General Terms of Service

 

 

 

Last Updated: August 13, 2019

These General Terms of Service (“Terms”) are a legally binding agreement between you (“you” or “User”) and Wisetack, Inc., and our affiliates (“Wisetack,” “we,” or “us”) regarding your use of Wisetack’s services, including our platform, online services, and software applications (collectively, the “Service” or “Services”). Please read the Terms carefully. By using the Service you acknowledge that you have read, understood, and agree to be bound by the Terms, including the Wisetack Privacy Policy. These Terms provide that all disputes between you and Wisetack with respect to your use of the Service will be resolved by binding arbitration, to the fullest extent permitted under applicable law. If you are using the Services on behalf of a business, you represent that you have authority to bind that business or entity to these Terms, and that business accepts these Terms. If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. You also agree to any additional terms specific to Services you use (“Additional Terms”), such as Wisetack’s Electronic Records and Signature Disclosure (“E-Sign Consent”), which become part of your agreement with us. You should read all of our terms carefully. If there is any contradiction between these Terms and another agreement you enter into applicable to specific aspects of the Service, the other agreement shall take precedence in relation to the specific aspects of the Service to which such other agreement applies.

Wisetack reserves the right at its sole discretion, to amend or terminate these Terms or any Additional Terms, or suspend or terminate your access to any part of the Service, at any time for any reason (“Termination”). We may add or remove, suspend, stop, delete, discontinue or impose conditions on any feature or aspect of the Service. You may also terminate the Terms and Additional Terms applicable to your use of the Service by deactivating your account with us at any time. We may change, modify, add or remove portions of these Terms or any Additional Terms, at any time. It is your responsibility to check these Terms and any Additional Terms that apply to you periodically for changes. We will take reasonable steps to notify you of termination or these other types of Service and may provide disclosures and notices required by law and other information about the Service by email, text message, phone call, or by posting notices on our website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing to the extent permissible by law. Your continued use of our Service following the posting of any changes, disclosures or notices will mean that you accept and agree to them. If you wish to withdraw your consent to receiving electronic communications, please contact us at the information provided below. If you decide to withdraw your consent, the legal effectiveness, validity and/or enforceability of prior electronic disclosures will not be affected, and Wisetack may close or limit access to your account. You agree to pay any amount owed to Wisetack even if you withdraw your consent and we close or limit access to your account or these Terms or any Additional Terms that apply to your use of the Service are otherwise terminated.

1. THE SERVICE OVERVIEW

The Service is intended to provide consumer financing through third-party merchant websites, in-person transactions, software platforms, retail stores, or any other method that we or our partners make the Services available (collectively, “Merchants”), and through which individual persons (“Customers”) may apply for a loan from us, or one of our funding partners (each, a “Funding Partner”). The originator of the loan, either Wisetack or a Funding Partner, will pay the Merchant from whom a Customer has purchased goods or services in exchange for the Customer’s promise to repay the loan used for such purchase plus a finance charge, as detailed herein.

​2. ACCOUNTS & REGISTRATION

To access the Service, including to manage loans, payments, and access information regarding loans, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, as described in our Privacy Policy. You understand and agree that as part of the registration process we may use this information to verify your eligibility to use the Service. You must provide accurate and complete information in response to our questions and you must keep that information current. We reserve the right to change the account type, suspend or terminate the account of anyone who provides inaccurate, untrue or incomplete information or who fails to comply with the Terms.

3. CUSTOMER ELIGIBILITY AND QUALIFICATION

a.   You must be at least the age of majority in your state of residence to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are an individual who is at least the age of majority; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with all applicable laws and regulations; and (d) you have read and agree to our Privacy Policy. Customers who have been denied a loan from us or a Funding Partner during the preceding thirty (30) days may be similarly ineligible to submit a new application.

b.   The financing provided through us or a Funding Partner is closed-end unsecured credit. Wisetack or the Funding Partner, as applicable, will pay the loan proceeds, less any fees owed, directly to the Merchant from whom the Customer purchases goods or services. Customers expressly authorize Wisetack or a Funding Partner to obtain their credit report and other information from consumer reporting agencies or other identity or credit verification services for the purposes of processing their loan application, evaluating their prequalification request, and/or administering their Wisetack account when they apply for a loan, periodically throughout the term of their loan and periodically in connection with any other services they may obtain from us. Checking eligibility for a loan creates a “soft inquiry” on a Customer’s credit report and does not impact their credit. However, Customers understand and acknowledge that taking out a loan from us or a Funding Partner may be reflected on their credit report from one or more consumer reporting agencies, and that taking out a loan may impact their credit score while soft inquiries do not.

