ABF, LLC
(Alternative Business Funding, LLC)
TERMS OF SERVICE
Last Revised: July 2017
“ABF, LLC (“ABF”, “we” or “us”) offers small businesses alternative lending solutions and other sources of funding (“Funding Providers”), as described further in the section of this Agreement titled “The Service.” The ABF website is located at www.abfservicesllc.com (the “Site,” and the Site, together with any products and services provided by ABF, the “Service”).
Our “no credit check” financing is only available to small business customers for loans up to $5,000. By submitting an application to us for funding you acknowledge that these loans are only available to business clients, your representation that you are a small business and that we expressly deny loan applications from any individuals. The loans we extend are only for business products and services which are intended for small businesses.”.
1. Acceptance of Agreement
2. Amendments
3. Definitions and Interpretation
4. The Service
5. Privacy Policy
6. Account; Accuracy of and Changes to Your Information
7. Disclosure and Consent to Electronic Communications
8. Third-Party Links and Applications
9. Indemnification
10. Limitation of Liability and Warranty Disclaimer
11. Term and Termination
12. General Terms
1. ACCEPTANCE OF AGREEMENT
THESE TERMS OF SERVICE SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICE. BY CLICKING ON THE “I ACCEPT” OR “SUBMIT” BUTTON, COMPLETING THE REGISTRATION PROCESS, APPLYING FOR SERVICE, ACEPTING A LOAN FROM US, UTILIZING OUR SITE THROUGH WHICH TO SEND OR RECEIVE E-MAIL MESSAGES, AND/OR BROWSING THE SITE AND/OR SERVICE, YOU (“USER” “BORROWER” “YOU”) ARE ACCEPTING THESE TERMS OF SERVICE (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF SERVICE. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICE OR ACCEPT THE TERMS OF SERVICE IF (A) YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ABF; (B) YOU ARE PROHIBITED BY LAW FROM RECEIVING OR USING THE SERVICE; OR (C) YOU ARE NOT A U.S. RESIDENT. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE, DO NOT ACCESS AND/OR USE THE SITE OR LENDING SERVICE.
PLEASE BE AWARE THAT THESE TERMS OF SERVICE REQUIRE ALL LEGAL ACTIONS TO BE COMMENCED IN BERGEN COUNTY, NEW JERSEY – AND IN NO OTHER COURT – ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Your use of, and participation in, the Service may be subject to additional terms (collectively, “Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.” Please note that certain uses of the Service may be subject to a separate agreement (“Secure Application Service Agreement”) that will be provided to you prior to Referral to a Matched Funding Provider pursuant to Section 4 of this Agreement. No Referrals will be provided to you prior to signing a Secure Application Service Agreement.
2. AMENDMENTS
ABF reserves the right to amend this Agreement, ABF’s Privacy Policy described in Section 5 below, or the ABF E-Sign Consent Agreement described in Section 7 below, at any time with notice that is reasonable according to the extent of the amendment, as determined by ABF in its sole discretion. ABF will post notice of any amendment on the Service. For a substantial amendment, including a change to the fee structure outlined herein, ABF may also notify you as outlined in the Disclosure and Consent to Electronic Communications section of the separate ABF E-Sign Consent Agreement. You should check this Agreement, ABF’s Privacy Policy, and the ABF E-Sign Consent Agreement regularly. By continuing to use the Site or Service after such notice is provided, you accept and agree to such amendments. If you do not agree to any amendment to any of these agreements, you must stop using the Site and Service. If you have any questions about the terms and conditions in this Agreement, ABF’s Privacy Policy or the ABF E-Sign Consent Agreement, please contact us at support@Abfservicesllc.com.
3. DEFINITIONS AND INTERPRETATION
3.1 Defined Terms – Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
“You” “Borrower” or “User” means any business, or individual acting – or purporting to act – on behalf of a business, that uses ABF’s services in any way including applying for a loan, accepting funds from ABF, and/or communicating with ABF through ABF’s website or email address.
Account Information means information about accounts you maintain at third party sites, including, as applicable, your accounts at any financial institution, as provided by you to ABF.
Affiliate means, with respect to a Party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with such Party.
