Your Use of the Site and Services
Your registration and account security
When you use the Site or the Services you may provide Aquifer certain registration and account information, which Aquifer will rely on to provide you its merchant cash advance services. The following are your obligations when creating, registering, and maintaining the security and accuracy of your account:
Permissions and access
- You understand you are responsible for any all activity on your account and for safeguarding all your bank identifications and login information, user names, IDs, logins, passwords, pin numbers or other identification tools (collectively, the “Credentials”) through which you access your account, and any portion of the Site and Services.
- By submitting Credentials to Aquifer through the Services, you are licensing such materials to Aquifer solely for the purpose of providing the Service.
- You will register your account for your own use and not for the use of another person and you will only create one account for yourself.
- You will not assign or transfer your account to anyone without first getting Aquifer's written consent. Any party or person accessing your account using your account login and password credentials will be deemed an authorized user by us and you will be responsible for their actions as if they were your own.
- You will not provide false or misleading information when you register an account.
- If Aquifer terminates or disables your account, you may not create another account without first getting Aquifer's written consent.
- You will not use your account in a commercial fashion or manner.
- You will keep your contact and other information requested by Aquifer (such as age, gender, bank info and data, etc.) accurate and up-to-date.
- It is your responsibility to ensure and protect the confidentiality of your Credentials.
- You will not share your password, let anyone other than you access your account, or do anything that might compromise the security of your account. We are not liable for any use of the Services by any unauthorized individuals.
- If you so notify us, or if we suspects fraudulent or abusive activity, you agree to cooperate with us in any investigation and to use any preventive measures we prescribe.
- Use of your Credentials may be immediately terminated by us upon the earlier of termination of your authorization, or prolonged, inactivity, dormancy, or termination of your account or termination of these Terms.
- We may rely upon the instructions, consent given and all action taken through your Credentials or account, without verifying the identity or authority of any person accessing the Services.
Aquifer may edit or modify anything on the Site or Services without notice
- To use this service, you must provide us with a valid bank account in your or your business’ name and YOU AGREE THAT WHEN WE RETRIEVE DATA FROM YOUR ACCOUNTS ON THIRD PARTY SITES, WE ARE ACTING AS YOUR AGENT.
- By using the Services, you hereby authorize us to access and interact with your bank accounts and bank data, so that we may retrieve your account information in connection with verifying your income levels and drawing or retrieving funds as authorized in this Agreement and any applicable merchant cash advance agreement.
- We may use and store the above such information and data, but only to provide the Service to you.
- By providing or submitting the above such information and data to Aquifer, you represent that you are authorized to submit the above such information and data to Aquifer for use for the above purposes and to potentially extend you a merchant cash advance(s), without any additional obligations on Aquifer’s, including but not limited to payment of any fees to any third parties or any other obligations or limitations.
- You hereby authorize and permit us to use your Credentials for these purposes and related purposes.
- You hereby grant Aquifer a limited power of attorney, and you hereby appoint us as your true and lawful attorney-in-fact and agent, with such agency having full power and authority, including power of substitution and re-substitution, for you and in your name, place and stead, to access third party sites, retrieve data, and use such data, as fully as you could do for yourself, in person.
- You agree that parties that receive payments and/or data as a result of your use of the Services or the use of or compliance with any merchant cash advance, parties that send payments and/or data as a result of your use of the Services or the use of or compliance with any merchant cash advance, and banks and financial institutions that provide such payments and/or data will be entitled to rely on your authorization pursuant to this Agreement, and on the agency and power of attorney rights and authority granted by you.
Aquifer is committed to delivering a positive user experience and you understand that Aquifer reserves the right (but without undertaking any duty) to edit, monitor, review, delete, modify, or move any content or material provided or placed on or though the Site and the Services in its sole discretion, without notice.
You are responsible for accepting updated versions of the Site and Services
You agree to let us monitor your activity on Aquifer mobile device applications and the Site and Services
- If Aquifer provides updated versions of the Site and the Services and you do not accept these updated versions, you may not enjoy the most recent content, feature sets, and materials.
- If you do not accept updated versions of the Site and Services, Aquifer shall not bear any responsibility or liability for your decision.
