Terms of Service
This Terms of Service Agreement is made by and between Enable, LLC. (“Enable”) and the User (“User”) (the “Agreement”). Each of Enable and User shall be considered a “Party” for purposes hereof (collectively, the “Parties”).
A. User wishes (a) as a Customer to receive access to financing alternatives for goods and/or services from a Merchant, (b) as a Customer to receive corresponding loan referrals from Enable Lending Partners through the Marketplace Gateway Platform, (c) as a Merchant to provide to financing alternatives for goods and/or services to a Customer (d) to authorize Enable to facilitate payments to and from the Merchant and Customer for goods and/or services. Terms of Service Agreement: https://www.paypossible.com/account-tos
NOW THEREFORE, the Parties agree to enter into the terms and conditions contained in this Agreement.
The following definitions apply to the Agreement:
1.1. Confidential Information shall take its meaning from Section 8.
1.2. Merchant shall mean the business in which Customer accesses financing alternatives in order to make a purchase of goods and/or services described in Recital A above.
1.3. Customer shall mean the individual entering into an agreement and/or contract with a Enable Lending Partner via the resulting financial product and/or loan facilitated by the Marketplace Gateway Platform. It shall also mean the Merchant’s customer, end-user, or recipient of the goods and/or services provided by the Merchant.
1.4. User Information shall mean data or information disclosed by or of User, and which may include such information as described in Title V of the Graham Leach Bliley Act.
1.5. Merchant Web-Based Platforms shall mean the web-based platform developed, hosted, operated and maintained by Merchant, either on its own or through Merchant, which shall include without limitation any and all computer hardware, software and networking therein.
1.6. Enable Lending Partner shall mean a Select Lender which has entered into an agreement with Enable and/or one of its Operating Partners to utilize the Marketplace Gateway Platform to display financial products on Merchant Web-Based Platforms, Enable hosted websites, or Select Lender websites.
1.7. Funded Loan shall mean the resulting financial product and/or loan, facilitated by the Marketplace Gateway Platform, that a Customer enters into with a Enable Lending Partner. A Funded Loan shall result in the Customer receiving Loan Proceeds, or the dollar amount that the Select Lenders agrees to provide the Customer.
1.8. Marketplace Gateway Platform shall mean the centralized technology platform that facilitates the submission of online loan requests and the delivery of the loan offers, which is owned and operated by an Operating Partner, and the integration connecting the Marketplace Gateway Platform with the Merchant Web-Based Platforms.
1.9. Intellectual Property Rights shall mean without limitation any and all patents, patent applications, trademarks, registrations for trademarks, applications for registration of trademarks, trade secrets, copyrights, all derivative or other rights thereto, registrations for copyrights, applications for registration of copyrights, trade secrets, and all other similar items of intellectual property, whether registered or unregistered, any and all applications thereto, including any common law or other rights created by use thereof, all proceeds thereof (such as by the way of example any licenses, royalties and proceeds of current infringements), and the right to sue for past, present and future infringements.
1.10. Representatives shall mean the employees, subcontractors, affiliates, agents and representatives who have a reasonable need to know Confidential Information.
1.11. User(s) shall mean collectively all categories of users who utilize the services provided by Enable.
1.12. Operating Partner shall mean any third-party that Enable utilizes to conduct their normal course of business. This may include, but not be limited to, Dwolla, Inc. (“Dwolla”).
2. Merchant and User Obligations
2.1. Merchant Authorization. Merchant hereby authorizes Enable to interact with its staff and assigned subcontractors (if any), in all matters relating to the Agreement, including without limitation the authorization to discuss the provisions of the Agreement, take reasonable direction, disclose and receive Confidential Information, provide services to, with and from Merchant as well as to create any interfaces or other access to the Merchant Web-Based Platforms operated by Merchant and to take all other steps necessary to effectuate the intent of the Agreement. Merchant also authorizes Enable to accept and receive requests, reports and data to and from the Merchant Web-Based Platforms from users.
