Last Revised: September 23, 2022
IMPORTANT NOTICE: AS DETAILED IN THE ARBITRATION; JURY TRIAL WAIVER; CLASS ACTION WAIVER PROVISIONS BELOW, THIS AGREEMENT CONTAINS A WAIVER OF CLASS ACTION RIGHTS AND A WAIVER OF THE RIGHT TO A JURY TRIAL, AND MAY REQUIRE YOU TO ARBITRATE CERTAIN DISPUTES.
This website (including all sub-sites) is operated by Strategic Funding Source, Inc. (d/b/a Kapitus) or a subsidiary or affiliate thereof (collectively, “Kapitus,” “we,” or “us”).
1. USE OF SITES
The Sites are for individual business owners and legal entities organized and authorized to do business in the United States, and are not intended for use by others or for use outside of the United States.
To access certain features of the Site, you may need to register for an account and to provide us certain documentation or information, including information about your identity, finances, and business performance.
By creating or accessing a user account, submitting a request for commercial financing, and/or otherwise using the Sites, you represent and warrant that: (i) you are 18 years old or older and are fully able to enter into a binding agreement; (ii) all information and/or documentation you submit is true, accurate, current, and complete; (iii) you will update such information, as necessary, to keep it true, accurate, current, and complete; and (iv) the information belongs to you and does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party.
Kapitus reserves the right, at its sole discretion, to restrict in whole or in part, your access to, and use of, the Sites, Services, and Site content at any time, with or without notice, and for any or no reason.
2. PROHIBITIONS ON USE
You agree that you will not violate any law, contract, intellectual property, or other third party right, and that you are solely responsible for your conduct, while accessing or using the Sites or using the Services. As noted above, the Sites and Services may only be used for lawful purposes and in accordance with this Agreement. Additionally, you specifically agree that you will not:
• Provide false or misleading information to Kapitus, impersonate any person or entity, or misrepresent your affiliation with a person or entity;
• Use the Site in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Site, or that could damage, disable, overburden, or impair the functioning of the Site in any manner;
• Reverse engineer any aspect of the Site, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Site;
• Use the Site in any matter that could threaten, bypass, or destroy any security mechanism used with or incorporated in the Site;
• Post or otherwise transmit any content, data, or material that contains viruses, spyware, spiders, robots, worms, Trojan horses, logic bombs, or any other type of malicious or deleterious programs;
• Use or attempt to use another user’s account without authorization from such user and Kapitus;
• Post or otherwise transmit inaccurate, misleading, deceptive, offensive, lewd, hateful, defamatory, libelous, abusive, illegal, discriminatory, or otherwise inappropriate or objectionable content;
• Post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other material that contains business solicitations of any type, including advertising a product or service, offering a product or service for sale, or directing readers to a location for more information about a product or service; and
• Post or otherwise transmit any content, data, or material that infringes on the intellectual property rights or other personal rights (including privacy) of any third parties.
3. ACCOUNT SECURITY
4. OWNERSHIP, COPYRIGHTS, TRADEMARKS, LICENSES
Except for User Content (as defined below), any and all information, materials, images, software, photographs, articles, functions, text, and other content solely provided by or on behalf of Kapitus on any Site (collectively, “Site Content”) is the sole and exclusive property of Kapitus or our licensors, as applicable.
The Sites, Site Content, and the selection and arrangement thereof, are protected by copyright, trademark, service mark, trade name, and other intellectual property and other proprietary rights, and all other applicable rights are reserved, and users shall abide by those laws. Kapitus reserves all rights not expressly granted in and to the Sites, Services, and the Site Content. Unless otherwise noted, the Kapitus trademark, the Kapitus name, Kapitus abbreviation and all other Kapitus service marks, trade names, logos or other designations of source displayed on the Sites are the property of Kapitus, and may not be copied, imitated, or used, in whole or in part, without Kapitus’s prior written permission. All third-party trademarks, service marks, trade names, logos, or other designations of source are the property of their respective owners, and may not be copied, imitated, or used, in whole or in part, without the permission of the lawful trademark holder.
By furnishing Site Content, Kapitus does not grant any licenses to, or transfer any title rights for, any copyrights, patents, or any other intellectual property rights. Nothing on any Site shall be construed as granting any license or right not expressly set forth herein. Unless otherwise expressly stated herein, no part of the Site, including any Site Content, may be reproduced, modified, electronically transmitted, or otherwise copied or exploited for any purpose whatsoever without the express written permission of the intellectual property owner.
5. USER CONTENT
6. THIRD-PARTY CONTENT
7. COPYRIGHT COMPLAINTS
We respect copyright ownership and expect users of our Sites to do so as well. It is our goal to limit or prevent access to the Sites by any users who are repeat infringers of copyright.
If you are a copyright owner or an agent thereof and believe anything on our Sites infringes upon your copyrights, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act (“DMCA”) by providing notice to Kapitus through our designated agent, by email or mail, as follows:
ATTN: Director of Marketing & Communications
120 W. 45th Street, 4th Floor
New York, NY 10036
Your DMCA notice should comply with 17 U.S.C. § 512(c)(3) and include substantially the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly being infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should review the DMCA and/or consult an attorney before submitting a DMCA notice. You acknowledge that if you fail to comply with substantially all of the requirements of a DMCA notice, it may not be valid, and we may not be able to remove infringing content.
