These Terms of Service apply to you (“you” or “Customer”), a user of our Platform, and along with any Order agreed by you and CrediVia constitute a binding agreement (the “Agreement”) between you, as an individual, and if you are purchasing or using the Platform as part of your job responsibilities, the legal entity that you represent, and CrediVia, Inc. (“CrediVia”).
Please read these Terms of Service carefully. By accepting an Order and/or using the Platform, you agree that you are bound by the terms and conditions of the Agreement, and you represent and warrant that you have full power, authority and legal capacity to enter into and bind your employer or the entity that you represent to the Agreement.
Please contact CrediVia at info@CrediVia.com if you have any questions about the Agreement.
“Authorized User” means an owner, officer, employee or agent of a Borrower or Lender who has a need to access and use the Platform in connection with: (a) the submission of a Loan Request and related information into the Platform by a Borrower, and/or (b) the review and evaluation of a Loan Request and related information through the Platform by a Lender. Authorized Users include Individual Owners. Certain Authorized Users have administrative rights and can set up other Authorized Users who work for them. Authorized Users who have enabled or set up other Authorized Users are responsible for the use of the Platform by the Authorized Users they enable.
“Borrower” means a Customer who is seeking credit from a commercial lender to finance one or more commercial real estate Loan Requests.
"Covered Transaction" means a transaction based on or relating to a Loan Request submitted through the Platform.
“Effective Date” means the date that an Order has been signed or otherwise accepted by the parties.
“Lender” means a Customer who is in the business of providing credit to commercial borrowers to finance commercial real estate projects.
“Order” means an online order form, or a written order, agreement or proposal, accepted by you when ordering or agreeing to use the Platform. The Order will include agreed fees and payment terms and other agreed commercial terms.
“Individual Owner” means an individual with a direct or indirect equity ownership interest in one or more Borrowers. Individual Owners may sign up, store, and control information about themselves in the Platform independently of the Borrowers in which they have an ownership interest.
“Privacy Laws” means all applicable privacy, security and data protection laws, rules and regulations in any jurisdiction.
“Loan Request” means a request to obtain financing for a discrete commercial real estate project, including a purchase of commercial real estate, a refinance of existing debt on commercial real estate, or development or renovation of existing commercial real estate.
“Platform” means CrediVia’s proprietary self-service online platform that matches Lenders and Borrowers for specified Loan Requests, and that assists in managing the loan due diligence process. The Platform includes the provision on a hosted basis of non-exclusive use and access to CrediVia Software, and associated hosting and support services as described herein.
“Site” means the web site at https://loans.CrediVia.com and/or such other web site or sites that CrediVia communicates to you where you may access the Platform.
“Software” means CrediVia’s proprietary software used by CrediVia to provide the Platform, made available to you through the Site on a “Software as a Service” basis, and all updates and associated documentation thereto made available as a part of the Platform pursuant to the Agreement.
2. NATURE OF PLATFORM AND DISCLAIMERS
- The Platform provides a marketplace and forum for matching Borrowers and Lenders, and technology and tools for facilitating the sharing of information between Borrowers and Lenders. CrediVia is not a party to any transaction under the Platform, and is not a borrower, lender, broker, consultant, agent or financial, legal, tax or other advisor for any such transaction. You alone are responsible for any transactions that may arise from use of the Platform and are solely responsible for your interactions with other users of the Platform.
- Lender acknowledges that it is solely responsible for complying with all applicable banking, privacy, securities, and other laws relating to its loan transactions, and for performing its own underwriting and credit review. Lender represents and warrants that its financial products and services provided in response to a Loan Request do not constitute a “security” as defined under federal and state securities laws.
- You agree loans made in a Covered Transaction are strictly limited to a principal amount of at least US $1,000,000 and must be secured by real property. All loans made in a Covered Transaction are intended to be between a single Lender and a single Borrower.
