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Please carefully review these terms and conditions of service in their entirety prior to selecting the “Accept” button located on this website. By clicking “accept” you, as the representative (Defined Below) of a business entity seeking our services, bind yourself and such business entity to the terms and conditions contained herein. For the avoidance of doubt, your acceptance of these terms and conditions shall not automatically grant such business entity any right to receive smartgreen’s services (defined below), and notwithstanding your acceptance of these terms and conditions, smartgreen (defined below) reserves the right, in its sole and exclusive discretion, to decline or refrain from providing its services to you or such business entity. In addition, your acceptance of these terms and conditions constitutes a representation and warranty by you, in your personal and individual capacity, that you are authorized to bind such business entity under the terms and conditions of this Agreement (defined below). If you (1) do not agree to be bound by the terms and conditions provided in this Agreement, (2) do not wish to bind such business entity and all other representatives to the terms and conditions provided in this Agreement, or (3) do not have the legal authority to bind such entity or other representatives to the terms and conditions provided in this Agreement, then please do not select the “Accept” button.
This Agreement of Terms and Conditions OF SERVICE (this “Agreement”) constitutes a legally binding agreement by and among: (a) SmartGreen.biz, Inc., a Delaware corporation (“SmartGreen”); (b) that certain business entity on behalf of which you are an authorized representative that is seeking SmartGreen’s Services (“Service Candidate”); (c) you as the duly authorized officer, agent or representative of the Service Candidate (“Executing Representative”); and (d) each of Service Candidate’s shareholders, partners, members, officers, agents, representatives (the “Representatives” and together with Service Candidate and Executing Representative, collectively, “User”).
By clicking the designated “ACCEPT” button on this website (the “Site”), User hereby acknowledges and agrees and is deemed to have acknowledged and agreed that he/she/it has read and understands all terms and conditions of this Agreement, that he/she/it agrees to be bound by the same, and that he/she/it shall comply with this Agreement and any and all applicable laws, codes, standards and/or regulations relating to this Agreement and SmartGreen’s Services. For the avoidance of doubt, User hereby acknowledges and agrees that all actions Representatives take on this Site including, without limitation, the acceptance of the terms and conditions of this Agreement, shall be deemed as taken in a representative capacity and exclusively on behalf of User except as expressly set forth in this Agreement. In addition, and notwithstanding Representative’s agreement to be bound to this Agreement, User hereby further acknowledge and agree that all Services shall be provided to User only (in the event SmartGreen decides to extend its Services to User), and that no representation, warranty, covenant, acknowledgement, agreement and/or acceptance made by Representative herein shall afford Representative any right to receive Services in his or her individual capacity or otherwise obligate SmartGreen to extend such Services to Representative. For the avoidance of doubt, any and all Services rendered by SmartGreen pursuant to this Agreement and/or similar and supplemental agreements and documentation shall be deemed as services rendered to User (regardless of an applicable Representative’s acceptance of such Services on User’s behalf or any benefit such Representative gains in connection therewith).
User’s acceptance of this Agreement constitutes User’s satisfaction that only one (1) pre-requisite among a number of other pre-requisites and conditions precedent User must satisfy prior to becoming eligible to receive SmartGreen’s Services. No User’s acceptance shall automatically afford any such User a right to continued access to SmartGreen’s Services, and User hereby acknowledges and agrees that SmartGreen shall, at all times, maintain the exclusive right, in its sole discretion, to deny or terminate its Services to any User, for any reason, regardless of whether such User agrees to be bound under this Agreement, or is ultimately determined to be eligible for such Services. User hereby further acknowledges and agrees that neither acceptance of this Agreement, nor SmartGreen’s extension of Services to User shall constitute a direct or indirect assertion, guaranty or representation by SmartGreen that User will be eligible to receive the services or assistance of a SBA Intermediary (defined below) or ultimately be approved to receive the proceeds of a SBA loan (each, an “SBA Loan”).