Applicable Law means all federal and state laws, including regulations, applicable to the activities and obligations contemplated under this Agreement, including without limitation the federal Truth-in-Lending Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, the Gramm-Leach-Bliley Act, Dodd Frank Act, CAN-SPAM Act and all applicable state licensing, consumer credit and privacy laws, as the same may be amended and in effect from time to time during the Term.
Business Day means any day (other than a Saturday, Sunday or legal holiday) on which federally-insured financial institutions in New York, New York are permitted to be open to conduct substantially all of their business.
Funding Providers means any source of funding a loan to a business.
Profile Information means the information you provide to us to register for the Service, including as applicable, business name and address, amount and intended purpose of funding sought, certain financial information regarding the business, and certain information regarding the business owner, as well as the username and password that allow you to access the Service, as such information shall change from time to time.
Service means the service provided by ABF to you, as described further in Section 4.
Service Provider means any unaffiliated 3rd party company that provides products or services to you or your business and for which you seek funding. Once you are approved for a loan for a Service Provider, ABF pays the full amount of your obligation to the Service Provider.
3.2 Interpretation – References to Sections and Appendices are to be construed as references to the Sections of, and Appendices to, this Agreement, unless otherwise indicated. The singular includes the plural, and the plural includes the singular. All references to hereof, herein, hereunder and other similar compounds of the word here shall mean and refer to this Agreement as a whole rather than any particular part of the same. The terms include and including are not limiting. Unless designated as Business Days, all references to days shall mean calendar days. The use of the word “including” in this Agreement to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive list of the topics covered. The headings, captions, headers, footers and version numbers contained in this Agreement are intended for convenience or reference and shall not affect the meaning or interpretation of this Agreement.
4. THE SERVICE
4.1 Description of the Service – ABF matches users with Funding Providers using a combination of the user’s Profile Information and criteria mutually agreed upon by each Funding Provider and ABF which, if met, would provisionally pre-qualify the user to receive funding under such Funding Provider’s terms and conditions (the “Prequalification Criteria”). ABF may at its sole discretion choose to either fund a business loan itself or choose a Funding Provider for any specific loan. You may request provisional prequalification for funds using the Service at any time by providing ABF information and documents, including but not limited to your name and address, amount and intended purpose of funding sought, certain financial information and documents regarding the business, and certain information and documents regarding your business owner (the “Application Information”). For loans over $5,000, You may also be asked to provide tax returns or to sync ABF to your bank transactional data (the “Verified Data”). You agree to provide true, accurate, current and complete Application Information and Verified Data. If any of the Application Information you provide is inconsistent with information derived from the Verified Data, we will automatically substitute the inconsistent Application Information with information from the Verified Data. By providing the Application Information and the Verified Data, you also authorize us to obtain information, including from third-party sources, to allow you to verify certain fields of your Application Information based on external information (the “External Data”). ABF reserves the right to obtain External Data at any time during your use of the Service until either you or ABF terminate its rights under this Agreement pursuant to Section 10. If any of the Application Information does not match the External Data, you will have an opportunity to modify any of the Application Information. You also agree that we may contact you, including by telephone or by SMS, to verify the Application Information or to provide additional Application Information.
4.2 License – Subject to this Agreement, ABF grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own business purpose, and solely as permitted by and in compliance with the Terms and Applicable Law.
4.3 Certain Restrictions – The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to this Agreement. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof. You will not use the Site or Service for any illegal purpose.
4.4 Modification – ABF reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that ABF will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
4.5 No Support or Maintenance – You acknowledge and agree that ABF will have no obligation to provide you with any support or maintenance in connection with the Site.
