Revised on May 24, 2022.
These Terms of Use (“Terms” pertain to the website maintained at www.lendzero.com (the “Site”) operated by Upperdeck Consulting LLC d/b/a Lendzero (“Upperdeck”, “us”, “we” or “our”). By accessing this Site, you agree to all the terms of conditions of these Terms. This is a legal agreement between you and Upperdeck. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE SITE.
Upperdeck is not a lender or a broker. Upperdeck is a marketing service that provides information about the services offered by a marketplace provider, Loanspark, LLC (the “Marketplace Provider”). Not all merchants who pursue potential funding through the Marketplace Provider will be matched with a potential funding source. Further, not all merchants will qualify for pre-negotiated financing offers. This Site offers you general information about the Marketplace Provider’s offerings and allows you to either make further inquiry through us, or allows you to link to our Marketplace Provider’s website to pursue potential funding sources further.
THE SITE IS INTENDED FOR THE EXCLUSIVE USE OF BUSINESSES AND THEIR PERSONNEL, AND NOT INTENDED FOR CONSUMER AND/OR PERSONAL USE. BY USING THE SITE AND/OR RESOURCES, YOU REPRESENT AND WARRANT THAT YOU ARE OVER THE AGE OF 18 OR THE AGE OF MAJORITY IN YOUR JURISDICTION.
Upperdeck offers services to businesses located in the United States. Our services and our Site are not intended for individuals for their personal use, nor are they intended for businesses located outside of the United States. Upperdeck makes no representations that content and materials on the Site or the resources are legal or appropriate for use from outside the United States nor does Upperdeck represent that the Privacy Policy is consistent with requirements outside the United States. IF YOU CHOOSE TO ACCESS THE SITE FROM LOCATIONS OUTSIDE THE UNITED STATES, YOU DO SO AT YOUR OWN RISK and are responsible for compliance with any and all local laws. You may not use the Site or the resources in violation of U.S. export laws and regulations.
These Terms state that any disputes between you and Upperdeck that are not otherwise waived pursuant to the terms of this agreement must be resolved in binding arbitration, that you, to the fullest extent allowed by law, waive the right to participate in any class action, and that the law of the Commonwealth of Massachusetts and the Federal Arbitration Act apply to all interactions between you and your business and Upperdeck.
Please check these Terms periodically for changes. Upperdeck reserves the right, in its sole discretion, to change, modify, add or remove portions of these Terms. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. Please see the beginning of the Terms to determine when the Terms were last revised.
See our Privacy Policy, incorporated herein by reference, for complete information relating to the collection and use of personal information; however as noted above, we are a business-to-business service.
All text, graphics, user interfaces, visual interfaces, photographs, trademarks (whether registered or not), logos, sounds, artwork of any kind, and computer code (collectively, “Content”), including but not limited to the design, structure, coordination, selection, appearance, and arrangement of the Content, contained on the Site is owned by Upperdeck and/or its licensors, and is protected by trade dress, copyright, trademark, and other property laws and unfair competition laws. Any misuse of the Content will be at your peril and Upperdeck and/or the licensors will do all that is lawful to enforce and protect their respective Content.
You, on behalf of yourself, and your business agree to the following:
a. Information Submitted. The Site has a “contact us” page whereby you can enter your business information for contact by Upperdeck. You are solely responsible for and assume all liability regarding (i) any information you provide through your use of the Site (iii) your interaction with any and all third parties.
b. Legal Purpose. You agree to not use the Site for any illegal purpose. You will only use the Site in accordance with United States’ federal, state and local laws.
c. Business Purpose. You agree to only use the Site for a bona fide business purpose. You agree not to use the Site for personal, family or household purposes. You may not use the Site to obtain information about or make decisions about anyone but yourself for your business, and as the authorized representative acting on behalf of your business.
d. Prohibited Activities. You may use the Site for only lawful purposes and in accordance with these Terms of Use. You may not access or use the Site for any purpose other than that for which Upperdeck makes the Site available.
You agree not to:
a. Ownership of Proprietary Information. You hereby acknowledge and agree that Upperdeck and/or its licensors are the owners of all rights in and to the Site. Federal, state, and local laws and regulations protect these proprietary rights. You are permitted to use the Site only as expressly authorized by these Terms. You may not copy, reproduce, distribute or create derivative works, reverse engineer or reverse compile any of the Site or technology.
b. No Use of Confidential Information. You will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce in any way any (i) confidential information of Upperdeck or any third party or (ii) other copyrighted material, trademarks, or other proprietary information accessible via the Site, without first obtaining the prior written consent of the owner of such proprietary rights.
