The following Funding Gates Terms of Service (collectively with the Order Form (as defined below), the "Terms of Service" or "Agreement") constitute a legal agreement between you and the entity on whose behalf you are accessing the Services ("User") and Funding Gates Corporation ("Funding Gates"), relating to Funding Gates's services, which may include but are not limited to: Funding Gates's proprietary business billing, payment processing and receivables management platform (the "AR Software"); receivables coaching and consultation services ("AR Advisory"); web-based training and certification program ("AR Training and Certification"); services for initiating User interaction with debt collection agencies ("Collections"); services matching User with potential financing sources ("AR Financing"); and accounts receivable staffing solution ("AR Staffing"), as well as any other services which Funding Gates chooses to offer in the future and any of the features, functions, or content made available in connection with any of the aforementioned services (each a "Service" and collectively, the "Services"). Additional details regarding the Services provided specifically to User may be set forth in an applicable order form entered into between Funding Gates and User, including any other addenda, attachments or exhibits thereto (collectively, "Order Form").
USER'S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS OF SERVICE. BY CLICKING ON THE "ACCEPT" BUTTON AND USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF SERVICE ON BEHALF OF USER. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS OF SERVICE ON ITS BEHALF. IF USER DOES NOT AGREE WITH ANY PROVISION OF THE TERMS OF SERVICE, OR YOU DO NOT HAVE AUTHORITY TO BIND USER, YOU MUST CLICK THE "CANCEL" BUTTON AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE.
1. Acceptance of Terms of Service and Basic Warranties
a. By registering for the Services, User represents and warrants that: (a) User is at least eighteen (18) years of age and is a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state in which it operates; (b) User is eligible to register and use the Services and has the right, power, and ability to enter into and perform under this Agreement; and (c) the name identified by User when User registered is User's name or business name under which User sells goods or services. To be clear, both individuals and businesses may register to use the Services.
b. By registering for the Services, User agrees to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time through the Services by Funding Gates, each of which is incorporated by reference and each of which may be updated from time to time without notice to User.
c. Certain of the Services may be subject to additional terms and conditions specified by Funding Gates or an applicable Service Party from time to time including without limitation as set forth in an Order Form; User's use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference. These Terms of Service apply to all users of the Services, including, without limitation, employees and all others who have access to User's account with the Services.
User will provide reasonable cooperation, assistance, information and access to Funding Gates as may be necessary to initiate and facilitate User's use of the Services. Subject to all terms and conditions of these Terms of Service, Funding Gates will provide User with access to the Services. As part of the implementation process, User will identify an administrative user name and password, along with basic company information, including but not limited to, e-mail address, company name, company address, telephone number and fax number that will be used to set up User's account. As part of the implementation process for payment installment services offered, User will provide US bank account information that will be used to credit and debit funds authenticated as part of the Services. For identity authentication and account verification purposes, Funding Gates reserves the right to ask the user personal authentication questions, including but not limited to, name, last name, email address, telephone number, date of birth and the last four (4) digits of the user's social security number, and share this information, along with bank account information, with third party authentication services for the sole purpose of identity verification and account authentication. User shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by User. Funding Gates reserves the right to refuse registration of, or to cancel, login IDs that violate the Terms of Service and conditions set forth in these Terms of Service. Funding Gates shall review some or all of the information that User submits in connection with User's request to register for the Services and may forward such information to its third party payment processor ("Payment Processor"). User agrees that Funding Gates may share information about User and User's Funding Gates account to its Payment Processor. After User submits its application, Funding Gates or its Payment Processor may conclude that User will not be permitted to use the Services. By accepting this Agreement, User specifically authorizes Funding Gates to request identity-verifying information about User, including a consumer or a commercial credit report that contains User's or User's business' name and address. Funding Gates may periodically obtain additional reports to determine whether User continues to meet the requirements for a Funding Gates account.
3. AR Training and Certification; AR Advisory
To the extent User chooses to receive any receivables coaching and consultation services from Funding Gates, whether through AR Advisory services or AR Training and Certification or in connection with any other Services (collectively, "Coaching Services"), User acknowledges and agrees that neither Funding Gates, the Coaching Services, nor any other part of the Services are intended to provide personalized financial, legal or tax advice. The information provided is for general informational purposes only, and is broad in scope, impersonal and not attuned to any specific portfolio or investment needs of any specific person or entity. The information provided through the Coaching Services is not intended to represent results User should expect in the future, and Funding Gates cannot and does not guarantee the accuracy, completeness, timeliness or reliability of, or otherwise endorse, any information, opinions and/or recommendations provided on or through the Coaching Services. User's personal financial situation is unique, and any information and advice obtained through the Coaching Services may not be appropriate for User's specific situation. Accordingly, before making any final decisions or implementing any financial strategy, User should obtain additional information and advice from User's financial, legal and/or tax advisers who are fully aware of User's specific circumstances.
