WEBSITE VISITORS AND/OR USERS OF PRODUCTS OR SERVICES MADE AVAILABLE BY CERTA GROUP LLC, ITS RELATED ENTITIES, AFFILIATES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “CERTA,” “US,” “WE,” OR “OUR”) OR ITS SERVICE PROVIDERS SHOULD CAREFULLY READ THESE TERMS OF SERVICE BEFORE ACCESSING, ACTIVATING OR OTHERWISE USING CERTA’S NETWORK OF WEBSITES OR ITS WEB-BASED FINANCIAL SERVICES PLATFORM, INCLUDING ITS MOBILE APPLICATION (COLLECTIVELY, “CERTA’S PLATFORM”) AND/OR ANY OF CERTA’S PRODUCTS AND SERVICES (COLLECTIVELY, “CERTA’S PRODUCTS AND SERVICES”). WHEN YOU ACCESS OR USE ANY PART OF CERTA’S PLATFORM OR ITS PRODUCTS AND SERVICES THROUGH ANY MEANS, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE, THE CREDIT REVIEW ACKNOWLEDGEMENT AND AUTHORIZATION AND ANY ADDITIONAL TERMS OR AGREEMENTS PROVIDED TO YOU THROUGH THE CERTA PLATFORM, INCLUDING WITHOUT LIMITATION THE TERMS AND CONDITIONS OF EACH FUNDING AGREEMENT AND OTHER DOCUMENTS AND AGREEMENTS INCORPORATED THEREIN (COLLECTIVELY REFERRED TO ALTERNATIVELY AS “TERMS AGREEMENT” OR “TERMS OF SERVICE”). YOU ALSO REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS TERMS AGREEMENT FOR YOURSELF OR ON BEHALF OF ANY BUSINESS ENTITY FOR WHICH YOU HAVE SUBMITTED INFORMATION. UNLESS OTHERWISE STATED, THE TERMS “YOU,” “YOURSELF” OR “YOUR” REFER TO ALL USERS OF CERTA’S PLATFORM ON BEHALF OF YOURSELF AND ANY SUCH BUSINESS ENTITY AS WELLS AS ALL FUNDERS (AS DEFINED BELOW). YOUR USE OF CERTA’S PRODUCTS AND SERVICES MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO YOUR SELECTION AND/OR USE OF SPECIFIC CERTA PRODUCTS AND SERVICES (ALL OF WHICH ARE HEREBY INCLUDED WITHIN THESE TERMS OF SERVICE).
Certa’s Platform assists small and medium-sized businesses fund their business activities through various options such as merchant cash advances and other receivables-based merchant financing (collectively, “MCA Products”), small business loans, equipment, inventory, accounts receivable and other asset-based financing (collectively, “Lending Products”, and together with MCA Products, “Funding Products” or “Funding”) directly or through a network of commercial financing sources (collectively “Funders”).
Even if you are pre-qualified for Funding after submitting preliminary information through Certa’s Platform, you may not be approved for or receive Funding. Funding is in the sole discretion of the applicable Funder, whether it be Certa or a third party. That said, Certa does not discriminate on the basis of race, color, sex, religion, national origin, handicap, marital or familial status or age (provided that the applicant has the capacity to enter into a binding contract). If Certa does approve Funding for your business, you will be required to enter into supplemental legal agreements for each Funding project which, in addition to this Terms Agreement, will describe the rights and obligations of Certa and you with respect to each Funding project.
Certa does not charge a fee specific to your use of Certa’s Platform or to apply for Funding pre-qualification. However, you may be required to pay fees for additional services Certa (or other Funders) may provide as well as expenses incurred in connection with your Funding application/project, such as with respect to investigating your background and/or creditworthiness.
You authorize Certa (and/or the applicable Funder) to make all credit, employment, investigative and other inquiries (including without limitation to consumer reporting agencies) to process your Funding applications.
Please carefully review the discussion on Privacy and Data Security in Section D to understand how Certa collects, uses, shares and secures information it collects in connection with your use of Certa’s Platform.
Certa’s Products and Services are not available in all States. Certa’s Products and Services are only available to legal residents of the United States of America who are at least eighteen (18) years.
By entering into this Terms Agreement, you are also agreeing to additional terms and conditions (including without limitation assuming certain obligations and waiving certain legal rights) as set forth in and after Section G. You should review these Terms of Service carefully from time to time, as they are subject to change without notice to at Certa’s discretion.
By accessing or using the Certa Platform or Certa’s Products and Services, you agree to do so in accordance with this Terms Agreement and applicable law in all cases.
