Terms of Application

Last updated November 18, 2024

AGREEMENT TO TERMS OF APPLICATION

These Terms of Application constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you” or “Applicant”) and NEWITY LLC and its affiliates (the “Company”, “we”, “us”, or “our”), concerning your access to and use of applications for products and services provided by the Company. You agree that by accepting these Terns of Application, you have read, understood, and agreed to be bound by all of these Terms of Application. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF APPLICATION, THEN YOU ARE EXPRESSLY PROHIBITED FROM CONTINUING WITH ANY APPLICATIONS AND YOU MUST DISCONTINUE USE IMMEDIATELY.  Completing any application is void where prohibited.

Supplemental terms and conditions or documents that may be posted on the newitymarket.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”) from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Application at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Application, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Application to stay informed of updates.

SBA LOAN DISCLOSURE

On behalf of any U.S. Small Business Administration (the “SBA”) licensed lender on whose behalf we accept an application for an SBA loan, we advise applicants that they are not required to obtain or pay for unwanted services.

CREDIT GATHERING AUTHORIZATION

By indicating your agreement to these Terms of Application (for example, by checking the box in our application process consenting to these Terms of Application or otherwise submitting an application for a loan to us) you represent that you are authorized on behalf of yourself, the business listed in your application and any guarantor or affiliate (collectively, the “Applicant Parties”) to make and submit representations regarding the Applicant Parties.  You authorize the Company, its representatives, subsidiaries, affiliates and lending sources to conduct, obtain, receive, and process a review of the Applicant Parties as the Company considers appropriate to process any application for business-purpose financial products.

As part of this review, you authorize the Company to obtain consumer/personal and/or business and investigative financial and credit reports for the Applicant Parties from one or more consumer reporting agencies (such as TransUnion, Experian and Equifax) and from other credit bureaus, banks, creditors and other third parties about the Applicant Parties. You further authorize and understand that the Company may obtain statements from creditors, financial institutions, and other third parties, as well as other information about the Applicant Parties, including credit card processor statements and bank statements. 

You authorize the Company to obtain credit reports of the Applicant Parties, during review of any application submitted via email or at www.newitymarket.com, including any subdomains thereof, during the closing of any financial product, or at various times during the term of my financial product(s) in connection with its monitoring, servicing or enforcement. This authorization shall constitute your written instructions under the Fair Credit Reporting Act. You further authorize the Company to contact third parties to verify any information provided in any credit report or otherwise submitted to the Company in connection with any application for financial products.

You acknowledge and agree that information that you provide to the Company or that the Company obtains will be shared with potential lenders and that these potential lenders may contact you using the contact information you have provided including by email, calls and/or texts.

You expressly authorize the Company to obtain and use the Applicant Parties tax return transcript(s) for the purpose of verification of income and other financial information, and compliance with federal, state, and local law, including without limitation SBA Loan Program Requirements, including verification of financial information, verification of tax return filing, and verification of tax return information.  Your further authorize the Company to share its tax return transcript(s) with the SBA and its agents for the purpose of complying with the SBA Loan Program Requirements, including discrepancy resolution, lender oversight activities, purchase reviews, complete file reviews, and other SBA reviews.

You acknowledge that if the borrower defaults on any SBA-guaranteed loan and SBA suffers a loss, the names of the Applicant Parties, the borrower/guarantor of the SBA-guaranteed loan, and any additional owner(s) that control the borrower, will be referred for listing in the Credit Alert Verification Reporting System (CAIVRS) database, which may affect the eligibility of a business owned or controlled by any such individual(s) or entity(ies) for future financial assistance from SBA or other Federal agencies or departments.

You confirm that the information you have provided to the Company as part of your application, as well as any subsequent information that might be submitted as part of your application, is true and correct and may be relied upon by the Company in its consideration of your application. Any misrepresentation that you make in conjunction with the information you submit may be viewed as fraud, and as such may be punishable by law.