- None of the information contained on the Platform or Site constitutes a solicitation by CrediVia for any purpose in any form, nor an offer by CrediVia to sell and/or buy securities, mortgages and/or properties. CrediVia does not: (i) provide credit advice; (ii) act as a real estate broker or broker real estate transactions; or (iii) sell, buy, lease, or negotiate the purchase, sale, lease or exchange of real property.
- Nothing on the Site or Platform constitutes legal, tax, financial or other professional advice. Articles, blog posts, and white papers on the Site and the Platform are provided for informational purposes only.
- In the event that you have a dispute with another user and/or other third parties relating to a Loan Request or the Platform, you hereby release CrediVia and its officers, directors, members, agents, subsidiaries and employees, from and against any and all claims, demands and damages (direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, such dispute, and you hereby waive any and all such claims, demands, and damages.
- Under the terms of and subject to the restrictions in the Agreement, including payment of all applicable fees, CrediVia will provide the Platform to you during the term of the Agreement. You may use and access the Platform and Software solely through the Site, and solely in accordance with the Agreement. Your rights to use the Platform are non-exclusive and non-transferable. You may use the Platform only to support your own internal business, and not in support of any third-party’s business.
- CrediVia may from time to time modify the Platform and add, change, or delete features of the Platform in its reasonable discretion, without notice to you. Your continued use of the Platform after any such changes to the Platform constitutes your acceptance of these changes. CrediVia will use reasonable efforts to post information on the Site regarding material changes to the Platform.
- The Platform may be used and accessed only by Authorized Users who have a need to access the Platform. Borrowers and Lenders shall be fully responsible for use of the Platform by their Authorized Users and their compliance with the terms of the Agreement.
- You agree that all information provided to CrediVia by you through the Platform, including without limitation your account information, will be accurate and complete in all respects. You agree to promptly notify CrediVia of any changes to your information. You are responsible for all use of the Platform made using your user name and password. Only one individual may access the Platform at the same time using the same user name and password. You agree to notify CrediVia immediately if you become aware of any unauthorized use or disclosure of an Authorized User’s email address, user name or password, or any other breach of security regarding the Platform of which you become aware.
- CrediVia may use Borrowers’ and Lenders’ names and logos on CrediVia’s marketing website and in marketing materials.
- You warrant and agree not to:
- Use or allow the use of the Platform to deliver spyware, adware, spam, or other deceptive or fraudulent content and/or malicious code
- Violate any laws or regulations of any applicable jurisdiction in connection with your activities relating to the Platform (including without limitation any Privacy Laws or any state or federal banking or securities laws), or otherwise use the Platform in any way that is in furtherance of criminal, fraudulent, or other unlawful activity
- Interfere with or disrupt the Platform or servers or networks connected to the Platform
- Interfere with or attempt to interfere with any other person’s use of the Platform
- Gain access to or attempt to gain access to any account, computers or networks related to the Platform without authorization
- Forge headers or otherwise manipulate identifiers to disguise the origin of any content or communication transmitted through the Platform
- CrediVia reserves the right to prohibit any conduct by Customers or to remove any Customer Data and/or other material posted by Customers by and through the Platform that CrediVia believes, in its sole discretion: (a) to be in violation of the Agreement, or (b) CrediVia is illegal, potentially harmful to others, otherwise objectionable or that may expose CrediVia or any Customers to harm, damage to reputation or liability.
- You acknowledge and agree that CrediVia has no responsibility to monitor or otherwise review or validate Loan Requests of Borrowers or the products and services provided by Lenders (“Lender Offerings”). The Loan Requests and Lender Offerings are provided directly by the applicable Customers. CrediVia does not represent or warrant that the descriptions of such items are accurate, current or complete. CrediVia has no control over, and hereby disclaims any representation regarding: (i) the quality, safety or legality of the Loan Requests or Lender Offerings; (ii) the truth or accuracy of any descriptions of the Loan Requests or Lender Offerings; and/or (iii) the ability of the applicable Customer to fulfill the obligations of the Loan Request and/or sell or offer the Lender Offering.