You must be 18 or older to use the Aquifer Site or Services and/or receive any Merchant Cash Advance
- Because Aquifer wants to continue to improve the Site and the Services for the benefit of you, the user, we may monitor your activity on Aquifer mobile device applications, as well as on the Site and Services.
- By using any Aquifer mobile device application or the Site and Services you specifically agree to Aquifer monitoring you in this manner.
- You understand, however, Aquifer cannot and does not make any warranties or guarantees that: (i) any Aquifer mobile device applications or the Site and Services, or any component thereof, will be made free from error or inaccuracy as a result of such monitoring or free from unauthorized and/or unacceptable use as a result of such monitoring; (ii) any statements or factual items presented by the Services will be free from error or authenticated; or (iii) Aquifer will take any action in the event of any non-compliance with these Terms.
It is your responsibility to make sure this Agreement and your use of the Site and Services complies with all laws applicable to you
- You understand that you may not use the Site or the Services where such use is prohibited.
- You understand that the Site and the Services are intended solely for users who are eighteen (18) years of age or older.
- You represent and warrant that you are 18 or older and that you agree to abide by all of the terms and conditions of this Agreement.
- You are a business owner or self-employed and are applying for any merchant cash advance in the name of your business.
Aquifer may terminate your use of the Site and/or Services without reason or notice to you
- You understand Aquifer may, in its sole discretion, refuse to offer the Site or the Services to any person or entity and change its eligibility criteria at any time.
- You are solely responsible for ensuring that this Agreement complies with all laws, rules and regulations applicable to you.
- You understand that your right to access the Site or Services will be revoked where this Agreement or use of the Site or the Services is prohibited and, if that is the case, you agree not to use or access the Site or the Services in any way.
While Aquifer respects its users, you agree that Aquifer may terminate your use of the Site and/or the Services and prohibit you from accessing the Site and/or the Services, for any reason, or no reason, and with or without notice.
Electronic Messaging, Notices, and Disclosures
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Aquifer’s liability is limited
- You understand and agree that we may provide required notices and other disclosures to you electronically on the Site or by electronic means to you.
- You understand and agree that twenty four (24) hours after we have posted any such notices or disclosures on the Site or after the email has been sent to you will be deemed to have received such notices or disclosures.
- You understand and agree if you fail to provide a current, accurate, and functioning email address and cell phone number, or if you fail to check the messages at such an address on a regular basis, that will not void or affect the validity or the effective timing of any notices to you from us under this Agreement.
- You agree to maintain ongoing access and to check your email and cell phone texts on a daily basis.
- All communications and notices to be made or given pursuant to this Agreement must be in the English language.
- Aquifer is not responsible for any Third Party Sites, Third Party Content, or any other content posted on the Site and the Services, whether caused by users of the Site and the Services, Aquifer, third parties or by any of the equipment or programming associated with or utilized in the Site and the Services.
- Aquifer is not responsible for the conduct, whether online or offline, of any user of the Site or the Services.
- Aquifer assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications.
- You understand that it is your duty to confirm and verify any information provided on or through the Site and Services, and that you bear the sole risk of relying on any such information, including but not limited to content, third-party content, links, or listings.
- Aquifer is not responsible for any problems or technical malfunction of any telephone network or lines, cellular data provider or network, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Services or Site, including injury or damage to users or to any other person's computer, and/or mobile device.
- Neither Aquifer nor any of its affiliates, advertisers, promoters or distribution partners shall be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Site or the Services, any content posted on the Site or the Services or transmitted to users, or any interactions between users of the Site or the Services, whether online or offline.
