IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND NOPHIN CAN BE BROUGHT, INCLUDING AN ARBITRATION AGREEMENT. PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH NOPHIN ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED BELOW). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
ELIGIBILITY, COMMUNICATIONS, AND LICENSE
Electronic Transactions and Disclosures
To unsubscribe from text messages at any time, reply STOP to any text message you receive from Nophin. You acknowledge that following such a request to unsubscribe, you may receive one final text message from Nophin confirming your request. For help, contact us at email@example.com.
CALL RECORDING AND MONITORING: You acknowledge that is necessary for us to record and monitor, for quality assurance, training, risk management and/or collection purposes, any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.
It is your responsibility to provide us with your accurate email address, contact, and other information related to your use of banking services and to maintain and update promptly any changes in this information. You can update your information through Nophin Services or by contacting us at firstname.lastname@example.org. To help protect the confidentiality of your personal information, please do not send us any confidential information via unencrypted email messages.
You may request paper copies of any Disclosure or withdraw your consent to receive Disclosures in electronic form by contacting us at email@example.com. Any withdrawal of your consent to receive electronic Disclosures will be effective only after we have a reasonable period of time to process your withdrawal. At our option, we may treat your provision of an invalid e-mail address or the malfunction of a previously valid e-mail address as a withdrawal of your consent to receive electronic Disclosures.
In order to access, view, and retain electronic Disclosures that we make available to you, you must have:
Proprietary Rights in Services Content; Limited License
REGISTRATION FOR THE SERVICES; SERVICE-SPECIFIC TERMS
For certain features of the Services, you’ll need an account. To create an account you will need to provide a valid email address, SSN, phone number, mailing address, and bank data. We may ask for additional information for your account when you request certain Services.
Registration Data; Account Security
In consideration of your use of the Services, you agree to (a) provide accurate, current and complete information about you and your business, in each case as may be prompted by any registration forms on the Site or otherwise requested by the Company ("Registration Data"), including the individual or entity's full legal name; (b) provide such materials as the Company may request to establish or verify your authority to enter into binding agreements, your legal existence, your good standing in any jurisdiction, and your eligibility to use the Services; (c) maintain the security of your account; (d) maintain and promptly update the Registration Data, and any other information you provide to the Company, to keep it accurate, current, and complete; (e) promptly notify the Company regarding any material changes to information or circumstances that could affect your eligibility to continue to use the Services or the terms on which you use the Services; and (f) be fully responsible for all use of your account and for any actions that take place using your account. In the event that a third party gains access to your account, you should notify us immediately by emailing firstname.lastname@example.org. We are not liable for any loss resulting from your failure to protect the confidentiality of your account.
Furthermore, you agree that you will not represent or portray your business or entity as being affiliated with the Company in any capacity, other than being a User of the Services, without the Company's prior written consent.
BANKING SERVICES: Banking services associated with our services are provided by Piermont Bank, Member FDIC. Your transactions will be processed through an FBO account we hold at Piermont Bank for the benefit of our customers or users. We will provide you a monthly summary statement that describes your transactions. Your deposit balances held at Piermont Bank are insured by the Federal Deposit Insurance Corporation (FDIC) for up to the legal limit (currently $250,000 for each category of legal ownership).
Piermont Bank or its service providers may provide separate disclosures, terms, and conditions. You may not use banking services, and your account may be suspended, if you do not accept these additional disclosures, terms, and conditions.
ACCOUNT: Nophin, via its banking partner(s), only facilitates business accounts, and, by electing to participate in banking services, you acknowledge, represent, and warrant that your primary account is a business account. A business account, for purposes of this agreement, is owned by a sole proprietor, a limited liability company, a partnership, or a corporation. If the account owner is a sole proprietorship, however, that means that one person owns the business, acts alone and has no partners. Business accounts are accounts that are established primarily for business purposes. When you open a business account, you represent and agree that you are establishing it primarily for business purposes.
DISPUTES: If you believe there’s an error in connection with your account or you’d like to dispute a charge, please contact us at email@example.com. We may be required to involve our banking service providers in order to rectify any error or dispute. Upon request, you will provide us or our service providers any information or documentation necessary to investigate or resolve a dispute. To the extent our service providers determine that any error or dispute cannot be resolved, you are solely liable for any costs or losses associated with transaction disputes except for those costs or losses solely attributable to Nophin’s gross negligence, fraud, or willful misconduct.
CAPS: We may, from time to time, establish transaction or exposure limitations such as maximum amounts or caps on credit or debit transaction volumes, or settlement amounts or otherwise, or take other steps to control our or our service providers’ exposure to loss, damage or harm, for or arising out of your use of the Services. These caps will become effective upon notice to you.
CHARGEBACKS & FEES: You will be solely responsible for all fees and penalties charged to Nophin as a result of any fraud, negative balances, chargebacks, and funding failures that occur in connection with your account. Such amounts will be due no later than one (1) business day of notice to you.
