Terms and Conditions
**These Terms and Conditions have been updated October 2020.
If you do not agree to the terms, please do not use the site or services.
Your use of, or participation in, certain Services may be subject to additional terms, and such terms will be either listed in the Terms or will be presented to you for your acceptance when you sign up to use such Services or purchase such products.
These Terms state that any disputes between you and Upwise must be resolved in binding arbitration, that you waive the right to participate in any class action, and that the law of New York State applies to all interactions between you and Upwise. You may opt-out of arbitration and the class action waiver by following the procedures in Section 11.g below.
Upwise matches qualified small business owners with it’s “Partners”; active banks, lenders, credit unions, investors, hedge funds, and other business, marketing, and design sources to offer its services. Upwise helps business owners to identify the business loan or service category and specific Partners that offer the best opportunity for that business owner to prepare for and acquire a business loan or other service. Once prepared, small business owners are then presented with the loan options and services available for their business by an Upwise advisor or may be presented to an advisor from the Partners service. The funding advisor will assist and guide the business owner through the process of obtaining the desired financing or service.
Changes to this Terms and Conditions
We may modify these Terms from time to time to reflect changes in the market conditions, changes in our business, payment methods, technology, relevant laws and regulatory requirements. It is important you check these Terms and Conditions periodically for changes that we make and we reserve the right, to change, modify, and add or remove portions of these Terms, in our sole discretion. If you continue to use the Site following the posting of changes, this will mean that you accept and agree to the updated changes. Please see the very beginning of the Terms to determine when the Terms were last updated or revised.
All text, graphics, user interfaces, visual interfaces, marketing materials, applications, trademarks (whether registered or not), logos, sounds, artwork of any kind, and computer code (collectively, “Content”), including but not limited to the design, structure, coordination, selection, appearance, and arrangement of the Content, contained on the Site is owned by Upwise and is protected by trade dress, copyright, trademark, and other property laws and unfair competition laws. Any misuse of the Content will be at your liability and Upwise will do all that is lawful to enforce and protect the Content.
- Defined Terms
As used in these Terms, the following words shall have the following meanings. “Upwise” includes “Upwise Capital, LLC.”, “Upwise”, “we”, “us” and variations such as “our”. “Service” includes the products, services and software that you order, receive or access as part of the Upwise service.
- Use of Site and Service
As a user of the Site or a user registered to use any of the Services (a “Upwise User”), you agree to the following:
(a) Exclusive Use. Your account is to be used only by you and only for your business needs. You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Upwise is not responsible for third-party access to your account that results from theft or misappropriation of your user name and passwords.
(b) Information Submitted. You are responsible for, and assume all liability regarding the information and content you provide through your use of the Site and any Services, the information and content you make available in any manner through the service, and your interaction with any and all third-parties.
(c) Risk Assumption and Precautions. You assume all risks when using the Services, including but not limited to all of the risks associated with any interactions with third-parties, including but not limited to any Partners to which you are matched, referred or provided.
(d) No Guarantees. Upwise may not be able to provide a loan match or service for every Upwise User seeking to use its services. Further, Upwise makes no guarantees as to the number of matches or the ability to obtain business funding.
(e) No False Information. You agree to provide Upwise with accurate, true, current and complete information.
(f) Legal Purpose. You agree to not use the Site or Services for any illegal purpose. You agree to only use the Site or Service in accordance with federal, state and local laws.
(g) Business Purpose. You agree to only use the Site or Services for a bona fide business purpose. You agree not to use the Site or Services for personal, family or household purposes or to obtain information about or make decisions about anyone but yourself and/or your business.
- Proprietary Rights
(a) Ownership of Proprietary Information. You hereby acknowledge and agree that Upwise is the owner of all rights in and to the Site and Services. Federal, state, and local laws and regulations protect these proprietary rights. You are permitted to use the Site and Services only as expressed and authorized by these Terms. You may not copy, distribute, reproduce, or create derivative works, reverse engineer or reverse compile any of the Site or Services or technology.
(b) No Use of Confidential Information. You will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce in any way any (i) confidential information or (ii) other copyrighted material, trademarks, or other proprietary information accessible via the Site or Services, without first obtaining the prior written consent of the owner of such proprietary rights.
(c) License to Provided Content. By providing information or content to any account or a public area of the Site or Service, you automatically grant, and you represent and warrant that you have the right to grant, to Upwise and its users, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, reproduce, publicly perform, publicly display and distribute such information and content, and to prepare derivative works of, or incorporate into other works, such information, and content, and to grant and authorize sub-licenses of the foregoing. From time to time, we may create, test or implement new features or services on the Site in which you may voluntarily choose to participate, in accordance with the additional terms and conditions of such features or programs. By your voluntary participation in such features or programs, you grant us the rights stated in this subsection in connection with the additional terms and conditions (if any) of such features or services.