2.2. Customer Obligations. Should the Customer enter into an agreement and/or contract with a Enable Lending Partner, the terms of the resulting financial product and/or loan facilitated by the Marketplace Gateway Platform is the sole responsibility of the Customer. It is the Customer’s responsibility to fulfill the obligation and terms of the financial product with the Select Lender. Fulfilling the obligation and repayment of any principal and/or interest relating to the financial product is outside of the scope of the Enable Services and this Agreement. This Agreement does not deem the resulting financial product and/or loan that the Customer enters into with a Select Lender as purchase financing, but rather a loan and/or separate agreement between the Customer and the Select Lender.
a) In the instance that a Customer is refunded for the goods and/or services provided by the Merchant, the Customer is still bound by the terms set forth in Section 2.2, and it is the Customer’s responsibility to fulfill the obligation and terms of the financial product with the Select Lender.
3.1. Merchant Web-Based Platform Customer Support. Merchant shall provide full support to all Users with respect to the Merchant Web-Based Platforms, including first line support with respect to the Marketplace Gateway Platform.
4. Purchase Transaction Terms
4.1. Amounts and Terms. Customer agrees to pay for the goods and/or services provided by the Merchant upon funding from the Enable Lending Partner.
a) Customer agrees to pay the amount submitted to Enable by the Merchant via the Purchase Order. The Purchase Order will identify the amount to be transferred between the Merchant and Customer, along the description of goods and/or services provided by the Merchant.
b) Merchant and Customer agree to use Enable to facilitate the purchase transaction payment that resulted from the services provided by Enable and/or reflected in the Purchase Order submitted by Merchant, and will not execute any payments outside of Enable and/or directly between each other, other than to resolve a dispute as noted above or for a purchase not arising from the services provided by Enable. Should a transaction payment occur outside of Enable, the Merchant will be responsible for any Fees associated with the transaction.
c) The Merchant assumes all responsibility for providing the goods and/or services to the Customer. Should the Merchant provide the goods and/or services prior to receiving payment from the Customer, the Merchant assumes all risk on the default of any payment amounts due to them arising from the Enable services.
4.2. Refunds to Customers. Any refund(s) owed to a Customer for the goods and/or services provided by the Merchant deriving from a transaction that had been processed by Enable are the responsibility of the Merchant. Any Enable fees originating from the original transaction (see Section 4.1) is non-refundable. Therefore, the Merchant is responsible for refunding the total amount paid by the Customer to the Customer. This amount would be the Gross Purchase Price plus any applicable taxes and/or fees. Should a Customer submit a claim with their financial institution, including but not limited to a R10 Return Code (Unauthorized Transaction), regarding the transaction between the Customer and the Merchant, then Enable has the right to debit the Merchant’s bank account for the amount due to Enable should Enable be out-of-pocket for any costs associated with the transaction.
4.3. Disputes. In the event that either Party disputes, in good faith, any charges for goods and/or services, it shall notify the other Party in writing of such dispute with a detailed written explanation. The Parties shall use good faith efforts to resolve the dispute within thirty (30) business days after written notification. See Section 13.8 for further information on arbitration regarding Enable’s Services.
a) In the event that a dispute and/or discrepancy arise between the Merchant and Customer regarding an amount transferred, the Merchant will be responsible for resolving any and all claims that differ from the Purchase Order submitted by the Merchant.
4.4. Dispersal of Loan Proceeds. Customer understands and agrees that in the event of a Funded Loan, the resulting Loan Proceeds may be disbursed directly to Enable from the Select Lender, in order for Enable to conduct their normal course of business. Enable warrants, represents, and guarantees that it will transfer such Loan Proceeds to the Customer’s designated Merchant promptly and in a timely manner that does not hinder or delay the Customer from timely obtaining the goods or services from the Merchant, deducting only Fees agreed to by and between Enable and Merchant, along with an instruction that Merchant must apply such Loan Proceeds (without accounting for the deducted Fee) as payment for the Merchant’s goods or services provided or to be provided to the Customer. To the extent that any portion of Loan Proceeds provided to Enable are for any reason not applied thereafter to purchase the goods or services ordered by the Customer from the Merchant, Enable agrees to maintain the funds on behalf of the Customer in accordance with the terms and conditions as set forth by Dwolla and agreed to by the Customer as provided in Section 8.1. While Enable is holding the disbursed Loan Proceeds, said Loan Proceeds will not be owned by the Enable, will still be property of Customer, Enable will segregate said proceeds from other funds of Enable, not co-mingle them, and will be holding said Loan Proceeds in a fiduciary escrow role in trust for the Customer.
