 1st Merchant products and services, and authorized business uses. No right, title or interest in any of the Content of this Web Site is transferred to you as a result of using, downloading, copying, or printing materials from this Web Site, or accessing services or Content via your mobile device. All rights not expressly granted to you by these Terms are reserved by 1st Merchant.

3. WEB SITE ACCESS, CONTENT AND PROHIBITED USES

Access to and uses of this Web Site are solely for your purchase of 1st Merchant products services, and communication with 1st Merchant. You may not circumvent, disable or otherwise interfere with security-related features of the Web Site, including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Web Site or Web Site Content. You may not reproduce, distribute, publicly display, publicly perform, create derivative works, publish, transmit Content or any element of the Web Site, except as permitted by these Terms,nor may Content be modified, processed, or reposted to other websites without 1st Merchant’s prior written permission.

You may not rely on any information expressed on the Web Site for any other purpose than permitted by these Terms. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Web Site Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Web Site Content.

You are prohibited from using the Web Site or its Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of this Web Site, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of this Web Site, other websites, or the Internet. We reserve the right to terminate your account or otherwise deny you access to the Web Site in our sole discretion for any or no reason without notice and without liability.

4. INFORMATION PROCESSING CONSENT AND CONDITIONS FOR THIRD-PARTY LINKING TO WEB SITE

You acknowledge and agree that information that you supply via this Web Site, Portal and/or Mobile Service will be used for advance processing purposes. Such purposes include, without limitation, gaining access to banking and other financial information that 1st Merchant will use to evaluate your application. This information will be accessed and processed by the authorized third parties and agents of 1st Merchant. The information will be retained by 1st Merchant or its authorized third-party service providers and will be used for the purpose of: (a) processing your advance applications, and (b) developing summary information for statistical and audit purposes. By supplying such information you give absolute consent to 1st Merchant’s and its authorized third-party service providers’ collection, processing, transmission and storage of the information for application processing purposes.

In limited circumstances, we may permit third-party links to the Web Site home page from any website that is not commercially competitive with the Web Site and does not criticize or otherwise injure us, so long as the website where the link resides, and all other locations to which such website links, comply with all applicable laws. All of our rights and remedies are expressly reserved. Notwithstanding anything to the contrary contained in these Terms or applicable additional terms, we reserve the right to prohibit linking to the Web Site for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.

Although third-party links may be posted on this Web Site, the posting of those links or associated content does not constitute 1st Merchant’s endorsement of such material. Similarly, although third-party products and services may be sold or purchased via links on this Web Site, the sale and purchase of those products and services does not constitute 1st Merchant’s endorsement of the same. 1st Merchant is not responsible or liable for any claim, including, without limitation, loss or injury to real, tangible, or intellectual property, violations of personal privacy or privacy rights, actual, direct, indirect, incidental, consequential or punitive damages, personal injury, or wrongful death in connection with third-party websites, content, or products and services.

The websites associated with third-party links on this Web Site may be located in different countries, and those websites and the products or services offered on those websites are likely to be subject to the hosting country’s regulatory or product requirements. Please review carefully the third party’s terms and conditions, policies and practices, and make sure you understand them before you engage in any such third-party transaction. Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the third party.

5. USER REGISTRATION

In order to access or use some (or potentially all) of the features of the Web Site, you may have to become, and remain active as a registered user. If you are under the age of twenty-one (21), you are not permitted to register as a user or otherwise submit personal information to 1st Merchant.

Under these Terms, you agree to: (a) create only one account; (b) provide accurate, truthful, current and complete information when creating your account; (c) maintain and promptly update your account information; (d) maintain the security of your account by not sharing your username or password with others and restricting access to your account and your access device; (e) promptly notify us if you discover or otherwise suspect any security breaches relating to your account or the Web Site at: [email protected]; (f) not sell, transfer or assign your username and password; and (g) accept sole responsibility for all activities that occur under your username and password, whether or not you have authorized the activity.

6. FUNDING SERVICES

YOU MAY APPLY FOR ADVANCES THROUGH THE WEB SITE, HOWEVER, PLEASE NOTE THAT THE TERMS FOR 1ST MERCHANT ADVANCES ARE SUBJECT TO SEPARATE PURCHASE AND SALE AGREEMENTS THAT WILL BE PROVIDED TO YOU AT THE TIME OF YOUR APPLICATION. THESE WEB SITE TERMS OF USE DO NOT COVER THE TERMS OF ADVANCES OR PURCHASE AND SALE AGREEMENTS. In addition to all other agreements that may be provided to you, these Terms set forth the legally binding terms and conditions for your use of the Web Site or Portal services. These Terms apply to all users of the Web Site and the Portal. Use of the services or Portal is void where prohibited.