SmartGreen herby reserves the exclusive right to, in its sole and absolute discretion, amend or modify this Agreement at any time and for any reason, and maintains no obligation to notify, directly or indirectly, User of any such amendments or the terms, contents or effects thereof. Each User shall, at all times, be solely responsible for periodically checking the Site and reviewing the Agreement with their Representatives to determine the existence and extent of any amendments or modifications hereto. All modifications to this Agreement shall be effective immediately upon the posting of such amended Agreement to the Site. In the event SmartGreen amends this Agreement, User’s continued use of SmartGreen’s Services (or, in the event SmartGreen has not made a determination as to User’s eligibility to receive SmartGreen’s Services, User’s continued efforts (whether active or inactive) to qualify to receive SmartGreen’s Services) shall constitute their collective acceptance of and agreement to be bound by such amendment.
User shall register User’s applicable business and other requested User information on the Site as prompted. By registering, User agrees to provide honest, accurate, current, and complete information about User, its Representatives, partners, members, managers and User’s business including, without limitation, information about the principal shareholders, officers, employees and directors of User’s business. As a convenience, upon User’s registration, the Site will create a profile of User’s business based on the registration information that User provides (each such profile, a “SmartGreen Account”), and SmartGreen may (without implied obligation), at such times as it elects, send User notifications, alerts, advertisements or other communications through User’s SmartGreen Account relating to additional Services or new lending products. If User desires to no longer receive promotional or other communications from SmartGreen, User may, at any point, cancel its SmartGreen Account by contacting SmartGreen directly at 1-844-672-2669. If User reasonably believes that a third party has used its registration information to access the Site without User’s authorization, User should contact SmartGreen immediately at 1-844-672-2669.
User should be aware that, in an effort to combat the funding of terrorism and money laundering activities, federal law requires that certain financial institutions (such as some SBA Intermediaries and SBA Lenders (defined below)) obtain, verify and record the identities and personal information of individuals and entities that open accounts with such financial institutions. User’s SmartGreen Account and/or any other account User opens with a SBA Intermediary or a SBA Lender as well as User’s business information and Representative’s disclosed personal information, inclusive of any applicable User’s and/or Representative’s legal name, mailing address, date of incorporation or formation, date of birth, employee identification number, drivers license information, tax information, tax information of applicable shareholders, partners or members and other confidential or proprietary information (as applicable) may be subject to various federal and state laws regarding anti-terrorism and money laundering, and may be subject to governmental inquiries or examinations and/or review. SmartGreen hereby retains the right to disclose such information as necessary to aid the federal, state and local governments in combatting terrorism and/or money laundering.
SmartGreen can only provide accurate Services and assist in recommending suitable SBA Intermediaries, SBA Lenders and lending products upon its receipt of accurate and truthful registration information from Users. In addition, SBA Intermediaries and/or SBA Lenders may, as a part of their own approval processes, verify information contained in the information and documentation SmartGreen or User provides them against any and all information and documentation User has previously furnished to SmartGreen, or that is public record or otherwise obtainable by the public (including, without limitation, prior tax returns to the IRS and state and local taxing authorities). Such information and documentation also includes, without limitation, any referral documentation (“Referral Documentation”) provided by SmartGreen to a SBA Intermediary and User’s final or proposed loan application (each, a “Loan Application”) provided by SmartGreen or a SBA Intermediary to a SBA Lender. User and its Representatives are jointly and severally obligated to ensure that all information and supporting documentation provided to SmartGreen on this Site or through any other means of communication by and between SmartGreen, a User and Representatives (“Communicative Means”) through Representatives is true, accurate, complete and reasonably corresponds with any and all of User’s most up-to-date business and personal records and public filings (as applicable).