A. CERTA’S PRODUCTS AND SERVICES
Certa provides small and medium-sized businesses with various commercial (no personal or consumer) financing solutions, resources, materials and tools as well as access to community discussion through Certa’s Platform. Certa’s Products and Services are provided by Certa or third party Funders in Certa’s (or the applicable third party Funder’s) sole discretion. Registering on, and applying for, Funding through Certa’s Platform does not assure that you will be approved for or receive any Funding. Funding is in the sole discretion of Certa or the applicable Funder; provided however that Certa does not discriminate on the basis of race, color, sex, religion, national origin, handicap, marital or familial status or age (provided that the applicant has the capacity to enter into a binding contract). If Funding is approved, whether through Certa or a third party Funder, you will be required to enter into a separate legal agreement with either Certa or such third party Funder which, in addition to this Agreement, will describe the rights and obligations of Certa and you with respect to each Funding. Certa does not negotiate Funding terms with third party Funders on your behalf.
Certa’s Platform includes access to a mobile application which relies on your wireless service, your mobile device’s GPS antenna coverage and the wireless coverage within the area in which you are located at that time. To use Certa’s mobile application, your location and caller identification must be activated to enable Certa to validate your Account, Security Credentials (as defined) and Certa’s Products and Services associated with the applicable mobile device.
B. USING CERTA’S PLATFORM
1. Registration: When you submit preliminary information about your Funding needs through Certa’s Platform, Certa creates an account and sends login information to the e-mail address on your pre-qualification application (individually and collectively your “Account” or “Account Information”). When you submit this pre-qualification application, you must authorize Certa and/or its service providers to make such background, credit, employment, investigative and other inquiries as may be appropriate in Certa’s discretion, including to consumer reporting agencies, to validate your Account information, initially and from time to time, as well as with respect to your various Funding applications and requests. You agree you shall: (i) provide true, accurate and complete information as prompted by the applicable forms; (ii) at all times have the authority to agree to these Terms of Service and all Funding agreements for yourself and on behalf of any business entity for which you use Certa’s Platform; (iii) not or permit anyone else to impersonate or misrepresent your identity or that of your business or your right to use the applicable mobile device(s) associated with your Account; (iv) maintain and promptly update all information provided through Certa’s Platform and through all Funding applications, information and materials to keep it true, accurate, current and complete; and (v) not engage in any harmful or abusive activities that may disrupt Certa’s Platform, its ability to provide and any user’s ability to use Certa’s Platform or violate any laws, rules or regulations.
2. Using Certa’s Platform: Once Certa has validated and set up your Account, you may apply for Funding. You and your authorized users may also access various business tools, materials and resources and the Certa Community Forum and upload and store documents to your Account. You should always retain copies of all documents uploaded to the Certa Platform; Certa is not liable for loss of data or uploaded documents. Prior to use of specific Certa Products and Services, you may be required to recertify your compliance with this Terms Agreement. When you apply for Funding, you also expressly authorize Certa to share the information and documents you have provided (collectively, “Funding Information”) with third parties, including potential Funders. You also agree that Certa may provide all documents, messages and notifications to your Account electronically and/or using text messaging through Certa’s Platform via the e-mail address or mobile telephone number associated with your Account.
3. Updating Your Information: It is your responsibility to review and update your Account/Funding Information from time to time. You may update your Account Information or add/update/delete mobile devices and authorized users at any time. You acknowledge and agree that Certa will have no liability associated with or arising from your failure to maintain accurate Account/Funding Information or update your authorized users. If Certa has reasonable grounds to suspect that the information you have provided is or becomes untrue, inaccurate or incomplete, Certa may suspend or terminate your Account and refuse any and all current or future use of Certa’s Platform and/or all or any part of Certa’s Products and Services.
4. Security Credentials: You are responsible for all Account activity and for ensuring that your use or access to your Account and/or Certa’s Platform complies fully with these Terms of Service, including the safety and security of all user names, IDs, logins, passwords, PINS or other security features (collectively “Security Credentials”) through which you and your authorized users may access your Account, the secure portions of Certa’s Platform and use Certa’s Products and Services. Anyone accessing your Account using your Security Credentials will be considered an authorized user of your Account and you will be responsible for their actions as if they were your own. You are responsible for ensuring that your authorized users are aware of and comply with these Terms of Service. You are ultimately responsible for the acts and omissions of your authorized users and each individual to whom you have given or who may have gained access through use of your Security Credentials. It is your responsibility to preserve the confidentiality of and not share your Security Credentials or use or record them in a non-secure manner. You must notify Certa immediately if you need to terminate an individual’s access and/or if you suspect fraudulent or abusive activity. Certa is not liable for any use of Certa’s Platform or Certa’s Products and Services by such individuals prior to Certa’s receipt of your termination notice and a reasonable period thereafter. If you so notify us, or if Certa suspects fraudulent or abusive activity, you agree to cooperate with us in any investigation and to use any preventive measures Certa prescribes. Use of assigned Security Credentials terminates immediately upon the earlier of termination of an authorized user’s authorization, inactivity, dormancy, or termination of your Account or termination of these Terms of Service. Certa may rely upon the instructions, consent given and all action taken through your Security Credentials, without verifying the identity or authority of any person accessing Certa’s Platform and using Certa’s Products and Services.
