Last Updated: June 29, 2020
You may use our website, mobile application and platform (collectively, the“Platform”) to prepare, review, revise and submit applications for forgiveness of certain SBA Loans, including Paycheck Protection Program Loans, view content and use any other functionality we make available.
These Terms are between the business that visits or accesses the Platform(“you”) and Upside Financial (“we,” “our” and “us”). Sometimes we and you are referred to as the “parties” in these Terms. Businesses include corporations, limited liability companies, partnerships, nonprofits, veterans’ organizations, tribal business concerns, sole proprietorships, self-employed individuals, and independent contractors, and if the context requires, authorized employees of any of the foregoing.
THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS AND CONTAIN IMPORTANT DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY. Please seeSection 21 for the arbitration provisions. Please read the entire Terms, but please read all capitalized provisions carefully as they contain important disclaimers of warranties and limitations on liability.
By visiting or accessing the Platform you agree to these Terms.1. Eligibility.
If you are a natural person, you are of age to form a binding contract, which is generally 18 years of age or older.
2. Doing Business Electronically.
Because thePlatform operates principally on the Internet, you agree to transact business with us electronically, including signing SBA loan forgiveness applications electronically.
3. Platform Account.
In order to access some functionality of the Platform, you will have to create an account (“PlatformAccount”). When creating your Platform Account, you must provide truthful, accurate, and complete information. You are solely responsible for the activity that occurs on your Platform Account, and you must keep your account credentials and password secure, including the account credentials and password of your administrator. You accept sole responsibility for keeping your credentials and password secure. You must notify us immediately of any breach of security or unauthorized use of your Platform Account and disable yourPlatform Account immediately. We may suspend or terminate access to yourPlatform Account and the Platform if we believe your Platform Account has been compromised or that not doing so may pose a risk to you, us or any third party. Although we will not be liable for your losses caused by any breach of security or unauthorized use of your Platform Account, you are liable for our losses due to such breach of security or unauthorized use.
You must specify at least one administrator to manage your Platform Account. Administrators can add, remove, or manage users and perform other tasks on your behalf. You are responsible for any actions or failure to act on the part of administrators and persons using your account credentials and password to access your PlatformAccount. Use of the Platform Account and Platform by your administrators and users is considered use of the Platform Account and Platform by you.
. You consent to us providing notices to you electronically. We may provide notices regarding activity and alerts electronically through the Platform, Platform Account, or via email, SMS or text to the contact information you provide us. Any change to your contact information will change our ability to provide notices. You must notify us of any contact information changes immediately.
6. Mobile Application.
You are responsible for any requirements of our mobile applications, including any updates. You are also responsible for compliance with the terms of agreements with your mobile device and telecommunications providers. We are not responsible for the products and services provided by your mobile device or telecommunications providers.
7. Changes to Terms.
We reserve the right to make changes to these Terms or the Platform at any time in our sole discretion. If required by applicable law, we will notify you of the changes. We may notify you of changes to these Terms by posting the updated Terms on our Platform. You can determine when these Terms were last changed by referring to the “Last Updated” legend at the top of these Terms. Your visit to or access of the Platform after such posting or other notification of changes represents your agreement to the changes. Parts of the Platform may be subject to additional terms and conditions, which are posted or made available separately from these Terms (“Additional Terms”). Your use of the Platform may also be subject to additional policies, guidelines, or rules we also post or make available. Such Additional Terms policies, guidelines, and rules are incorporated and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control. We reserve the right at any time to modify, suspend, or discontinue any part of the Platform.
8. Information You Provide.
We rely on the information you provide in performing our Lender Services, including assisting in preparing, reviewing, processing and submitting your SBA Loan forgiveness application. You represent and warrant to us that any information you provide, including application information, is true, accurate, and complete. You also represent and warrant to us that any representations, authorizations, certifications, responses, or information in any application or document you provide are true, accurate, and complete. You license to us and our service providers (“Service Providers”) any information, data, passwords, document ,material or other content (collectively, “Content”) you provide through or to the Platform for the purpose of enabling us and our Service Providers to perform the Lender Services. We and our Service Providers may use, modify, display, distribute and create new material using the Content to perform the Lender Services. By submitting or making available Content, you agree or promise that the owner of the Content has agreed that, without anytime limit, and without payment of any fees, that we and our Service Providers may use the Content for to perform the Lender Services. You also agree that we may use the Content to the extent not prohibited by applicable law, including to enhance our service, business and operations. You certify that you are not using PPP loan proceeds to pay for Upside Financial's Lender Services