User hereby understands and acknowledges that, pursuant to 18 U.S.C. §1001, the penalty for knowingly making a false statement to obtain a loan guaranteed by the Small Business Administration (the “SBA”) may include fines of up to $25,000 and/or imprisonment of up to five (5) years. User hereby further understands and acknowledges that, pursuant to 18 U.S.C. § 1014, issuing false statements to a federally insured depository institution, such as a SBA Intermediary or a SBA Lender, may be punishable by fines of up to $1,000,000 and/or imprisonment for up to thirty (30) years. User hereby agrees to make no statement or omission that violates the above-cited law, and shall indemnify and hold SmartGreen harmless from and against any and all civil and/or criminal liabilities, actions, claims, losses, fines, penalties and/or damages arising against SmartGreen or that SmartGreen incurs as a direct or indirect result of User’s and any Representative’s provision of false, misleading, inaccurate and/or incomplete information to SmartGreen, any SBA Intermediary, any SBA Lender or any third party (including, without limitation, any Third Party Service Providers (defined below)) whether made through User’s registration on the Site, through Representatives, or through any other Communicative Means. In addition, to the fullest extent permitted by applicable law, User hereby releases and covenants not to sue SmartGreen, and waives any and all claims he/she/it may ever have against SmartGreen that arise or occur as a direct or indirect result of User’s or any Representative’s provision of false, misleading, inaccurate and/or incomplete information, whether made through registration on the Site or through any other Communicative Means.
In the event SmartGreen elects to provide Services to User, User shall maintain an ongoing obligation to, for the duration of SmartGreen’s engagement with User or User’s utilization of SmartGreen’s Services, maintain the accuracy and completeness of any and all information and documentation User or any Representative provides and/or has provided to SmartGreen (through whatever Communicative Means), and shall make timely updates and amendments regarding any and all material changes in connection with the same as they relate to User’s business and/or User’s continual eligibility to receive Services or otherwise qualify for SBA Loans.
In connection with User’s and Representatives’ obligations pursuant to this Section 3, User shall ensure that all information contained in or supplemental to any Referral Documentation and Loan Application is current as of any date during the period sixty (60) days after the date of submission to a SBA Intermediary or SBA Lender (as applicable). In the event any such information does not satisfy the time requirements contained in this Section 3, User may be required to resubmit such documentation to SmartGreen for inclusion in its Referral Documentation and/or Loan Application before SmartGreen makes any submission thereof to a SBA Intermediary or a SBA Lender (as applicable). Nothing in this Section 3 shall limit or modify any separate requirements to which User or any Representative may be subject to in connection with its respective relationships with any SBA Intermediary or any SBA Lender.
SmartGreen is a [lending referral and loan application preparation] servicer, broker and coordinator that works with and on behalf of (a) small businesses seeking SBA Loans, (b) intermediaries and other referral agencies that introduce small businesses to SBA Lenders and help prepare such businesses for Loan Application submissions (“SBA Intermediaries”), and (c) lending institutions that provide SBA Loans to small businesses (“SBA Lenders”). SmartGreen’s “Services” consist of (x) facilitating introductions, business relationships and engagements between select Users and SBA Intermediaries, (y) facilitating introductions, business relationships and engagements between select Users and SBA Lenders and (z) assisting select Users in the preparation and submission of their respective SBA Loan Applications to SBA Lenders. SmartGreen and SBA Intermediaries have expertise in identifying appropriate SBA Lenders for businesses of various types and sizes, who are unable to secure debt financing through other means. SmartGreen takes advantage of its relationships with various SBA Lenders in brokering connections between such SBA Intermediaries, SBA Lenders and business, and utilizes its proprietary technology and techniques to streamline the [loan referral and loan application processes].
SmartGreen’s services are extended in connection with loans for business or commercial purposes (and not personal, family or household purposes) exclusively to corporations, joint ventures, partnerships, limited liability companies and other business entities on the one hand as well as to individuals only for “business or commercial, as opposed to personal, family or household purposes (in such cases for individuals, only for loans of over Twenty-Five Thousand Dollars ($25,000) in principal amount.
As noted in Section 1 of this Agreement, SmartGreen reserves the sole and exclusive right to decline provision of its Services to any User even if such User has accepted the terms and conditions of this Agreement. In making a determination to provide or decline provision of Services to a User, SmartGreen shall rely upon its selection criteria, which analyzes a number of factors including, without limitation, whether a User (in addition to its acceptance of the terms and conditions of this Agreement) and/or Representative (as applicable):
User hereby acknowledges and agrees that the above criteria are not exhaustive, and that notwithstanding User’s and/or Representatives’ respective satisfaction of all criteria set forth in this Section 4, individually or collectively, SmartGreen may, in its sole discretion, deny User its Services.