c.   By using the Services, you authorize Wisetack, directly or through third parties, to make any inquiries we consider necessary to validate your creditworthiness, loan application, identity and to collect information about you in accordance with our Privacy Policy, and to comply with the Customer Identification Program (CIP) rules implementing Section 326 of the USA PATRIOT Act and our Privacy Policy. This may include asking you for further information that will allow us to reasonably identify you or confirm information on your application. This may require you to take steps to confirm ownership of your email address or financial instruments, or for us to verify your information against third party databases or through other sources. We may also ask you for identifying documents to help us validate your identity. Wisetack reserves the right to close, suspend, or limit access to your account and/or the Services in the event we are unable to obtain or verify this information.

 

d.   Upon initial request to determine your eligibility, submitting an application to us or a Funding Partner, or at any other time, you may be denied use of the Services by us or a Funding Partner for any reason permitted by applicable law, including, but not limited to, your creditworthiness, suspected fraud, your history of using the Services, or your violation of any agreement with us or a Funding Partner, including these Terms. Any transaction may be held as pending, delayed for processing, or canceled at any time prior to the issuance of the loan. All loans are subject to final approval of Wisetack or a Funding Partner, as applicable.

4. THIRD PARTY APPLICATIONS AND PLATFORMS

The Services can be used in connection with the sale of goods and services on third-party Merchant websites or with third-party applications. By using the Services, you acknowledge that Wisetack is acting as an unaffiliated third party to the Merchant whose goods or services are being purchased through a loan originated by us or a Funding Partner. You acknowledge Wisetack is not responsible for any defect or warranty associated with such goods or services, nor is Wisetack responsible for use of the goods or services. You acknowledge and agree that you will not hold Wisetack liable under any theory of products liability, personal injury, or breach of warranty for any purchases. Wisetack is also not responsible for the content of or use of any third-party Merchant websites, which are governed by the Merchants’ own terms of use and privacy policies.

5. CONSUMER PROMISE TO PAY; REFUNDS; AND REPAYMENT

This section refers to Customers only. The use of “you” and “your” throughout this section should be understood to refer to the Customer and not to the Merchant.

a.   Before completing any transaction on your behalf through the Services or any loan is originated, Wisetack will secure your (the Customer’s) promise to repay such loan by disclosing terms and conditions applicable to that transaction and securing your affirmative consent to those terms for that transaction, including your promise to pay amounts to Wisetack or a Funding Partner, or its assigns. You are responsible for repaying your loan according to these terms as disclosed. Your loan is subject to an interest rate that accrues on the unpaid principal balance until you pay the loan in full, and finance charges based on the applicable interest rate that will be determined by your creditworthiness. Wisetack and its Funding Partner may determine at their respective discretion and in compliance with their respective policies and applicable law the APR and the amount of any fees or penalties to charge for the Services, and you acknowledge and agree that Wisetack and its Funding Partners may from time to time revise, discontinue, or make changes to any aspect of the Services, including the interest rate, fees, or other terms and conditions of a particular credit product, discontinue any credit products, or review applicable underwriting criteria.

 

b.   Wisetack will always disclose the specific finance charge before you agree to any loan. Payments that you make will be applied first to accrued unpaid interest, then to the unpaid principal balance. Your first payment will be due no sooner than fifteen (15) days after Wisetack or a Funding Partner, as applicable, pays a Merchant on your behalf pursuant to your loan. It is important that you pay your loan on time. You will receive information about managing your loan and making payments after you complete your loan application. If you have any questions about ways to make repayments, please contact us at support@wisetack.com.

 

c.   On behalf of Wisetack or any Funding Partner, we or a servicer may assign accounts to third party collection agencies, report positive and/or negative information to the consumer reporting agencies, restrict your access to the Services for future financings, or take any other action permitted by applicable law. You agree that we or any of our agents or third parties acting on our behalf may contact you periodically to send you reminders to pay your obligations through any of the communication methods provided above. Failure to make payments on time may result in fees or negative consequences to your credit history.