5. User Conduct; Community Features: Certa expects users of Certa’s Platform and Certa’s Products and Services and Funders to interact with Certa and each other respectfully and professionally in compliance with generally accepted standards of conduct as well as all applicable laws, regulations and generally accepted practices or guidelines in the relevant jurisdictions. These include, without limitation, (i) those regarding the export of data or software to and from the United States or other relevant countries and (ii) the Equal Credit Opportunity Act (“ECOA”), Regulation B promulgated under ECOAm and the Fair Credit Reporting Act (“FCRA”), all as amended from time to time. You are responsible for ensuring the accuracy and truthfulness of all documents and other materials you upload to and/or disclose using Certa’s Platform. Certa does not monitor or control use of such documents, materials or other information and therefore cannot assure and disclaims their ongoing accuracy, quality or integrity.
The interactive portions of the Certa Platform, such as discussion areas, bulletin boards, expert network or other areas on Certa’s Platform through which you or others may post reviews, messages, materials, items or other content (collectively, “Certa’s Community Forum”), and/or if you access Certa’s Facebook, Twitter or other social media sites (collectively, “Social Media Channels”) require special mention. You are solely responsible for your use of all Social Media Channels and Certa’s Community Forum; you use them at your own risk. Anything posted by you or anyone else to any part of Certa’s Community Forum will NOT be confidential. By using any part of Certa’s Community Forum, you expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through Certa’s Platform any of the following:
Any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, misleading, fraudulent;
- Material that is hateful or ridicules or disparages any other person or classes of persons, or discriminates or tends to encourage or support discrimination on the basis of race, color, gender, sexual preference or orientation, religion, national origin;
- Material that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- Material that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Material that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Any commercial messages, material, promotions, political campaigning, advertising or solicitations;
- Private information of any third party, including, without limitation, addresses, phone numbers, e-mail addresses and credit card numbers, excluding only business contact information where the third party has expressly consented to such disclosure;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- Material that is unrelated to the topic of the particular part of Certa’s Community Forum to which such Material is posted;
- Material that contains SPAM, spyware or spoofing; or
- Material that, in Certa’s sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Certa’s Community Forum, Certa’s Platform, or which may expose Certa, its service providers or its users to any harm, ridicule, embarrassment or liability of any type, as determined by Certa at its sole discretion.
Because your comments/opinions may be considered an “endorsement,” it is important that they reflect your honest opinions, beliefs and findings and that you disclose if you have received anything of value in exchange for your statements.
6. Account Termination, Survival of Terms: You may terminate your Account at any time; however, termination of your Account does not terminate this Terms Agreement or any Funding agreements. Once you subscribe to the Terms Agreement, with the exception of those provisions relating to the operation and management of your Account, this Terms Agreement shall indefinitely continue to apply with full legal force and effect, surviving expiration or termination of your Account for any reason. It will continue to apply regardless of whether you stop using the Certa Platform or Certa’s Products or Services and regardless of whether your Account is terminated either by you or Certa for any reason. To terminate your Account, please contact Certa Customer Service at email@example.com. Please note that uninstalling Certa’s mobile application from your mobile device will not terminate your Account. Certa may suspend or terminate your Account and/or your access to all or any part of Certa’s Platform and/or Certa’s Products and Services at any time, with or without notice to you if (i) you fail to make any payments when due as required under any Funding agreements, (ii) your Account is inactive; (iii) you misuse Certa’s Platform or Certa’s Products and Services; (iv) you misrepresent yourself or commit a fraudulent act or (v) you fail to comply with this Terms Agreement and/or any Funding agreements. Access to your Account via the mobile device associated with your Account may be suspended if the applicable mobile device is reported lost, stolen, suspended or terminated for any reason and you do not replace it with a new one within a reasonable period of time.