7. MOBILE

The Portal may include certain features and services that may be available via your mobile phone, including, without limitation: (a) the ability to receive and reply to messages and to send content and messages using text messaging (Mobile Texts), and (b) the ability to access the Portal or Web Site or services from your mobile phone (Mobile Web) (collectively, the “Mobile Services”). We do not charge for Mobile Services. Your carrier’s normal messaging; data and other rates and fees will apply. Certain Mobile Services may be incompatible with your carrier or mobile device. By using the Mobile Services you give your consent and agree that we may communicate with you regarding the Portal and Web Site and our partners by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to us.

You agree that in connection with the Mobile Services for which you are registered, we may send communications to your mobile device regarding us or other parties. Further, we may collect information related to your use of the Mobile Services. If you have registered for Mobile Services, you agree to notify us of any changes to your mobile number and update your account(s) on the Web Site or on the Portal to reflect this change.

8. INDEMNIFICATION

YOU AGREE TO INDEMNIFY AND HOLD 1ST MERCHANT, ITS DIRECTORS, OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS AND AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, ARISING FROM OR RELATED TO YOUR USE OF THIS WEB SITE OR BREACH OF THESE TERMS. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations under these Terms.

9. COOKIE AND TRACKING TECHNOLOGY NOTICE AND DISCLAIMERS

THIS WEB SITE USES COOKIES AND MAY ALSO USE THE SERVICES OF THIRD-PARTY PROVIDERS THAT DEPLOY COOKIES AND OTHER TRACKING TECHNOLOGIES IN CONNECTION WITH THEIR SERVICES. BY USING THE WEB SITE, YOU CONSENT TO THE PLACEMENT OF COOKIES ON ANY ACCESS DEVICE USED TO ACCESS OUR WEB SITE AND CONSENT TO THE USE OF TRACKING TECHNOLOGIES USED BY US OR OUR THIRD-PARTY SERVICE PROVIDERS.

THE WEB SITE AND CONTENT PROVIDED ON THIS WEB SITE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” 1ST MERCHANT MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO ITS USE, CONTENT ACCURACY, APPROPRIATENESS,AVAILABILITY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE WEB SITE OR CONTENT, OR PERFORMANCE OF THIS WEB SITE, THAT THE WEB SITE WILL MEET YOUR REQUIREMENTS, TITLE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, CUSTOM, TRADE, QUIET ENJOYMENT, OR FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEB SITE OR ACCESSED THROUGH THE WEB SITE OR OUR MOBILE DEVICE APPLICATION. AS A USER, YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR YOUR USE OR NON-USE OF THE WEB SITE, AND 1ST MERCHANT MAKES NO REPRESENTATION THAT THE CONTENT APPEARING ON OR DOWNLOADED FROM THIS WEB SITE IS COMPATIBLE WITH YOUR ACCESS DEVICE OR FREE FROM ERROR OR VIRUSES. NO 1ST MERCHANT EMPLOYEE, AGENT OR REPRESENTATIVE IS AUTHORIZED TO MODIFY OR AMEND THIS WARRANTY. TO THE EXTENT ALLOWABLE BY EXISTING LAW; 1ST MERCHANT DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THIS WEB SITE AND ITS CONTENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

10. LIMITATION ON LIABILITY

YOU ACKNOWLEDGE, BY YOUR USE OF THIS WEB SITE: (1) THAT YOUR USE OF THIS WEB SITE IS AT YOUR SOLE RISK; (2) THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT THAT YOU USE IN CONNECTION WITH YOUR USE OF THIS WEB SITE; AND (3) THAT 1ST MERCHANT WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF OR INABILITY TO USE OUR WEB SITE, INCLUDING, WITHOUT LIMITATION, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS, OR NETWORK OR INTERNET FAILURE, OR INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR LOSS OF OR DAMAGE TO PROPERTY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF 1ST MERCHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FURTHERMORE, YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE WEB SITE, THESE TERMS OR APPLICABLE ADDITIONAL TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. FAILURE TO BRING THE CLAIM OR CAUSE OF ACTION WITHIN THE ONE (1) YEAR PERIOD SHALL RESULT IN THE CLAIM OR CAUSE OF ACTION BEING PERMANENTLY BARRED.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, 1ST MERCHANT, ITS PARENT’S, SUBSIDIARIES’, AFFILIATES’, AGENTS’, BUSINESS PARTNERS’ LICENSORS’ AND SUPPLIERS’ DAMAGES IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

11. TERMINATION

We reserve the right in our sole discretion and at any time to terminate or suspend your registration or block your access to the Web Site for any reason, including, without limitation, if you have failed to comply with the letter and spirit of these Terms or applicable additional terms. You agree that 1st Merchant shall not be liable to you or any third party for any termination or suspension of your registration or for blocking your access to the Web Site.

If you become a registered user, you may terminate your registration at any time by sending an e-mail to [email protected]

Any suspension or termination shall not affect your obligations under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your account or these Terms shall survive, including, without limitation, the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, and all of the miscellaneous provisions. Upon suspension or termination of your Account, you will immediately discontinue use of the Web Site Content and destroy any copies of Web Site Content in your possession, including deleting any downloaded Web Site Content from your access device.