- User Information
(b) Disclosure by Law. You acknowledge and agree that Upwise may disclose information you provided if required to do so by law, at the request of a third-party, or if we, in our sole discretion, believe that disclosure is reasonable to comply with the law including but not limited to: a subpoena, or similar legal process, requests or orders from law enforcement, to protect or defend Upwise’s or a third party’s rights or property, or when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a request from a governmental entity.
(c) Security. We have extensive security measures to protect the loss, misuse and alteration of Upwise and our users from unauthorized access to the information we hold. We take the following precautions to keep your information secure:
- We Secure Socket Layer (SSL) encryption to secure many of our services, including between your browser and our servers.
- We review our information collection, storage, and processing practices, including physical security measures, to guard against unauthorized access to systems.
- We restrict access to personal information to Upwise employees, contractors, and agents who need to know that information in order to process it for us, and who are subject to strict contractual confidentiality obligations and may be disciplined or terminated if they fail to meet these obligations.
(d) License Regarding Your Content. You retain all ownership interest in and to the content, you provide to the Site or as part of your use of the Services. However, by submitting your content, including your personal and business information, you hereby grant to Upwise a perpetual, non-exclusive, irrevocable, royalty-free license to reproduce, adapt, edit, modify, translate, publish, transfer, and/or distribute any of your content. This license specifically includes the right for Upwise to make such content available to other trusted Partners, organizations, and/or individuals with whom Upwise has a business relationship in order to carry out the performance of the Services. As part of its performance of the Services, Upwise may transmit or distribute your information over various public networks and in various forms; and make necessary changes to your content in order to perform its obligations.
(e) Use of Anonymous Information for Research. By using the Site and/or Services, you agree to allow Upwise to anonymously use the information from you and your experiences through the Services to continue Upwise’s research into successful business practices and to improve the user experience and services to our clients.
Upwise offers a free, no obligation service to assist you with your business and it’s needs. As explained above, Upwise matches you with various potential Partners and products to meet your business needs. As part of the Services, we request and you provide various items of information to be used in order to provide the best match for your business needs from our Partners.
- Fees and Payments
Upwise may require a fee for a particular product or service, including but not limited to, packaging fees, processing fees, success fees, and underwriting fees. Fees and Payments to Upwise are processed via a third party merchant processing service. If you have a dispute regarding an incorrectly charged fee, please call (646) 837-5522 or email [email protected] to resolve it immediately.
- Third-Party Websites
- Disclaimer of Warranty
(a) No Warranties. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. UPWISE PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE SITE (INCLUDING ALL INFORMATION CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. UPWISE DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. UPWISE DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES.
(b) Third-Party Content. Opinions, advice, statements, offers, or other information or content made available through the Site or Services, but not directly by Upwise, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. UPWISE DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE SERVICES, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN UPWISE. UNDER NO CIRCUMSTANCES WILL UPWISE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE OR SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
- Limitation of Liability
(a) Incidental Damages and Aggregate Liability. IN NO EVENT WILL UPWISE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF UPWISE KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS TERMS OR THE USE OF THE UPWISE SERVICES, SITE, OR ENTITIES EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT OR SUBSCRIPTION, OR, IF YOU HAVE NOT PAID UPWISE FOR THE USE OF ANY SERVICES, THE AMOUNT OF US $25.00 OR ITS EQUIVALENT.
(b) No Liability for non-Upwise Actions. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL UPWISE BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL AND/OR INCIDENTAL, ARISING FROM OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES OR PRODUCTS.
(c) Information Verification. Upwise and its contractors may use various methods of search tools and verifying information that users have provided (for example: background checks). However, none of those ways are perfect, and you agree that Upwise and its contractors will have no liability to you arising from any incorrectly verified information.
You agree to indemnify, defend and hold harmless Upwise, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising from:
(a) your use of or inability to use the Site or Services
(b) any user postings made by you
(c) your violation of any terms of these Terms or your violation of any rights of a third-party
(d) your violation of any applicable laws, rules or regulations. Upwise reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Upwise in asserting any available defenses.
- Dispute Resolution by Binding Arbitration; Class Action Waiver.
In the interest of resolving disputes between you and Upwise in the most expedient and cost-effective manner, you and Upwise agree to resolve disputes through binding arbitration instead of in courts of general jurisdiction (“Agreement to Arbitrate”). Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, condenses discovery, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. You acknowledge and agree that the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that individual party’s claim(s). Any relief awarded cannot affect other users.
YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, YOU AND UPWISE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(a) Claims To Be Resolved By Binding Arbitration. You and Upwise agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before this or any prior Terms; claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of these Terms.
