Terms of Use

Spend Lender Agreement

Last updated November 22, 2018

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING THE SPEND WEBSITE OR USING THE SPEND SERVICE, YOU AGREE TO BE BOUND BY THE (1) SPEND TERMS OF USE (2) SPEND E-SIGN AGREEMENT, and (3) SPEND PRIVACY POLICY  YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS THE SPEND WEBSITE OR USE THE SPEND SERVICE. THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY. YOU SHOULD PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS. THIS PROGRAM AGREEMENT IS FOR LEND BY SPEND

1. What are you agreeing to?

1.1. The Parties to this Agreement.

These Terms of Service describe a contractual relationship (“Agreement”) between you (“you” or “your”) and Spend Group (including its subsidiaries, affiliates, service providers, agents, and assigns) (“Spend,” “we,” “us,” “our”), regarding your use of this website (“Website”) or the Spend mobile application (the “App”), your use of the “Lend By Spend” service as described below in Section 2.1, your use of “Additional Tools” as described below in Section 2.2, your use of any other service(s) offered through the Website or App, and your access to your Spend account information and service through the Website or App (collectively, the “Spend Service(s)” or “Service(s)”).

1.2. Changes to this Agreement.

Spend may unilaterally decide to change this Agreement from time to time, provided, however, that such changes will not impose additional obligations on you with respect to actions you took before the change became effective unless you specifically agree to such changes (for example, by confirming a loan). Additionally, YOU AGREE TO ACCEPT ANY CHANGES TO THIS AGREEMENT BY USING THE SPEND SERVICES AFTER CHANGES HAVE BEEN POSTED. If Spend makes any changes to this Agreement that it deems to be material, Spend will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement posted to our website from time to time to see if it has been changed.

1.3. Your Eligibility.

To be eligible to use the Services, you must be at least 18 years old and a in an eligible state/country to use the “Lend By Spend” service. You represent and warrant that you are eligible to use the Services.

2. How Spend will serve you.

2.1. The “Lend By Spend” Service.

2.1.1. Description: “Lend By Spend” is a closed-end installment loan product with standard terms of 30, 60, or 90 days (other terms may be available at select merchants) offered by Spend. Loan term options may vary based on loan to value percentage and if collateral is pledged. “Lend By Spend” allows you to obtain a secured loan instantly that may be useable via your fiat wallet or Spend Visa Card.

2.1.2. Your Promise to Pay: Before completing any transaction on your behalf through any Spend Services, Spend will secure your promise to pay by disclosing the terms and conditions applicable to that transaction and securing your affirmative consent to those terms for that transaction, including your promise to pay the Total Payments amount to Spend or its assignees, by asking you to click the button to confirm your loan or your instant loan settings.

2.1.3. Interest Rates: “Lend By Spend” rates range from 8% to 12% fixed Annual Percentage Rate (“APR”), depending on your “Spend Score” which consists of creditworthiness, consumer background check, and/or collateral value. “Lend By Spend” loans are simple interest loans, which means that interest accrues daily on the unpaid principal balance, up to the amount of the finance charge, until you pay the loan in full. If, however, you pay your loan off early, the Prepayment Refund terms below may apply.

2.1.4. Finance Charge: The “Lend By Spend” service is subject to a finance charge based on the applicable interest rate determined by your “Spend Score”. Spend will always disclose the specific finance charge before you agree to any loan. If you agree to the instant loan option that you will have a fixed loan percentage for all loans on your profile which is pre-determined and agreed upon by you prior to any loans are established.

2.1.5. First Payment: Your first payment will be due on the end date of your closed-end installment loan.

2.1.6. Late Payment Fee: You will never be charged any late fees for using “Lend By Spend.”

2.1.7. Payment Allocation: Payments that you make will be applied first to accrued unpaid interest then to the unpaid principal balance. For loans that are delinquent, your payment will be applied first to past due amounts, then to your current monthly payment. For loans that are charged off, your payment will be applied first to the unpaid principal balance, then to accrued unpaid interest.

2.1.8. Partial Prepayments: Payments in excess of your currently scheduled payment will be applied to your unpaid principal balance and will not be used toward your next scheduled payment. Thus, your monthly scheduled payment amounts will remain the same except for your final payment.

2.1.9. No Prepayment Penalty: You may prepay your loan in full at any time without penalty.

2.1.10. Prepayment Refund: You are entitled to a refund of any amounts you pay in excess of the remaining principal balance and accrued interest as of the date of prepayment. We, however, may set off any amounts you are entitled to against any amounts you owe on any other “Lend By Spend” loan or owe us otherwise. In lieu of a prepayment refund, you may satisfy your repayment obligation under the “Lend By Spend” service on any date prior to the date of the final payment by paying Spend an amount equal to the unpaid balance, less the required rebate as of the date of such a payment.