9. Third Party Accounts.
By using thePlatform, you authorize us and our Service Providers to access third-party websites designated by you, on your behalf, to retrieve information requested by you, and to access or register accounts requested by you. You grant us and our Service Providers a limited power of attorney, and you appoint us and our Service Providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, place and stead, in any and all capacities, to access third-party websites, servers or documents, retrieve information, and use your information in connection with the Lender Services, with the full power and authority to do and perform each and every act and thing required to be done in connection with the LenderServices, as you could do yourself. YOU ACKNOWLEDGE AND AGREE THAT WHEN WE OR OUR SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM THIRD-PARTY WEBSITES, WE AND OUR SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY. You agree that third-party account providers are entitled to act on this authorization, agency and power of attorney granted by you. You acknowledge that we and our ServiceProviders will have access to your account credentials and passwords.
10. Credit Report.
We may use business and consumer credit report data in processing your application or providing our LenderServices. In order to do this, you provide written instructions or authorization to us to obtain credit reports and scores from consumer and business credit reporting agencies such as TransUnion and Dun & Bradstreet. This authorization covers you and any of your owners. We may obtain these credit reports from time to time. We may provide credit reports or information derived from credit reports to third parties to effectuate a transaction initiated by you.
11. Accuracy of Third Party Information.
We may use information from other sources in connection with processing your application(for example, credit bureau information, bank account information). Information from other sources may be inaccurate, incomplete or out of date. Inaccurate, incomplete, and out of date information provided by third party data suppliers may adversely affect you, including your application. We are not responsible for information provided by other sources.
12. SBA Lender.
We are not your loan broker or SBA lender. We may provide Lender Services for a number of SBA Lenders. We may submit your loan forgiveness application to your SBA lender. We are paid by SBA lenders for our Lender Services and the amount of payments may be different for different SBA lenders. If you obtain an SBALoan from an SBA lender, the lender is solely responsible for the SBA Loan made to you, and you agree that we are not liable for any claims, actions, proceedings, settlements, losses, damages, liabilities, penalties, fines, costs and expenses arising out of or in any way related to such SBA Loan.
13. Our Proprietary Rights.
The information and materials made available through or related to the Platform are and will remain our property or the property of our licensors and suppliers, and are protected by copyright, trademark, patent, trade secret, and other proprietary rights and laws. You agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based on any part of the Platform. No license or right is granted to use any of our trade names, trademarks or service marks. You agree not to disclose to or share with any person any information we provide or make available to you that should reasonably be expected to be treated as confidential.
The Platform may provide links to other websites and Internet resources. Because we have no control over such sites and resources, we are not responsible for the availability of such sites or resources and neither endorse nor are we responsible or liable for any content, advertising, products, or other materials on or available through such sites or resources.
