AQUIFER TECHNOLOGY, INC. TERMS OF SERVICE

Effective date: October 15, 2015 Last modified: October 15, 2015

Welcome to www.getAquifer.com and the Aquifer mobile device applications. Please read these Terms of Service carefully before using the services offered by AQUIFER TECHNOLOGY, INC., a Delaware corporation Aquifer ("Aquifer", "us", "we"). These Terms of Service set forth the terms and conditions of our relationship and for your use of the Aquifer.com website (the "Site") and the services, features, content, applications, mobile device applications, or apps offered by Aquifer (collectively, the "Services").

The Agreement between Aquifer and You By accessing www.getAquifer.com or any Aquifer mobile device application, you agree to be bound by the terms of this Agreement.
  1. You understand that by using the Site or Services, or creating an account, you are agreeing to comply with and be bound by the terms and conditions contained herein ("Terms of Service" or "Agreement", which also incorporate Aquifer’s Privacy Policy).
  2. This Agreement supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site and the Services, the content, products or services provided by or through the Site and the Services, and the subject matter of this Agreement.
  3. WHEN YOU ACCESS OR USE ANY PART OF THE SERVICES BY ANY MEANS, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS OF SERVICE, INCLUSIVE OF ANY ADDITIONAL TERMS OR AGREEMENTS PROVIDED TO YOU THROUGH THE SERVICES OR AUTHORIZATIONS PROVIDED BY YOU THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY TERMS AND CONDITIONS OF ANY APPLICABLE MERCHANT CASH ADVANCE AGREEMENT OR OTHER RELATED DOCUMENTS.
  4. USE OF THE SERVICES IS VOID WHERE PROHIBITED AND YOU MUST BE A LEGAL RESIDENT OF NEW YORK STATE.
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About the Services and Our Role
  • Our Services are designed to provide cash advances to assist small businesses finance their business operations through our merchant cash advance products. A Merchant cash advance is a funding option for a business that is looking to expand, facing a cash flow shortage for operations or unforeseen expenses.
  • A merchant cash advance is not a loan. Rather it is a purchase and sale agreement where the business receives a lump-sum payment in return for a portion of its future sales that are paid by credit/or debit card. When we purchase such future sales, you provide us a discount off the total value of such future sales.
  • You understand Aquifer is not a bank nor does it offer or provide banking services.
  • Please be aware that even if you are pre-qualified to receive a merchant cash advance after submitting preliminary information through our Services, you may not be given final approval to receive a merchant cash advance. You understand that whether or not to extend any merchant cash advance is in our sole discretion.
  • You understand that in addition to this agreement, if your merchant cash advance application is approved, you will have to enter into a separate merchant cash advance agreement that speaks specifically to your applicable merchant cash advance. Such additional agreements, combined with this Agreement lays out the rights, duties, and obligation between the parties with regard to your merchant cash advances.
  • You understand that by accepting this Agreement or by creating an account, you are authorizing us to make all credit, employment, examination and other inquiries (including without limitation to consumer reporting agencies) to process any of your merchant cash advance applications.
  • We do not discriminate against any party on the basis of race, color, sex, religion, national origin, handicap, marital or familial status or age (provided that the applicant meets the minimum age requirements has the authority and capacity to enter into a binding contractual relationship with us).
  • Please carefully review our Privacy Policy to understand how we collect, use, share, transmit, disseminate and store information we collect when you use the Services. You are responsible for reviewing changes to this Agreement
  • This Agreement applies to all users of the Site and the Services.
  • Aquifer may make changes to this Agreement from time to time without specifically notifying you.
  • Aquifer will post the latest Agreement on the Site and may post it on Aquifer's mobile device applications, but it is up to you to review it before using the Site or Services. We will endeavor to provide notices of any changes to these Terms on the Site before those changes are effective. Nonetheless, you are responsible for checking the Website for possible changes to these Terms and for other important information about the Services. 
  • If you continue to use the Site or Services after any of these changes, your continued use will mean that you have accepted any changes to the Agreement.
  • In addition, some services offered through the Site and the Services may be subject to additional terms and conditions specified by Aquifer from time to time and your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.
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    Fees You agree to comply with the fee and payment terms in any applicable merchant cash advance agreement. Back to the Table of Contents »
    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:

    1. 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.
    2. By submitting Credentials to Aquifer through the Services, you are licensing such materials to Aquifer solely for the purpose of providing the Service.
    3. 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.
    4. 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.
    5. You will not provide false or misleading information when you register an account.
    6. If Aquifer terminates or disables your account, you may not create another account without first getting Aquifer's written consent.
    7. You will not use your account in a commercial fashion or manner.
    8. 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.
    9. It is your responsibility to ensure and protect the confidentiality of your Credentials.
    10. 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.
    11. 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.
    12. 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.
    13. 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.
    Permissions and access
    1. 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.
    2. 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.
    3. We may use and store the above such information and data, but only to provide the Service to you.
    4. 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.
    5. You hereby authorize and permit us to use your Credentials for these purposes and related purposes.
    6. 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.
    7. 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.
    8. You understand and acknowledge that your use of the Site and Services are governed by the Privacy Policy, which is incorporated into this Agreement by this reference.
    9. Any personal information that you provide to Aquifer through the Site or Services is governed by the Privacy Policy.
    Aquifer may edit or modify anything on the Site or Services without notice