2.1.11. Delays in Processing: In some cases when you attempt to use “Lend By Spend” to make a purchase, the transaction may be held as pending or be otherwise declined for processing and confirmation by either Spend or the merchant and can be cancelled at any time until it is confirmed by Spend.

2.2 Additional Tools.

2.2.1. Tools We May Offer: We may from time to time offer you the ability to access certain financial tools or services. Examples of such services include the Spend Wallet, Spend Visa Card, Spend Purchasable Items, and other Spend Services.

2.2.2. Limitations on Tools: You agree that we may modify the tools or cease making them available to you at any time without notice. We have no obligation to continue to make any particular tool available to you or to do so without charge. If we modify a tool or cease to make a tool available to you, you understand that you may lose access to any information that you may have supplied in connection with your use of the tool and have no rights to obtain such information from us. To the extent that the tools present information regarding financial accounts you may have with other lenders or financial institutions, you understand that the information may not be up to date. Before acting on any such information, you should confirm its accuracy with the lender or financial institution holding the account. There may be times when a tool we offer is unavailable or not properly functioning, and you agree that we have no liability to you if this occurs or in connection with the tools generally. You may need certain hardware or software to utilize the tools, and you understand that your failure to have such hardware or software will result in your not being able to use the tools or some tool functionality. You understand that some tools or some tool functionality may only be available to consumers who have relationships with certain lenders, service providers or financial institutions or who have certain financial products. If you do not have such relationships or products, you understand that you may not be eligible to use a tool or all of its functionality. You agree that we may use information we gather through the tools to market other products and/or services to you, including those of third parties.

2.2.3. Third Party Providers: We may rely on third party providers to assist us in making a tool or other Spend Service available to you. By linking your bank account to a tool or Service, you authorize us and our third party providers to access your financial accounts on your behalf, and to gather information about you. You give us and our third party providers a limited power of attorney, and appoint us and our third party providers as your true and lawful attorney-in-fact and agent to act on your behalf and access, transmit, and use your information as necessary to provide the tools and other Services. You agree to the transfer, storage, and processing of your information by these third party providers in accordance with their respective privacy policies, including Plaid’s privacy policy. We have no liability to you for any damages you may suffer as a result of any such third party’s actions or inactions or from inaccurate account information.

2.2.4. Tools are Provided for Informational Purposes Only: Financial information provided through the tools is provided for informational purposes only and not a substitute for individualized professional advice. We make no representation that we will improve or attempt to improve your credit record, history or rating. The tools are not intended to provide financial, legal or tax advice, and we are not a financial planner, broker or tax advisor. The tools are intended only to provide general assistance in organizing your finances. Before making any financial decisions or implementing any strategy, you should consider obtaining additional information and advice from your accountant or other financial advisers who are fully aware of your individual circumstances.

2.2.5. Accuracy, Reliability and Timeliness of Information: YOUR USE OF THE TOOLS IS AT YOUR SOLE RISK. INFORMATION PROVIDED THROUGH THE TOOLS IS ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR INFORMATIONAL PURPOSES ONLY. WE MAKE NO WARRANTY THAT THE TOOLS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE OR RELIABLE.

2.3. Cancelling Transactions.

Spend may choose not to provide service to you or to specific merchant sites at any time for any reason, including but not limited to, your creditworthiness, your history of transactions on our site, the merchant’s account history or any other reason. Spend may cancel transactions at any time before a Merchant delivers any goods or services if you violate any term of this Agreement.

2.4. Collecting Information About You.

By using the Spend Services, you authorize Spend, directly or through third parties, to make any inquiries we consider necessary to validate your identity and to collect information about you in accordance 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, requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying your information against third party databases or through other sources. We may also ask you for identifying documents to help us validate your identity. Spend 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.

2.5. Spend Authorization Engine

You expressly authorize Spend and/or its service providers to use its Spend Authorization Engine (SAE) to process transactions on your behalf to the merchant and issuing bank and to loan and/or convert your funds to local fiat currency required to approve your transaction to your Spend Visa Card. You expressly authorize Spend to use the active wallet selected to draw funds from your wallet to settle the transaction performed on the SAE. You expressly authorize us to use the information that we obtain from your profile and “Spend Score” to decide if you are approved for a transaction.  You authorize Spend to use information from such transactions to, among other things, market Spend’s current and future products and services to you (both during and after the term of your loan and the term of any other services you may obtain from us), provide you with other services (including Spend Wallet services) may request, make decisions related to the servicing and collection of your account, measure how the loan you obtained from such as statistical analysis, and share information with you about your profile.