4. Call Feature
If User chooses to use the call feature made available on the AR Software (including without limitation any related software, functionality, content, data, documentation, instructions, or other materials) (collectively, the "Call Feature"), which is powered by our Service Party, Twilio, Inc. ("Twilio"), User acknowledges and accepts that the following additional terms apply to User and User's use of the Call Feature:
Use of the Call Feature. User will be solely responsible for all use (whether or not authorized by User) of the Call Feature under User's account on the Services. User will promptly notify Funding Gates if there is any unauthorized use of, access to, or other security breach involving User's account on the Services. User will take all reasonable precautions to prevent unauthorized access to or use of the Call Feature and User's account.
Restrictions. User will not transfer, resell, lease, license or otherwise make available the Call Feature to any third parties. User will not use the Call Feature to access or connect with emergency services personnel or public safety answering points such as 911 or E911 services. User will use the Call Services in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement and any instructions provided through the Services or otherwise by Funding Gates or Twilio, including Twilio's Acceptable Use Policy, available at https://www.twilio.com/legal/aup _(provided that all references to the "Twilio Services" therein shall refer to the Call Feature), which is hereby incorporated into this Agreement. In particular, User must inform any recipient of a call that such call may be recorded, and User may not continue the call without such recipient's express consent to such recording.
License Grant. Specifically and without limitation, User hereby grants to Funding Gates and Twilio a nonexclusive, perpetual, irrevocable, worldwide, sublicensable and royalty-free right and license to access and use all information, data and other content provided by User in connection with the Call Feature (including without limitation call records, audio recordings, recording transcriptions, SMS records, and SMS message content) as needed to provide the Call Feature. User shall not use the Call Feature in any manner that violates any data protection statute, regulation, order or similar law. Except as allowed by applicable law, with respect to any software related to the Call Feature provided to User hereunder, User will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software.
User acknowledges that neither Funding Gates nor Twilio makes any guarantees regarding the availability of the Call Feature and that the Call Feature, or User's access to or use of the Call Feature, may be suspended or terminated at any time for any reason or no reason at all, including without limitation for any violations of the Twilio Acceptable Use Policy. Neither Funding Gates nor Twilio will have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that User may incur with respect to any suspension, termination, or other inability to access the Call Feature.
THE CALL FEATURE IS NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER FUNDING GATES NOR ITS SERVICE PARTIES (INCLUDING WITHOUT LIMITATION TWILIO) NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND USER WILL HOLD FUNDING GATES, ITS SERVICE PARTIES (INCLUDING WITHOUT LIMITATION TWILIO), AND EACH OF THEIR RESPECTIVE REPRESENTATIVES HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE CALL FEATURE TO CONTACT EMERGENCY SERVICES.
5. Invoice Payment Feature
If User chooses to use the payment acceptance and payment installment services made available on the AR Software (including without limitation any related software, functionality, content, data, documentation, instructions, or other materials) (collectively, the "Invoice Payment Feature"), which is powered by our Service Party, Stripe, Inc. ("Stripe"), User acknowledges and accepts that the following additional terms apply to User and User's use of the Invoice Payment Feature:
Accuracy and Timeliness of Payment Information. Invoices to be sent to User's customers created using the Service will be prepared using information that is provided by User. User is responsible for the customization of invoices created using the Service and the accuracy and completeness of all information on which invoices to User's customers are based, including, without limitation, the identity of, and contact information for, User's customers who are being invoiced, the transactions for which the User is invoicing them, and the cost thereof, including applicable discounts. Funding Gates will not entertain or handle disputes about the information provided by User on which invoices are based. User will be responsible for promptly handling any and all disputes with User's customers. It is solely User's obligation to inform Funding Gates as to any errors contained in any invoices created using the Service. It is also solely User's obligation for determining the schedule on which invoices will be created and distributed. User must ensure that the schedule of invoicing that User selects reflects the payment terms to which User has agreed with User's customers.