5. Fees. User agrees to pay Enable any, and all, agreed-upon fees.
6. Electronic Delivery of Communications
6.1. User agrees that messaging and data rates may apply. User authorizes Enable to use automated technology to send messages to the mobile number provided. Text HELP for help; and STOP to stop messages.
6.2. User agrees and consents to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your Enable account (“Account”) and your use of our services. Communications include:
a) Agreements and policies you agree to, including updates to these agreements or policies;
b) Transaction receipts or confirmations;
c) Account statements and history;
d) Federal and state tax statements we are required to make available to you; and
e) Any other account or transaction information.
7. Trademark License
Neither party shall use any trademarks or service marks of the other party or of an affiliate or Operating Partner without the express, written consent of the other party. Neither party shall register any of the other party’s trademarks or any mark or name closely resembling them, unless requested to do so by the other party in writing.
8. Operating Partners
9. Initial Term
The Agreement shall commence on the date of this Agreement and shall continue until terminated by either party.
9.1. Effect of Termination. Upon termination or expiration of the Agreement, Enable will immediately cancel User’s access to any and all Enable products and services provided hereunder including without limitation the Marketplace Gateway Platform and any Operating Partner services and any and all rights granted to User and User end users related thereto will automatically terminate. Obligations of a continuing nature shall continue to be binding and in full force and effect. Neither party will be liable to the other for any termination of the Agreement in accordance with its terms.
10.1. For purposes of the Agreement, “Confidential Information” means any and all business, financial or technical information or data in any form or medium, tangible or intangible, used in or relating to the business activities or operations of the disclosing party which is actually disclosed, either orally or in writing, by the disclosing party to the receiving party, whether before or after the date of this Agreement, including without limitation Intellectual Property Rights; data, know-how, business rules, reports, summaries, processes, samples, ideas, research and development, security procedures and passwords; computer software and programs; database technologies, systems, structures and architectures; marketing plans, business plans, strategies, forecasts, financial information, budgets, projections, costs, profits, market share, sales, customer lists, current and anticipated customer requirements, prospective customer lists, price lists, market studies, business plans; information regarding suppliers, dealers, affiliates, subsidiaries, investors, or lenders; information regarding personnel and human resources such as organizational structure, salary, personnel training techniques and materials, and employees’ qualifications, and any other information obtained from the disclosing party which is not known to the public. Confidential Information shall include the existence of the Agreement and any and all of its terms.
10.2. Confidential Information shall not include information that (1) is or becomes publicly available through no breach or omission of the receiving party; (2) was lawfully in the possession of the receiving party prior to the disclosure of by the disclosing party; (3) is lawfully disclosed to the receiving party from a source other than the disclosing party, provided that such source is not bound by any fiduciary, contractual or legal duties of confidentiality; and (4) is lawfully and independently developed by the receiving party without use and/or reference to any of the other Parties’ Confidential Information, which can be established by written evidence.
10.3. Each party shall take all reasonable steps to prevent the disclosure of the other party’s Confidential Information to third parties, which steps shall be no less than the steps it takes to protect its own most Confidential Information. Each party shall use its reasonable efforts to confine knowledge of the other party’s Confidential Information to its Representatives provided that prior to any disclosure to a Representative such Representative has either (1) executed a written agreement to keep such Confidential Information confidential on at least the same terms as described herein, or (2) is subject to a professional obligation to maintain the confidentiality of such information; and provided further that the receiving party shall remain liable to the disclosing party for any breaches of this Agreement by its Representatives.