 

d.   If you want to ask a Merchant for a refund on a purchase for which a loan was originated through the Services, you must contact that Merchant directly to process the refund and to contact us to reduce your loan by the amount of the refund. If the entire borrowed amount is refunded, you may still owe finance charges depending on when the Merchant notifies us. You will be solely responsible for any outstanding balance on your loan. And may owe other amounts (such as late fees, if included as part of the terms of your loan with any Funding Partner, or insufficient funds/processing fees) incurred prior to your refund that were not paid. Please review the terms of any loan agreement with us or a Funding Partner for details.

 

e.   Any disputes pertaining to your access to or use of our Service, including but not limited to amounts charged by third-party Merchants or partners, delivery of goods or services, or any other aspect of your transactions with a particular Merchant must be first directed to that Merchant. You may only submit a formal dispute to Wisetack if you are unable to resolve a transaction dispute with the Merchant, and must provide Wisetack with supporting documentation demonstrating your attempts to resolve a dispute with the Merchant. Wisetack will review any such disputes in accordance with its Dispute Resolution Procedures. If Wisetack should conclude in its sole discretion that the Merchant has complied with its own refund and cancellation policies, you will remain obligated for the full amount of your loan. Wisetack may support your request for a refund from the Merchant if Wisetack concludes in its sole discretion that the Merchant has not complied with its own refund and cancellation policies, but Wisetack nevertheless cannot force such Merchant to provide a refund. Refunds issued to your account, if any, will be applied to reduce your loan balance, and you will remain responsible for any outstanding amount.

6. CLOSING YOUR ACCOUNT

You may request to close your account at any time by contacting us at support@wisetack.com. Your request may take up to 30 business days to process. Upon account closure, we will cancel any pending transactions unless otherwise legally prohibited. If you owe any payment, we will not close your account until that payment has been made, but we may limit your ability to make additional transactions using your account. You may not close your account to evade loan repayment or any investigation. You will remain liable for all obligations related to your account even after the account is closed. Wisetack will retain your information in accordance with our Privacy Policy and any applicable state or federal law, rule or regulation.

7. EFFECT OF TERMINATION

If these Terms, any Additional Terms, or your account is terminated or suspended for any reason: (a) the license and any other rights granted under these Terms or any Additional Terms will end and all rights will revert to Wisetack, (b) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. In addition to any payment obligations under these Terms or any Additional Terms, the following sections of these Terms survive and remain in effect in accordance with their terms upon termination: 4 (Third Party Applications and Platforms), 7 (Effect of Termination), 10(Licenses and Intellectual Property), 12 (Links to Other Web Sites and Services), 13 (Indemnity), 14 (Disclaimers; No Warranties), 15 (Limitation of Liability), 17 (Governing Law and Venue), and 19 (Dispute Resolution and Arbitration).

8. ACCEPTABLE USE AND CONDUCT

 

By using the Services, you agree that:

  • You will not engage in any activities related to the Services that violate any applicable law, statute, regulation, or ordinance or breach these Terms or any other agreement or policy of Wisetack or a Funding Partner;

  • You will not provide false, inaccurate or misleading information;

  • You will not provide information belonging to any person other than yourself or use an account that belongs to another person for yourself or on behalf of another person;

  • You will not use the Services to purchase or sell:

    • Illegal items or conduct any illegal activities or transactions;

    • Ammunition, firearms, certain firearm parts or accessories, and certain weapons or knives regulated under applicable law;

    • Narcotics, steroids, controlled substances, quasi-pharmaceuticals, or drug paraphernalia;

    • Currency in any form, including virtual and digital currency;

    • Stolen goods, including but not limited to, digital or virtual goods; or

    • A good or service deemed unacceptable by Wisetack or a Funding Partner(s), in their sole discretion;

  • You will not use any device, software, routine, file or other tool or technology, including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Services or to surreptitiously intercept or expropriate any system, data or personal information from the Services;

  • Customers will not use the Services to make payment(s) on an existing loan(s);

  • Customers will not use the Services to accomplish a cash advance, wire or money transfer;

  • You will not commit unauthorized use of our website or Services including but not limited to unauthorized entry into Wisetack's systems, misuse of passwords, or misuse of any information posted to a site; and

  • You will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, "spam" or any other such unsolicited overload technique.