WE TRY TO KEEP THE SITE AND SERVICES UP, BUG-FREE, AND SAFE, BUT YOU USE THEM AT YOUR OWN RISK. THE INFORMATION FROM OR THROUGH THE SITE AND THE SERVICES IS PROVIDED "AS IS," "AS AVAILABLE," AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED. THE INFORMATION, SITE AND THE SERVICES MAY CONTAIN VIRUSES, BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. IN NO EVENT WILL AQUIFER OR ITS DIRECTORS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, OR THE SITE. WE ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US THROUGH THE SITE/SERVICE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
AQUIFER’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE FEES, IF ANY, PAID BY YOU TO US FOR THE SERVICE AND USE OF THE SITE, BUT IN NO CASE WILL OUR LIABILITY TO YOU EXCEED $25. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE SITE AND THE SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION. IF ANY CLAIM OR MATTER RELATES TO MORE THAN ONE PARTY, THIS MAXIMUM LIABILITY WILL BE THE LARGEST AMOUNT PAID BY ANY ONE SUCH PARTY IN THE MOST RECENT PROCESSED TRANSACTION, REGARDLESS OF THE NUMBER, IDENTITY, OR STATUS OF THE CLAIMANTS. WHERE MORE THAN ONE ENTITY OR INDIVIDUAL RELATED TO US IS SUBJECT TO ANY CLAIM OR MATTER, THE RECOVERY OF THE CLAIMANT OR CLAIMANTS WILL BE LIMITED AS A GROUP AS PROVIDED BY THIS PARAGRAPH, AS IF ALL SUBJECTED PARTIES WERE A SINGLE ENTITY.
ANY INFORMATION OR ASSISTANCE ACCESSED OR OBTAINED THROUGH USE OF THE SITE AND/OR SERVICES IS PROVIDED SOLELY FOR EDUCATIONAL OR GENERAL INFORMATIONAL PURPOSES AND IS NOT PROFESSIONAL LEGAL, INVESTMENT, OR ACCOUNTING ADVICE OR COUNSEL. AQUIFER IS NOT A LEGAL FIRM, ACCOUNTING SERVICES FIRM, OR BANK. YOU SHOULD CONSULT LEGAL COUNSEL TO BETTER UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO ANY MERCHANT CASH ADVANCE. WE HEREBY EXPRESSLY DISCLAIM ANY IMPLIED OR EXPRESS WARRANTY AND ANY LIABILITY WITH RESPECT TO ANY SUCH INFORMATION OR ASSISTANCE.
BY SUBMITTING ANY APPLICATION TO US OR THE SERVICES OR BY ACCESSING OR USING ANY OF THE SITE AND/OR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOU WILL QUALIFY FOR OR OBTAIN ANY MONIES, CASH, FUNDING, FINANCING OR MERCHANT CASH ADVANCE FROM US. EACH MERCHANT CASH ADVANCE IS GOVERNED EXCLUSIVELY BY ITS APPLICABLE MERCHANT CASH ADVANCE AGREEMENT AND ANY RELATED DOCUMENTS.
MERCHANT CASH ADVANCES ARE NOT LOANS. YOU ACKNOWLEDGE AND AGREE THAT MERCHANT CASH ADVANCES ARE PURCHASE AND SALE TRANSACTIONS AND AGREEMENTS AND DO NOT COMPRISE, NOR SHALL THEY BE DEEMED TO BE, LOAN AGREEMENTS OR TRANSACTIONS IN ANY SENSE OR CIRCUMSTANCE.
You agree to indemnify Aquifer You agree to indemnify, defend, and hold harmless Aquifer, its contractors, licensors, subsidiaries and affiliates and their respective partners, directors, officers, employees and agents from and against any and all claims and expenses, including any and all losses, costs, liabilities, and attorneys' fees, arising out of or in connection with: (1) your use of the Site and Services or the proceeds of any merchant cash advance, (2) any user Content, Third Party Content, Third Party Sites and any other content, (3) your violation of this Agreement, or of any law or the rights of any third party, and (4) your breach of this Agreement and/or any breach of your representations and warranties set forth herein; (5) your violation of any local, state or federal law, rule or regulation, (6) your violation, or alleged violation, of any right of a third party, or (7) your wrongful, improper, unlawful or unauthorized use of the Services. You agree that New York law applies to this Agreement Subject to the arbitration clauses included below, if there is any dispute arising out of the Site and the Services, by using the Site, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New York, in New York County, for the resolution of any such dispute.
Your general representation and warranty
- You represent and warrant that:
- You will use the Site and the Services so not to infringe or misappropriate the intellectual property rights of any third party.
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- You and Aquifer agree that any cause of action arising out of or related to the Site or the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
- You agree that, except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (”JAMS”) by arbitrators appointed in accordance with such rules.
- You agree any arbitration shall take place in New York, New York in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys' fees.
- If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect.
- A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
- Aquifer may assign its rights under this Agreement without condition.
- This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.