- CrediVia is not responsible for ensuring that a Customer can actually complete a transaction with another Customer, or for any default by any Customer.
- If the Order states that Customer is receiving a pre-production or “beta” version of the Platform, then the terms of this Section shall apply. Customer acknowledges and agrees that the Platform is in pre-production form and will likely contain bugs and issues. Customer shall be solely responsible for any data and/or software loss or corruption arising from any use of the Platform and for the protection and back-up of any Customer Data and software used in conjunction with the Platform. CrediVia reserves the right to withdraw the provision of the Platform and to modify features and terms associated with any commercial release.
4. ACCEPTANCE OF CUSTOMERS
5. FEES AND EXPENSES
- You agree to pay CrediVia all fees associated with the Platform as set forth in the Order. Fees may include subscription fees and transaction-based fees. If credit card payments are specified on the Order, Customer authorizes its credit card to be charged by CrediVia for the invoiced amount at the time of invoice. If Customer is not paying by credit card, then Customer agrees to pay invoiced amounts within ten (10) days of receipt of invoice.
- The amount and structure of all fees and rates may be adjusted by CrediVia from time to time upon at least thirty (30) days written notice to you, which notice may be posting such changes on the Site or in the Platform. Changes to transaction-based fees will not apply to transactions based on applications submitted prior to the effective date of such changes.
- All payments under the Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one and one-half percent (1 ½ %) per month, or (b) the maximum rate allowed by law.
- You agree not to circumvent or evade, or attempt to circumvent or evade, any transaction-based or other fee charged for use of the Platform by attempting to close a transaction relating to a Loan Request outside of the Platform or otherwise without CrediVia’s knowledge or involvement. You shall keep CrediVia informed of all communications and developments associated with a potential transaction relating to a Loan Request.
- You shall be responsible for all applicable taxes, however designated, incurred in connection with the Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by CrediVia, but excluding taxes based upon the net income of CrediVia.
- If a payment becomes five (5) days or more overdue, CrediVia reserves the right to suspend your access to the Platform without liability to you, until payment is made in full. If any payment becomes ten (10) days or more overdue, CrediVia may terminate the Agreement upon notice to you.
CrediVia has the right to change payment terms, including by requiring upfront payment for the Platform, in its discretion based on your payment history.
6. TERM AND TERMINATION
- The Agreement begins on the Effective Date of the Order and continues until terminated as set forth herein. Unless otherwise agreed in the Order, either party may terminate the Agreement without cause by providing at least thirty (30) days written notice to the other party.
- Either party may terminate the Agreement if the other party materially breaches the Agreement and does not cure such material breach within thirty (30) days after written notice. CrediVia may suspend the Platform if you breach the Agreement (including but not limited to by means of failure to make payments due hereunder) and the breach is not cured within five (5) days after written notice.
- The terms in Sections 2, 3(e), 3(f), 3(g), 3(h), 5(d), 6, 7, 8, 9, 10, 11, 12 and 13 herein shall survive any termination of the Agreement. Upon termination you shall promptly pay CrediVia all outstanding amounts due to CrediVia under the Agreement. In addition, your obligation to pay CrediVia any fee based on a Covered Transaction shall survive for a period of twenty-four (24) months after termination of the Agreement (“Tail Period”) and such fee shall be payable if you close any such transactions during this Tail Period.
7. CONFIDENTIALITY AND PRIVACY
- “Confidential Information”means any non-public information or data that is disclosed by one party to the other party pursuant to the Agreement. The Confidential Information of CrediVia includes the Software, as well as the structure, organization, design, algorithms, report formats, templates, data models, logic flow, and screen displays associated with the Software. Confidential Information of an Individual Owner includes all personal and financial information regarding such Individual Owner. Confidential Information of Customer includes personal information associated with Customer’s Authorized Users as well as all non-public information relating to Loan Requests. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of the Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.