9. FRAUDULENT TRANSACTIONS

In no event will Wisetack be responsible for any fraudulent transaction by any User, as applicable. If a Merchant changes product shipping details or service order details, regardless of the timing of such change, then the Merchant assumes the risk of loss of the value of the transaction unless such changes have received the prior written approval of Wisetack. In the event Wisetack informs a Merchant that a Customer transaction is fraudulent or likely fraudulent prior to the Merchant shipping goods or providing the purchased services, the Merchant will immediately cease the shipping of any such goods or provision of any such services. In the event that the goods are shipped or services are provided notwithstanding this information, the Merchant will be liable for any loss resulting from such transaction, will immediately refund any funds related to the transaction, if any, already disbursed by the Funding Partner or Wisetack, and Wisetack will have no obligation to perform any of the Services hereunder.

10. LICENSES AND INTELLECTUAL PROPERTY

a.   Intellectual Property. You agree and acknowledge that Wisetack is the exclusive owner of and retains all right, title, and interest in any and all software, technology or tools used by Wisetack to promote, market, sell, generate, or distribute the Services, including Wisetack’s name, logo and any other trademarks or copyrighted material (collectively, “Wisetack IP”). You may not, nor may you allow any third party to (i) duplicate, publish, modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, Wisetack IP without the express written consent of Wisetack; (ii) make unauthorized copies of Wisetack IP; (iii) distribute or market the Services and any Wisetack IP without © 2019 Wisetack, Inc Proprietary & Confidential Page 7 of 15 Wisetack’s prior written authorization; (iv) remove any proprietary notices, labels or Marks on or in any copy of the Services or Wisetack IP; (v) alter or remove any warranties, disclaimers, and license agreements shipped with the Services; or (vi) use the Services and Wisetack IP in any manner or for any purpose other than for which the Services and Wisetack IP have been incorporated or for which the Services and Wisetack IP have been provided. Additionally, you agree that you will not (i) remove or alter any author, trademark or other proprietary notice or legend displayed on our website (or printed pages produced from our website); and (ii) make any other modifications to any documents obtained from our website other than in connection with completing information required to transact business with Wisetack. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials. Wisetack serves all rights not expressly granted to you in these Terms or any Additional Terms. Except for the limited rights and licenses expressly granted under these Terms or any Additional Terms applicable to your use of the Services, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to Wisetack IP.

b.   Customer Use. We grant Customers a limited, non-exclusive, revocable, nontransferable, non-sublicensable license to use the software that is part of the Services, as authorized in these Terms. We may make software updates to the Services available to you, which you must install to continue using the Services. Any such software updates may be subject to additional terms made known to you at that time. Customers are authorized solely to view and retain a copy of the pages of our website for your own personal, non-commercial use. Customers may also view and make copies of relevant documents, pages, images or other materials on our website for the purpose of transacting business with Wisetack.

 

c.   Merchant Use. Subject to Wisetack’s sole discretion, Wisetack grants Merchants a limited, revocable, non-exclusive, non-transferable license to access and integrate Wisetack’s APIs, and use Wisetack’s API documentation and other materials, in order to provide and to enable Customers to access, use, perform and display (publicly or otherwise) the Service. Subject to these Terms, Merchants and Wisetack mutually grant to each other a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute and transmit the other party’s name, logo and any other trademarks, trade names, service marks, photographs, graphics, artwork, text and other content provided or specified by such party in any and all media formats, whether registered or unregistered, (collectively the “Marks”) solely in connection with and solely as permitted under these Terms or any Additional Terms as applicable. Use of the Marks does not create in either party’s favor any right, title or interest in the Marks or any continuing rights to market or distribute the Merchant Services. Neither party will register or apply for registration of any of the other party’s Marks (or any similar trademarks, service marks or logos) for itself, or any other party. Each party agrees to cooperate with the other if the other party seeks to proceed with any infringement action regarding such rights. Wisetack agrees and acknowledges that Merchants are the exclusive owner of and retains all right, title, and interest in any and all hardware, software, technology or tools used by Merchants to promote, market, sell, generate, or distribute the products financed through the Services, including Merchant name, logo and any other trademarks or copyrighted material (collectively, “Merchant IP”). For the avoidance of doubt, Merchant IP does not include any Wisetack IP. Wisetack may not, nor may Wisetack allow any third party to (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, Merchant IP; (ii) make unauthorized copies of Merchant IP; (iii) distribute or market Merchant IP without your prior written authorization; (iv) remove any proprietary notices, labels or Marks on or in any copy of Merchant IP; (v) alter or remove any warranties, disclaimers, and license agreements shipped with the Merchant Services; or (vi) use the Merchant IP in any manner or for any purpose that is inconsistent with Wisetack’s rights under these Terms or any Additional Terms as applicable.