You understand that Spend 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.

2.6. Collection.

You agree to allow Spend to send you payment reminders from time-to-time. Notwithstanding whether you have consented or withdrawn your consent to the Spend E-Sign Consent, you agree that payment reminders may take the form of any available communication. You also agree that if you fail to pay an amount owed to Spend pursuant to this Agreement, Spend may engage in collection efforts to recover such amounts from you. You expressly authorize us to dispose of any secured collateral in an attempt to satisfy your obligations due. These collection efforts may involve contacting you directly, submitting your information to a collections agency, or taking legal action. FAILURE TO PAY MAY AFFECT YOUR CREDIT SCORE.

2.7. Communication & Notification.

You agree that Spend may provide you communications about your account and the Spend Service electronically or through phone calls or in writing. Standard mobile, message, or data rates may apply and you are responsible for any such fees. Spend reserves the right to close or limit access to your account and immediately collect all due amounts if you withdraw your consent to receive electronic or other communications or if you revoke access to any third party site on which the Spend Service relies (e.g., Plaid, etc.) or if any such service should revoke or cancel your account on that site. Any electronic communications will be considered to be received by you within 24 hours of the time we email it to you or otherwise send it to your attention (such as via SMS or other online or mobile notification). We may assume you have received any communications sent to you by postal mail 3 business days after we send it.

If we need to contact you to service your account or to collect amounts you owe to us, you give direct consent to us, as well as servicers, agents, contractors and collectors of your account, to communicate with you in any way, such as calling, texting, or email via:

  • a mobile phone or landline you provide to us, use to contact us, or at which we believe we can reach you (even if it is not yours),
  • any email address you provide to us or one of our merchants,
  • automated dialer systems and automatic telephone dialing systems,
  • pre-recorded or artificial voice messages and other forms of communications.

You also agree that these communications are not unsolicited for purposes of any state or federal law, and you understand that this may result in additional mobile, text message, or data charges.

You understand and agree that Spend may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Spend or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with Spend may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Spend, and Spend does not guarantee that recordings of any particular telephone calls will be retained or retrievable.

Notwithstanding this provision, Spend’s delivery of any Disclosures governed by the Spend E-Sign Consent shall be governed by your consent or withdrawal of consent to receiving such Disclosures in electronic form.

2.8. Working with Third Parties.

If you grant express permission to a third party to take specific actions on your behalf, or access particular information about your account, either through your use of the third party’s product or service or through your Spend account, you acknowledge that Spend may disclose the information about your account that is authorized by you to this third party. You also acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. Further, you acknowledge and agree that you will not hold Spend responsible for, and will indemnify Spend from, any liability arising from the actions or inactions of this third party in connection with the permissions you grant.

3. Your use of Spend.

3.1. Agreement to Provide Accurate Information.

When you provide information to Spend or in connection with the Spend Services, you agree to provide only true, accurate, current and complete information about yourself and you agree not to misrepresent your identity or your account information. You further agree to keep your account information up to date and accurate.

3.2. User Responsible for Fees.

If you use the Spend Services, you are responsible for any fees or other amounts that your phone service provider charges, such as fees for SMS, data services, and any other fees that your phone service provider may charge.

3.3. Repayment Methods.

You may use one of the acceptable methods of payment to make one-time transactions to pay your account as payments become due or to pay your loan in full.

Currently acceptable methods of payment are:

  • Cryptocurrencies – Payments made by cryptocurrencies are available to all users. Users can use any supported cryptocurrency to satisfy their loan balances.
  • ACH Transfer – You may pay your account balance by authorizing an Automated Clearing House (ACH) transaction from your bank account.
  • USD Wallet – You may use your USD Wallet balance to make payments on your loan.
  • Check – You may pay your account balance by writing a check payable to the order of: Spend US, Inc.
    Please send all checks to: Spend US, Inc., P.O. Box 8549, Wichita, KS 67208-2804

3.4. Access to Your Account.

You are responsible for maintaining the secrecy of the login credentials to your Spend account. You agree to establish reasonable security procedures and controls to limit access to your password or other identifying information to authorized individuals, which includes choosing passwords and other credentials in a manner that will protect the security of your information. Your credentials include your username and password to your Spend account and to any third party account you have used to login to your Spend account. You are also responsible for maintaining the accuracy of the information in your Spend account.