Enrollment and Online Orders. Enrollment to use the Invoice Payment Feature is not automatic. Funding Gates reserves the right to reject any enrollment for any reason including, but not limited to, User's inability to meet applicable underwriting criteria. In the event User is not approved to open an account with Funding Gates' primary payment processor(s) (if User has subscribed to the Invoice Payment Feature), or such payment processor(s) at anytime becomes unwilling to process payments with respect to User's account, Funding Gates may suspend or terminate User's use of the Invoice Payment Feature. Additionally, Funding Gates reserves the right to change its primary processor(s) for credit card, ACH and/or other electronic payment processing at any time in its sole discretion. Upon approval by Funding Gates' alternate processor(s), or the change by Funding Gates of its primary processor(s), User shall be provided an electronic copy of the terms and conditions applicable to the services provided by such processor(s), which shall be binding on User upon User's first electronic transaction processed by each such processor(s) (if User has subscribed to the Invoice Payment Feature). Additional fees may apply.
Invoice Payment Feature Representations and Warranties. User represents and warrants to Funding Gates, and User covenants, that: (a) User will provide complete and accurate information on which invoices issued in connection with the Invoice Payment Feature will be based and User will timely resolve any disputes in connection therewith; (b) the schedule that User selects for invoicing reflects the payment terms to which User has agreed with User's customers; (c) User does business in the United States and will use the Invoice Payment Feature to provide invoices to, and transact payments from (if User has subscribed to the Invoice Payment Feature), User's customers or vendors that are U.S. businesses or residents only; (d) each of User's customers with respect to whom User utilizes the Invoice Payment Feature have consented to receiving electronically all invoices, materials, disclosures, terms and other content delivered to them through such Services, are willing and capable of receiving, reviewing, printing and saving all such invoices, materials, disclosures, terms and other content, have consented to User's disclosure in connection with the Invoice Payment Feature of the information required to create and distribute invoices to User's customers, have consented to making payments through the Invoice Payment Feature (if User has subscribed to the Invoice Payment Feature), and have agreed to the Customer Terms of Service (as described below) prior to making a payment using the Invoice Payment Feature (if User has subscribed to the Invoice Payment Feature).
Fees. Set-up fees (if applicable) and other transaction-based fees may be charged for the Invoice Payment Feature. Transactional and merchant account fees may be charged in connection with transactions made using the payment acceptance options User selected when User began using the Invoice Payment Feature, as such were provided during setup (if User has subscribed to the Invoice Payment Feature). Set-up fees, transaction fees and the monthly subscription fees are subject to change without notice. User is subject to all fees pursuant to the terms of the applicable third-party payment acceptance agreements (if User has subscribed to the Invoice Payment Feature).
Other Agreements. If User subscribes to the Invoice Payment Feature, User will be required to accept and abide by terms presented to User by the applicable third party payment processor. These may include, without limitation, card acceptance agreements, ACH acceptance agreements, connected accounting agreements, or other electronic payment method agreements (collectively, "Payment Processor Terms"). The Payment Processor Terms are a legal agreement between User and the applicable payment processor only, and Funding Gates is not subject to, or responsible for, the Payment Processor Terms.
6. AR Financing
Funding Gates's AR Financing services will attempt to match User with one or more potential funding partners for User's business (each, a "Funding Partner") and provides User with tools and assistance related to a resulting funding relationship, if applicable. By using the AR Financing services, User acknowledges that any User Data (defined below) provided by User to Funding Gates in connection with such services may be shared with Funding Partners, and User expressly agrees to contact with such Funding Partners, or Funding Gates in relation with the AR Financing services, via phone, email, mail, fax, or other reasonable means, at any of User's contact numbers or addresses.
Although the AR Financing services assist User with connecting and working with a Funding Partner, Funding Gates cannot guarantee that User will receive funding from any Funding Partners or will receive any particular funding terms, and Funding Gates itself is not a funding partner or lender. In order to receive financing, User will enter into a separate agreement with the applicable Funding Partner, and Funding Gates shall not be a party to such agreement. It is crucial that User is aware of and understands Funding Partner's applicable terms and conditions.
All loans, investments, financing or other transactions conducted between User and a Funding Partner is solely between User and such Funding Partner. Funding Gates seeks to only partner with the highest quality Funding Partners but cannot make any guarantees regarding Funding Partners. Thus, Funding Gates is not responsible for any transaction or interaction that may occur between User and any Funding Partner. Although Funding Gates may choose to intervene or attempt to resolve a dispute, User agrees and acknowledges that Funding Gates has no obligation to do so.
Subject to all terms and conditions of these Terms of Service, Funding Gates grants to User a nonexclusive, nontransferable right and license (without right to sublicense) to access and use the Services (including the Funding Gates Materials (as defined below) necessary to use the Services), solely in connection with User's business. The Services are made available to User solely as hosted by or on behalf of Funding Gates, and nothing in these Terms of Service shall be construed to grant User any right to receive any copy of any software or systems used to provide the Services. User's access and use of the Services shall comply with all other conditions set in all documentation, help information, and other documentation regarding the Services, in each case that is provided or made available by Funding Gates to User in electronic or other form ("Documentation").