Certa does not charge a fee specific to your use of Certa’s Platform or to apply for Funding pre-qualification. However, you may be required to pay fees for additional services provided and/or expenses incurred in connection with your Funding application, such as with respect to investigating your background and/or creditworthiness. All fees and charges associated with any Funding will be fully disclosed to you in writing prior to proceeding with your Funding. You agree to pay all requisite periodic and other fees, plus all taxes, applicable to each of Certa’s Products and Services as set forth in the supplemental terms and conditions and/or legal agreements to which you will be required to agree when you apply for and/or receive Funding. In addition, standard data and text rates may apply for each text message sent from and received by your mobile device as determined by your wireless provider. Contact your wireless provider for complete data, text and other pricing details.
D. PRIVACY, DATA SECURITY AND RETENTION
Certa’s Platform currently uses Google Analytics, a web analytics service provided by Google, Inc. (“Google”). Google Analytics uses “cookies,” which are text files placed on your computer to help the website analyze how users use Certa’s website. The information generated by the cookie about your use of Certa’s website (including your IP address) will be transmitted to and stored by Google on servers wherever they are located. Certa has no control over the location or use of any data stored by Google. In addition to the information you provide, information may be collected from other sources and combined with that which you provide.
Certa also captures information with respect to your mobile device settings in connection with, and your use of Certa’s Platform through Certa’s mobile application. Mobile device information gleaned includes, without limitation, the mobile number associated with each mobile device registered to your Account, the types of mobile devices used, each mobile device’s unique device ID, its IP address and operating system, geo-location and date/time stamps, the type of mobile internet browsers used by and the telecommunications carrier associated with each mobile device. Because some of the communication between Certa and you occurs through your mobile carrier’s network, your carrier also may have access to the information transmitted. Certa has no control over and you should contact your mobile carrier to better understand your mobile carrier’s treatment of any information transmitted through your mobile device. Certa also gathers usage statistics, metrics or other data generated by your use of your mobile device. Certa may combine your information with that of other users and share the combined data with a variety of third parties.
If your location is enabled on your mobile device or the Certa’s Products and Services you order use location-enabled products or services, you will be sending Certa information that may reveal your actual location in real-time. You understand that location-based services that are provided through Certa’s Platform require a location to function properly, and your use signifies your agreement to allow Certa to use your location for such purposes. If you do not want Certa to use location-based information, please refrain from using the location based service or click “DON’T ALLOW” when your mobile device requests your location-based information.
2. Use and Sharing of Collected Information: In general, Certa uses and/or discloses all information gained through or gleaned from and/or through access to Certa’s Platform or as a result of use of Certa’s Products and Services (i) for the purpose for which such information was provided and to enforce any agreements we (or any Funders) have with you; (ii) for marketing, advertising or promotional purposes; (iii) to our service providers, legal, financial and other advisors in connection with seeking their advice or services; (iv) to comply with applicable laws; (v) to respond to governmental inquiries; (v) to comply with legal process or orders; (vi) in an emergency; (vii) to protect Certa’s Platform, Certa’s Products and Services, Certa’s rights or property, the rights or safety of Certa customers or others; or (viii) to investigate fraud, a problem, claim or dispute. When you use Certa’s Platform, Certa’s Products or Services, you authorize Certa to use all information collected as provided in the Terms Agreement.
Certa (and/or Funders) use information collected to process and enforce your Funding requests and for any other purpose for which it is provided to Certa and/or other Funders. Protecting the security of information in connection with your Funding requests is very important to Certa. In addition to robust firewall technology and server access security, when you transmit sensitive information to Certa, Certa’s Platform protects your information in transmission both to and from Certa’s Platform by encrypting it in combination with identity authentication. Once Certa receives your transmission, it takes reasonable precautions to secure it on Certa’s Platform using appropriate data security procedures for ongoing security checks, authentication and subsequent resolution.
Once received, Certa stores information in its secure database in the United States in accordance with U.S. laws. Certa retains all data collected in connection with your Account, your use of Certa’s Products and Services, as well as that relating to Funding, for as long as (i) your Account is open, (ii) you continue using Certa’s Products and Services, (iii) have outstanding Funding obligations and as otherwise required by law or internal company policy. Please note that some or all of the information you provide or that Certa collects may be required in order for Certa’s Platform to function properly. We may also be required to retain documents and/or information for a period of time designated by law or company policy. Certa may duplicate its database, including PII, to enable Certa to restore its database if necessary. These copies may be stored at secure locations inside and/or outside the United States.
The privacy statements in these Terms of Service only address your disclosure to, and Certa’s use of, your personally identifiable information. Certa has no control over collection or use of your personally identifiable information or non-personally identifiable information by third parties whose websites, products or services you may access as a result of hyperlinks accessible from Certa’s Platform. We encourage you to read the privacy statements located on other websites and/or contact them to better understand their privacy practices generally and their treatment of any information collected as a result of your accessing a hyperlink. We do not control and hence you agree that we are not liable for their use or misuse of your personally identifiable information.