a. Privacy Policy. For information about the collection and possible use of information and material provided by you, on behalf of yourself and your business, please visit Upperdeck’s Privacy Policy located on the Site https://www.lendzero.com/legal-agreements/privacy-policy . By using the Site, you are consenting to the terms of Upperdeck’s Privacy Policy. If you do not agree with the Privacy Policy, which forms a part of your agreement with Upperdeck, then you should immediately stop using this Site.
b. Disclosure by Law. You acknowledge and agree that Upperdeck may disclose information you provide if required to do so by law, or if Upperdeck, in its sole discretion, believes that disclosure is reasonable or appropriate to (i) comply with the law, requests or orders from law enforcement, or any legal process (whether or not such disclosure is required by applicable law); or (ii) protect or defend Upperdeck’s and/or a third-party’s rights or property.
c. Use of Anonymous, De-Identified Information for Research. By using the Site, you agree to allow Upperdeck to anonymously use the information from you to continue Upperdeck’s research into successful business practices.
e. License Regarding Your Information. You retain all ownership interest in and to any contact information you provide regarding your business, its principals and yourself that you provide on the Site’s collection page. However, by submitting your content, including your business information, you hereby grant to Upperdeck a non-exclusive, royalty-free license to contact you for informational purposes. You further understand that this information will be processed on Upperdeck’s behalf by third parties that help to operate and maintain this Site. As part of its operation and maintenance of the Site, Upperdeck may transmit or distribute your information over various public networks and in various forms, subject to the terms of this Agreement, including the Privacy Policy.
The Site may contain links to websites of third parties, and Upperdeck is not responsible for the content of any linked site or any link contained in a linked site, or any changes or updates to such websites. Upperdeck provides these links to you as a convenience, and the inclusion of any link does not imply that Upperdeck endorses or accepts any responsibility for the content on such third-party websites. Your correspondence or business or other dealings with third parties found on or through the Site are solely between you and such third-party.
Note that if you choose to pursue the services offered by the Marketplace Provider through its white labeled portal located at portal.lendzero.com provided for Upperdeck’s merchants, please refer to the terms of use and privacy policy applicable thereto.
a. No Warranties. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. UPPERDECK PROVIDES THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SITE (INCLUDING ALL INFORMATION CONTAINED HEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
b. Third-Party Content. Opinions, advice, statements, offers, or other information or content made available through the Site but not directly by, or at the direction of, Upperdeck, are those of their respective authors, and should not necessarily be relied upon without you independently verifying and vetting the same. Such authors are solely responsible for such content. UPPERDECK DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE SITE, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN BY UPPERDECK. UNDER NO CIRCUMSTANCES WILL UPPERDECK BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE.
TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL UPPERDECK BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA, AND SERVICE INTERRUPTIONS, EVEN IF UPPERDECK KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT ALLOWED BY LAW, UNDER NO CIRCUMSTANCES WILL UPPERDECK’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS TERMS EXCEED THE AMOUNT OF USD $20.00.
You agree to indemnify, defend and hold harmless Upperdeck, and its members, managers, officers, directors, shareholders, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) your use of or inability to use the Site, (ii) any information provided by you, (iii) your violation of any of these Terms or your violation of any rights of a third-party, (iv) your violation of any applicable laws, rules or regulations. Upperdeck and/or any other indemnified party reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Upperdeck or the applicable indemnified party in asserting any available defenses.
In the interest of resolving disputes between you and Upperdeck in the most expedient and cost-effective manner, you and Upperdeck agree to resolve disputes that are not otherwise waived pursuant to the terms of this Agreement through binding arbitration instead of in courts of general jurisdiction (“Agreement to Arbitrate”). Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, condenses discovery, and is subject to very limited review by courts. Arbitrators can usually award the same damages and relief that a court can award. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. You acknowledge and agree that the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that individual party’s claim(s). Any relief awarded cannot affect other users. By accepting these Terms, you acknowledge that the arbitration and class action waiver provisions are material terms and that Upperdeck is relying on your acceptance of terms in entering into this Agreement.
YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, YOU AND UPPERDECK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
a) Claims To Be Resolved by Binding Arbitration. You and Upperdeck agree to arbitrate all disputes and claims between you and Upperdeck that are not otherwise waived pursuant to the terms of these Terms. This agreement to arbitrate is intended to be broadly interpreted. It includes but is not limited to: claims arising out of or relating to any aspect of the relationship between you and Upperdeck, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before this or any prior Terms; claims that are currently the subject of purported class action litigation in which you are not a member of a certified class.
b) Exceptions. Notwithstanding Section 12(a), you and Upperdeck agree that no statement herein shall be deemed to waive, preclude, or otherwise limit either party’s right to file suit in a court of law to address intellectual property infringement claims.
c) Arbitrator. Any arbitration between you and Upperdeck will be by the Commercial Dispute Resolution Procedures (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA, and judgment on the award rendered by the arbitrator(s) may be entered in any court having competent jurisdiction. The arbitration will be conducted by a single arbitrator selected pursuant Rule R-12 of the AAA Rules. The AAA Rules and filing forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.
d) Notice and Process. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Upperdeck should be addressed to:
Upperdeck Consulting, LLC
607 Boylston Street, Suite #196
Boston, MA 02116
888-270-6011
legal@myupperdeck.com
The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and Upperdeck do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Upperdeck may commence an arbitration proceeding.
e) If your claim is for $10,000 or less, Upperdeck may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules.