User may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Services ("Feedback"). All Feedback shall be solely owned by Funding Gates (including all intellectual property rights therein and thereto) and shall also be Funding Gates's confidential information. User shall and hereby does make all assignments necessary to achieve such ownership.
9. User Data
User hereby grants to Funding Gates a nonexclusive, perpetual, irrevocable, worldwide, sublicensable and royalty-free right and license to access, copy, display, publish, distribute, process, create derivative works from and use all information, data and other content provided by User in connection with its authorized use of the Services ("User Data"), including all data regarding User's customers ("Customers"), that is used or processed by the Services. In connection with the foregoing license, Funding Gates reserves the right to use User Data for: (i) inclusion in Funding Gates's products and services, whether directly or indirectly, including without limitation, Funding Gates's products and services that are sold on a stand-alone basis and those that are integrated into third party products and services; (ii) use in products or services which may be sold or licensed to third parties by Funding Gates or its distributors; and (iii) Funding Gates's business use, including without limitation, use in any manner chosen by Funding Gates, including but not limited to, the use of such User Data to generate, use, and publish aggregate statistical information. The foregoing license shall survive the termination of this Agreement. In all instances, Funding Gates will not identify User as the source of any User Data, unless Funding Gates has obtained such User's consent or if identification is required by applicable law, rule, regulation or judicial process. User agrees that Funding Gates may request additional information from User at any time and may require User to provide invoices from User's suppliers, a government issued identification such as a passport or driver's license, or a business license. Funding Gates reserves the right to terminate User's use of the Services upon User's refusal to provide such additional data. User agrees that (a) the Services depend on the availability of the User Data and (b) Funding Gates will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the User Data. Except as expressly set forth within the description of a User's account, Funding Gates shall have no obligation to screen, edit, monitor, or store User Data or Reports (as such terms are defined below), and Funding Gates reserves the right, and has absolute discretion, to remove, screen, edit, or disable any User Data or Report at any time and for any reason without notice. User acknowledges that by using the Services, User may be exposed to User Data that is offensive, indecent, or objectionable. User shall be responsible for ensuring that the provision of User Data conforms to User's privacy policies (including any applicable third-party privacy policies to which Customer or Customer's data has been associated with in conjunction User's relationship with Customer) and all applicable laws, rules and regulations.
User agrees that Funding Gates may share information about User or User's registration application (including whether User is approved or declined), and User's account with User's bank or other financial institution, or with a Funding Partner if User elects to receive the AR Financing services. This includes sharing information (a) about User's transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Services, (c) to create and update their customer records about User and to assist them in better serving User, and (d) to conduct Funding Gates's screening process.
User shall not directly or indirectly (a) use any of Funding Gates's Confidential Information (as defined below) to create any service, software or documentation that performs substantially the same functionality as the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Services or Funding Gates Materials (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, resell, transfer, distribute, rent, lease, time-share or use any Funding Gates Property (as defined below) in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify any Funding Gates Property, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns in connection with User's use of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) act as a payment intermediary or aggregator on behalf of any third party, including, but not limited to using the Services to handle, process or transmit funds for any third party or to process cash advances, (g) access or monitor any material or information on any Funding Gates's system using any manual process or robot, spider, scraper, or other automated means unless User has separately executed a written agreement with Funding Gates that expressly grants User an exception to this prohibition, or (h) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by Funding Gates's other Users, or impose an unreasonable or disproportionately large load on Funding Gates's infrastructure.
User agrees not to upload to the Services or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Funding Gates's or its partners' products and services, as determined by Funding Gates in its sole discretion; or (f) in Funding Gates's sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Funding Gates to harm or liability of any nature.
User agrees and understands that the Services are limited to accounts that are commercial debts. The Services shall not include any services relating "Consumer Debt" (as such term is defined under the Fair Debt Collection Practices Act, 16 USC §160 et. seq.).
FUNDING GATES RESERVES THE RIGHT TO REJECT AN ACCOUNT FOR ANY REASON, INCLUDING WITHOUT LIMITATION ACCOUNTS THAT COLLECT CONSUMER DEBT.
11. Customer Account Bankruptcy
User will promptly notify Funding Gates upon receiving any notice of bankruptcy relating to any Customer accounts.
12. Pricing and Payments
Fees. User agrees to pay Funding Gates for the Services the fees set forth in the applicable Order Form(s), upon the terms set forth therein or in an applicable invoice for such Services.