15. Disclaimer of Warranties; Hold Harmless.
THE PLATFORM IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING , NO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY, ACCURACY, NON INFRINGEMENT, TITLE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE HAVE NO RESPONSIBILITY FOR DETERMINING WHETHER OR NOT YOU ARE ELIGIBLE FOR ANY SBA LOAN OR WHETHER YOUR SBA LOAN WILL BE FORGIVEN. WE DO NOT WARRANT THAT YOUR SBA LOAN WILL BE FORGIVEN. WE HAVE NO RESPONSIBILITY IF YOUR SBA LOAN IS NOT FORGIVEN. IF YOUR SBA LOAN IS NOT FORGIVEN, YOU MUST REPAY YOUR SBA LOAN ACCORDING TO ITS TERMS, INCLUDING WITH INTEREST. WE DO NOT PROVIDE ADVICE ON SBA LOANS. YOU MAKE ALL DECISIONS RELATING TO YOUR SBA LOAN AND YOU ARE RESPONSIBLE FOR YOUR DECISIONS. BY PROCEEDING WITH USE OF THE PLATFORM, YOU AGREE THAT, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, UPSIDE FINANCIAL SHALL NOT BE LIABLE FOR ANY DAMAGES YOU MIGHT INCUR BY VIRTUE OF: (1) DELAYS IN PROCESSING THE APPLICATION; (2) DENIAL OF THE APPLICATION (EVEN IF IT SHOULD DEVELOP THAT THE REQUESTED LOAN WAS PERMITTED UNDER THE PPP; (3) APPROVAL OF THE APPLICATION FOR LESS THAN THE MAXIMUM AMOUNT TO WHICH APPLICANT MIGHT BE ENTITLED UNDER THE PPP; OR (4) ANY OTHER CIRCUMSTANCE RELATING TO THE APPLICATION AND/OR ANY PPP LOAN. IN SO AGREEING, APPLICANT ACKNOWLEDGES AND AGREES THAT: (A) THE PPP IS A NEW PROGRAM; (B) GUIDANCE FROM THE SBA HAS BEEN LIMITED, EVOLVING, INCOMPLETE AND INCONSISTENT IN SOME RESPECTS; (C) UPSIDE FINANCIAL IS CREATING NEW PROCEDURES IN A VERY SHORT PERIOD OF TIME TO PROCESS AND REVIEW APPLICATIONS FOR PPP LOANS; (D) DESPITE ITS BEST EFFORTS, UPSIDE FINANCIAL MAY IN GOOD FAITH MAKE MISTAKES OR REACH CONCLUSIONS THAT DIFFER FROM GUIDANCE ULTIMATELY PROVIDED BY THE SBA OR COURTS DECISIONS; (E) DELAYS IN PROCESSING OR APPROVING THE APPLICATION MIGHT RESULT IN FUNDS NO LONGER REMAINING AVAILABLE FOR THE SBA TO PROVIDE THE REQUIRED GUARANTY OF THE REQUESTED PPP LOAN; (F) UPSIDE FINANCIAL IS ONLY WILLING TO TAKE AND CONSIDER THE APPLICATION DUE TO THIS HOLD-HARMLESS UNDERTAKING; AND (G) THIS UNDERTAKING CONSTITUTES A LEGALLY BINDING AGREEMENT ON YOUR/APPLICANT’S PART IN FAVOR OF UPSIDE FINANCIAL. WE ARE NOT YOUR LOAN BROKER OR SBA LENDER. YOU OBTAIN YOUR SBA LOAN AND THE FORGIVENESS THEREOF FROM AN SBA LENDER. WE MAKE NO WARRANTIES ABOUT YOUR SBA LENDER. NOTHING IN THIS SECTION AFFECTS WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION OR RESTRICTION UNDER APPLICABLE LAW.
16. LIMITATION OF LIABILITY.
WE ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE PLATFORM, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM OR FROM ANY SBA LOAN OR FORGIVENESS YOU OBTAIN OR DO NOT OBTAIN FROM YOUR SBA LENDER. WE ARE NOT LIABLE FOR ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF ANY INFORMATION RELATING TO YOU HELD, MAINTAINED OR UNDER THE CONTROL OF ANY THIRD PARTY, INCLUDING ANY SECURITY BREACH RELATING TO INFORMATION ABOUT YOU EXPERIENCED BY OUR SERVICE PROVIDERS. OUR MAXIMUM LIABILITY TO YOU FOR ALL CLAIMS, ACTIONS, PROCEEDINGS, SETTLEMENTS, DAMAGES, LOSSES, LIABILITIES, PENALTIES, FINES, COSTS, AND EXPENSES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL BE $100.
You agree to indemnify and hold us harmless from and against all claims, actions, proceedings, settlements, damages, losses, liabilities, penalties, fines, costs, and expenses (including attorneys' fees) arising out of, resulting from, or related to (a) your accessor use of the Platform or (b) your breach of any or any of your representations, warranties, or agreements contained in these Terms.
18. Termination by Us.
We, in our sole discretion, may limit, suspend or terminate your access to or use of the Platform, at any time and for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon termination, your right to use the Platform will immediately cease. Any limitation, suspension, or termination of your access to or use of the Platform may be effected without prior notice, and we may immediately deactivate or delete your Platform Account and all related information and documents associated with it, and bar any further access to such information or documents. Sections 5, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, and 23
of these Terms will survive you obtaining any SBA Loan forgiveness or any expiration, suspension, or termination of these Terms or your Platform Account.