12. COPYRIGHT DISPUTE POLICY

Pursuant to our rights under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, we have designated a copyright agent to receive copyright infringement notices for claims of infringement related to materials found on this Site. Our copyright agent is 1st Merchant’s General Counsel. The agent can be reached at: (866) 710-2265, [email protected], or via U.S. Mail at: 1st Merchant Funding LLC, 12000 Biscayne Blvd., Suite 609, Miami, FL 33181.

To be effective, your infringement notification must include the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification of the material or content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or have access disabled, and information reasonably sufficient to permit us to locate the material;
  4. Information reasonably sufficient to permit us to contact the complaining party, including address, telephone number and email address where the complaining party may be contacted;
  5. The following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”; and
  6. The following statement: “The information in this notification is accurate, and under penalty of perjury, I swear that I am the copyright owner or that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

Upon receipt of the written notification containing the information as outlined in 1 through 6 above:

  1. 1st Merchant will remove or disable access to the content that is alleged to be infringing;
  2. 1st Merchant will forward the written notification to the alleged infringer; and
  3. 1st Merchant will take reasonable steps to promptly notify the alleged infringer that we have removed or disabled access to the content.

DMCA Infringement Counter Notification.

Pursuant to the DMCA, after the alleged infringer receives a notice of infringement from 1st Merchant, the alleged infringer will have the opportunity to respond to 1st Merchant with a counter notification (“Counter Notification”). To be effective, a Counter Notification must be a written communication provided to 1st Merchant’s designated copyright agent, and must include the following:

  1. A physical or electronic signature of the subscriber;
  2. 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;
  3. The following statement: “I swear under penalty of perjury that it is my good faith belief that the material identified above was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and
  4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the federal district court for the judicial district in which the subscriber address is located, or if the subscriber’s address is outside of the United States, or any judicial district in which 1st Merchant may be found, and that the subscriber will accept service of process from the person who provided notification or an agent of such person.

Upon the copyright agent’s receipt of a Counter Notification containing the information as outlined in 1 through 4 above, the DMCA provides that the removed material will be restored or access re-enabled and we will comply with this requirement as required by law, provided that the designated agent has not received notice from the original complaining party that an action has been filed seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on our network.

13. CHOICE OF LAW; JURISDICTION AND VENUE

These Terms shall be construed in accordance with the laws of the State of Florida without regard to its conflict of laws rules. Any legal proceedings against 1st Merchant that may arise out of, relate to, or be in any way connected with our Web Site, these Terms or applicable additional terms, shall be brought exclusively in the state and federal courts located in Miami-Dade County, Florida and you waive any jurisdictional, venue, or inconvenient forum objections to such courts.

 14. AMENDMENT AND ADDITIONAL TERMS

We reserve the right to modify, change, or add terms, or features of the Mobile Services or Web Site at any time, and at our sole discretion. Any additional terms that we may provide to you will be incorporated by reference into these Terms and will become effective from the date they are acknowledged on your mobile device or posted on our Web Site. To the extent any additional terms conflict with these Terms, the additional terms will control.

 15. MISCELLANEOUS

Events Beyond Our Control.

You expressly release 1st Merchant from any claim of harm resulting from a cause beyond our control, including, without limitation, failure of electronic or mechanical equipment or communication lines, access devices, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters or other acts of nature, strikes, or other labor problems, wars or governmental restrictions.

Consent to Electronic Communications.

By registering via this Web Site or by sending e-mails or text messages to us, you are communicating with us electronically. And in doing so, you consent to receive communications from us electronically. We will communicate with you by e-mail, text message, or by posting notices on this Web Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

If any one or more of the provisions contained in this Agreement, Privacy Policy, Mobile Text Disclosure, or additional terms shall for any reason be found to be invalid, illegal or unenforceable in any respect, said finding shall not affect the remaining provisions, which shall be enforceable to the fullest extent permitted by law, provided that such severance does not alter the fundamental benefit of the bargain to either party.

Entire Agreement and Conflicting Terms.

This Agreement, Privacy Policy, Mobile Text Disclosure, or additional terms as referenced in these Terms, constitute the complete and exclusive agreement between you and 1st Merchant with respect to use of this Web Site and supersedes any and all prior or contemporaneous communications, representations, statements, agreements and understandings, whether in oral, written or electronic form, between you and 1st Merchant concerning the use of this Web Site, and Mobile Services. This Agreement, Privacy Policy, Mobile Text Disclosure, or additional terms shall be construed as consistent with each other whenever possible, but if such construction is unreasonable due to conflicting terms, the additional terms shall control over all others.

No Assignment or Third Party Beneficiaries.

These Terms may not be assigned by you to anyone. No provision of this Agreement is intended to create, or creates, any rights in or benefits to any third party.

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