Third Party Services. Please note that where the Services connect User with third parties providing additional services, User may be required to make payment for such third party services directly to such third party. In the foregoing instance, the processing of such payments will be subject to the terms, conditions and privacy policies of such third party. Please also note the Subscription Fee may incorporate and cover costs and fees incurred by Funding Gates for third party services that are incorporated into the Services.
Taxes. Unless otherwise noted, all payments required by these Terms of Service are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and User agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Funding Gates's net income. Funding Gates is not a bank and does not offer banking services as defined by the United States Department of Treasury, nor does it offer money service business ("MSB") services as defined by the United States Department of Treasury.
Renewal Rates; Pricing Increases. The price for the same level of access to a particular Service during an Automatic Renewal Term (as defined in Section 18) will be the same as the price for such level of access to such Service during the immediately prior term; provided that Funding Gates reserves the right to increase fees for any of the Services up to fifteen percent (15%) upon written notice to User at least 30 days before the end of the then-current term, with such pricing increase to become effective upon the beginning of the immediately following Automatic Renewal Term. Funding Gates reserves the right to further change and/or modify the Fees invoiced to User upon written notice to User at least 30 days prior to the end of the then-current term, and such change shall not take effect until the beginning of the next term. Subject to Section 18, Customer may elect not to renew the Services upon receiving notice of such fee increase. For clarity, increases in functionality, features, access levels, clients, users, or any other aspect of a Service initiated or purchased by Customer may lead to increased fees not subject to the notification requirements set forth in this section.
Payment Restrictions. By registering for the Services, User warrants and represents that User will not accept payments in connection with the following businesses or business activities: (1) any illegal activity, (2) buyers or membership clubs, (3) credit counseling or repair agencies, (4) credit protection or identity theft protection services, (5) direct marketing or subscription offers or services, (6) infomercial sales, (7) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (8) multi-level marketing businesses, (9) inbound or outbound telemarketers, (10) prepaid phone cards or phone services, (11) rebate based businesses, (12) up-sell merchants, (13) bill payment services, (14) betting, including lottery tickets, casino gaming chips, off-track betting, and wagers at races, (15) financial institutions offering manual or automated cash disbursements, (16) financial institutions offering merchandise and services, (17) sales of money-orders or foreign currency by non-financial institutions, (18) wire transfer money orders, (19) high-risk merchants, including telemarketing merchants, (20) service station merchants, (21) automated fuel dispensers, (22) adult entertainment oriented products or services (in any medium, e.g., internet, telephone or printed material), (23) internet/mail order/telephone order firearm or weapon sales, (24) internet/mail order/telephone order cigarette or tobacco sales, (25) drug paraphernalia, (26) occult materials, (27) hate products, (28) escort services, (29) bankruptcy attorneys, and (30) collection agencies.
Returns and Chargebacks. The amount of a transaction conducted through the Services (including any services provided by Service Parties (as defined below)) between a User and a Customer may be reversed or charged back to User's account (a "Chargeback") if the transaction (a) is disputed, (b) is reversed for any reason by the Payment Processor, (c) was not authorized or Funding Gates has any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. Funding Gates reserves the right to add the amount of any associated Chargeback fees levied by any Service Parties ("Chargeback Fees") in connection with any Chargebacks incurred by or on behalf of User to User's Billing Account. User agrees to pay to Funding Gates all Chargeback Fees and all associated costs and expenses, including without limitation attorneys' fees, accrued in connection with Funding Gates's collection of all Chargeback Fees from User. If Funding Gates determines that User is incurring an excessive amount of Chargebacks, Funding Gates may establish controls or conditions governing User's account, including without limitation, by (a) establishing new processing fees, (b) creating a reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, or (d) terminating or suspending the User's use of the Services.
"Confidential Information" means, with respect to Funding Gates, all financial, business or technical information disclosed by or for Funding Gates in relation to the Services or these Terms of Service that is of a nature that is not considered a Report or a Result and should otherwise reasonably be considered to be confidential and proprietary. Except for the specific rights granted by these Terms of Service, neither party ("Recipient") may use, copy or disclose any of the other's ("Discloser") Confidential Information without Discloser's written consent, and shall use reasonable care to safeguard Discloser's Confidential Information, including ensuring that Recipient's employees, contractors and agents ("Representatives") with access to Discloser's Confidential Information have a need to know for the purposes of these Terms of Service and are bound by substantially similar confidentiality obligations. The foregoing obligations shall not apply to any Confidential Information (other than PII) that Recipient can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (c) generally available to the public without breach of these Terms of Service or (d) independently developed by it without reference to or use of any of Discloser's Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable. Promptly upon Discloser's request at any time, Recipient shall return all of Discloser's tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Nothing herein shall prevent a party from disclosing these Terms of Service or any of the other's Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, Recipient shall use reasonable efforts to (a) promptly notify Discloser in writing of such requirement to disclose and (b) cooperate with Discloser in protecting against or minimizing any such disclosure or obtaining a protective order. User will promptly notify Funding Gates in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
14. Proprietary Rights
Definitions. As used in these Terms of Service: "Funding Gates Materials" means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, Reports, Report Formats, educational materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by Funding Gates in providing the Services (including any correction, improvement, extension or other modification to the Services made, created, conceived or developed by or for Funding Gates, including at User's request or as a result of feedback provided by User to Funding Gates); "Reports" means the work products, whether generated and/or created by Funding Gates, a third-party or a combination of Funding Gates and a third-party(ies), resulting from the Services that are delivered to User by Funding Gates through the Services, and which are based on the User Data. Reports include, but are not limited to, reports, letters, letter and document templates, charts, graphs and other presentation in which are presented to User; "Report Formats" means the formatting, look and feel of the Reports.