User hereby acknowledges and agrees that in determining User’s eligibility for Services, SmartGreen shall conduct a preliminary, so-called “soft pull” inquiry regarding User’s business credit (or credit equivalent) and certain Representatives’ personal credit. This soft pull will provide SmartGreen with limited information about User’s and certain Representatives' credit, inclusive of their respective credit scores and/or business credit or rating information. In the event SmartGreen is unable to make a determination as to User’s eligibility for Services based (in whole or in part) on this soft pull, SmartGreen may conduct a more involved and invasive, so-called “hard pull” inquiry, which will provide SmartGreen with additional and detailed information about User’s and applicable Representatives’ respective credit and credit history and business ratings or reports. SmartGreen’s soft pull should not have any affect upon User’s or Representative’s respective credit or credit scores; however, User acknowledges that a hard pull may negatively affect and have an adverse impact (materially or otherwise) upon User’s or Representative’s respective credit and/or credit scores. User hereby consents to any soft pull SmartGreen conducts regarding his/her/its credit to the fullest extent necessary, required or advisable under applicable law. Any hard pull will require each applicable User’s and Representative’s actual consent immediately prior to the occurrence thereof, and should SmartGreen find such an inquiry necessary, User must provide his/her/its consent for SmartGreen to conduct such a hard pull inquiry as a prerequisite for User’s eligibility for SmartGreen’s Services.
SmartGreen IS NOT (and all Users and Representatives hereby acknowledge AND AGREE that SmartGreen IS NOT) itself A SBA Lender, DOES NOT provide SBA Loans, and has no affiliation, whatsoever, with any SBA Intermediaries or any SBA Lenders. All Users hereby further acknowledge and agree that nothing contained in this Agreement or included in, or incidental to, SmartGreen’s Services shall be construed to classify, identify or deem SmartGreen or any SBA Intermediary as A SBA Lender or ANY other type of lender. In addition, all Users hereby acknowledge and agree that nothing contained in this Agreement, or included in or incidental to, SmartGreen’s Services shall be construed as creating any partnership, joint venture or other affiliation between (A) SmartGreen and any SBA Intermediary or SBA Lender, (B) SmartGreen and any User and/or (C) any SBA Intermediary or SBA Lender and any User that is not otherwise established through a writing and signed by all applicable parties.
All Users and Representatives hereby acknowledge and agree that SmartGreen has no control, whatsoever, over any action or omission by any SBA Intermediary, and, notwithstanding SmartGreen’s understanding that no SBA Intermediary TO WHICH it introduces User will provide Any SBA lending services, nothing contained IN THIS AGREEMENT shall constitute a representation, warranty or covenant by SmartGreen that a SBA Intermediary will not knowingly or inadvertently VIOLATE APPLICABLE LAWS, RULES, OR REGULATIONS REGARDING SBA lending or THEIR RESPECTIVE AGREEMENTS WITH USER AND/OR REPRESENTATIVES. In ANY SUCH event, User hereby releaseS and covenantS not to sue SmartGreen, and each hereby waives any and all waivable rights and claims against SmartGreen that may arise in connection therewith.
The SBA does not require prospective borrowers to retain the services of lending referral and loan application preparation servicers in order to apply for a SBA Loan. A prospective borrower’s eligibility for a SBA Loan is based on a number of factors specific to each particular borrower’s circumstances and the condition of their business; as such, eligibility requirements may vary from business to business. Notwithstanding the generality of the foregoing, the SBA has provided a universally applicable set of threshold qualifications that all prospective borrowers must satisfy, which require that a borrower:
This Agreement does not purport to identify, specify or disclose an exhaustive list of factors used to determine a User’s eligibility for SBA Loan approval, or to otherwise render any opinion as to a User’s likelihood of being approved or denied for any SBA Loan. User hereby acknowledges and agrees that nothing contained herein shall (nor shall any other communication between SmartGreen and a User) be construed as an explicit or implicit assertion or representation by SmartGreen guarantying or suggesting that any User will or may qualify to receive the proceeds of a SBA Loan. For further details on SBA Loan eligibility requirements, User should seek the advice of legal counsel, and should visit the SBA website at www.sba.gov.