If Certa is or should it become part of a family of companies, unless otherwise prohibited by law, all companies within the Certa family may share all information collected as a result of your use of Certa’s Products and Services. If Certa, or an Certa division, unit or subsidiary, were to sell all or any part of Certa’s assets or equity, merge with or be acquired by one or more third parties or if it were to cease operations, Certa may, in its sole discretion, transfer, sell or assign information collected through access to Certa’s Platform and/or use of Certa’s Products and Services. All information collected would then be subject to the acquiring entity’s privacy terms which may differ from those of Certa. As a result, upon completion of the transaction, one or more of these entities may contact you directly.
Please note that the internet and wireless telecommunications networks are open media, subject to the reliability of hosting services, internet intermediaries, your internet service provider and other providers whose reliability is not controlled or guaranteed by Certa. No data transmission via the internet or mobile device can be guaranteed to be 100% secure. As a result, while Certa strives to protect your personal information and privacy, including by the data security measures described below, it cannot guarantee or warrant the security of any information you disclose or transmit via the internet and/or your mobile device and vice versa. Certa is not responsible for the theft, destruction, or inadvertent disclosure of your personally identifiable information. You acknowledge this risk when accessing or using Certa’s Platform and/or Certa’s Products and Services. Please do not transmit sensitive information to Certa via e-mail. e-mail is not a secure communication method and should never be used to transmit credit card, bank account or other sensitive information. The transaction encryption capabilities offered by Certa’s payment processor service provider through Certa’s Platform offers reliable protection from unauthorized access and the safest way to pay fees for Certa’s Products and Services.
Please direct all inquiries with respect to Certa’s privacy and data security procedures and/or complaints with respect to Certa’s handling of a specific individual’s PII should be directed to firstname.lastname@example.org.
E. PROPRIETARY RIGHTS; LIMITED LICENSE
Certa’s Platform includes Certa’s network of current (www.certagrp.com) and future websites and web pages, its mobile application and all data, information and material collected as a result of access to Certa’s Platform and use of Certa’s Products and Services. Certa’s Platform also includes Certa’s Technology and, Marks (each as defined below), the “look and feel” of Certa’s websites and all graphics, pictures, audio, video, page leaders, button icons, scripts, content and the collection, compilation, assembly and arrangement of all of the foregoing. Certa’s “Technology” includes all hardware, software and other technology, architecture and networks associated with enabling or facilitating your access to Certa’s Platform and use of Certa’s Products and Services. Certa’s’ “Marks” include, without limitation, “Certa groupTM,” the green and brown certa olive branch, and any other trademarks, trade names, service marks, trade dress, logos and slogans, individually and/or as may be combined with one another, used by Certa at any time, whether or not registered. Everything you see, read or use as a result of your access to Certa’s Platform or use of Certa’s Products and Services, including, without limitation, all features, templates, functionality and capabilities and all modifications, new versions, new features, enhancements, improvements, functionality, all derivatives and each component thereof and thereto, and all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein and thereto (i) are proprietary to Certa, (ii) are either owned by or under license to Certa, (iii) are protected by all applicable United States and international intellectual property laws and (iv) may only be used in the manner and for the purpose set forth in this Agreement. This includes use of Certa’s URL addresses or Marks in page text, as key words, meta tags or any other ‘hidden text.”
Certa gives you a non-exclusive, non-transferable, revocable restricted license, terminable at any time, to access Certa’s Platform and use Certa’s Products and Services solely for your legitimate business purposes with respect to the specific Certa Products and Services you order or use, solely in the manner and as permitted in this Agreement and in accordance with applicable law. You may not duplicate, download (other than as expressly permitted), copy, create derivatives from or make any other use of all or any part of Certa’s Platform or Certa’s Products and Services, use any data gathering or extraction tools, reverse engineer Certa’s Technology or attempt to circumvent its security features, or resell Certa’s Products and Services. Nothing in this Agreement gives you any right, title or interest other than the limited access and use rights permitted by these Terms of Service.
You give Certa a non-exclusive right and license to use and permit Certa’s third party service providers to use, all material, information and data of any nature or sort you upload to and transmit through Certa’s Platform, including PII, to facilitate Certa’s provision of Certa’s Products and Services, to identify you as an Certa customer and for any other purpose described in this Agreement. This license also grants to Certa the right to use your trademarks, service marks, trade dress in marketing and promotional materials and on Certa’s Platform until a reasonable period following the termination of your Account.