Reports and User Data. Subject to the license grant herein, User shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to its User Data. Notwithstanding the foregoing, Funding Gates shall own all rights, title, and interest in and to any materials, products, or services created by or on behalf of Funding Gates in any form containing or derived from the User Data (or any part thereof), and User shall have no ownership, authorship, or moral rights therein. User acknowledges and agrees that all Reports and the Report Formats are proprietary to Funding Gates and, where applicable, any third party(ies) that generated or created any information contained in a Report. Funding Gates grants User a non-exclusive, limited license to use the Reports in conjunction with the management and collection of User's receivables. User may make copies of the Reports or the Report Formats only in conjunction with this limited license.
Reservation of Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and, as between the parties, Funding Gates (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service and any features, services or functionality made available thereon, Documentation, Funding Gates Materials (collectively, "Funding Gates Properties").
15. Third Party Services
In providing the Services, Funding Gates may engage or otherwise use the services of various third-parties ("Service Parties"). If User decides to use these Service Parties, User will be responsible for reviewing and understanding the terms and conditions associated with such Service Parties. User agrees that its engagement of such Service Parties is at its own risk, and that except as otherwise expressly stated herein, the services of such Service Parties is not governed by the terms and conditions contained in this Agreement. The inclusion of any link to any third-party website or service (regardless of whether such link is to a website or service controlled by a Service Party) does not imply an approval, endorsement or recommendation of such link by Funding Gates. Funding Gates expressly disclaims any liability arising from User's engagement of such Service Parties. User acknowledges that, in conjunction with the Services, Funding Gates may provide User Data to Service Parties. User further acknowledges that the resources are not under Funding Gates's control and that Funding Gates is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such work product or deliverables furnished by a Service Party ("Service Party Work Product"). User further acknowledges and agrees that Funding Gates 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 the use of or reliance on any Service Party or Service Party Work Product. User understands and agrees that Funding Gates is not a credit reporting agency, as that term is defined under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., collections agency, or payment processor. The Services are a tool that allows User to access and manage account information and interactions with Customers and Service Parties, and User will fulfill all of its obligations to each Customer with which it engages and will resolve any Customer dispute or complaint directly with such Customer. Funding Gates is not responsible in any way for User's decision to extend or to revoke credit from any of User's Customers. User understands and agrees that the User has full control over the use of all features offered on the Funding Gates platform, including all monitoring, payments, collection and lettering tools offered through the Services, and that Funding Gates does not engage in any action that may be deemed a collections activity on behalf of the User. User further understands and agrees that Funding Gates does not hold, receive or disburse funds on User's behalf. User's authorization permits Funding Gates to generate a payment order through a payment processor to process each payment transaction the user authorizes.
16. Collections; Collection Agency Services
Funding Gates is not a debt collections agency and the Services do not include debt collections, even if User initiates a transaction with a third party collections agency through the AR Software or as a part of the standalone Collections service, or through any other product or service provided by Funding Gates. For clarity, Funding Gates may transmit some User Data, solely at User's election, to a third party collections agency referred to User through the Services ("Collections Agency"). Funding Gates will then act solely as an information facilitator between Collections Agency and User and will notify User of any updates related to the services provided by Collections Agency ("Collections Agency Services"), to the extent Funding Gates receives any such updates. Funding Gates will not participate or have any role in the Collections Agency Services, regardless of whether such services are obtained through the AR Software or the Collections service, and Collections Agency Services will be conducted in accordance with Collections Agency's normal collection efforts, which are subject to the Fair Debt Collections Practices Act. For Collections Agency to perform any Collections Agency Services, User shall enter into a separate agreement with such Collections Agency, and Funding Gates shall not be a party to such agreement. It is crucial that, before User engages such agency to perform Collections Agency Services, User is aware of and understands Collections Agency's applicable terms and conditions.