4.6 Ownership – Excluding any content that you may provide, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service and its content are owned by ABF or ABF’s suppliers. Neither these Terms (nor access to the Service) transfers to you or any other third party any rights, title, or interest in or to such intellectual property rights, except from the limited access rights expressly set forth in Section 4.2. ABF and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
4.7 Trademarks – ABF and other related graphics, logos, service marks and trade names used on or in connection with the Site or the Service are the trademarks of ABF and may not be used without permission or as directed by ABF. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
4.8 Applying for Funding – We do not charge you any application fee for the Service. Our “No Credit Check” funding application is only open to small businesses. By submitting an application for funding from Us you acknowledge the representation that you qualify for one of our loan programs as a small business and that the funds will be used for business only purposes. If you apply for a loan and we process your submission, you will only be charged a processing fee if (i) you ultimately do not complete the loan, (ii) the company you have requested us to fund does not request funds from us (even if you did not qualify for their services or you chose not to proceed with their services, or (iii) the company you have requested to fund goes out of business. In such event, the processing fee you are responsible for is 30% of the loan for which you were approved.
4.9 Personal Guarantee & Liquidated Damages – All of our loans require a personal guarantee from at least one member of your business. Loans over $10,000 may require two personal guarantees. You may be required to supply a copy of your (i) social security card, (ii) state-issued driver’s license, and/or (iii) other federally recognized identification to verify the identity of the guarantor of your loan. You acknowledge that by applying for and receiving a loan from US you will be personally liable for this loan. This will include all remedies that We may have against a small business under this agreement We shall have against You, which if an action is necessary to recover against You will include attorney’s fees and costs.
You further acknowledge that if it is later determined that you are not a bona fide small business, but rather an individual seeking the benefits of a business loan, we will be entitled to fully accelerate the loan, call the full amount due plus interest and any penalties immediately, and/or commence action against you. You also agree that you are personally liable to ABF for any loan you secured under such false pretenses and that you will be additionally liable for liquidated damages totaling the larger of either $5,000 or 35% of your loan, plus attorneys’ fees and costs of suit
4.10 Fee Information – Our fees and rates are fully disclosed before you accept any loan. You will receive updated statements that reflect both the principal and interest figures for the billing period. Once a loan is completely paid, there will be no more fees or obligations.
4.11 Affiliates – The rights, duties and/or obligations of ABF under this Agreement may be exercised and/or performed by ABF and/or any of ABF’s Affiliates, or any of their subcontractors and/or agents. ABF acknowledges and agrees that it shall be solely responsible for the acts or omissions of ABF’s Affiliates, and any subcontractor or agent of ABF or any of ABF’s Affiliates, related to the subject matter hereof. You agree that any claim or action arising out of or related to any act or omission of any of ABF or ABF’s Affiliates, or any of their respective subcontractors or agents, related to the subject matter hereof, shall only be brought against ABF, and not against any of ABF’s Affiliates, or any subcontractor or agent of ABF or any of ABF’s Affiliates. You acknowledge that under no circumstances shall a Funding Provider be considered an Affiliate for purposes of this Agreement.
4.12 State Disclosures – NORTH CAROLINA USERS: For disclosures required by your state, please contact us prior to applying for loan. NEBRASKA USERS: For disclosures required by your state, please contact us prior to applying for loan. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
4.13 Feedback – If you provide ABF with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to ABF all rights in such Feedback and agree that ABF will have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. ABF will treat any Feedback you provide to ABF as non-confidential and non-proprietary. You agree that you will not submit to ABF any information or ideas that you consider to be confidential or proprietary.
5. PRIVACY – You agree to ABF’s Privacy Policy (available at https://abfservicesllc.com/privacy), which is incorporated by reference into this Agreement as if it were set forth herein in its entirety. The Privacy Policy describes our collection and possible use of information provided by you. By using the Site or Service, you agree to, and are bound by, the terms of the Privacy Policy.
6. ACCOUNT; ACCURACY OF AND CHANGES TO YOUR INFORMATION
6.1 Account Creation – In order to use certain features of the Service, you must register for an account (“Account”) and provide certain information about yourself. You agree to provide accurate Profile Information and Account Information. You further agree to promptly update all your Profile Information or Account Information whenever the information provided to us is no longer accurate. You can update your information by visiting your profile page on the Service. You may delete your Account at any time, for any reason, by following the instructions on the Service. If you need help in changing your information, please email us at support@Abfservicesllc.com. We are not responsible for any payment processing errors or fees or other Service-related issues arising from your failure to keep your Profile Information current. If we determine, in our sole discretion, that you have failed to maintain current and accurate Profile Information or Account Information, we may suspend or terminate your access to the Site and Service.