(a) Business Use Only
User shall limit his or her use of the Site for business purposes, exclusively, as they relate to User’s application for SBA financing; and at no time shall User or any Representative make use of the Site for non-business purposes or in connection with an application for personal or non-business-related financing. User and Representatives shall not use or access the Site in any manner that is or may constitute a violation of any applicable federal, state or local laws, regulations, rules or codes, or in a manner that may result in SmartGreen and/or User or any Representative incurring any criminal or civil liability. All unauthorized use of the Site including, without limitation, unauthorized entry into SmartGreen’s systems, misuse/loss/disclosure of passwords, or misuse of any information posted on the Site is strictly prohibited, and SmartGreen reserves the exclusive right, in its sole discretion, to terminate, suspend, change or restrict User’s and Representative’s access to the Site, without notice, at any time for such use or for any other reason.
(b) Monitoring of the Site
SmartGreen may, but shall have no obligation to, manage and oversee the Site and the activity thereupon in such manners and at such times as it elects in its sole discretion; and may take any and all action (including, without limitation, disclosing any User and/or Representative’s information necessary, appropriate or advisable) to operate the Site efficiently and effectively, and/or to protect itself and other Site users. User hereby acknowledges and agrees that his or her use of the Site may be monitored, tracked and recorded, and hereby consents to any and all occurrences of the same and all actions taken by SmartGreen pursuant to this subsection 7(b).
(c) Security of Data Transmissions and Storage
Communication between SmartGreen and User and/or applicable Representatives including, without limitation, through the Site or other carrier, through fax, in person or through any other Communicative Means, may not be encrypted. User hereby fully and completely understands and acknowledges that there is an inherent risk that data containing User’s business and/or Representative’s personal information may be accessed by unauthorized third parties, notwithstanding SmartGreen’s commercially reasonable efforts to protect the same. To the fullest extent permitted by applicable law, User hereby releases and covenants not to sue SmartGreen, and each waives any and all waivable rights and claims against SmartGreen that may arise in connection with any breach of the Site.
(d) Potential Disruption of Service
User shall be solely responsible for obtaining and maintaining any and all telephone, computer hardware, software and other equipment needed to access and use the Site and/or as are otherwise necessary to communicate with SmartGreen. Access to the Site, the Content (defined below) thereon and/or the services thereof may, from time to time, be unavailable, delayed, limited or slowed due to, among other things: (i) hardware failures (such as failures of SmartGreen’s, a Representative’s or User’s computers, servers, networks, telecommunication lines and connections, and other electronic and mechanical equipment); (ii) software failures (such as bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular unloadable or downloadable Content); (iii) overloads of system capacities; (iv) damage caused by severe weather, earthquakes, wars, insurrection, riots, terrorism, civil unrest, acts of God, accidents, fire, water damage, explosions, mechanical breakdowns or natural disasters; (v) interruptions of power supplies or other utility of services; (vi) strikes or other stoppages of labor; (vii) governmental or regulatory restrictions, injunctions or interventions; and/or (viii) any other things, events, actions or causes, whatsoever, beyond SmartGreen’s or User’s respective control. If access to the Site or Services is unavailable, delayed, or limited, or if the Site does not operate efficiently, User may be unable to submit or retrieve, or may otherwise be delayed in submitting or retrieving pertinent information and materials relative to its Loan Application. If User or any Representative experiences unreasonable delays in accessing the Site, or is unable to access the Site, SmartGreen should be contacted immediately.