17. AR Staffing
By electing to receive AR Staffing services, User acknowledges and agrees that Funding Gates will directly manage User's accounts receivable process on User's behalf after an invoice has been generated through the AR Software. Use of AR Staffing requires User to also use AR Software to manage User's billing, payment processing and receivables management. User consents to Funding Gates employees, agents, and/or contractors identifying themselves as members of User's team, using User's name, trademark and/or other identifier solely in connection with AR Staffing solutions provided to User, and User grants Funding Gates a limited, non-exclusive, non-transferable, non-sublicenseable, worldwide license to use and display User's name, logo and trademarks ("Trademarks") in connection with the AR Staffing services. User will be responsible for the accuracy and completeness of any information, materials or data provided to Funding Gates by or on behalf of User, and for the accuracy and completeness of User's transmission to Funding Gates of such information, materials or data. In performing the AR Staffing services, Funding Gates will be entitled to rely upon any instructions, authorizations, approvals or other information provided to Funding Gates by User, and Funding Gates will not incur any liability or responsibility of any kind for any acts or omissions based on such instructions, authorizations, approvals or other information. Funding Gates shall perform its duties as an independent contractor and not as an employee of User. Nothing in these Terms of Service shall establish an agency, partnership, joint venture or employee relationship between Funding Gates (or any of Funding Gates's employees, agents and/or contractors) and User.
During the Term and for one (1) year thereafter, User will not employ or directly or indirectly solicit the employment of, any Funding Gates employee or full-time contractor involved in the provision of the AR Staffing services to User.
USER HEREBY ACKNOWLEDGES THAT THE AR STAFFING SERVICES MAY NOT ACHIEVE THE RESULT DESCRIBED, INTENDED, OR EXPECTED, INCLUDING WITHOUT LIMITATION ANY INCREASE IN AMOUNTS RECEIVED BY USER. FUNDING GATES DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESSED OR IMPLIED, WITH RESPECT TO RESULTS DESCRIBED, INTENDED, OR EXPECTED FROM THE AR STAFFING SERVICES.
18. Term and Termination.
Term. These Terms of Service shall commence on the date User (or an authorized representative on its behalf) clicks "ACCEPT" below (the "Effective Date") and shall continue in effect until all outstanding Order Forms expire or are terminated in accordance with the terms herein. The term for each subscription to a particular Service shall be as specified in the applicable Order Form (each, a "Subscription Term") and shall automatically renew for additional periods equal to the Subscription Term (each, a "Renewal Term") unless and until either party provides written notice of nonrenewal to the other party at least thirty (30) days prior to the end of the then-current term.
Termination. Notwithstanding the foregoing, Funding Gates may terminate User's account or access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with User's account after a reasonable period. If User wishes to terminate its account, User may do so by following the instructions on the Funding Gates website or otherwise specified through the Services. Any Subscription Fees paid hereunder are non-refundable, except otherwise noted.
Effects of Termination. Upon any expiration or termination of these Terms of Service, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of these Terms of Service shall survive, and (b) the provisions titled Feedback, Confidentiality, Proprietary Rights, Warranties and Disclaimers, Indemnification, Limitation of Liability, Effects of Termination and General Provisions and all other provisions that by their nature would survive shall survive. Unless otherwise agreed in writing and signed by an authorized representative of Funding Gates, Funding Gates has no obligation to retain any User Data or Results after the Term and may destroy all User Data and Results in its possession within ninety (90) days after the end of the Term; provided, upon User's written request received within thirty (30) days after termination, Funding Gates will deliver to User a copy of the User Data then currently stored by Funding Gates (in the same format maintained by Funding Gates).
19. Warranties and Disclaimers
Applicable Laws. User represents and warrants that it shall, and shall continue to, collect and use any User Data as well as use any Reports or other work product or deliverables generated through the Services in accordance with all applicable federal, state and local laws and regulations of all applicable jurisdictions and any and all amendments thereto (collectively, "Laws"). Laws shall include (as applicable), but not be limited to, the Fair Debt Collection Practices Act (FDCPA) (16 USC §160 et. seq.), the Fair Credit Reporting Act (FCRA) (15 USC §1681 et. seq.), as amended by the Fair and Accurate Credit Transactions Act of 2003 (PL 108-159, 12/04/03), the Equal Credit Opportunity Act (16 USC §1691 et. seq.), the Telephone Consumer Protection Act, 47 U.S.C. § 227 et. seq. administered by the Federal Communication Commission, the Telephone Sales Rule, (16 C.F.R. § 310.1 et. seq.), the Federal Trade Commission Act (15 USC §41-58), Title V of the Gramm-Leach-Bliley Act of 1999, 15 U.S.C. § 6801, et. seq.; Regulation P, "Privacy of Consumer Financial Information," 12 C.F.R. Part 332; "Interagency Guidelines for Establishing Standards for Safeguarding Customer Information", 12 C.F.R. Part 364, Appendix B; Regulation S-P, "Privacy of Consumer Financial Information," 17 C.F.R. Part 248; FTC Standards for Safeguarding Consumer Information, 16 C.F.R. Part 314; and 45 C.F.R. Parts 160 and 164 promulgated under the Health Insurance Portability and Accountability Act of 1996 and any state versions of the foregoing.