10.4. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that, whenever practicable, before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
10.5. In order for Enable to provide the services and grant the rights hereunder, User may provide Enable with User Information. User hereby authorizes Enable (a) to have access to and make use of the User Information provided by User as necessary for the performance of services for User; (b) store in any products and platforms any and all User Information provided by User; and (c) to use such User Information for research and analytics purposes and to provide summaries, profiles, analyses and models of such data to other customers or potential customers. User hereby grants to Enable a royalty-free, worldwide, exclusive, perpetual, irrevocable license to use or incorporate into Marketplace Gateway Platform and any Operating Partner services or products and platforms any of Merchant Customer’s suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the services.
10.6. The User shall not on its own, through its agents, subcontractors, employees, executives, owners or affiliates (or any entity owned or controlled, or under common ownership with, directly or indirectly, any of the foregoing), or by disclosure to any other person or entity circumvent or otherwise contact, directly or indirectly any source for services or service providers utilized by Enable in connection with providing services under this Agreement, or other related contacts that are part of the Confidential Information, or any other potential source introduced by Enable without notifying Enable first and without the prior written consent by Enable. The User understands and agrees that the term “non-circumvention” means approaching, contacting, soliciting, negotiating or discussing business regarding any agreement, arrangement, contract, intent, undertaking, or act by which a profit, commission, income, royalty or other benefit will accrue.
11. Regulatory Compliance
Each Party shall comply with all federal, state, and local laws and regulations that are applicable to its business and the performance of its obligations under the Agreement, including without limitation Title V of the Gramm-Leach-Bliley Act of 1999 and its implementing regulations.
12. Representations, Warranties, and Limitations of Liability
12.1. Mutual Warranties. Each Party represents and warrants that such party is duly authorized to enter into the Agreement, that such party’s performance of the Agreement according to its terms shall not breach any separate agreement by which such party is bound and that the Agreement, upon execution and delivery, represents a binding obligation of such party, enforceable in accordance with its terms.
12.2. Enable Warranties:
a) Performance Warranty. Enable makes no representations or warranties whatsoever regarding the operation or performance of the Marketplace Gateway Platform and any Operating Partner services as accessed through the Merchant Web- Based Platforms. User acknowledges and agrees that some services provided by Enable may be through certain third party subcontractors and vendors and, upon written request, Enable agrees to provide User with a list of certain third party subcontracts and vendors which have a material impact as to security and viability of the Merchant Web-Based Platforms as provided by the Merchant. User recognizes that the provision of the services involves subjective analysis and decision making based upon the data provided on which prudent individuals could differ, and that automated calculations of scores, ratios or other determinations depend on data and variables that are not under the control of Enable. Accordingly, while Enable warrants that the decisions, recommendations or determinations regarding any particular loan or the accuracy of any calculation, ratio, score or other determination derived through the performance of the Marketplace Gateway Platform and any Operating Partner services will be consistent with commercially reasonable standards of care, Enable does not represent, warrant or guarantee that any third party will agree with Enable’s decisions, recommendations or determinations regarding any particular loan or the accuracy of any calculation, ratio, score or other determination. ENABLE
SHALL HAVE NO LIABILITY WHATSOEVER IN THE EVENT THAT THE PERFORMANCE OF SERVICES HEREUNDER IS DELAYED FOR ANY REASON WITHIN THE CONTROL OF MERCHANT OR OUTSIDE THE REASONABLE CONTROL OF ENABLE.
b) User Warranties. User represents and warrants that it has the authority to authorize Enable to disclose and use the Confidential Information and user information as contemplated hereunder as well as to authorize Enable to communicate with and provide access to Merchant also as contemplated hereunder, including without limitation all authorizations and approvals from Merchant and its Affiliate Partners. Merchant warrants, represents and covenants that it owns, or has the license, right or privilege to grant the rights to the Merchant Web-Based Platforms hereunder and that the use of the Merchant Web-Based Platforms as contemplated hereunder does not and shall not infringe, misappropriate or otherwise violate any patent, copyright, trade secret, trademark, invention, proprietary information, nondisclosure or other rights of any third party.