    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
    1. 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.
    2. If you do not accept updated versions of the Site and Services, Aquifer shall not bear any responsibility or liability for your decision.
    You agree to let us monitor your activity on Aquifer mobile device applications and the Site and Services
    1. 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.
    2. By using any Aquifer mobile device application or the Site and Services you specifically agree to Aquifer monitoring you in this manner.
    3. 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.
    You must be 18 or older to use the Aquifer Site or Services and/or receive any Merchant Cash Advance
    1. You understand that you may not use the Site or the Services where such use is prohibited.
    2. You understand that the Site and the Services are intended solely for users who are eighteen (18) years of age or older.
    3. 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.
    4. You are a business owner or self-employed and are applying for any merchant cash advance in the name of your business.
    It is your responsibility to make sure this Agreement and your use of the Site and Services complies with all laws applicable to you
    1. 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.
    2. You are solely responsible for ensuring that this Agreement complies with all laws, rules and regulations applicable to you.
    3. 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.
    Aquifer may terminate your use of the Site and/or Services without reason or notice to you

    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
    1. 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.
    2. 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.
    3. 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.
    4. You agree to maintain ongoing access and to check your email and cell phone texts on a daily basis.
    5. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
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    Who Owns What and How You Can Use It The copyright to all content the on the Site and Services is owned by the provider of that content
    1. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site and the Services (“Copyright Content”) are the property of Aquifer or its content suppliers and are protected under applicable copyrights, trademarks and other proprietary rights.
    2. You may not copy, redistribute, use or publish any part of the Site or the Services, except as allowed by this Agreement.
    3. You do not acquire ownership rights to any content, document or other materials viewed through the Site or the Services.
    You may not use trademarks appearing on the Site or Services in an infringing manner
    1. You agree that Aquifer, www.getAquifer.com and other Aquifer graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of Aquifer or its affiliates (“Trademark Content”).
    2. Aquifer trademarks and trade dress may not be used in connection with any product or service that is not Aquifer’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Aquifer.
    3. All other trademarks not owned by Aquifer or its affiliates that may appear on this Site or the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Aquifer or its affiliates.
    You may use the Aquifer Site and Services for limited, noncommercial purposes
    1. Aquifer grants you a limited license to access and make personal use of the Site and the Services.
    2. Aquifer does not grant you the right to download (other than page caching) or modify the Site and the Services, or any portion of the Site and the Services.
    3. You understand Aquifer does not grant you the right to resell or make commercial use (except as provided herein) of the Site and the Services or their contents; make any derivative use of the Site and the Services or their contents; any downloading or copying of account information for the benefit of a third party, or merchant; or any use of data mining, robots, or similar data gathering and extraction tools.
    4. You understand the Site and the Services or any portion of Site and the Services may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose.
    5. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of Aquifer and our affiliates without express written consent.
    6. You may not use any meta tags or any other "hidden text" utilizing Aquifer’s name or trademarks without the express written consent of Aquifer. Any unauthorized use terminates the permission or license granted by Aquifer.
    7. You may not engage in the copying, reproduction, publication, rearrangement, redistribution, modification, revision, alteration, or reverse engineering, of the Services.
    8. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Aquifer so long as the link does not portray Aquifer, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter.
    9. You may not use any Aquifer logo or other proprietary graphic or trademark as part of the link without express written permission.
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    What Laws and Rules You Are Responsible For Following You promise to comply with this Agreement and any laws or regulations applicable to you
    1. You understand that we undertake significant financial risk to provide our merchant cash advance services, and you will not falsely represent your identity (including full legal name), your motivations to take a merchant cash advance, or your financial transactions including income and expenses as well as the bank account where you receive your business income, and your ability to authorize debits and credits from this account.
    2. You understand that our Services are designed to be in compliance with generally accepted standards of conduct as well as all applicable federal, local, and state laws, regulations and generally accepted practices or guidelines in any and all applicable jurisdictions (collectively, the “Applicable Laws”). Such Applicable Laws include, without limitation, the Equal Credit Opportunity Act ("ECOA"), and the Fair Credit Reporting Act ("FCRA"), as they are amended from time to time.
    3. You are responsible for ensuring the accuracy and timeliness of all information, documents, and materials, you provide, upload, and otherwise disclose to us by and through the Services. Notwithstanding the foregoing, you understand that we do not assume any duty to monitor or control any such materials or other information and therefore cannot assure their ongoing accuracy, accuracy, or integrity. 
    4. You promise not to use the Site or the Services (or the proceeds from any applicable merchant cash advance) for any purpose that is prohibited by this Agreement.
    5. You are responsible for all of your activity in connection with the Site and the Services.
    6. You shall abide by all Applicable Laws and, as a business or merchant, any advertising, marketing, privacy, or other self-regulatory code(s) applicable to you.