8. TELEPHONE COMMUNICATIONS
By your use of the Sites, such as, without limitation, through a submission of a request for commercial financing, you expressly consent to receiving servicing, collection, marketing, and other calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, our marketing partners, our trusted third-party providers, referral provides, and marketplace participants, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers). Your consent will be effective even if the number you have provided is registered on any state or federal Do-Not-Call (DNC) list. You understand that you are not required to provide consent to telemarketing calls as a condition of receiving any financing or services from Kapitus. Please note that you are not required to consent to be called for marketing or promotional purposes in order to qualify for financing or obtain any other products or services from Kapitus. If you do not agree to be called for marketing or promotional purposes, please call (844) 547-9396 or email [email protected]. In your request, please specify whether you would like to stop receiving SMS messages (including text messages), telephone calls, or both, and the telephone number(s) for which you are making the request.
You also consent to the recording and monitoring, for quality assurance, training, risk management, collection, or other purposes, of any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.
THE SITES (INCLUDING SITE CONTENT, USER CONTENT, SERVICES, AND WEBSITES LINKED TO THE SITE) ARE MADE AVAILABLE “AS IS,” “AT YOUR OWN RISK,” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT OR ENJOYMENT. WE MAKE NO GUARANTEE THAT THE SITES ARE UP-TO-DATE, ACCURATE, OR COMPLETE, AND YOU SHOULD NOT RELY ON THEM FOR ANY DECISION OR TO TAKE ANY ACTION. KAPITUS DOES NOT WARRANT THAT THE SITES WILL MEET THE USER’S REQUIREMENTS AND/OR ARE FREE OF INTERRUPTION OR ERRORS, OR THAT ANY OF THE SITES IS FREE OF VIRUSES, WORMS, BUGS, OR OTHER MALICIOUS TECHNOLOGY.
10. LIMITATION OF LIABILITY
12. ARBITRATION; JURY TRIAL WAIVER;CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT (a) MAY REQUIRE YOU TO ARBITRATE DISPUTES WITH KAPITUS; (b) PRECLUDES YOU FROM HAVING A JURY TRIAL; AND (c) REQUIRES THAT ANY DISPUTES BE BROUGHT IN YOUR INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
Arbitration Procedures. All Disputes submitted to the AAA will be resolved through confidential, binding arbitration before a single arbitrator agreed to by the parties, and shall be conducted in accordance with this provision and AAA Commercial Arbitration Rules in effect when the claim is filed, except where those rules conflict with this arbitration provision. The most recent version of the AAA Commercial Arbitration Rules is available on the AAA website. In arbitration, either party may choose to participate in any hearing by phone or other electronic means and/or be represented by counsel. Notwithstanding the foregoing, any in-person hearings shall be conducted in Arlington, Commonwealth of Virginia. The arbitrator shall apply the substantive laws of the Commonwealth of Virginia, without regard to any applicable principals of conflicts of law. The arbitrator shall make any award in writing and, if requested by either party, shall include a reasoned opinion for the award. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.
Arbitration Limits. All Disputes (including claims brought as part of a class action, private attorney general or other representative action) can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any Dispute on a class or representative basis and may award relief only on an individual basis. The arbitrator shall have no authority to consolidate two or more existing arbitrations into a single proceeding or to join additional parties to an ongoing arbitration, unless otherwise agreed to by the parties; provided, however, that co-applicants, authorized users of the same account, and corporate affiliates or entities under common ownership or control of a party are deemed one person for purposes of this provision. Additionally, the arbitrator shall have no authority to award punitive damages, consequential damages, or other damages not measured by the prevailing party’s actual damages, except as required by statute or allowed under any agreement between the parties.
Paying for Arbitration Fees. Arbitration fees will be allocated according to the applicable AAA Rules. All parties are responsible for their own attorney’s fees, expert fees, and any other expenses unless the arbitrator awards such fees or expenses to a prevailing party based on a contract between the parties or applicable law.
The Final Award. Any award rendered by the arbitrator shall be final, and binding on the parties, and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located (to which jurisdiction the parties consent for the purposes of enforcing such award), unless a party appeals such award in writing to the AAA within 30 days of notice of the award pursuant to the AAA’s Optional Appellate Arbitration Rules. The arbitration appeal shall be determined by a panel of three arbitrators. The panel will consider all facts and legal issues anew based on the same evidence presented in the prior arbitration and will make decisions based on a majority vote. Arbitration fees for the arbitration appeal shall be allocated according to the applicable AAA Rules. All parties are responsible for their own attorney’s fees, expert fees, and any other expenses unless the panel awards such fees or expenses to the prevailing party based on a contract between the parties or applicable law. An award by a panel on appeal is final. A final award is subject to judicial review as provided by applicable law.
c. CLASS ACTION WAIVER. YOU AND KAPITUS EACH HEREBY AGREE THAT THE RESOLUTION OF ANY DISPUTES BETWEEN THE PARTIES SHALL BE CONDUCTED IN THEIR INDIVIDUAL CAPACITIES ONLY, AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW.
13. GOVERNING LAW AND JURISDICTION
16. CONTACT INFORMATION
If you have any questions or concerns about these Terms, please contact us at [email protected].