(b) Exceptions. Notwithstanding Section 11(a), you and Upwise agree that no statement herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (ii) seek injunctive relief in any competent court of law; or (iii) to file suit in a court of law to address intellectual property infringement claims.
(c) Arbitrator. Any arbitration between you and Upwise will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at http://www.adr.org, by calling the AAA at 1-800-778-7879.
(d) Notice and Process. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Upwise should be addressed to: Upwise Capital, LLC., 405 E. 54th St Suite 4J, New York, NY 10022 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and Upwise do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Upwise may commence an arbitration proceeding.
(e) Fees. In the event that you commence arbitration in accordance with these Terms, Upwise will, at your request, reimburse you for your payment of the arbitration filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any request for payment of fees by Upwise should be submitted by mail to the AAA along with your Demand for Arbitration and Upwise will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or brought for an improper purpose, you agree to reimburse Upwise for all fees associated with the arbitration paid by Upwise on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules.
Any in-person arbitration hearings will take place at a location to be agreed upon in New York. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. Unless both you and Upwise agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
YOU AND UPWISE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
(g) Opt-Out Terms. If you are a new Upwise user, you can choose to reject the arbitration agreement contained in this Section 11 (“opt-out”) by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept these Terms for the first time. You must mail the Opt-Out Notice to the Notice Address listed in Section 11(d), above.
The Opt-Out Notice must contain your name, address (including street address, city, state and zip code), and the user name(s) and email address(es) associated with the Upwise account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Terms will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with Upwise.
(h) Modifications. If Upwise makes any future change to this Agreement to Arbitrate (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Notice Address provided above. You acknowledge and agree that, in the event you reject any future change, your account with Upwise shall be immediately terminated and you will arbitrate any dispute between us in accordance with the language of this provision.
(i) Severability and Enforceability. If an arbitrator or court decides that any part of this Section 11 is invalid or unenforceable, the other parts of this Section 11 shall still apply. If the entirety of this Section 11 is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to these Terms, and that the remainder of the Terms will continue to apply.
- Communication and Privacy
13. Terms Acceptance and Termination
This agreement will become effective upon your acceptance of the Terms by your use of the Site or Services and will remain in effect in perpetuity unless terminated hereunder. Either you or Upwise may terminate your account at any time, for any reason or no reason, without explanation, effective upon written notice to the other party. Upwise reserves the right to immediately suspend or terminate your access to any of the Services, without notice, for any reason or no reason. We also reserve the right to remove your account information or data from our Services and any other records at any time at our sole discretion. In the event your access to any of the Services is suspended due to the breach of these Terms, you agree that all fees then paid to Upwise by you will be nonrefundable and all outstanding or pending payments will immediately be due. You may terminate your account by following the steps in the applicable section 14 under “Cancellations” below.
Cancellation At Any Time. The cancellation procedures in this section do not apply to any Partner that has entered into an ISO Marketing Agreement with Upwise. The terms of cancellation for Partners will be contained in the ISO Marketing Agreement.
The following only applies to potential borrowers. Except as otherwise stated in this section, you may cancel your registration or subscription to any Service at any time during the term of such registration or subscription or any renewal period by calling (646)837-5522 or email [email protected].
15. Specific Terms – Other Services and Products
Upwise provides other services and products besides the Services. Additional terms for such other services and/or products will be presented to you prior to your acceptance of such terms and prior to your use of the services and/or products.
16. General Provisions
(a) Controlling Law and Jurisdiction. You agree that New York State law (without giving effect to its conflicts of law principles) will govern these Terms, the Site, and the Services and that any dispute arising out of or relating to these Terms, the Site or the Services will be subject to the exclusive jurisdiction and venue of the federal and state courts in New York. You acknowledge and agree that any violation of these Terms may cause Upwise irreparable harm, and therefore agree that Upwise will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Upwise may have for a breach of these Terms.
(c) Securities Statements. WE MAKE NO REPRESENTATIONS, WARRANTIES OR OTHER GUARANTEES OF ANY KIND AS TO THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY PRICE QUOTES, NOR DO WE MAKE ANY REPRESENTATIONS, WARRANTIES OR OTHER GUARANTEES OF ANY KIND AS TO THE PRESENT OR FUTURE VALUE OR SUITABILITY OF ANY SALE, TRADE OR OTHER TRANSACTION INVOLVING ANY PARTICULAR SECURITY OR ANY OTHER INVESTMENT OF ANY KIND. You understand that we are not a broker or dealer in securities, and not an investment or financial advisor. Prior to undertaking any securities transaction, you should consult a broker or other financial advisor with respect to the price, suitability, value or other aspects of any stock, mutual fund, security or other investment.