19. Governing Law.
These Terms are governed by and will be construed in accordance with the laws of the District of Columbia without regard to its principles of conflicts of law, and regardless of your location.
20. Waiver of Jury Trial; Jurisdiction and Venue
. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, ACTION, DEMAND, OR PROCEEDING RELATING TO THESE TERMS. The parties consent to the personal jurisdiction and venue of the federal and state courts in the District of Columbia for any court action or proceeding.21. Disputes and Binding Arbitration.
The parties agree to resolve all disputes relating to these Terms as provided in this Section 21. Any arbitration or other legal proceeding under these Terms will only be on an individual basis. Neither party may form with other arbitrators or third parties a class arbitration, class action, or other action brought between multiple parties based on the same or similar legal claims, or the same or similar facts (“Consolidated Action”). Each party waives its right to participate in a Consolidated Action against the other party. Each party agrees to first attempt to resolve any dispute, claim, or controversy relating to these Terms (“Disputes”) in good faith and in a timely manner. Where no resolution can be found, Disputes will be resolved by arbitration in District of Columbia before a single arbitrator, as provided in this Section. Arbitration will be administered by JAMS according to the rules and procedures in effect at the time the arbitration is commenced. Disputes with amounts claimed greater than $250,000 will apply the JAMS Comprehensive ArbitrationRules and Procedures; and Disputes with amounts claimed less than or equal to$250,000 will apply the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator will apply the substantive law of the District of Columbia. IfJAMS cannot administer the Dispute, either party may petition the US DistrictCourt for the District of Columbia or the courts of the District of Columbia to appoint another arbitrator. The parties acknowledge that transactions under these Terms may involve matters of interstate commerce and, notwithstanding the provisions in this Section referencing applicable law, the Federal ArbitrationAct (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to theseTerms. Either party may commence arbitration by providing a written demand for arbitration to JAMS and the other party detailing the subject of the Dispute and the relief requested. Nothing in these Terms affects the right of a party to seek urgent injunctive or declaratory relief from a court of appropriate jurisdiction in respect of a Dispute. The prevailing party is entitled to recover its reasonable attorneys' fees, expert witness fees, and out-of-pocket costs and expenses incurred in connection with the arbitration, in addition to any other relief it may be awarded. Proceedings and information related toDisputes will be maintained as confidential, including the nature and details of the Dispute, evidence produced, testimony given, and the outcome of theDispute, unless such information was already in the public domain or was independently obtained. The parties and each of their witnesses, advisors, and arbitrators will only share such information as necessary to prepare for or conduct arbitration or other legal proceeding, or enforcement of the outcome, unless additional disclosure is required by applicable law. YOU AGREE THAT ANY WRITTEN DEMAND YOU MAY PROVIDE TO JAMS AND US TO COMMENCE ARBITRATION MUST BE RECEIVED BY JAMS AND US WITHIN ONE YEAR AFTER THE OCCURRENCE UNDERLYING THE DISPUTE INITIALLY OCCURRED. OTHERWISE, ANY RECOURSE YOU HAVE, INCLUDING ANY RIGHT TO ARBITRATION, IS PERMANENTLY BARRED.
22. Information or Complaints.
If you have a question, please contact us at firstname.lastname@example.org
. All notices from you, including any written demand for arbitration by you, should be mailed or delivered by courier to The Upside Travel Company, LLC, 4200 Wisconsin Ave NW #106-231, Washington,DC 20016.
You agree that the Platform is deemed solely based in the District of Columbia, and it is deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in any jurisdiction other than District of Columbia.
If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. You may not assign or transfer any or all of your rights or obligations under theseTerms. We may assign or transfer any or all of our rights or obligations under these Terms without restriction. No waiver by either party of any breach or default of these Terms will be deemed to be a waiver of any preceding or subsequent breach or default. Any waiver must be in a writing signed by an authorized officer of the party granting the waiver. These Terms, together with any Additional Terms and all policies, guidelines and rules incorporated by reference, represent the entire agreement between you and us relating to the subject matter of these Terms and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. It is your responsibility to promptly update us with your complete and current contact information, including your email address and phone numbers. You agree that a printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. We will not be responsible for failures to fulfill any obligations due to causes beyond our control.