- A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, (b) to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (c) except as expressly authorized by the Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Notwithstanding the foregoing, a receiving party may disclose Confidential Information as required by law; in such event, the receiving party shall (if permitted by law) inform the other party prior to any such required disclosure to allow the other party to seek a protective order or other limitations on such disclosure. Each party shall promptly notify the other party in writing if it becomes aware of a breach of the confidentiality obligations herein.
- CrediVia maintains reasonable and industry standard security measures to help protect against the loss, misuse and alteration of your Confidential Information under its control. CrediVia also requires employees to comply with information security safeguards, uses encryption in the transmission of Confidential Information between your system and CrediVia’s, encrypts certain sensitive information when stored, and uses firewalls and other intrusion detection and prevention controls to help prevent unauthorized persons from gaining access to your Confidential Information. Additionally, CrediVia takes reasonable steps to ensure that its third-party business partners, including its hosting partners, provide sufficient protection for Confidential Information. You acknowledge that no method of transmission over the Internet, or method of electronic storage, is 100% secure, and that CrediVia cannot guarantee absolute security.
- Each party acknowledges and agrees that any violation of this Section 7 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
- Upon termination or expiration of the Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.
8. INTELLECTUAL PROPERTY AND CUSTOMER DATA
- You agree that CrediVia and its licensors own all intellectual property rights in and to the Platform, the Software, and the Site, including but not limited to the look and feel, organization, designs, algorithms, templates, data models, logic flow, text, graphics, logos, report formats, and screen displays associated therewith. You will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. You further agree not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party for such third party’s benefit. CrediVia reserves all rights in the Platform and Software not expressly granted to you hereunder.
- Customer acknowledges and agrees that CrediVia and its licensors’ trademarks, brand names and copyright notices will be included on the Platform and associated documentation. Customer agrees not to remove, modify, obscure or hide any trademarks, brand names or any other proprietary rights notices included on the Platform and associated documentation.
- You hereby grant CrediVia a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Platform any suggestions, ideas, enhancement requests, or feedback provided by you relating to the Platform.
- CrediVia agrees that you retain ownership of all your rights in the content and data provided by you in connection with your use of the Platform (“Customer Data”). You agree to provide Customer Data that is accurate, complete, proper and complies with the Agreement. By submitting Customer Data, you: (i) represent and warrant that the Customer Data is original to you or that you or that you otherwise have the unrestricted right to provide such Customer Data, and (ii) grant CrediVia a royalty-free, worldwide, perpetual, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, reproduce, create derivative works from, distribute, transfer, perform and display such Customer Data in order to provide the Platform and as otherwise expressly permitted by the Agreement. CrediVia may derive and compile from Customer Data and your usage of the Platform anonymized, aggregated and/or analytical information, so long as such information does not reveal any information about you or any Loan Request or any individual. Such information may be used for CrediVia’s business purposes, including, but not limited to, to improve CrediVia’s operations, products and Platforms and to create new products.
- You represent and warrant that all Customer Data you provide is complete and accurate. If you are a Borrower, you acknowledge that Lenders will rely on the information that you provide through the Platform. Without limiting the foregoing, you agree not to:
- provide any Customer Data that is untruthful, illegal, misleading, defamatory, indecent, obscene, inappropriate, threatening, harassing, bigoted, abusive, degrading, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise offensive or objectionable;
- supply any Customer Data that includes any virus, worm or other harmful code or software;
- create a false identity, impersonate any person, or misrepresent your affiliation with any other person or entity including CrediVia. You will not forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any Customer Data; or
- provide any Customer Data that is otherwise in violation of the Agreement.
- Warranties; Disclaimers
9. WARRANTIES: DISCLAIMERS
- You and CrediVia each warrant that they have full authority to enter into the Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder.
- You represent and warrant that all Customer Data: (i) is owned by you, or you have the full right to provide the Customer Data to CrediVia; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. You further represent and warrant that your use of Customer Data on the Site or in connection with the Platform is not in breach of any covenant or obligation of confidentiality that you have to any other person or entity. Notwithstanding anything to the contrary herein, you are solely responsible for the Customer Data, and acknowledge that CrediVia has no responsibility or intent to review or monitor any Customer Data.