 

d.   Restrictions. You will not: (i) offer for sale or lease, sell, resell, lease or in any way transfer the Services; (ii) attempt to create a substitute or similar service through use of or access to Wisetack IP; (iii) access or use the Services in a way intended to avoid incurring fees, misrepresent usage or performance data, misrepresent transaction amount or item data, or misrepresent user information, or knowingly permit such access or use to occur; or (iv) perform any benchmark tests against a competing provider (e.g. conversion lift, approval rates, average order value, or share of cart, etc.) without the prior written consent of Wisetack (any results of such permitted benchmark testing will be deemed Confidential Information of Wisetack and, other than as expressly permitted by Wisetack, will not be shared with any other party without Wisetack’s prior written consent).

 

e.   User Content. Certain features of the Service may permit you or other users to upload content to the Service, including communications and other messages, text, and other types of information (“User Content”) on the Service. You retain any copyrights, moral rights, and any other proprietary rights that you may hold in the User Content that you post to the Service. By posting or publishing User Content, you grant Wisetack a worldwide, non-exclusive, royalty-free, fully paid, unrestricted right and license (with the right to sublicense) to use, host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in accordance with our Privacy Policy, in any media formats and through any media channels now known or hereafter developed. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:

  • ​You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Wisetack and its affiliates and partners to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by the Service and these Terms; and

  • Your User Content, and the use of the Service as contemplated by these Terms, does not and will not: (x) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (y) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (z) cause Wisetack to violate any law or regulation, including laws related to the privacy of personal or health information.

  • By submitting any comment or idea about the Services, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the idea without any additional compensation to you, and/or to disclose the idea on a non-confidential basis or otherwise to anyone.

​​f.   Disclaimer. We are under no obligation to monitor, edit, or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content or any failure to review or act upon User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. To the fullest extent allowed under applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Wisetack with respect to User Content. We expressly disclaim any and all liability in connection with User Content, to the fullest extent allowed under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. If you believe that any User Content does not conform to these Terms, please notify us at support@wisetack.com

 

g.   Ownership. We reserve all rights not expressly granted to you in these Terms. We own all rights, title, interest, copyright and other Intellectual Property Rights in the Services and all copies of the Services. For the purpose of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.

11. ELECTRONIC COMMUNICATIONS AND ELECTRONIC SIGNATURES

a.   Collections. Customers agree to allow us to send them payment reminders from time to time. Notwithstanding whether they have consented or withdrawn their consent to the E-Sign Consent below, Customers agree that payment reminders may take the form of any available communication. Customers also agree that if they fail to pay an amount owed pursuant to these Terms or any loan agreement related to the Services, we or a third party may engage in collection efforts to recover such amounts from them. These collection efforts may involve contacting the Customer directly, submitting their information to a collection agency, or taking legal action. As a Customer, you understand that Wisetack or a Funding Partner may report information about your loan (such as on-time, late, and missed payments; any defaults; and the fact you paid off your loan) to credit reporting agencies. FAILURE TO PAY MAY AFFECT YOUR CREDIT SCORE.

 

b.   E-Sign Consent. In connection with the Services, Wisetack and a Funding Partner (the lender of all loans), are required by law to provide you with certain disclosures relating to electronic signatures, records and disclosures. Without your consent, Wisetack and a Funding Partner are not permitted to provide those disclosures to you online. If you do not agree or consent to this E-Sign Consent, you should not use the Services.

 

c.   When using the Services you will be asked to affirmatively consent to the Terms by continued use of the Service. These actions constitute your electronic signature and manifests your consent and agreement to the following terms:

  • Wisetack and/or a Funding Partner may provide disclosures required by law relating to the Services and any other information about your legal rights and duties and your account to you electronically.