Rent Collection Services
NOPHIN IS NOT A COLLECTION COMPANY AND IN NO WAY GUARANTEES PAYMENT OF RENT NOR DOES IT INHERIT THE RISK ASSUMED BY ANY PARTY IN RELATION TO ANY RENT-COLLECTION TRANSACTION PERFORMED THROUGH THE SERVICE.
As part of its Services, Nophin offers landlords the opportunity to sell future rent receivables to Nophin in exchange for an upfront payment, sometimes called “factoring.” Your use of factoring services is subject to your execution of Other Agreements. You understand that Nophin or its KYC Partners (defined below) may report information about your factoring activity (such as on-time, late, and missed payments and any defaults) to debt service providers, and that such information may be reflected in your business financial history.
We may require you to provide information in connection with Services to verify your identity and eligibility. For example, we may ask for your legal name, phone number, mailing address, date of birth, last four digits of your SSN/EIN, images of a government-issued ID, and copies of underlying lease agreement(s) with your tenant(s). Additionally, you will grant (or procure the grant of) such access as Nophin may require to connect to appropriate data sources to verify your information and eligibility, including (without limitation) third-party payroll services, banks, “know-your-customer” (KYC) services, software, and property database providers (collectively, the “KYC Partners”). You will provide, and shall cause any such KYC Partner to provide, Nophin with all necessary cooperation in connection with the same. The supply of the Services by Nophin may be conditional upon such access and cooperation, and Nophin reserves the right to deny you Services at any time for any lawful purpose. You acknowledge and agree that the information you provide to us or our KYC Partners is accurate and complete. You further represent and warrant that you have all requisite right and authority to disclose such information to Nophin.
You expressly authorize Nophin and KYC Partners to obtain (for itself or on behalf of Nophin) or share business financial reports from financial reporting agencies about you (1) when you request to use Services, (2) periodically throughout the term of your use of our Services, or (3) from time to time in connection with any other services that we offer or that you may obtain from us, including, without limitation, your Nophin account.
In each case you expressly authorize us and each KYC Partner to use such business financial reports about you, and information derived therefrom, in connection with:
You further authorize us and each KYC Partner to disclose information you provide to Nophin’s service providers that fund or underwrite any Other Agreements you execute with Nophin.
RESTRICTIONS ON USE
You agree not to use the Services:
Except where otherwise provided in Other Agreements, we may terminate, disable or throttle your access to, or use of, the Services at any time without notice for any reason, with or without cause at Nophin’s sole discretion.
By posting User Content on or through the Services, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, royalty-free, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, modify, create derivative works, reformat, translate, excerpt (in whole or in part) and distribute such User Content in connection with operating and providing the Services, including in connection with underwriting, risk management, and marketing activities. You may remove your User Content from the Services at any time. If you choose to remove your User Content, the license granted above will not expire.
You represent and warrant that User Content and any materials of any kind submitted through your account or otherwise posted or shared by you through the Services will not violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory, fraudulent or otherwise unlawful material.
INFORMATION WE MAY PROVIDE TO YOU; SERVICES WE DO NOT PROVIDE
As part of our Services, we may provide you with analysis or estimates. Any such information is illustrative and for informational purposes only. We base our analysis and estimates on certain assumptions and data that might be available to us. Our analysis and estimates are uniquely ours and are not endorsed by any third-party partner. Furthermore, any analysis or estimate is determined by our own proprietary methodology. As such, we may change, alter, or modify any methodology at any time and elect to emphasize, ignore, or alter certain factors in our sole and absolute discretion.
You acknowledge and agree that Nophin is not a property manager or financial advisor. Nophin cannot and will not make decisions for you or on your behalf in connection with your use of our Services. You are solely responsible for the management and upkeep of your properties.
Our Services are intended to be used within the United States. We make no representations or warranties that the information, products, or services provided through our Services, or Services Content, are appropriate for other jurisdictions. If necessary, we reserve the right to limit the availability of our Services to any person, geographic area, or jurisdiction, at any time and in our sole discretion.
FEES AND PAYMENTS; CANCELLATION
Fees and Payments
You agree to pay for the Services you use on the Site in accordance with the pricing and payment terms presented to you for our Services. Fees paid by you are non-refundable. For subscriptions, you will be billed in advance on a recurring monthly cycle. We reserve the right to modify our fees at any time, upon written notice to you or updating the pricing stated on our Site.
If you have signed up for a subscription service, your subscription will automatically renew for the same duration at the end of each period unless you cancel at least 30 days before your next renewal date. If you decide to cancel, no refund will be provided for fees paid or past bills, and your service will remain active through the end of the subscription period. At the end of the subscription period, you will no longer be charged for cancelled services.