Disclaimers. THE SERVICES, INCLUDING ANY SERVICES, FEATURES OR FUNCTIONALITY MADE AVAILABLE THEREON, AND ANY RELATED RESULTS ARE PROVIDED WITHOUT ANY OTHER WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, FUNDING GATES, SERVICE PARTIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, CONTENT PROVIDERS, AND SUPPLIERS MAKE NO WARRANTY (I) THAT THE SERVICES INCLUDING ANY SERVICES, FEATURES OR FUNCTIONALITY MADE AVAILABLE THEREON, WILL MEET USER'S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICES, OR (III) THAT ANY ERRORS IN THE SERVICES OR ANY SERVICES, FEATURES OR FUNCTIONALITY MADE AVAILABLE THEREON CAN OR WILL BE CORRECTED OR (IV) THAT USE OF THE SERVICES, INCLUDING ANY SERVICES, FEATURES OR FUNCTIONALITY MADE AVAILABLE THEREON, WILL RESULT IN INCREASED OR MORE TIMELY COLLECTIONS. FUNDING GATES HEREBY DISCLAIMS (FOR ITSELF AND SERVICE PARTIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, CONTENT PROVIDERS, AND SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
User Customer Service. User is solely responsible for all Customer service issues not relating to the Services, including, without limitation, issues relating to User's goods or services, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with User's personnel, policies or processes. In performing Customer service, User shall always present itself as a separate entity from Funding Gates.
User agrees to indemnify and hold harmless Funding Gates, Service Parties and their respective officers, directors, employees, agents, partners, content providers, and suppliers against any claims, losses, liabilities, costs and expenses incurred in connection with (a) any actual or alleged breach of this Agreement or any of User's representations and warranties, (b) User's unauthorized use of the Services or other Funding Gates Properties, and (c) User's use of the Results, including any modifications thereto or any combination of the Results with any other data or information, and (d) any actual or alleged violation by User or the rights of any third party (including intellectual property rights or any rights of privacy or publicity).
21. Limitation of Liability
IN NO EVENT SHALL FUNDING GATES, SERVICE PARTIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, CONTENT PROVIDERS, AND SUPPLIERS BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS OF SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, WORK STOPPAGE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, SALES, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PRECEDING SIX (6) MONTH PERIOD. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
22. Governing Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. User agrees that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York.
23. Entire Agreement and Severability
These Terms of Service are the entire agreement between User and Funding Gates with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Funding Gates and User with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
No waiver, consent or modification of these Terms of Service shall bind Funding Gates unless in writing and signed by the party against which enforcement is sought. Subject to Section 12, Funding Gates may modify these Terms of Service at any time upon notice to User (which may be by posting a notice through the Services); provided, however, if User does not agree to the modified Terms of Service, User shall notify Funding Gates in writing within thirty (30) days, in which case the previous Terms of Service will apply to use of the Services for any period for which User has previously paid the Subscription Fee, after which User's right to use the Services shall immediately terminate and Funding Gates shall have no further responsibility or liability to User. The failure of either party to enforce its rights under these Terms of Service at any time for any period will not be construed as a waiver of such rights.
Force Majeure Funding. Gates shall not be liable for any failure to perform Funding Gates's obligations hereunder where such failure results from any cause beyond Funding Gates's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
Assignment. These Terms of Service and the rights and obligations hereunder may not be assigned, in whole or in part, by User without Funding Gates's prior written consent. These Terms of Service shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
Independent Contractors. The parties shall be independent contractors under these Terms of Service, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Notices. Unless otherwise specified in these Terms of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to [email protected] User acknowledges that Funding Gates may provide disclosures and notices required by law and other information about User's account to User electronically or by posting it on the Services or by emailing it to the email address in User's account. User agrees that electronic disclosures and notices have the same meaning and effect as if Funding Gates had provided User with paper copies.
Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
Effective Date of Terms of Service: November 23, 2015.