  • Wisetack and/or a Funding Partner may send any communications, billing statements, or required disclosures, such as initial and annual privacy notices (together, “Disclosures”) to you electronically via our website or to the email address or mobile telephone number that you have provided to us, either directly or indirectly via the Merchant to whom a Funding Partner will send funds on a Customer’s behalf, or as you update from time-to-time.

  • Wisetack and/or a Funding Partner may notify you via email when the Disclosures are available. The Disclosures will be available for at least 30 days and will be provided to you in a format that can either be printed or downloaded for your records. Whenever we send you an email or text message regarding the Disclosures, that email or text message will contain instructions regarding how to view the Disclosures.

  • Your electronic signature on agreements and documents, or your affirmative consent to such agreements or documents, has the same effect as if you signed them in ink.

  • This consent applies to any transaction undertaken through the Services in the past, to all future disclosures and communications on your account, to all future transactions in which you use the Services, at any time, to any transaction with us, and to other Disclosures that we provide to you by email.

​d.   Minimum Disclosure Requirements. You understand that, in order to view and/or retain copies of the Disclosures, you may need a computer with an Internet connection, a mobile device, a valid email address, a working mobile telephone number that can receive text messages, and sufficient storage space to save Disclosures or the capability to print the Disclosures from the device on which you view them.

 

e.   Legal Effect. Your consent to the E-Sign Consent above means that Disclosures we provide to you electronically shall have the same meaning and effect as if provided in paper form. A text message or email alerting you that Disclosures are available electronically, provided that the Disclosures are made available online shall have the same meaning and effect as if we had provided those Disclosures to you in paper form, regardless of whether you actually view those Disclosures, unless you have withdrawn your consent prior to receiving such Disclosures. You may withdraw your consent to receive communications electronically by emailing us at support@wisetack.com.

 

f.   Miscellaneous. You agree that Wisetack may modify or change the methods of disclosure described herein, and that we may send you Disclosures in paper form at its option. You can obtain a paper copy of an electronic Disclosure at no charge, provided that such request is made within a reasonable time after we first provided the electronic Disclosure to you. To request a paper copy of a Disclosure, contact us at the information provided below.

You also agree that Wisetack is not responsible for any delay or failure in your receipt of any text message or email notice that is not caused by Wisetack’s failure to send such a notice to the phone number or email address you have provided for that purpose.

12. LINKS TO OTHER WEB SITES AND SERVICES

The Service may contain links to outside services and resources, the availability and content of which Wisetack does not control. We are not responsible for examining or evaluating, and we do not warrant the offering of these businesses or individuals or the content of their web sites, and we do not warrant the Service will be compatible with any specific device or carrier. Wisetack does not assume any responsibility or liability for the actions, products, and content of these and any other third parties. Any concerns regarding any such service or resource, or any link thereto, should be directed to the particular outside service or resource.

13. INDEMNITY

You will indemnify, defend, and hold Wisetack and our respective employees, directors, agents, affiliates, processors and representatives (together, the “Wisetack Entities”) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms or any applicable Additional Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code; (f) any dispute or issue between you and any third party, including but not limited to any claim arising out of or relating to the goods or services provided by a Merchant to you; and (g) fraud, intentional misconduct, criminal acts, gross negligence, or negligence committed by you.

 

To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

14. DISCLAIMERS; NO WARRANTIES

THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, THE WISETACK ENTITIES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE WISETACK ENTITIES DO NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

 

The Wisetack Entities do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. The Wisetack Entities do not have control of, or liability for, goods or services that are paid for using the Services.

15. LIMITATION OF LIABILITY

IN NO EVENT WILL THE WISETACK ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, GOODWILL, REPUTATION, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS, PRODUCTS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE UNDER THESE TERMS OR ANY ADDITIONAL TERMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY WISETACK ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF WISETACK IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.

 

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.

16. FORCE MAJEURE

To the fullest extent permitted under applicable law, Wisetack will be excused from performance under these Terms and any Additional Terms as applicable for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms or any Additional Terms, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes, (d) labor strikes; (e) telecommunications, network, computer, server or Internet disruption or downtime; (f) unauthorized access to Wisetack’s information technology systems by third parties; or (g) other causes beyond Wisetack’s control.