INTELLECTUAL PROPERTY MATTERS
The name NophinTM and other Company graphics, logos, slogans, trade names, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of the Company in the U.S. and/or other countries. The Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to firstname.lastname@example.org.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services ("Submissions"), provided by you to the Company are non-confidential and shall become the sole property of the Company. The Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Links to Other Web Sites and Content
The Site contains (or you may be sent through the Services) links to other websites ("Third Party Sites"), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the "Third Party Content"). Such Third-Party Sites and Third-Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Sites or Third Party Content accessed through the Services, including without limitation the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third-Party Sites or the Third-Party Content. Inclusion of or linking to any Third-Party Site or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Sites, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
Company and its affiliates, subsidiaries, providers or their respective officers, directors, employees, agents, independent contractors or licensors (collectively the "Nophin Parties") do not guarantee the accuracy, adequacy, timeliness, reliability, completeness, or usefulness of any of the Services Content and the Nophin Parties disclaim liability for errors or omissions in the Services Content.
THE SERVICES AND ALL OF THE SERVICES CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF YOUR USE OF THE SERVICES CONTENT. THE NOPHIN PARTIES DO NOT WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Although we provide rules for User conduct and postings, we do not control and are not responsible for any User Content. The Company is not responsible for the conduct, whether online or offline, of any user of the Services. The Company cannot guarantee and does not promise any specific results from use of the Services to obtain an advance.
The Services may be temporarily unavailable from time to time for maintenance or other reasons. The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Services or combination thereof, including injury or damage to Users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will the Company be responsible for any loss or damage to any User Content.
The Company reserves the right to change any and all content contained on the Services at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by the Company.
Limitation on Liability
IN NO EVENT WILL THE COMPANY OR ANY NOPHIN PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF THE SERVICES CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE COMPANY'S LIABILITY TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES OR ANY OF THE SERVICES CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO, AS APPLICABLE (A) IF YOU HAVE HAD PAYMENT OBLIGATIONS TO THE COMPANY, THE HIGHER OF (X) THE TOTAL AMOUNTS PAID BY YOU TO THE COMPANY FOR THE SERVICES, OR (Y) ONE THOUSAND DOLLARS ($1,000), OR (B) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO COMPANY, ONE HUNDRED DOLLARS ($100).
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
Governing Law and Jurisdiction
THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS OF SERVICE BY USING THE NOPHIN SERVICES OR THE SITE.
The arbitration shall take place in New York, New York before a single neutral arbitrator appointed in accordance with the Commercial Rules. The Commercial Rules are available at the AAA website: www.adr.org. The Federal Arbitration Act (“FAA”) and federal arbitration law apply to this Agreement. If AAA cannot serve, a court with jurisdiction shall select the arbitrator, who will apply the Commercial Rules and procedures specified in this Section.
Either you or we can initiate arbitration through AAA, an alternative dispute resolution provider, or by filing a motion to compel arbitration of claims filed in court. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. There is not a judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court and must apply and follow the terms of this Agreement as a court would. The arbitrator shall apply applicable statutes of limitations and honor privilege rules. Disputes or controversies about the validity, enforceability, coverage or scope of this Section or any part thereof are for a court and not an arbitrator to decide; however, disputes or controversies about the Agreement as a whole are for an arbitrator and not a court to decide. The arbitrator shall render a final decision pursuant to the Commercial Rules within thirty (30) days after filing of the claim. The final decision of the arbitrator shall be furnished to the parties in writing and shall constitute the conclusive determination of the issue in question binding upon the parties, and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrator’s decision. The prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief that such party may be entitled. For purposes of this Agreement, the prevailing party shall be that party in whose favor final judgment is rendered or who substantially prevails, if both parties are awarded judgment.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Even if all parties have opted to litigate a claim in court, a party may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Section. You and Nophin each agree that any disputes seeking to enforce or protect, or concerning the validity of intellectual property rights will not be subject to binding arbitration under this Section. In addition, pursuant to the Commercial Rules, any party may proceed with their individual claims in small claims court if that option is available in the applicable jurisdiction and the amount in controversy falls within the small claims court’s jurisdictional limits; but if that action is transferred, removed, or appealed to a different court, arbitration can be elected. If any portion of this Section is inconsistent with the Commercial Rules or other provisions of this Agreement, this Section shall govern. This Section shall survive termination of this Agreement and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. No portion of this Section may be amended absent a written agreement signed by all parties. If any portion of this Section is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Section, except that: (A) If the Class Action Waiver set out below is limited, voided or found unenforceable, then this Section (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and (B) if a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Section prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have a preclusive effect in an arbitration between the parties to this Section.
Right to Opt Out
Class Action Waiver
You and Nophin each agree that any arbitration will be conducted only on an individual basis and not as a class, consolidated or representative action. To the fullest extent permitted by law, (a) no arbitration will be joined or consolidated with any other; (b) there is no right or authority for any dispute to be arbitrated on a class-action or private attorney general basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. No arbitrator shall have the authority to issue any relief that applies to any person or entity other than Nophin and/or you individually.