6.2 Account Responsibilities – You are responsible for maintaining the confidentiality of your Account login information and all activities that occur under your Account. You agree to immediately notify ABF of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. ABF cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
6.3 Our Use of the Account Information – You authorize us to use the Account Information for all purposes related to the Service, and to have continued access to your financial institution, provided that such access shall be used solely for the purpose of providing the Service to you. Account Information shall remain available to you during the Term.
7. DISCLOSURE AND CONSENT TO ELECTRONIC COMMUNICATIONS
7.1 Consent to Electronic Communications – You understand and agree that you are entering into this E-Sign Consent Agreement electronically and you specifically agree to receive and/or obtain certain categories of information (“Communications”) from ABF by electronic means (i.e., via email, through the Service by displaying links to notices generally on the Service, or to your mobile device), unless and until you withdraw your consent as described below. The categories of Communications that may be provided by electronic means include:
this E-Sign Agreement, the ABF Terms of Service, ABF’s Privacy Policy and any amendments, modifications, or supplements thereto;
disclosures or notices provided in connection with the Service, including any required by Applicable Law (including initial disclosures, initial and annual privacy notices, opt-out notices, and change-in-terms notices);
any customer service communications, including communications with respect to claims of error or unauthorized use of the Site or Service; and
any other communication related to the Site or Service.
Although ABF reserves the right to provide Communications in paper format at any time, you agree that ABF is under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy of this E-Sign Agreement and any Communication that is important to you and retain the copy for your records. If you do not wish to receive this E-Sign Agreement or the Communications electronically, you may not use the Site or Service.
7.2 – Consent to Short Message Service (SMS) Communications – As part of your consent to electronic Communications, you agree to receive SMS messages to each telephone number provided by you to ABF regarding products and services offered by or on behalf of ABF and its affiliates. You understand that such SMS may be placed using an automatic telephone dialing system or may include automated SMS messages and that your consent is requested only to allow ABF or a ABF affiliate to contact you and is not required to use the Abfservicesllc.com site.
7.3 – Timing of Communications – Any electronic Communications will be deemed to have been received by you no later than 5 Business Days after ABF sends it to you by email or posts it on the Service, whether or not you have received the email or retrieved the Communication from the Service. An electronic Communication by email is considered to be sent at the time that it is directed by ABF’s email server to your email address. You agree that these are reasonable procedures for sending and receiving electronic Communications.
7.4 – Updated Contact Information – You agree to promptly update your Profile Information if your email address changes so that ABF may contact you electronically. You may update your Profile Information, such as your email address, as described in the “Account; Accuracy of and Changes to Your Information” section. You understand and agree that if ABF sends you an electronic Communication but you do not receive it because the email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, ABF will be deemed to have provided the Communication to you.
7.5 System Specifications – In order to access, view, and retain electronic Communications that ABF makes available to you, you must have access to: (a) a computer with an Internet connection; (b) a current web browser that includes 128-bit encryption (e.g. Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled; (c) Adobe Acrobat Reader version 8.0 and above to open documents in .pdf format; (d) sufficient electronic storage capacity on your computer’s hard drive or other data storage unit to save past Communications and/or an installed printer to print them; and (e) an email account with an Internet service provider and email software. Your access to this page through your device verifies that your device meets these requirements.
7.6 – Withdrawal of Consent to Electronic Communications If you have registered as a user with ABF and you wish to withdraw your consent to have Communications provided electronically, you must deregister by contacting support@Abfservicesllc.com and stop using the Site and Service. There are no fees to deregister with ABF. Any withdrawal of your consent to receive electronic Communications will be effective only after ABF has a reasonable period of time to process your withdrawal, which period of time shall be no longer than fifteen (15) days, or such other time as is appropriate under the circumstances, as determined by ABF in its sole discretion.