USA PATRIOT ACT NOTICE

IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT OR ESTABLISHING A NEW CUSTOMER RELATIONSHIP

To help the government fight the funding of terrorism and money laundering activities, Federal law requires all U.S. financial institutions to obtain, verify, and record information that identifies each individual or legal entity that opens an account or establishes a customer relationship with any U.S. financial institutions whose products we offer. Federal law also requires all U.S. financial institutions to obtain, verify, and record information that identifies the beneficial owners of a legal entity that opens an account or establishes a customer relationship.

What this means for you: If you enter into a new customer relationship with any U.S. financial institutions whose products we offer, the Company will ask for your name, address, date of birth (as applicable) and other identification information. In addition, if you enter into a new customer relationship with any U.S. financial institutions whose products we offer on behalf of a legal entity, we will ask for the names, addresses, dates of birth and other identification information of the beneficial owners of the legal entity. This information will be used to verify your identity and, in the case of a legal entity customer, the identity of the beneficial owners. As appropriate, the Company may, in its discretion, ask for additional documentation or information. If all required documentation or information is not provided, we and/or any U.S. financial institutions whose products we offer may be unable to open an account or establish a relationship with you.

AUTHORIZATION AND REPRESENTATIONS

You represent are authorized on behalf of yourself and the business listed in the application to make and submit an application, to submit any accompanying documents, and to provide the consents and authorizations set out below.  You are submitting this application to the Company and to third-party lenders, finance companies, and/or other third parties that are involved with or provide commercial loans or purchases of receivables (collectively, “Recipients”).  If this application is approved, you are authorized to sign business financing or any other documentation on behalf of the business listed in the application. Please be advised that some business financing products may require a personal guaranty.

You represent and warrant that all information provided to Recipients is accurate and complete and that you will immediately notify the Company of any change in such information.  You agree that Recipients may rely on the accurateness of the information provided and the Company may share all information and documents with other Recipients to fulfill Applicant’s requests.  The Company and other Recipients may share information they have about you and Applicant at any time for administrative, marketing and servicing purposes as permitted by law and that your personal information may be shared with Recipients as part of the underwriting process.

THIRD PARTY AUTHORIZATION AND REPRESENTATIONS

It is your responsibility to ensure that access to your account is provided only to persons you authorize, which can include your employees, officers and other agents (secondary users).  Secondary users can perform all of the same functions and have access to all of the same documents as the primary users on your NEWITY Smart Portal account.  By adding a secondary user to your account, you represent to us that all secondary users have general authority from you and your business or company to give us instructions to perform transactions using our services.  By adding a secondary user to your account, you agree that the user can edit and complete loan applications for you or your business or company, and agree to provide the user access to confidential and critical business documents provided to us by you or another secondary user. You agree you are authorizing any and all actions that the secondary users undertake as a result, including how a secondary user uses, shares, or otherwise acts on your account, even if you did not anticipate such actions. This includes actions by a secondary user’s employees and agents.  You understand that allowing access to and the use of your account could potentially expose you to increased privacy and security risks, including unauthorized account transactions, loss of funds, identity theft, fraud, and unauthorized disclosure or compromise of your account information. 

If you are a secondary user acting on behalf of Applicant: (i) you represent that you have authority to submit information and provide instructions to perform transactions using our services for this business or company; (ii) you acknowledge and agree that the business or company and its owners, employees and other agents can edit and complete loan applications for their business or company and understand that this owner (and employees and other agents of the business or company) can access confidential and critical business documents provided to us by you or another owner on this account; and (iii) by applying on behalf of a business or company, you are creating a NEWITY account for this business or company and its owners.  It is your responsibility to ensure that access is provided only to persons you authorize.