(e) Links to Third-Party Sites
User and Representatives hereby acknowledges and agrees that any and all materials or apparatuses contained on the Site and/or used in connection with SmartGreen’s Services (whether actually contained on the Site, emailed to User or Representatives, provided to User or Representatives in person or otherwise) including without limitation, any advertisements, marketing materials, text, data, articles, design, source code, software, photos, images, logos (including, without limitation, the “SmartGreen” logo) and any and all other things, information materials and/or apparatuses (collectively the “Content”) are the exclusive and sole property of SmartGreen (or has otherwise been licensed or provided to SmartGreen by a SBA Intermediary or SBA Lender for SmartGreen’s use), and that neither User nor any Representative shall have any right, whatsoever, to make use of, sell, lease, exploit, license or take any action involving such Content without the express written consent of SmartGreen (and/or a applicable SBA Intermediary or SBA Lender). Nothing contained in this Agreement, or included in or incidental to SmartGreen’s Services shall create any right, privilege, license or interest of any User or Representative in or to any Content, or grant any User or Representative any intellectual property rights therein or with respect thereto, and no User or Representative shall not in any way copy, reproduce, distribute, modify, publish, display, alienate, transfer, sell, gift, post, or transmit any Content without SmartGreen’s express written consent (or a SBA Intermediary’s or SBA Lender’s consent (as applicable)). In the event SmartGreen brings any action against User or Representative for User’s or Representative’s violation of this Section 8, User hereby waives any and all defenses he/she/it may have against any such claims.
SmartGreen may, without providing any notice to User and Representatives, utilize the services of third party service providers (each, a “Third Party Service Provider”) to assist SmartGreen in providing certain of its Services. User hereby consents to and authorizes SmartGreen to disseminate User’s and/or Representative’s information and delegate the authorizations User and Representative provide SmartGreen herein to any Third Party Service Provider in connection with SmartGreen’s rendering of its Services, at such time and in such manner as SmartGreen deems necessary, appropriate, desirable, advisable or convenient. User hereby agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers, and indemnities incorporated into this Agreement, shall inure to the benefit of such Third Party Service Providers, and that such Third Party Service Providers are deemed to be third party beneficiaries of this Agreement. SmartGreen retains no obligation to disclose to User and Representatives the names or types of services provided by any Third Party Service Provider.
THE CONTENT CONTAINED IN THIS SITE IS PROVIDED “AS IS”, “AS AVAILABLE,” WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR TITLE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF ANY USER’S OR REPRESENTATIVE’S USE OF THE CONTENT. SMARTGREEN DOES NOT WARRANT THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL ITEMS. SMARTGREEN MAY DISCONTINUE OR MAKE CHANGES TO CONTENT AND SITE AT ANY TIME WITHOUT PRIOR NOTICE TO USER OR REPRESENTATIVES. ANY DATED INFORMATION IS PUBLISHED AS OF ITS DATE ONLY, AND SMARTGREEN DOES NOT UNDERTAKE ANY OBLIGATION OR RESPONSIBILITY TO UPDATE OR AMEND ANY SUCH INFORMATION. SMARTGREEN RESERVES THE RIGHT TO TERMINATE ANY OR ALL SITE OFFERINGS OR TRANSMISSIONS WITHOUT PRIOR NOTICE TO USER OR REPRESENTATIVES. THIS SITE COULD CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. USE OF THIS SITE IS AT USER’S AND EACH REPRESENTATIVE’S OWN RISK.
User hereby agrees to indemnify and hold harmless SmartGreen, any applicable SBA Intermediary, any applicable SBA Lender, and each of their respective subsidiaries and affiliates, officers, directors, shareholders, employees, representatives and agents from and against any and all civil and/or criminal penalties, judgments, awards, decrees, losses, liabilities, suits, damages, fines, costs or expenses arising or occurring directly or indirectly in connection with User’s or Representative’s violation of any one or more of the terms and conditions of this Agreement, or with respect to any act or failure to act by User or Representative constituting a criminal act, negligence, misconduct including, without limitation, any such act or failure relating directly or indirectly to SmartGreen’s Services or any engagement between User and any SBA Intermediary and/or any SBA Lender.