F. MODIFICATION TO THIS AGREEMENT, CERTA’S PLATFORM, CERTA’S PRODUCTS AND SERVICES
From time to time, Certa may update or change these Terms of Service and this Terms Agreement for any reason. Please consult this Agreement regularly for any changes. Please note that your subsequent access to Certa’s Platform or use of Certa’s Products and Services will signify your consent to all changes.
Certa also may change any part of Certa’s Platform, including disabling or expanding any features and capabilities, interrupting, restricting, modifying or discontinuing, temporarily or permanently, at any time for any reason and without notice to you. You agree that Certa shall not be liable to you or to any third party for such actions. Certa may also modify, suspend or terminate all or any part of Certa’s Products and Services in its sole discretion without liability to you or any third party; provided that any Funding agreements will not be affected. You will be notified if a new version of Certa’s mobile application is available and you will be asked if you wish to upgrade to the new version. If you do not upgrade to the new version, you may continue to use it but some features or functionality provided by the new version may not be available to you.
G. DISCLAIMERS; LIABILITY LIMITS
(a) NO WARRANTIES. CERTA DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND LIABILITY WITH RESPECT TO THIS AGREEMENT, ANY OTHER DOCUMENTS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, CERTA’S PLATFORM, CERTA’S PRODUCTS AND SERVICES AND YOUR USE THEREOF, WHETHER EXPRESS, IMPLIED OR IMPOSED BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR COURSE OF CONDUCT. CERTA’S PLATFORM AND CERTA’S PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, ALL MATERIALS, INFORMATION, BUSINESS GUIDANCE, RATES AND OTHER PRODUCTS, SERVICES OR OFFERS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SUBJECT TO CERTA’S SOLE DISCRETION. CERTA HEREBY DISCLAIMS ANY AND ALL DAMAGES FOR, ARISING OUT, OF OR RELATED TO YOUR INABILITY TO ACCESS CERTA’S PLATFORM OR USE CERTA’S PRODUCTS AND SERVICES, OR ANY CLAIM BY YOU OR ANY THIRD PARTY, INCLUDING IF YOU INCUR PROPERTY DAMAGE, PERSONAL INJURY OR DEATH USING YOUR MOBILE DEVICE TO ACCESS CERTA’S MOBILE APPLICATION WHILE DRIVING. NOTWITHSTANDING ANYTHING CONTRARY HEREIN, ALTHOUGH CERTA WILL TAKE REASONABLE PRECAUTIONS TO MAINTAIN YOUR ACCESSIBILITY TO CERTA’S PLATFORM AND PROTECT YOUR ACCOUNT FROM DELETION, CORRUPTION OR UNAUTHORIZED MODIFICATION OF OR ACCESS TO ANY PART OF CERTA’S PLATFORM, CERTA MAKES NO REPRESENTATION OR WARRANTY AND EXPRESSLY DISCLAIMS THAT ITS EFFORTS WILL ALWAYS BE SUCCESSFUL, THAT CERTA’S PLATFORM OR CERTA’S PRODUCTS AND SERVICES WILL MEET YOUR NEEDS, THAT YOUR USE WILL BE ERROR-FREE OR THAT YOUR USE OR BUSINESS OPERATIONS WILL BE UNINTERRUPTED.
(b) NO ADVICE. ANY INFORMATION OR GUIDANCE ACCESSED THROUGH USE OF CERTA’S PLATFORM AND/OR CONTAINED WITHIN OR PROVIDED THROUGH CERTA’S PRODUCTS AND SERVICES IS PROVIDED SOLELY AS A COURTESY AND IS NOT LEGAL ADVICE OR COUNSEL. YOU SHOULD CONSULT LEGAL COUNSEL TO BETTER UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO ANY FUNDING. CERTA EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS WARRANTIES AND ANY LIABILITY WITH RESPECT TO ANY INFORMATION OR GUIDANCE PROVIDED.
(c) NO FUNDING GUARANTEE. BY SUBMITTING ANY PRE-QUALIFICATION APPLICATION OR OTHER BUSINESS FUNDING APPLICATION OR BY ACCESSING OR USING ANY OF CERTA’S PLATFORM OR CERTA’S PRODUCTS OR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT CERTA DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT YOU WILL QUALIFY FOR OR OBTAIN FUNDING FROM CERTA OR ANY OTHER FUNDER. EACH FUNDING PRODUCT IS GOVERNED EXCLUSIVELY BY THE DEFINITIVE FUNDING AGREEMENT AND ANY RELATED DOCUMENTS AND AGREEMENTS INCORPORATED THEREIN.