3.5. Website & App Content.

The information on the Spend website and App is for information purposes only. It is believed to be reliable, but Spend does not make any promises as to its completeness, timeliness or accuracy. The information and materials contained in the Website, and in this Agreement, are subject to change without notice.

Access to the Services may from time to time be unavailable, delayed, limited or slowed due to, among other things:

  • servers, networks, hardware failure (including your own computer), telecommunication lines and connections, and other electronic and mechanical equipment;
  • software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents or other content;
  • overload of system capacities;
  • damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters;
  • interruption (whether partial or total) of power supplies or other utility of service; strike or other stoppage (whether partial or total) of labor;
  • governmental or regulatory restrictions, exchange rulings, court or tribunal orders or other human intervention; or
  • any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of Spend.

3.6. Links to Other Websites.

Links to non-Spend websites are provided solely as pointers to information on topics that may be useful to users of the Services, and Spend has no control over the content on such non-Spend websites. Spend makes no warranties concerning the content of such websites, including the accuracy, completeness, reliability of said websites, nor does Spend warrant that such website or content is free from any claims of copyright, trademark or other infringement of the rights of third parties or that such site or content is devoid of viruses or other contamination. If you choose to follow a link to a website not controlled by Spend, you must do so at your own risk. Spend does not guarantee the authenticity of documents on the Internet. Links to non-Spend websites do not imply any endorsement of or responsibility for the opinions, ideas, products, information or services offered at such sites, or any representation regarding the content at such websites.

3.7. Closing Your Account.

You may request to close your account at any time by contacting us at [email protected] 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, Spend 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 an investigation. You will remain liable for all obligations related to your account even after the account is closed. Spend will retain your information in accordance with our Privacy Policy and any applicable state or federal law, rule or regulation.

3.8. Dormant Accounts.

Spend may close your account if you do not log in to your account or use the Spend Services for two or more years. Spend will retain your information in accordance with Section 3.7 above.

3.9. Feedback You Provide.

If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. If we accept your submission, we do not waive any rights to use similar or related ideas or feedback previously known to us, developed by our employees, or obtained from sources other than you.

4. How you may NOT use Spend.

By using the Spend 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 this Agreement or any other agreement or policy you have with Spend;
  • 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:
    • 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;
    • Stolen goods, including but not limited to, digital or virtual goods; or
    • a good or service deemed unacceptable by Spend or its bank 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;
  • You will not use the Services to make payment(s) on an existing Spend loan(s). Unless otherwise expressly permitted by Spend, you will not use the Services for the purpose of payment for an existing loan(s) from another institution;
  • You will not use the Services to accomplish a cash advance, wire or money transfer;
  • You will not commit unauthorized use of Spend’s Website and systems including but not limited to unauthorized entry into Spend’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.

5. How Spend will resolve disputes.

5.1. Disputes with Spend.

If a dispute arises between you and Spend, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact Spend at [email protected] try resolving your problem directly with us.

5.2. Mandatory Arbitration.

THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS OF SERVICE BY USING THE SPEND SERVICE OR THE WEBSITE. Except as explicitly provided in this Agreement, any dispute or claim relating in any way to your visit to the Website, your use of the Spend Services, a product offered or provided by or through the Website or Service, or otherwise arising out of or relating to this Agreement or the Services that cannot be resolved directly between you and Spend shall be resolved by non-appearance based binding arbitration, rather than in court. Except as otherwise provided in this Agreement, this includes any claims based in contract, statute, tort, fraud, misrepresentation or any other legal theory. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no 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. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

Either you or we can initiate arbitration through the alternative dispute resolution provider the American Arbitration Association (the “AAA”) pursuant to the then-current Supplementary Procedures for Consumer-Related Disputes (the “Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Spend will pay all arbitration fees and expenses.

The arbitration shall be conducted by telephone or electronic means and/or shall be solely based on written submissions, the specific manner of which shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless the arbitrator determines that an in-person hearing is necessary based on the request of one of the parties and any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You and Spend each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial and agree to proceed only on an individual basis and not in a class, consolidated, or representative action. The parties hereby appoint the arbitrator the exclusive power to rule on any challenges to the requirement for the use of alternative dispute resolution process in these terms.

We also both agree that you or we may bring suit in court to obtain interim or preliminary injunctive relief necessary to protect the rights or property of you or Spend and all of its partners, affiliates, shareholders, employees, and agents of any kind (together, our “Affiliates”).

