LENDFLOW CUSTOMER AGREEMENT
This Lendflow Customer Agreement (this “Customer Agreement”) is between Lendflow, Inc. (“Lendflow” or “We”) and the commercial entity accepting these terms via click-thru, entering into an order for services incorporating this Customer Agreement by reference, or otherwise accessing the Lendflow services (“Applicant” or “You”). Each of Lendflow and Applicant may be referred to as a “Party” and collectively as the “Parties.”
1. DEFINED TERMS. The following terms, when capitalized, have the meaning given below:
“Affiliate” means any legal entity that a Party owns, that owns a Party, or that is under its common ownership. “Ownership” means, for the purposes of this definition, control of more than a fifty percent interest in an entity.
“Agreement” means collectively this Customer Agreement, any applicable Service Order, and any other addenda which govern the provision of the Services.
“Applicant” means a commercial entity which applies Financing utilizing the Services, or any other end user of the Services as contemplated in the Agreement.
“Applicant Data” means any information: (i) an Applicant transmits through, to, or using the Services, or (ii) which We provide to You in respect of or in relation to Applicant.
“Confidential Information” means non-public information disclosed by one Party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either Party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other Party without reference to the other’s Confidential Information or otherwise known to the other Party on a non-confidential basis prior to disclosure. Confidential Information shall not include User Submitted Content.
“Distributor” means, if applicable, the entity operating the Distributor Platform.
“Distributor Platform” means the website, SaaS, PaaS, or other internet platform used in connection with and which integrates with or distributes the Services.
“Financing” means any extension of credit, cash, revolving facility, or like funding mechanism.
“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Lender” means a financial institution which evaluates Applicant information and determines the qualifications and terms for providing Financing to an Applicant and/or provides Financing to an Applicant.
“Services” means the Lendflow services identified in a given Service Order or otherwise provided subject to the terms of this Agreement, including Lendflow’s processing of Applicant loan requests and matching of Applicants with prospective Lenders.
“Support” means the availability of support at firstname.lastname@example.org, from 9AM-5PM (CT), Monday-Friday (excluding holidays).
“Product Terms” means additional terms and conditions incorporated in a Service Order which contain additional product specific obligations.
“Representatives” means a Party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents. For Lendflow, its Representatives expressly includes Experian Information Solutions, Inc., acting through its Business Information Services Group (“Experian”).
“Service Order” means the document which describes the Lendflow Services You are utilizing, including any online order, process, or tool through which You request or provision Services.
2.1. General. Subject to Your compliance with the terms of this Agreement, and during the term of this Agreement, You may access and use the Services. We will provide the Services in accordance with the Agreement and any laws applicable to Lendflow. We will provide general assistance in connection with Your use of the Services.
2.2. Payment Processing. If Lendflow agrees to make or receive payments to or from a third-party on Your behalf as part of the Services, then You acknowledge that the processing of such payments may take 7-10 business days and release Lendflow and its Representatives from any liability whatsoever in connection with such payments, whether timely made or not.
3. USE LIMITATIONS. You may only use the Services in connection with a commercial credit transaction, commercial Financing transaction, commercial risk management transaction, or business research purposes. You may not use the Services in connection with any personal, family, consumer, or household purposes. You may not use the Services for any marketing purposes unless separately agreed by Lendflow in writing.
4. APPLICANT REQUIREMENTS. You represent and warrant that: (i) Applicant is an entity located in the United States which is in good standing under the applicable state business organization or commercial code, (ii) the Applicant business owner is at least 18 years of age; (iii) a duly authorized officer or managing member of the Applicant is applying for the Financing, (iv) Applicant, its officers and directors, are not Specially Designated Nationals, a credit clinic, a credit repair organization, listed on an Experian Customer Alert List, included on any government issued prohibition list (as published by OFAC, Treasury, or a similar regulatory entity), have not been involved in credit fraud or other unethical business practices, and (v) all Application Data You provide shall be true, correct, complete, and accurate.
5. SECURITY. You must reasonably cooperate with Lendflow’s investigation of outages, security incidents, and any suspected breach of the Agreement. You are responsible for keeping Your account permissions, billing, and other account information up to date. You may be provided with a unique user ID as part of Your use of the Services, and will use reasonable and appropriate controls to secure such credentials, will immediately notify Lendflow of any unauthorized use of such credentials, and agree that You are responsible for the use of such credentials by any Party, whether authorized by You or not.
6. APPLICANT INFORMATION. You agree that We may disclose Applicant Data to Our Representatives, Lenders, third parties as necessary to provide the Services. You agree that We may provide Applicant Data to the Distributor, and may furnish to Lenders and to the Distributor a copy of Applicant’s credit report information (including credit scoring and derivative commercial risk assessments created with the use of Applicant Data and/or any credit report We receive as part of the Services) if one is authorized by Applicant in connection with the Services. You consent to Lendflow and its Representatives using Applicant Data to contact You via phone, text, SMS or any similar mechanism, including through the use of an automated telephone dialing system, for marketing purposes.