- You shall be solely responsible for your use of the Platform, and, acknowledge and agree that the Platform is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.
- The Platform may contain features, functionality and information that are provided through or by third-party content, software, web sites, and/or systems (“Third-Party Materials”). Your use and access of these features and functionality are subject to the terms published or otherwise made available by the third-party providers of Third-Party Materials. CrediVia has no responsibility for any Third-Party Materials.
- CrediVia makes no warranties as to information and data provided by any user through the Platform. CrediVia does not warrant that the Platform will operate without interruption or error-free, or that the Platform will be totally secure. To the extent that data is being transmitted over the Internet hereunder, you acknowledge that CrediVia has no control over the functioning of the Internet, and CrediVia makes no representations or warranties of any kind regarding the performance of the Internet. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, CREDIVIA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
You, at your expense, shall indemnify, defend and hold CrediVia and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to your use of the Platform, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) your breach of any representations, warranties, or covenants in the Agreement, (b) your compliance with applicable laws and regulations, (c) your Customer Data, (d) your transactions or attempted transactions with any other user of the Platform, including without limitation any dispute between you and any other user of the Platform with respect to such transactions and any default by a party on such transactions. CrediVia shall provide you with prompt written notice of any third-party claim covered by the foregoing and sole and exclusive authority to defend and/or settle such claim.
- The limit of a party’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to the other party in any manner related to the Agreement or the Platform, for any and all claims shall not exceed in the aggregate the fees paid or payable by you to CrediVia hereunder with respect to the Platform at issue (excluding any fees or charges relating to approved expenses incurred by CrediVia on behalf of you) during the six (6) months prior to the date that the relevant cause of action accrued; provided that the foregoing will not limit your obligation to pay any fees due under the Agreement.
- In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. You agree that CrediVia is not liable for any loss, damage, or injury based on information directly or indirectly obtained through the Platform.
- The exclusions of damages and limitations of liability in this Section shall not apply to: (1) a party’s negligent or willful breach of its confidentiality obligations under the Agreement, (2) your breach of your obligations under Section 2 above, or (3) a party’s indemnification obligations under the Agreement. For clarity, nothing in this Agreement shall change or add any terms relating to liability in any agreement between a Borrower and a Lender.
- No action, regardless of form, arising out of or related to the Agreement may be brought by you more than one (1) year following the event with gave rise to the cause of action.
- The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and CrediVia’s compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
12. DISPUTE RESOLUTION
- The parties agree to work together in good faith to resolve any dispute regarding the Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration.
- Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Raleigh, North Carolina (USA), under the commercial arbitration rules of the American Arbitration Association. The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief.
- The Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
- The parties are and intend to be independent contractors with respect to the services contemplated hereunder. CrediVia agrees that neither it, its employees nor its contractors shall be considered as having an employee status with you. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created. There are no intended third-party beneficiaries under the Agreement.
- Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
- The Agreement (including the Order) constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter. No waiver of any provision of the Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right.
- You shall have no right to assign the Agreement or any of your obligations hereunder. CrediVia may assign the Agreement and any of its rights hereunder to third parties.
- Every provision of the Agreement is intended to be severable. If any section of the Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from the Agreement and the rest of the Agreement will remain in full force and effect.
- You agree to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders ("Export Controls"). You warrant that you are not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). You will not, directly or indirectly, export, re-export, divert, or transfer the Software or Platform, any portion thereof or any materials, items or technology relating to CrediVia's business or related technical data or any direct product thereof to any Restricted Person.
14. AGREEMENTS AND AMENDMENTS
- By executing an Order, you represent that you are 18 years old or older, are authorized to bind any legal entity that you represent, and you agree to all the terms in the Agreement. You may print and keep a copy of the Agreement.
- CrediVia may change these Terms of Service from time to time. Your continued use of the Site or Platform following the posting of such changes constitutes acceptance of those changes. CrediVia will provide notice of changes of the Agreement to you by email or by posting notice of the change on the Site.