c) EXCEPT AS SET FORTH IN THIS SECTION, THE PARTIES MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. TO THE EXTENT THAT ENABLE PROVIDES THIRD PARTY PROGRAMS, DATA OR OTHER SERVICES OR PRODUCTS TO USER AND/OR ITS END USERS – AND GIVES USER NOTICE REGARDING THE USE OF SUCH THIRD PARTY PROGRAMS, DATA OR OTHER SERVICES OR PRODUCTS (PROVIDED NO NOTICE IS REQUIRED WHEN THE THIRD PARTY SERVICES OR PRODUCTS ARE THOSE OF A SELECT LENDER OR THE THIRD PARTY SERVICE PROVIDER IN CONNECTION WITH DATA REPLICATION SERVICES) – IT DOES SO ON AN AS IS BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THESE THIRD PARTY PRODUCTS AND/OR SERVICES.
12.3 EACH PARTY SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST REVENUE OR PROFITS, LOSS OF OPPORTUNITY OR DISRUPTION OF BUSINESS) OF MERCHANT OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.4 Indemnification. Each Party hereby agrees to indemnify, defend and hold the other party, its affiliates and subsidiaries, and their respective officers, directors, and employees (“Indemnified Parties”) harmless from and against any and all loss, liability, cost and expense, including reasonable attorneys’ fees, incurred by any one or more of them by reason of any and all claims, demands, suits or proceedings, made or brought against any one or more of them by any third parties arising out of (a) any claim that the other party’s systems, products, services or any component thereof infringe any intellectual property rights of a third party; or (b) any breach of any representation or warranty or covenant under the Agreement made by such party.
13.1 Binding and Assignment. The Agreement shall be binding upon and shall inure to the benefit of Enable and User and their respective successors and permitted assigns. This Agreement may not be assigned by either party, in whole or in part, without the prior written consent of the other party; provided, however, that either party may assign this Amendment or its rights or delegate its duties without consent to an entity that acquires all or substantially all of the business of such party. Except as otherwise provided in this Amendment, nothing contained herein shall be construed as creating any right, claim or cause of action in favor of any such third party against either of the Parties hereto.
13.2 Force Majeure. Neither party shall be liable for any delay or other failure of performance caused by strikes, riots, insurrection, labor shortage, earthquake, hurricane, epidemic, war, acts of terrorism, fire, acts of God, governmental acts or regulation, or any other similar, reasonably unforeseeable factors beyond its control.
13.3 Invalidity. If any provision of this Amendment (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder hereof shall not in any way be affected or impaired thereby.
13.4 Entirety. This Agreement completes the entire agreement between the Parties, including their respective exhibits or amendments and supersede and completely replace all existing agreements and all other oral, written or other communications between them concerning its subject matter.
13.5 Waiver. Neither party’s failure to enforce strict performance of any provision of this Amendment will constitute a waiver of a right to subsequently enforce such a provision. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of this Amendment.
a) Enable may amend the Agreement, or any exhibit, schedule, or appendix of the Agreement, by giving notice to the User. Except as provided in subdivision (b), the amendment will take effect at the specified time after the effective date of the notice.
b) If the User is unwilling for the Agreement to continue as amended, it may terminate the Agreement by giving notice to Enable no later than 30 days after the effective date of the amendment.
c) For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the Agreement that may have been provided at sign up and/or when previously agreed to.
13.7 Independent Contractor. The Parties to this Amendment are independent contractors, and neither party is authorized to act on behalf of the other or to bind the other to any third party. This Amendment does not establish any relationship of agency, partnership, or joint venture. Each party shall bear responsibility for its own employees, including terms of employment, wages, hours, required insurance, and daily direction and control. The Parties are not authorized to make any statements concerning each other’s systems, except as expressly provided herein.
13.8 Disputes and Agreement to Arbitrate. Any dispute or claim relating in any way to your use of the Enable Services will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. 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. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send an email requesting arbitration and describing your claim to support@Enable .com. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer- Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Enable will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We 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. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
13.9 Applicable Law. By using the Enable Services, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of New York, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Enable.
Enable White Label Disclosure
Enable utilizes a white-label and fully licensed 3rd party provider (PayPossible, Inc.) for all of the services provided above. By agreeing to the Enable Terms of Service you are accepting the PayPossible, Inc. Terms of Service .