Except as explicitly provided elsewhere in this Agreement, all claims you bring against Spend must be resolved in accordance with this Section. Any claim filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Spend may recover from you attorneys’ fees and costs up to $1,500 per claim, provided that Spend first has notified you in writing of the improperly filed claim and you have failed to promptly withdraw the claim.

5.3. Restrictions.

You and Spend agree that any arbitration shall be limited to the dispute between Spend and you individually. To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) 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.

5.4. Exceptions to Informal Negotiations and Arbitration.

You and Spend agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or Spend’s intellectual property rights; and (2) any claim for injunctive relief.

6. Miscellaneous Provisions.

6.1. Operations.

Spend operates and controls the Services from its offices in the United States. Spend makes no representation that the Services are appropriate or available in other locations. The information provided on the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Spend to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Software from the Services may be subject to United States export controls. Thus, no software from the Services may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods. These Terms of Service are effective until terminated by either party. You may terminate these Terms by destroying all Service-related materials obtained from the Service, Spend or any other website or source and paying all amounts you owe (including any fees or expenses incurred or imposed by Spend) in full. The privileges granted to you under these Terms of Service will terminate immediately and automatically without notice from Spend if, in our sole discretion, you fail to comply with any term or provision of these Terms of Service. Neither the course of conduct between the parties nor trade practice will act to modify these Terms of Service. You may not assign these Terms of Service without Spend’s prior written consent, but Spend may assign these Terms of Service and its rights and obligations hereunder to any party at any time without any notice to you. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon Spend’s request, you will furnish Spend any documentation, substantiation or releases necessary to verify your compliance with these Terms of Service. You agree that these Terms of Service will not be construed against Spend by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Service and the lack of signing by the parties hereto to execute these Terms of Service.

6.2. Enforceability and Governing Law.

The failure of Spend to exercise or enforce any right or provision of these Terms of Service does not constitute a waiver of such right or provision. These Terms of Service constitute the entire agreement between you and Spend with regard to your use of the Spend Services and any previous Terms of Service that may exist between you and Spend is hereby superseded. These Terms of Service cannot be changed or modified by you except as posted on the Services by Spend. If any provision of this Agreement is held to be unenforceable, the unenforceable term or provision shall be replaced by an enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision and the remaining provisions shall be enforced. To the extent that anything in or associated with the Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. The laws of the State of Delaware govern your access to, and use of, the Services and the terms of this Agreement.

6.3. Intellectual Property.

All content, design, graphics, compilation, magnetic translation, digital conversion and other matters to the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and owned by Spend or one of its affiliates. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. 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.

6.4. Trademark.

“Spend” is the marketing name for certain financial services activities of Spend as operator of the Services. “Spend” is a trademark of Spend. Other featured words or symbols may be the trademarks of their respective owners.

6.5. Indemnification.

You agree to indemnify, defend and hold Spend and its Affiliates harmless from any liability, including reasonable attorneys’ fees, related to your use of the Services or any violation of these Terms of Service.

6.6. DISCLAIMER OF WARRANTY.

SPEND AND ITS AFFILIATES MAKE NO COMMITMENTS OR WARRANTIES ABOUT (i) THE CONTENT, RELIABILITY, OR AVAILABILITY OF THE SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES OR (ii) THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE WEBSITE, APP OR SERVICES. SPEND AND ITS AFFILIATES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY REGARDING NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SPEND AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SERVICES.

6.7. LIMITATION OF LIABILITY.

SPEND AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY PRODUCT AVAILABLE FROM OR THOUGH THE WEBSITE OR THE USE OF THE SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, SPEND AND ITS AFFILIATES ARE NOT LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE; NOR ARE SPEND AND ITS AFFILIATES LIABLE FOR ANY THIRD PARTY CLAIMS OF ANY NATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROM US FROM OR THROUGH THE WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. NEITHER SPEND NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY.

6.8. Statute of Limitations.

You and Spend both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services, Terms of Service or Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.

6.9. No Third-Party Beneficiaries.

This Agreement is between you and Spend. No user has any rights to force Spend to enforce any rights it may have against you or any other user.

6.10. Government Use.

If you are a part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of any of our products or Services is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and any related software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Service by the Government shall be governed solely by these Terms.

6.11. Covered Borrowers under the Military Lending Act.

Notwithstanding any other provision of this Agreement, Sections 5.2, 5.3, 6.7, and 6.8, and the waiver of defenses provision of Section 6.1 shall not apply to a “covered borrower” under the Military Lending Act, as defined in 32 C.F.R. § 232.3(g). Furthermore, nothing in this Agreement shall be construed as applying to a covered borrower to the extent inconsistent with the Military Lending Act.

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