Years in Business
THE TERMS AND CONDITIONS OF THIS LOAN BROKER SERVICES AGREEMENT (“AGREEMENT”) ARE IMPORTANT.
Description of Our Services: We are not a lender or fiduciary. For the brokering fee set forth below (hereinafter, the "Broker’s Fee"), we will perform the following services: our BROKER services and the third-party loan, if any, you receive may not be at the lowest rate or best terms available, and you may look elsewhere for BROKER services and/OR a loan.
BROKER’S FEE: If we find credit for your business, we will charge you a Broker’s Fee Equal to 0% of the loan extended to your business.
COMMERCIAL LOAN: You represent and warrant that you are seeking credit for commercial purposes only, and that you are not seeking credit for individual, household or personal purposes. You understand that we will look for sources of commercial (and not consumer) credit for you, and that laws relating to commercial (and not consumer) credit will apply to any loan you receive, as well as to this Agreement.
Collection Expenses: You agree to pay our reasonable attorneys fees if this Agreement is referred to an attorney for collection, regardless of whether legal proceedings are actually filed, and all costs and disbursements to the extent permitted by law.
Interstate Commerce: You agree that this Agreement involves interstate commerce for all purposes.
ELECTRONIC SIGNATURE: You agree that any mark, designation or other data entry you make in connection with this Agreement and the application process will constitute a valid, legally binding signature.
Assignment: We may transfer any of our rights, titles and interests under this Agreement at our discretion. You may not transfer your rights under this Agreement without our prior written consent.
WAIVER OF JURY TRIAL AND ARBITRATION PROVISION: Arbitration is a process in which persons with a dispute: (a) waive their rights to file a lawsuit and proceed in court and to have a jury trial to resolve their disputes; and (b) agree, instead, to submit their disputes to a neutral third person (an “arbitrator”) for a decision. Each party to the dispute has an opportunity to present some evidence to the arbitrator. Pre-arbitration discovery may be limited. Arbitration proceedings are private and less formal than court trials. The arbitrator will issue a final and binding decision resolving the dispute, which may be enforced as a court judgment. A court rarely overturns an arbitrator’s decision. THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. For purposes of this Waiver of Jury Trial and Arbitration Provision (hereinafter the “Arbitration Provision”), the words “dispute” and “disputes” are given the broadest possible meaning and include, without limitation (a) all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, the validity and scope of this Arbitration Provision, all matters of arbitrability, and any claim or attempt to set aside this Arbitration Provision; (b) all federal or state law claims, disputes, or controversies, arising from or relating directly or indirectly to this Agreement (including the Arbitration Provision), the information you gave us before entering into this Disclosure Statement, and/or any past and/or future claims or disputes between you and us and/or any Lender who provides you with a loan as a result of our services (the “Lender”); (c) all counterclaims, cross-claims and third-party claims; (d) all common law claims, based upon contract, tort, fraud, or other intentional torts; (e) all claims based upon a violation of any state or federal constitution, statute, or regulation; (f) all claims asserted by us or the Lender (or by “related third parties”, defined below) against you, including claims for money damages to collect any sum we claim you owe us and/or the Lender; (g) all claims asserted by you (or by your “related parties”) against us or the Lender and/or any of our or the Lender’s employees, agents, directors, officers, shareholders, managers, members, subsidiaries, parent companies, predecessors, successors, assigns, or affiliated entities and any subsequent holders of any loan note based upon any loan made to you by the Lender (hereinafter collectively referred to as “related third parties”), including claims for money damages and/or equitable or injunctive relief; (h) all claims asserted on your behalf by another person; (i) all claims asserted by you as a private attorney general, as a representative and member of a class of persons, or in any other representative capacity, against us and/or Lender and our or Lender’s related third parties (hereinafter referred to as “Representative Claims”); and/or (j) all claims arising from or relating directly or indirectly to the disclosure by us or Lender or our or Lender’s related third parties of any non-public personal information about you.
2. You acknowledge and agree that by entering into this Arbitration Provision:
(a)YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US, THE LENDER AND/OR OUR/ITS RELATED THIRD PARTIES;
(b)YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL, RESOLVE ANY DISPUTE ALLEGED AGAINST US, THE LENDER AND/OR OUR/ITS RELATED THIRD PARTIES; and
(c)YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST US, THE LENDER AND/OR OUR/ITS RELATED THIRD PARTIES. YOUR DISPUTE MAY NOT BE CONSOLIDATED WITH THE DISPUTE OF ANY OTHER PERSON(S) FOR ANY PURPOSE(S).
3. Except as provided in Paragraph 6 below, all disputes including any Representative Claims against us, the Lender and/or our/its related third parties shall be resolved by binding arbitration only on an individual basis with you. THEREFORE, THE ARBITRATOR SHALL NOT PERMIT OR CONDUCT CLASS ARBITRATION OR CONSOLIDATED OR JOINT PROCEEDINGS. LIKEWISE, THE ARBITRATORSHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN ANY ARBITRATION. Notwithstanding any other provision herein to the contrary, the validity, effect, and enforceability of this waiver of class action lawsuit and class-wide arbitration shall be determined solely by a court of competent jurisdiction and not by the arbitrator. If the arbitrator fails or refuses to abide by the class-wide arbitration waiver, and the court refuses to enforce the class-wide arbitration waiver, the parties agree that the dispute will proceed in court under applicable court rules and procedures, following all appeals, if any, of the court’s decision.