7. FEES & PAYMENTS. Fees, if any, associated with the Services will be as identified in the applicable Order. You authorize Lendflow to: (i) receive a commission from third parties, including Lenders, in connection with its provision of the Services without disclosure to You and (ii) to automatically charge any payment mechanism with You provide in connection with the Services. You agree that You will keep an updated payment method on file with Lendflow in connection with any Services provided for a fee. All fees are due immediately upon their incurrence and without invoice. All amounts due under the Agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties, and/or applicable levies.
8. INTELLECTUAL PROPERTY.
8.1. Pre-Existing. Each Party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If You provide Lendflow with Your pre-existing Intellectual Property (“Customer IP”) then You hereby grant to Lendflow, during the term of the applicable Service Order, a limited, worldwide, non-exclusive, royalty-free right and license (with right of sublicense where required to perform the Services) to use the Customer IP for the purposes of providing the Services. You represent and warrant that You have all rights in the Customer IP to grant this license and that Lendflow’s use of such Customer IP shall not infringe on the Intellectual Property rights of any third-party.
8.2. Created by Lendflow. Excluding any Customer IP, Lendflow shall own all Intellectual Property created as part of providing the Services. Unless otherwise specifically stated in the Agreement, and subject to Your payment in full for the applicable Services, Lendflow grants You a limited, worldwide, non-exclusive, non-transferable, right and license (without right to sublicense) to use and display in connection with the Customer Platform any Intellectual Property provided to You by Lendflow as part of the Services as necessary for You to enjoy the benefit of the Services.
8.3. Infringement. If the delivery of the Services infringes the Intellectual Property rights of a third-party and Lendflow determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverables such that they do not infringe, then Lendflow may terminate the applicable Service Order on 90 days’ notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (if any).
9.1. We do not represent that the Services will be always available, completely secure, or error free. At Your request, We may provide services that are not required by the Agreement, any such services shall be provided AS-IS with no warranty whatsoever. ALL SERVICES AND APPLICANT DATA PROVIDED BY LENDFLOW ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS AND ARE NOT GUARANTEED AND NEITHER LENDFLOW, ITS REPRESENTATIVES, NOR THEIR SOURCES WILL BE LIABLE TO APPLICANT FOR ANY LOSS OR DAMAGE BASED ON THE CONTENT OF THE DATA OR SERVICES OR ANY ERRORS OR OMISSIONS THEREFROM.
9.2. Lendflow and its Representatives and the Distributor disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law, including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
9.3. Lendflow makes no representation or warranty whatsoever regarding any third-party products or services which We may recommend for Your consideration, and shall have no liability whatsoever for the actions, omissions, or determinations of any Lender. WE DO NOT GUARANTEE THAT APPLICANT WILL RECEIVE ANY FINANCING, OR THAT ANY OFFERS FROM LENDERS WILL BE ON COMMERCIALLY ADVANTAGEOUS TERMS.
10. TERM & TERMINATION.
10.1. Term. The term of each Service Order shall commence upon the first to occur of: (i) the date specified in the Service Order or (ii) the date upon which You are provided with access to the Services. If no term is specified in the Service Order, then the initial term shall be for 90 days. Unless otherwise specified in the applicable Service Order, upon termination, each Service Order shall automatically renew for successive 90-day periods unless either Party provides the other with 90 days advance written notice. We may terminate any Service Order as to any Services which do not entail a recurring monthly fee or a pre-paid amount upon 30 days written notice.
10.2. Suspension. We may suspend Your access to the Services if: (i) We reasonably believe You are using the Services in violation of the Agreement or applicable law, (ii) Your payment is 5 days or more late, or (iii) as We deem reasonably necessary to protect the integrity of the Services or Applicant Data, or to comply with applicable law. We may temporarily suspend the Services at any time as required for maintenance, deployment, upgrades, and testing.
10.3. Termination for Cause. Either Party may terminate the Agreement or the affected Service Order(s) for cause on written notice if the other Party materially breaches the Agreement and does not remedy the breach within 30 days of the other Party’s written notice describing the breach, provided that We may immediately terminate the Agreement if Your payment is 5 days or more late (whether or not We exercise Our rights to suspend the Services prior to such termination).