(d) AVAILABILITY OF CERTA’S PRODUCTS AND SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT NOT ALL OF CERTA’S PRODUCTS AND SERVICES MAY BE AVAILABLE TO YOU BASED ON YOUR STATE OF RESIDENCE AND OTHER FACTORS AS MAY BE DETERMINED BY CERTA AT ITS SOLE DISCRETION. (e) LINKS. CERTA EXPRESSLY DISCLAIMS ALL RESPONSIBILITY OR LIABILITY FOR THE AVAILABILITY OR ACCURACY OF ALL THIRD PARTY WEBSITES ACCESSED THROUGH HYPERLINKS ON CERTA’S PLATFORM. CERTA DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH SITES OR RESOURCES. THE INCLUSION OF ANY LINK ON CERTA’S PLATFORM DOES NOT IMPLY THAT CERTA ENDORSES THE LINKED SITE. YOUR USE OF ANY LINKS IS AT YOUR OWN RISK. YOU FURTHER ACKNOWLEDGE AND AGREE THAT CERTA SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OF OR RELIANCE ON ANY GOODS, SERVICES OR MATERIALS AVAILABLE ON OR THROUGH ANY SUCH LINK, SITE OR RESOURCE.
(f) FORCE MAJEURE. CERTA SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO YOUR ACCESS TO CERTA’S PLATFORM FOR ANY REASON. CERTA SHALL NOT BE LIABLE IF IT IS UNABLE TO PROVIDE CERTA’S PLATFORM (OR ANY PART THEREOF) OR PERFORM ANY OF ITS OBLIGATIONS CONTAINED IN THIS AGREEMENT DUE TO, DIRECTLY OR INDIRECTLY, THE FAILURE OF ANY PART OF CERTA’S PLATFORM, TECHNOLOGY, ANY WIRELESS CARRIER, TELECOMMUNICATIONS, POWER OR ELECTRICAL FAILURE OR SURGE, ANY INDUSTRIAL OR LABOR DISPUTE, CIVIL DISTURBANCE, EXPLOSION, FLOOD, EXTREME WIND, LIGHTNING, FIRE OR OTHER CASUALTY OR ACT OF NATURE, INABILITY TO SECURE SUFFICIENT FUEL, ENERGY, MATERIALS, SERVICES OR TRANSPORTATION OR ANY OTHER EVENT BEYOND CERTA’S REASONABLE CONTROL.
(g) CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ANY OF THE CERTA PARTIES (AS DEFINED IN SECTION H BELOW) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONTINGENT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, DOCUMENTS, PROFITS, BUSINESS, GOODWILL OR LOSS OF USE, EVEN IF CERTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(h) FUNDING PRODUCTS. NO LOAN. IF YOU HAVE SUBMITTED ANY PRE-QUALIFICATION APPLICATION OR OTHER BUSINESS FUNDING APPLICATION FOR ANY OF CERTA’S FUNDING PRODUCTS, OR BY ACCESSING OR USING ANY OF CERTA’S FUNDING PRODUCTS, INCLUDING WITHOUT LIMITATION MCA PRODUCTS OR LENDING PRODUCTS AS DEFINED IN THE HIGHLIGHTS SECTION ABOVE, YOU ACKNOWLEDGE AND AGREE THAT SUCH FUNDING PRODUCTS CONSTITUTE PURCHASE AND SALE TRANSACTIONS AND DO NOT CONSTITUTE, NOR SHALL THEY BE DEEMED TO BE, LOAN TRANSACTIONS UNDER ANY CIRCUMSTANCES.
(i) WAIVER OF JURY TRIAL. YOU AND CERTA EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT THAT EITHER MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION OF ANY KIND IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS TERMS AGREEMENT, CERTA’S PLATFORM, CERTA’S PRODUCTS AND SERVICES OR ANY FUNDING OR FUNDING PRODUCT PROVIDED IN CONNECTION THEREWITH (COLLECTIVELY, A “CERTA CLAIM”).
2. LIMITATION OF LIABILITY:
CERTA’S SOLE LIABILITY, AND THAT OF ITS CUSTOMERS, LICENSORS, SUPPLIERS, FUNDERS AND BUSINESS PARTNERS, IS LIMITED TO THE GREATER OF FEES CHARGED BY CERTA (AND NOT THOSE OF ANY THIRD PARTY) ACTUALLY RECEIVED BY CERTA FROM YOU AS A RESULT OF YOUR USE OF CERTA’S PLATFORM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR $100. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN CERTA AND YOU. CERTA’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. WITHOUT INTENDING TO LIMIT THE FOREGOING, YOU MUST BRING ANY CLAIMS YOU MAY HAVE AGAINST CERTA WITHIN SIX (6) MONTHS OF THE DATE THE CLAIM AROSE OR BE FOREVER BARRED. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOUR LEGAL RIGHTS WITH RESPECT TO THE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT MAY VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS/DISCLAIMERS MAY NOT APPLY TO YOU.