ARBITRATION

BY USING ANY APPLICATION, YOU AGREE TO ARBITRATE ALL CLAIMS BETWEEN YOU AND THE COMPANY (AND ANY ENTITY CALLING ON BEHALF OF THE COMPANY) ON AN INDIVIDUAL BASIS ONLY AND NOT AS A PART OF ANY CLASS.  A “CLAIM” IS ANY CASE, CONTROVERSY, DISPUTE, TORT, DISAGREEMENT, LAWSUIT, LEGAL ACTION, OR CLAIM NOW OR HEREAFTER PENDING BETWEEN YOU AND THE COMPANY, INCLUDING BUT NOT LIMITED TO ANY ALLEGED STATE OR FEDERAL STATUTORY VIOLATION, OR ANY DISPUTE OVER THE INTERPRETATION OF THE TERMS OF APPLICATION OR THE ARBITRABILITY OF ANY CLAIM PURSUANT TO THE TERMS OF APPLICATION.  THIS AGREEMENT TO ARBITRATE GOVERNS ALL PAST, CURRENT AND PROSPECTIVE INTERACTIONS WITH THE COMPANY.  YOU AGREE THAT YOU ARE WAIVING ALL RIGHTS TO: (A) A TRIAL BY JURY; (B) PARTICIPATE IN A CLASS ACTION LAW SUIT OR CLASS ACTION ARBITRATION; AND (C) BRING AN ACTION AGAINST THE COMPANY IN A COURT OF LAW.  YOU MAY INDIVIDUALLY ARBITRATE ANY CLAIM AGAINST THE COMPANY IN ANY JURISDICTION IN THE UNITED STATES.  THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN FORCE SHALL GOVERN THE ARBITRATION (provided, however, that these Terms of Application shall control over any inconsistency between the Rules of the American Arbitration Association and these Terms of Application).  The arbitrator shall have authority to interpret these Terms of Application, including but not limited to the authority to decide whether any claim is arbitrable under the Terms of Application and to decide issues related to the scope of arbitration, the rules of arbitration, the arbitrator’s jurisdiction, and the enforceability of these Terms of Application.  You agree that these Terms of Application involves commerce under 9 U.S.C. Sections 1 et seq. and that this Arbitration Clause is governed by federal law, including the Federal Arbitration Act.  You may opt out of this jury trial waiver, class action waiver and agreement to arbitrate as set forth below.  The remainder of these Terms of Application is governed by the laws of the state of Illinois, as provided below.

You can choose to reject the jury trial waiver, class action waiver and agreement to arbitrate contained in these Terms of Application by mailing us a written opt-out notice (“Opt-Out Notice”), which must be postmarked no later than thirty (30) days after the date you accept these Terms of Application for the first time and must be mailed to: NEWITY LLC, Attn: Legal Department, 1123 W Washington Blvd, 3^rd Floor, Chicago, IL 60607.  The Opt-Out Notice must contain your name, address, and the user name(s) and email address(es) associated with any Company account and the application to which the opt-out applies, if any. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the jury trial waiver, class action waiver and agreement to arbitrate. If you opt out of the jury trial waiver, class action waiver and agreement to arbitrate, all other parts of these Terms of Application will continue to apply to you. Opting out of the jury trial waiver, class action waiver and agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with the Company.

GOVERNING LAW

These Terms shall be governed by and defined following the laws of the State of Illinois and you irrevocably consent that the courts of the State of Illinois shall have exclusive jurisdiction to resolve any dispute which may arise in connection with these terms.

DISCLAIMER

ANY APPLICATION IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF ANY APPLICATION AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

LIMITATIONS OF LIABILITY

IN NO EVENT WILL WE OR OUR MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF ANY APPLICATION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US OR $10,000. CERTAIN U.S. STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

ELECTRONIC COMMUNICATIONS AND SIGNATURES

Completing applications, sending us emails or SMS/text messages, and completing online forms constitute electronic communications. By providing your personal information, including email address or phone number, you consent to receive electronic communications, including SMS/text messages, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email or SMS/text message, and on the Site, satisfy any legal requirement that such communication be in writing. SMS/text message and data rates may apply. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

MISCELLANEOUS

These Terms of Application and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us with respect to the subject matter hereof or thereof. Our failure to exercise or enforce any right or provision of these Terms of Application shall not operate as a waiver of such right or provision. These Terms of Application operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Application is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Application and does not affect the validity and enforceability of any remaining provisions. You agree that these Terms of Application will not be construed against us 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 Application and the lack of signing by the parties hereto to execute these Terms of Application. To the extent that any terms in these Terms of Application conflict with the terms of any definitive agreements with respect to a financing or other transaction with you, the terms of such definitive agreements shall control with respect to such financing or other transaction with you.