    You agree to comply with Aquifer’s conduct policies when using the Site or Services
    1. We do our best to keep the Site and the Services safe and operational, but we cannot guarantee it. We need your help to do that, which includes the following commitments:
      • You will not modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, republish, repurpose, sell, trade, or in any way exploit the Services or Site except as expressly authorized by Aquifer;
      • You will not take any action that imposes or may impose (as determined by Aquifer in its sole discretion) an unreasonable or disproportionately large load on Aquifer’s (or its third party providers') infrastructure;
      • You will not decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such restriction;
      • You will not interfere or attempt to interfere with the proper working of the Site and Services or any activities conducted on the Site and Services;
      • You will not bypass any measures Aquifer may use to prevent or restrict access to the Site and Services (or other accounts, computer systems or networks connected to the Site and Services);
      • You will not run any form of auto-responder or "spam" on the Site and Services;
      • You will not use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site;
      • You will not harvest or scrape any content or materials from the Site and Services;
      • You will not copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder;
      • You will not threaten, intimidate or harass another user;
      • You will not solicit passwords or personally identifying information (this includes, but is not limited to, someone else’s name, birth date, home address, IP address, social security number, or credit card number) for commercial or unlawful purposes;
      • You will not upload, post, transmit, share, store or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
      • You will not upload, post, transmit, share, store or otherwise make available any content (such as a picture on a profile page) other than those of a personal nature that: (i) are of you, (ii) are taken by you, or (iii) are original content created by you;
      • You will not otherwise take any action in violation of Aquifer’s guidelines and policies;
      • You will not threaten, intimidate, or harass another user or any parties on or through the Site or Services;
      • You will not solicit passwords or personally identifying information (this includes, but is not limited to, someone else’s name, birthdate, home address, IP address, social security number, or credit card number) for commercial or unlawful purposes.
      • You will not falsely represent your identity or impersonate a third party, nor will you falsify or mislead third parties regarding your affiliation with any entity. You are solely responsible for all Submissions from your account. “Submissions” means anything that a user transmits to the Site and/or the Services in the course of using the Site and/or the Services. You shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of any statement or any other detail contained in the Submissions;
      • You will not use the Site and Services in any manner or transmit any Submission that: infringes (or results in the infringement of) Aquifer’s or any third party’s intellectual property or other rights; is (or you reasonably believe to be) illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; does not comply with all applicable laws, rules, or regulations, including obtaining all necessary permits, licenses, registrations, etc. In the case of any proposed or actual transaction, “applicable” refers to both your own location and to location(s) of all other parties to the transaction; or would cause Aquifer to be in violation of any law or regulation, or to infringe any right of any third party.
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    Warnings You use the Aquifer Site and Services at your own risk
    1. Aquifer has no obligation to review any content or material, including computer software, posted to or through the Site and the Services, and cannot therefore be responsible for such material or content.
    2. By operating the Site and the Services, Aquifer does not represent or imply that it endorses any content or material posted there, or that it believes such material to be accurate, useful or non-harmful.
    3. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
    4. The Site or the Services may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors.
    5. The Site or the Services may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated.
    6. Aquifer disclaims any responsibility for any harm resulting from the use by visitors of the Site or the Services, or from viewing or downloading by those visitors of content posted on the Site or the Services.
    Aquifer is not responsible for what happens outside of the Site and Services, including on websites the Site or Services links to or advertises
    1. Aquifer or its business partners may present advertisements or promotional materials via the Services.
    2. Your dealings with, or participation in promotions of, any third-party advertisers via the Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion.
    3. You agree that Aquifer is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Services.
    4. You understand the Site and the Services may contain (or you may receive from Aquifer, third parties or users) links to other web sites (“Third Party Sites”) or content posted, owned or originating from third parties such as, by way of example only, pictures, designs, photographs, graphics, text, sound, video, information, software, applications and any other content (“Third Party Content”).
    5. You understand and agree that Aquifer is not responsible for, and does not control, Third Party Sites and Third Party Content. You also understand and agree that Aquifer is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such Third Party Sites and Third Party Content.
    6. You acknowledge and agree that Aquifer shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such Third Party Site or Third Party Content.
    Our Legal Rights to Collection

    To the greatest extent permissible by law, you understand and agree that we are authorized to collect any monetary or financial obligations that are owed to us by you under this Agreement or any applicable merchant cash agreement. Any failure by you to fully and timely pay any sums you owe us on demand will be a breach of this Agreement and, accordingly, you will be liable for our costs relating to collection, in addition to the amount owed, including without limitation reasonable attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.

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    Class Action/Jury Trial Waiver

    WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND AQUIFER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

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