You agree to indemnify and hold harmless Certa, its shareholders, officers, directors, employees, suppliers, licensors, service providers, agents and those of Certa’s respective affiliates (collectively, the “Certa Parties”) from any loss, liability, damages, fees, costs, claims, penalties or demands including reasonable fees of attorneys and other professionals, and any interest thereon, whether or not brought to suit, due to, arising out of or related to any direct or third-party claim or proceeding of any kind based on or arising out of your access to or use of Certa’s Platform or Certa’s Products and Services, including without limitation the pre-qualification application or any Funding Product offered or provided by Certa or any other Funder, any injury, damage, loss or harm (whether to you or any third party) arising out of or related to your access to Certa’s Platform and/or use of Certa’s Products and Services and/or your breach of this Agreement. Your indemnification of Certa Parties includes, without limitation, claims arising out of alleged or actual violation of any law, statute, regulation, rule and generally accepted practices or guidelines in the relevant jurisdictions.
I. GOVERNING LAW
Any dispute, matter and/or claim between you and Certa arising out of, incident or related to, this Agreement or Certa’s Platform shall be governed by, construed and interpreted in accordance with the laws of the state of Virginia law (excluding the choice and conflicts of law rules and principles thereof) and shall be resolved within the federal and state courts located in the State of Virginia to the exclusion of the courts of any other state or country. You irrevocably and unconditionally waive any objection to the laying of venue of any such action or proceeding in any such court and any claim that any such action or proceeding has been brought in an inconvenient forum. Notwithstanding the foregoing, Certa may seek equitable relief in any court of competent jurisdiction to prevent or enjoin misappropriation, misuse, unauthorized disclosure or infringement of its intellectual property rights. You should address any claim between you and any Certa client or other property owner or manager or other third party service providers providing services to you or on your behalf through Certa’s Platform directly with the applicable party.
J. NOTICES AND PROCEDURES FOR COPYRIGHT INFRINGEMENT CLAIMS
Certa respects the intellectual property rights of others and asks that anyone accessing Certa’s Platform or using Certa’s Products and Services do the same. If you believe that your work has been copied in any way that constitutes copyright infringement, please provide all of the following information: (i) a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the material that you claim is infringing or is the subject of infringing activity, that it is to be removed or access to it disabled and information reasonably sufficient to enable Certa to locate the material on Certa’s Platform; (iv) your name, address, telephone number, e-mail address and all other information reasonably sufficient to enable Certa to contact you; (v) a statement by you that you have a good faith belief that use of the material as described by you is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the information in your notification is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Certa will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws. Notices of copyright infringement should be directed to:
Certa Group LLC
2221 S Clarke Street, Suite 12017 , Arlington VA 22202
(Please include “Notice of Infringement” in subject line.)
IMPORTANT NOTE: THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING CERTA THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS QUESTIONS RELATED TO CERTA’S PLATFORM OR CERTA’S PRODUCTS AND SERVICES WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
K. SURVIVAL OF TERMS
With the exception of those provisions relating to the operation and management of your Account, this Terms Agreement, including without limitation you obligation to pay any fees, protection of Certa’s proprietary rights, Certa’s right to continued use of information, all disclaimers and liability limits, all indemnity obligations, governing law, notices, this survival provision and all other legal provisions, shall indefinitely continue to apply with full legal force and effect, surviving expiration or termination of your Account for any reason and regardless of whether you stop using the Certa Platform or Certa’s Products or Services and regardless of whether your Account is terminated either by you or Certa for any reason.
L. OTHER LEGAL PROVISIONS
You may not assign this Terms Agreement without Certa’s prior written consent. This Terms Agreement, including any additional terms and conditions specific to the Certa’s Platform and/or Certa’s Products and Services you order, along with each re-affirmation of these Terms of Service that you make through Certa’s Platform, represents the entire agreement between you and us, which may only be amended as described in Section F above. If any part of this Agreement is found invalid, the balance of the Agreement remains enforceable; provided however that Certa’s Products and Services shall not be offered where prohibited by law. You acknowledge that you will comply with the laws and regulations of the United States and other countries that may restrict or affect the export and re-export of Certa’s Technology. The failure to enforce any term of this Agreement on one occasion shall not be deemed a waiver or prevent enforcement on any other occasion or the enforcement of any other term. Headings and captions shall not be considered included for purposes of interpretation or application hereof, but are for convenience only. Certa’s Products and Services service offering is a “Commercial Item,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212, 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Please direct questions about this Terms Agreement, Certa’s Platform or Certa’s Products and Services to email@example.com.