NOTWITHSTANDING ANY OTHER TERM OR CONDITION OF THIS AGREEMENT, IN NO EVENT WILL SMARTGREEN, ANY SBA INTERMEDIARY OR ANY SBA LENDER BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES, LOSSES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS INTERRUPTION) OF ANY KIND WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE ARISING OUT OF OR RELATING IN ANY WAY TO THE USE OR INABILITY TO USE THE CONTENT, THE SITE OR ANY THIRD-PARTY SITE TO WHICH THIS SITE IS LINKED, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF SMARTGREEN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR EXPENSES. USER AND/OR REPRESENTATIVES’ SOLE REMEDY FOR DISSATISFACTION WITH THIS SITE IS TO CEASE USER AND/OR REPRESENTATIVES’ RESPECTIVE USE OF THE SITE. IF USER AND/OR REPRESENTATIVES’ USE OF MATERIALS FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, USER AND/OR REPRESENTATIVES ASSUME ANY COSTS THEREOF. IF THE FOREGOING LIMITATION IS FOUND TO BE INVALID, USER AND/OR REPRESENTATIVES AGREE THAT SMARTGREEN’S, ANY SBA INTERMEDIARY’S AND ANY SBA LENDER’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO $25.00 OR OTHERWISE THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
This Agreement is effective until terminated by SmartGreen. SmartGreen may, in its sole and absolute discretion, at any time, with or without notice, and with or without cause, terminate this Agreement or suspend or terminate User and/or Representatives’ access and use of the Site at any time.
(a) Binding Effect
This Agreement supersedes any previous Agreement of Terms and Conditions of Services or instruments of similar effect or import between and/or among SmartGreen and User and/or Representative, and shall be binding upon and inure to the benefit of each of SmartGreen, User and Representative, and each of their respective affiliates, successors and assigns.
(b) Consultation with Counsel
User is strongly advised to consult legal counsel prior to agreeing to be bound to the terms and conditions of this Agreement. User hereby acknowledges that he or she has received the advice of legal counsel prior to accepting the terms and conditions of this Agreement, or otherwise has not sought such advice, but full understands the terms and conditions of this Agreement and agrees to be bound hereby.
The failure of SmartGreen to enforce any one or more of its rights under this Agreement shall not constitute, nor be construed as constituting any waiver of such rights or any other rights SmartGreen may have hereunder.
(d) Other Agreements
This Agreement shall be subject to and enforceable in relation to any and all other agreements between SmartGreen, User and/or Representative including, without limitation, any and all Agreements by and between SmartGreen and User entered into specifically in connection with SmartGreen’s provision of Services to User. User hereby acknowledges and agrees that any breach of this Agreement shall constitute a breach of any all other agreements by and between SmartGreen, except as otherwise provided in writing.
(e) Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Rhode Island, without regard to its conflict of laws rules. User hereby agrees and consents to personal jurisdiction and service and venue in any state or federal court in the State of Rhode Island having subject matter jurisdiction, for purposes of any action, suit or proceeding arising out of or relating to this Agreement. User hereby waiveS his/her/its respective rights to trial by jury in any such action, suit or proceeding.
(f) Further Assurances
In connection with this Agreement and the transactions contemplated hereby, User and/or Representative shall execute and deliver any and all additional documents and instruments, and perform any additional acts that may be necessary and/or appropriate to effectuate and perform the provisions of this Agreement and those transactions.
(g) Additional Terms
Certain sections or pages on the Site may contain separate terms and conditions of use, which are in addition to the terms and conditions of this Agreement. In the event of a conflict, the additional terms and conditions will govern for those sections or pages.
If any one or more clauses or provisions of this Agreement, or the application thereof to any User, Representative or circumstance are held to be illegal, invalid or unenforceable under any present or future applicable law, then, (i) to the fullest extent possible, the terms and conditions of this Agreement shall be construed to give the maximum effect to the intent of the SmartGreen, (ii) the remainder of this Agreement shall not be affected or impaired thereby, and (iii) in lieu of each such illegal, invalid or unenforceable clause or provision, a new clause or provision as similar in terms and meaning to such illegal, invalid or unenforceable clause or provision as may be possible, and as may be legal, valid and enforceable, shall be deemed added as part of this Agreement.
(i) Electronic Transmission
This Agreement shall be executed and effective upon User’s (and its Executing Representative’s) selection of the “ACCEPT” button on the Site, and such acceptance shall be deemed a valid and binding signature of User with the same effect as if User (and its Executing Representative) manually signed a written instrument with User’s and each Representative’s original signature.
(j) Certain Definitions and Construction
As used in this Agreement, the phrase “and/or” means all persons, entities and things either collectively and in the aggregate, or in the alternative, one or some, but not all.