17. GOVERNING LAW AND VENUE

These Terms, any applicable Additional Terms, your use of the Service and any related dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act), without regard to its choice of law or conflicts of law principles. We operate the Service from our offices in the United States, and we make no representation the Service is appropriate or available for use in other locations.

18. ASSIGNMENT

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void. We may assign these Terms at any time without notice or consent. Under these Terms and any applicable Additional Terms, you and Wisetack are independent contractors. Nothing in these Terms or any applicable Additional Terms will be construed to create a joint venture, partnership, franchise or agency relationship between you and Wisetack. Neither you nor Wisetack have the authority, without the other party’s written approval, to bind or commit the other party.

19. DISPUTE RESOLUTION AND ARBITRATION

You and Wisetack agree to arbitrate any and all disputes by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST WISETACK. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Subject to applicable jurisdictional requirements, you may elect to pursue your claim in your local small-claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to a transaction intended for a personal, household, or family use, any arbitration hearing will occur within the county where you reside. Otherwise, any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. An Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. Wisetack will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000 unless the Arbitrator determines that your claims were frivolous. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the Arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Wisetack also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.

20. CLAIMS

To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both you and Wisetack. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.

21. CONSUMER PROTECTION NOTICE

Please note that, if you are a consumer, the limitations in these Terms are intended to be only as broad and inclusive as is permitted by the laws of your state of residence. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information.

 

If you are an Arizona resident, under the Revised Statutes of Arizona State Legislature, Section 41-5606, this financial service is authorized pursuant to the regulatory sandbox (Registration # 16119005) and Wisetack, as a sandbox participant, does not have a license or other authorization to generally provide products or services under state laws that regulate a financial product or service that is outside the regulatory sandbox. The state of Arizona does not endorse or recommend this service. Offer of the Wisetack Services in Arizona is a temporary test that may be discontinued at the end of the testing period (expected in February 2021). Arizona Customers may contact the Arizona Attorney General to file complaints regarding the innovative financial product or service being tested at the following website: https://www.azag.gov/complaints/consumer or these phone numbers: call (602) 542-5763 (Phoenix), (520) 628-6648 (Tucson), or toll-free outside of metro Phoenix, (800) 352-8431.

 

Si usted es un residente en Arizona, bajo los Estatutos Revisados de la Legislatura del Estado de Arizona, Sección 41-5606, este servicio financiero está autorizado conforme la prueba regulatoria (# de Registración 16119005) y Wisetack como un participante de prueba, no tiene licencia u otra autorización para proporcionar generalmente productos o servicios bajo las leyes estatales que regulan productos o servicios financieros que se encuentran por fuera de la prueba regulatoria. El estado de Arizona no avala o recomienda este servicio. La oferta de los servicios de Wisetack en Arizona son una prueba temporal que puede ser descontinuada al final del periodo de pruebas (esperado para Febrero 2021). Los Clientes de Arizona pueden contactar a la Fiscalía General de Arizona para presentar quejas sobre el innovador producto o servicio financiero bajo prueba en el siguiente sitio web: https://www.azag.gov/complaints/consumer o en los siguientes numeros de telefono: llamando (602) 542-5763 (Phoenix), (520) 628-6648 (Tucson), o sin cargo fuera del área metropolitana de Phoenix, (800) 352-8431.

22. OTHER PROVISIONS

These Terms, together with the Wisetack Privacy Policy and any applicable Additional Terms or other agreements expressly incorporated by reference into these Terms, any applicable Additional Terms, or any applicable loan agreement, are the entire and exclusive understanding and agreement between you and Wisetack regarding your use of the Service. In the event of a conflict between these Terms and any other Wisetack agreement or Policy, these Terms will prevail and control the subject matter of such conflict. If any provision of these Terms or any applicable Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term. The failure of any party to enforce any of the individual terms and conditions of these Terms or any applicable Additional Terms will not constitute a waiver of that party’s right thereafter to enforce each and every term and condition of these Terms or any applicable Additional Terms.

23. CONTACT US

Please contact us at support@wisetack.com with any questions or for more information about these Terms or any applicable Additional Terms. Please direct all notices or other communications required or permitted to legal@wisetack.com.