11. CONFIDENTIALITY. Each Party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each Party agrees not to disclose the other’s Confidential Information to any third-party except: (i) to its Representatives; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the Party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
12. LIMITATION OF LIABILITY.
12.1. LENDFLOW, ITS REPRESENTATIVES AND THEIR SOURCES DO NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, APPLICANT DATA OR THE MEDIA ON WHICH THE DATA IS PROVIDED AND SHALL NOT BE LIABLE TO APPLICANT FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY LENDFLOW’S, ITS REPRESENTATIVES’ OR THEIR SOURCES' ACTS OR OMISSIONS, WHETHER NEGLIGENT OR OTHERWISE, IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE DATA OR SERVICES.
12.2. IN NO EVENT SHALL LENDFLOW, ITS REPRESENTATIVES OR THEIR SOURCES BE LIABLE TO APPLICANT OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR NOT, AND HOWEVER CAUSED, EVEN IF LENDFLOW, ITS REPRESENTATIVES OR THEIR SOURCES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH STATES LENDFLOW’S, ITS REPRESENTATIVES’ AND THEIR SOURCES' ENTIRE LIABILITY AND THE SOLE REMEDY OF APPLICANT IN CONNECTION WITH THE PROVISION OF THE DATA AND SERVICES.
IF, NOTWITHSTANDING THE PRIOR PARAGRAPH, LIABILITY CAN BE IMPOSED ON LENDFLOW, ITS REPRESENTATIVES OR THEIR SOURCES, THEN APPLICANT AGREES THAT THE AGGREGATE LIABILITY FOR ANY AND ALL LOSSES OR INJURIES TO APPLICANT CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER THE AGREEMENT, REGARDLESS OF THE CAUSE OR THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE AMOUNT PAID TO LENDFLOW FOR THE AFFECTED SERVICES AND APPLICANT COVENANTS AND PROMISES THAT IT WILL NOT SUE LENDFLOW, ITS REPRESENTATIVES, OR THEIR SOURCES FOR AN AMOUNT GREATER THAN SUCH SUM AND THAT IT WILL NOT SEEK PUNITIVE DAMAGES IN ANY SUIT AGAINST LENDFLOW, ITS REPRESENTATIVES OR THEIR SOURCES.
13.1. If We, Our Affiliates, or any of Our or their Representatives (the “Indemnitees”) are faced with a legal claim by a third-party (i) arising out of Your actual or alleged: willful misconduct, breach of applicable law, gross negligence, or breach of the Agreement, or (ii) based on Your breach of Your agreement with a Distributor or Your members, officers, financing parties or a Lender, then You will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other penalty that is imposed on the Indemnitees as a result of the claim.
13.2. We will choose legal counsel to defend the claim, provided that the choice is reasonable and is communicated to You. You must comply with Our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without Your consent, which may not be unreasonably withheld, delayed, or conditioned. You must pay costs and expenses due under this section as We incur them.
14. ASSIGNMENT/SUBCONTRACTORS. You may not assign the Agreement or any Service Order without the prior written consent of Lendflow. Lendflow may use its Affiliates or subcontractors to perform all or any part of the Services, but Lendflow remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Lendflow performed the Services itself.
15. NOTICES. Your routine communications to Lendflow regarding the Services should be sent to us by email at email@example.com. To give notice regarding termination of the Agreement for breach, indemnification, or other legal matter, You must send it by electronic mail and first-class post to:
1525 Lakeville Dr. STE 121
Houston, TX 77339
Lendflow’s routine communications regarding the Services and legal notices will be sent by email or post to the individual(s) You designate as Your contact(s) on Your account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a business day, as of the beginning of the first business day following the time posted or delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day.
16. PUBLICITY, USE OF MARKS. You agree that We may publicly disclose that We are providing Services to You and may use Your name and logo to identify You in Lendflow promotional materials, including press releases. You may not use the Lendflow name or logo, or other identifying indicia, without Lendflow’s prior written consent.
17. FORCE MAJEURE. Neither Party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, failure of the internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, terrorism, or other events beyond such Party’s reasonable control.
18. GOVERNING LAW & VENUE. The Agreement is governed by the laws of the State of Texas, USA, exclusive of any choice of law principle that would require the application of the law of a difference jurisdiction. APPLICANT AND LENDFLOW AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS BETWEEN THEM IN A COURT OR BEFORE A JURY. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO THE AGREEMENT OR THE SERVICES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE SEAT OF THE ARBITRATION SHALL BE TRAVIS COUNTY, TEXAS. No claim may be brought as a class or collective action, nor may You assert such a claim as a member of a class or collective action that is brought by another claimant. Each Party agrees that neither shall bring a claim under the Agreement more than 2 years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
19. ADDITIONAL TERMS.
19.1. Experian Restrictions. For purposes of this Section 19.1, You agree that Experian shall be an intended third-party beneficiary of this Agreement. In consideration of Your right to receive and use Applicant Data and the Services from Lendflow and Experian, You understand and certify to Lendflow and Experian that the Services: (i) will be used solely in connection with a present or prospective credit or financial transaction with the business entity inquired upon or for other legitimate commercial purposes, including business research; (ii) will not be used as a factor in establishing an individual's eligibility for (a) credit or insurance to be used primarily for personal, family or household purposes, or (b) employment; (iii) will be used in compliance with all applicable laws, regulations and ordinances, and all special use restrictions set forth in the Agreement or adopted by Experian and/or Reseller hereafter; and (iv) will be maintained in confidence and disclosed only to persons whose duties reasonably relate to the business purposes for which the information was requested.