7.7 – Withdrawal of Consent to SMS Communications If you have registered as a user with ABF and you wish only to withdraw your consent to have Communications provided via SMS, you may opt-out of receiving SMS from us at any time by texting the word “STOP” to the number from which you receive such SMS messages. You may also reply “STOP” to any message you receive from us. Upon receipt of your “STOP” message, we will send you a SMS message to confirm that you have been unsubscribed. At that point, you will no longer receive any further SMS messages from ABF. If you need any assistance, you can always text the word “HELP” to the number from which you receive such SMS messages or reply “HELP” to any message you receive from us. Upon receipt of your “HELP” message, we will respond with “STOP” instructions and a link to these Terms of Service. As always, you agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.
7.8 Reservation of Rights – ABF reserves the right, in its sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which ABF provides electronic Communications. ABF will provide you with notice of any such termination or change as required by law.
8. THIRD-PARTY LINKS AND APPLICATIONS
8.1 Third-Party Links and Applications – The Service may contain links to third-party websites, services and applications for third parties (collectively, “Third-Party Links and Applications”). Such Third-Party Links and Applications are not under the control of ABF, and ABF is not responsible for any Third-Party Links and Applications. ABF provides access to these Third-Party Links and Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links and Applications. You use all Third-Party Links and Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links and Applications, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Applications.
8.2 Release – You hereby release and forever discharge ABF (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, our partners or any other third party or any Third-Party Links and Applications). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9. INDEMNIFICATION – You agree to release, indemnify, and hold harmless ABF and its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use the Site or Service; (b) your breach of this Agreement; (c) your violation of any rights of a third party; (d) your interaction with any Funding Provider; (e) any duties, responsibilities, or obligations you may have to a Funding Provider, including with respect to, but not limited to, a Referral; (f) your violation of any Applicable Law; (g) the violation of any Applicable Law by a Funding Provider; or (h) your failure to provide and maintain true, accurate, current and complete Application Information, Profile Information, Verified Data, and Account Information.
10. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER
10.1 Limitation of Liability – TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ABF (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICE, EVEN IF ABF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE OR SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM YOUR FAILURE TO PROVIDE ABF WITH ACCURATE INFORMATION OR TO CORRECT INACCURATE VERIFIED DATA, OR A THIRD PARTY’S FAILURE TO CORRECTLY VERIFY SUCH INFORMATION, AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF THE PRINCIPAL AMOUNT OF YOUR LOAN. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10.2 No Warranties – EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SITE AND THE SERVICE PROVIDED HEREUNDER BY ABF IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ABF (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE AND THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, AND/OR FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE AND THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
NO ADVICE OR INFORMATION PROVIDED BY ABF SHALL CONSTITUTE ANY WARRANTY WITH RESPECT TO YOUR USE OF THE SERVICE. ABF DOES NOT GUARANTEE OR ASSUME ANY RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY SERVICE RELATING TO EITHER ABF OR ANY FUNDING PROVIDER. ABF MAKES NO GUARANTEE AS TO THE NUMBER OF FUNDING PROVIDERS WITH WHOM YOU MAY BE MATCHED USING THE SERVICE, NOR DOES ABF GUARANTEE THAT YOU WILL BE ABLE TO OBTAIN BUSINESS FUNDING IN ANY AMOUNT USING THE SERVICE, INCLUDING FROM ANY FUNDING PROVIDER FOR WHOM YOUR VERIFIED INFORMATION PROVISIONALLY PREQUALIFIES YOU FOR SUCH FUNDING. YOU UNDERSTAND AND AGREE THAT ABF IS NEITHER A FUNDING PROVIDER NOR A FINANCIAL ADVISOR, AND NOTHING ON THIS SITE IS INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL FINANCIAL ADVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use this Site or use the Service and will continue until your loan is paid in full. We may suspend or terminate your rights to use the Site or use the Service at any time for any reason at our sole discretion, including for any use of the Site or the Service in violation of this Agreement. Upon termination of your rights under this Agreement, your right to access and use the Site and the Service will terminate immediately. ABF will not have any liability whatsoever to you for any termination of your rights under this Agreement.