4. to a dispute, including related third parties, may send the other party written notice by certified mail return receipt requested of their intent to arbitrate and setting forth the subject of the dispute along with the relief requested, even if a lawsuit has been filed. If you send us such a notice, it must be sent to us at the same address as listed below in Paragraph 9 of this Arbitration Provision. Regardless of who demands arbitration, you shall have the right to select any of the following arbitration organizations to administer the arbitration: the American Arbitration Association (“AAA”) (1-800-778-7879)(www.adr.org) or JAMS (1-800-352-5267) (www.jamsadr.com). However, the parties may agree to select, or a court may appoint if the AAA and JAMS are unavailable and the parties cannot agree on, a local arbitrator who is an attorney, retired judge, or arbitrator registered and in good standing with an arbitration association. The parties will arbitrate pursuant to such arbitrator’s rules. The party receiving notice of arbitration will respond in writing by certified mail return receipt requested within twenty (20) days. If you demand arbitration, you must inform the opposing party in your demand of the arbitration organization you have selected or whether you desire to select a local arbitrator. If related third parties or we or Lender demands arbitration, you must notify the demanding party within twenty (20) days in writing by certified mail return receipt requested of your decision to select an arbitration organization or your desire to select a local arbitrator. If you fail to notify the demanding party, then the demanding party has the right to select an arbitration organization. The parties to such dispute will be governed by the rules and procedures of such arbitration organization applicable to commercial disputes, to the extent those rules and procedures do not contradict the express terms of this Agreement or the Arbitration Provision, including the limitations on the arbitrator herein. If the selected arbitration organization has rules and procedures for expedited and/or limited discovery arbitration, those rules and procedures shall be used to the extent they do not contradict the express terms of this Agreement or the Arbitration Provision, including the limitations on the arbitrator herein. You may obtain a copy of the rules and procedures for the AAA or JAMS through their websites or by calling them at the numbers listed above.
5. Throughout the arbitration, each party shall bear his or her own attorneys’ fees and expenses, such as witness and expert witness fees. The arbitrator shall apply applicable substantive law consistent with the Federal Arbitration Act (“FAA”), and applicable statutes of limitation, and shall honor claims of privilege recognized at law. The arbitration hearing will be conducted in the county of your residence, or within 30 miles from such county, or in such other place as shall be ordered by the arbitrator. The arbitrator may decide, with or without a hearing, any motion that is substantially similar to a motion to dismiss for failure to state a claim or a motion for summary judgment. In conducting the arbitration proceeding, the arbitrator shall not apply any federal or state rules of civil procedure or evidence. At the timely request of any party, the arbitrator shall provide a written explanation for the award. The arbitrator’s award may be filed with any court having jurisdiction.
6. All parties, including related third parties, shall retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
7. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the FAA. If a final, non-appealable judgment of a court having jurisdiction over this transaction finds, for any reason, that the FAA does not apply to this transaction, then this Arbitration Provision shall be governed by the arbitration law of the State of Delaware.
8. This Arbitration Provision is binding upon and benefits you, your respective employees, officers, agents,related third parties, successors and assigns. This Arbitration Provision is binding upon and benefits us, the Lender, and/or our/its successors and assigns, and related third parties. This Arbitration Provision continues in full force and effect, even if your obligations have been paid or discharged through bankruptcy. This Arbitration Provision survives any termination, amendment, expiration or performance of any transaction between you and us, the Lender, and/or your/our/its successors and assigns and related third parties and continues in full force and effect unless you and we otherwise agree in writing. If any of this Arbitration Provision is held invalid or unenforceable for any reason, the remainder shall remain in effect, unless the provision precluding the arbitrator from conducting a class or consolidated arbitration as set forth in paragraph 3 above is deemed invalid or unenforceable, in which case this entire Arbitration Provision shall be deemed void and the parties shall proceed in court.
9. OPT-OUT PROCESS. You may choose to opt-out of and not be subject to this Arbitration Provision but only by following the process set forth below. If you do not wish to be subject to this Arbitration Provision, then you must notify us in writing within thirty (30) calendar days of the date of this Agreement at the following address: SMB FinPro, LLC, Attn: Arbitration Opt-Out, 30W 21st Street, 12th Floor, New York, NY 10010. Your written notice must include your name, address, the date of this Agreement, and a statement that you wish to opt-out of this Arbitration Provision. Your notice to opt-out will only apply to this particular transaction with us and not to subsequent or previous transactions; a separate opt-out notice is required for each transaction on which you wish to opt-out of this Arbitration Provision.
GOVERNING LAW: This Credit Services Agreement will be governed by the laws of the State of Delaware, except that the Waiver of Jury Trial and Arbitration Provision is governed by the Federal Arbitration Act (“FAA”).