19.2. Proprietary Scoring. We may assign a proprietary credit and risk scoring metric to an Applicant (the “Score”). The Score credit score may or may not be used by Lenders and is not an endorsement or guarantee of Applicant’s credit worthiness as seen by Lenders. There are many scoring models used in the marketplace and each scoring model may have its own set of factors and scale. The information and credit scoring may be different than that used by a Lender. The Score may not be identical in every respect to any other credit score produced by another company or used by a given Lender.
The Score is calculated using Applicant’s actual data from Applicant’s credit file on the day that the Score is calculated. Other factors, such as length of employment and annual salary, are often taken into consideration by lenders when making decisions about Financing. How each Lender weighs its chosen factors may vary, but the exact formula used to calculate the Score is proprietary. Each consumer reporting agency has its own set of data, which may result in a separate Score for each of Applicant’s credit files.
All Scores provided by Lendflow shall be held in strict confidence and may never be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any person except as required by law or as otherwise set forth in the Agreement.
19.3. FCRA NOTICE. You acknowledge the following in connection with any authorization You provide to access Your credit report: The Fair Credit Reporting Act allows me to obtain a disclosure from every credit reporting agency of the nature and substance of all information in my file at the time of the request. Full disclosure of information in Your file at Experian must be obtained directly from Experian by calling 888-397-3742 or logging on to www.experian.com/consumer. The credit report you are requesting from Lendflow is not intended to constitute the disclosure of Experian information required by the Fair Credit Reporting Act or similar state laws.
I am entitled to receive a disclosure directly from the consumer reporting agency free of charge under the following circumstances:
a. I have been denied credit, insurance or employment within the past sixty (60) days as a result of my credit report
b. I certify in writing that I am unemployed and intend to apply for employment in the 60-day period beginning on the date on which I made the certification
c. I am a recipient of public welfare assistance
d. I have reason to believe that my file at the agency contains inaccurate information due to fraud
e. Annually at www.annualcreditreport.com
Otherwise, the consumer reporting agency may impose a reasonable charge for the disclosure.
The Fair Credit Reporting Act permits me to dispute inaccurate or incomplete information in my credit file. I understand that accurate information cannot be changed.
I do not have to purchase my credit report or other information from Lendflow to dispute inaccurate or incomplete information in my Experian file or to receive a copy of my Experian consumer credit report.
Experian's National Consumer Assistance Center provides a proprietary consumer disclosure that is different from the consumer credit report provided by Lendflow. The disclosure report must be obtained directly from Experian. Consumers residing in the States of Colorado, Massachusetts, Maryland, New Jersey, and Vermont may receive a free copy of their consumer credit report once per year and residents of the State of Georgia may receive two copies per year.
Fraud Alerts are available to any eligible consumers—free of charge—from a national consumer reporting agency.
20.1. Some terms are incorporated into the Agreement by reference to pages on the Lendflow website and may be revised from time to time. Such revisions will be effective and supersede and form part of the Agreement as of the time (i) You enter into a new Service Order referencing the terms subject to the revisions or (ii) a Service Order automatically renews pursuant to the Agreement, in which case You acknowledge that You have reviewed and accept the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents will govern in the following order: this Customer Agreement, the Product Terms, and the Service Order. The headings or captions in the Agreement are for convenience only. Unless otherwise expressly permitted in the Agreement the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. The pre-printed terms of Your purchase order or other business form or terms that You provide shall be void and of no effect. You represent and warrant that You have all right and authority to enter into this Agreement and to bind Applicant to this Agreement.
20.2. If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each Party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither Party is the agent for the other and neither Party has the right to bind the other on any agreement with a third-party. The use of the word “including” means “including without limitation”. Other than Representatives for the purposes of Sections 2.2, 9, 12, 13, and 19.1, or as expressly identified as a third-party beneficiary in the Agreement, there are no third-party beneficiaries to the Agreement.
20.3. The following provisions shall survive expiration or termination of the Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation on Damages, Governing Law, Notices, Miscellaneous, all terms of the Agreement requiring You to pay any fees for Services provided prior to the time of expiration or termination, or requiring You to pay an early termination fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
20.4. The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.