12. GENERAL TERMS
12.1 Waiver – The waiver by ABF of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
12.2 Independent Entity – ABF is independently run and owned from any other entity. ABF offers lending solutions to business clients of many other entities and/or Service Providers. Examples of the companies we consider to be independent Service Providers are- without limitation and not to the exclusions of others not named – TecAdemics, Digital Altitude, Enterprise OpSolutions, NE Corporate Sales Training Academy, Boston Efficiency Consultants (”BEC”), and My Online Business Education (“MOBE”). ABF is completely independent from all entities and Service Providers and is a 3rd party lender or loan finder. Our independence means that we are not involved in the advertising, marketing or sales of any of the services offered by any of those companies. We take no responsibility or liability in any aspect of the sales or service for which we lend. We make no representations regarding the quality or validity of those Service Providers. Once a loan is made on your behalf and/or we have funded your business, you are liable to us for your obligations under such loan regardless of the nature of your relationship with your Service Provider. The only time you will be released from your loan responsibilities is if your Service Provider fully refunds ABF the funds we have paid on your behalf. In the event of a partial refund, such amount will be deducted from your principal balance and you will continue to owe the balance. It is Borrower’s responsibility to provide documentation verifying that the Service Provider actually refunded or re-paid funds we have paid on your behalf.
13. DISPUTE RESOLUTION
13.1 Triggering Event, Compliance; Attorneys’ Fees – Any breach or default of these terms or the loan between Borrower and Lender will trigger a default and give rise to an acceleration of the full loan due. ABF’s electronic or online platform(s) are offered as an as-is service for convenience, and You represents that you have and will comply with all applicable laws and regulations in connection with any loan made to you. In the event that ABF is the prevailing party in any action BETWEEN the Borrower and ABF, or in a collections action or proceeding between ABF and Borrower, You shall be liable to ABF for all costs, including reasonable attorneys’ fees, incurred by Seller with respect to such action, proceeding or arbitration.
13.2 Governing Law & Forum Selection Clause – This Agreement shall be exclusively governed by and construed in accordance with the laws of the State of New Jersey, excluding its conflicts of law provisions. Unless agreed upon otherwise in a writing signed by both parties, this Agreement and the rights and obligations of the parties hereto, shall not be governed by the provisions of the United Nations Convention for the International Sale of Goods (CISG).
All causes of action under this Agreement may only be brought in either the (i) SUPERIOR COURT OF NEW JERSEY LAW DIVISION SPECIAL CIVIL PART OR SMALL CLAIMS, or (ii) FOR LOANS WHOSE OUSTANDING BALANCE EXCEEDS $12,000, THE SUPERIOR COURT OF NEW JERSEY LAW DIVISION IN BERGEN COUNTY, NEW JERSEY.
All other actions brought in any other Court shall expire or shall be transferred to the New Jersey Superior Court Law Division located in Bergen County, New Jersey, to which Buyer does hereby consent to personal jurisdiction. Seller shall not be required to perform its obligations if Buyer has defaulted on its obligations or any other contract involving Seller (e.g., failed to pay). Seller shall have all other rights and remedies conferred by law. Buyer agrees that any litigation initiated either by Seller or Buyer shall be venued only in a court located in Bergen County, New Jersey, United States, and waives any argument that personal jurisdiction and/or venue in such forums is not proper or convenient. Seller and Buyer also agree that all actions must be non-jury actions and understand that they are waiving their right to a jury trial.
13.3 No Class or Representative Proceedings: Class Action Waiver – YOU AGREE THAT YOU, AND ANYONE ACTING ON YOUR BEHALF OR PURSUANT TO THIS AGREEMENT, MAY ONLY BRING OR FILE A LEGAL CLAIM AGAINST THE SELLER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Buyer and Seller agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim subject to these Terms & Conditions. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
13.4 Survival of Agreement – This Arbitration Agreement will survive the termination of your relationship with Company.
13.5 Entire Agreement – This Agreement and each of its exhibits or appendices, constitute and contain the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each Party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
13.6 Severability – If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.
13.7 Assignment – Neither this Agreement nor any rights hereunder may be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, ABF may assign this Agreement or any rights hereunder without consent: (i) to an entity that acquires substantially all of its stock, assets or business; or (ii) to an Affiliate. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.
Contact Information & Legal Department:
ABF, LLC
c/o The Law Offices of Michael M. Cohen
275 Walton Street
Englewood, NJ 07631
201.227.0881
midtownlawyer@aol.com