Any in-person arbitration hearings will take place at a location in Boston, Massachusetts. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f) No Class Actions. Unless both you and Upperdeck agree otherwise, and except as otherwise proscribed by law, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
YOU AND UPPERDECK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
g) Modifications. If Upperdeck makes any future change to this Agreement to Arbitrate (other than a change to the Notice Address), you may reject any such change by sending Upperdeck written notice within 30 days of the change to the Notice Address provided above. You acknowledge and agree that, in the event you reject any future change, you will cease to use this Site and you will arbitrate any dispute between you and Upperdeck in accordance with the language of this provision.
h) Severability and Enforceability. If an arbitrator or court decides that any part of this Section 12 is invalid or unenforceable, the other parts of this Section 12 shall still apply. If the entirety of this Section 12 is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 15(a) shall govern any action arising out of or related to these Terms, and that the remainder of the Terms will continue to apply.
a. Call Recording and Monitoring. You acknowledge that telephone calls to or from Upperdeck, together with its agents and affiliates, may be monitored and recorded and you agree to such monitoring and recording.
b. Providing Telephone Numbers and Other Contact Information. You verify that any contact information that you choose to provide to Upperdeck, including, but not limited to, your name, business mailing address, business email address, or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify Upperdeck before the change goes into effect by replying STOP to any text message you receive from Upperdeck, by calling Upperdeck at 888-270-6011 notifying Upperdeck in writing by sending such notification via email to support@myupperdeck.com.
c. Your Consent to Receive Automated Calls/Texts. You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive artificial voices, prerecorded voice messages, and/or autodialed calls and text messages (such as SMS, MMS, or successor protocols or technologies) from Upperdeck, and third parties acting on its behalf. You should only provide business points of contact to avoid unwanted calls to your home and/or to your personal devices. The numbers you provide to Upperdeck will only be used by Upperdeck, and/or the Marketplace Provider, as further disclosed to you at the time you elect to provide your points of contact. You agree that Upperdeck may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you or your representative at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. If you have provided your contact information, you agree to receive automated calls and text messages from Upperdeck, except if you opt-out (see below). You understand that you do not have to enter your contact information or agree to receive automated calls/texts. If you change your mind and no longer consent, you may opt-out, please see the Opt-Out Instructions below.
You, on behalf of yourself, your business and your business’ other principals acknowledge that such communications are informational communications and are not made for the purpose of consumer telemarketing. Upperdeck (and/or any person or entity acting on Upperdeck’s behalf) may use such means of communication even if the You, your business and/or your business’ other principals will incur costs to receive such telephone messages, telephone calls, SMS or text messages, emails, or other means.
Opt-Out Instructions. Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, reply STOP to any text message you receive from Upperdeck. You may also text HELP for help. You acknowledge and agree to accept a final text message confirming your opt-out. Upperdeck may use different shortcodes and 10-digit-long-codes for different messaging purposes, so texting STOP to one shortcode or 10-digit-long-code will not effectuate a stop request for all shortcodes or 10-digit-long-code to which you are subscribed. If you would like to stop messages from multiple shortcodes and/or 10-digit-long-codes, reply STOP to each shortcode and 10-digit-long-code to which you would like to unsubscribe. Alternatively, you may email Upperdeck at optout@myupperdeck.com advising that you want to opt out of text messages and specifying the phone number(s) for which that opt-out should apply. To opt-out of automated voice calls (not text messages), you must (i) provide Upperdeck with written notice revoking your consent to receiving automated calls; (ii) in that written notice, you must include your full name, mailing address, and the specific phone number(s) for which you wish to stop automated calls; and (iii) send this written notice to optout@myupperdeck.com. It is your sole responsibility to notify Upperdeck if you no longer want to receive automated calls or text messages. To the fullest extent allowed by law, you waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request.
d. Fees and Charges. There is no fee to receive automated telephone calls or text messages from Upperdeck. However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Message and data rates may apply. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Upperdeck is not responsible for such charges.
e. Unauthorized Use of Your Telephone Device. You must notify Upperdeck immediately of any breach of security or unauthorized use of your telephone device. Although Upperdeck will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for Upperdeck’s losses due to such unauthorized use.
f. Your Indemnification to Upperdeck. You agree to indemnify Upperdeck for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, including claims relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify Upperdeck of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold Upperdeck, its members, managers, shareholders, officers, directors, employees, agents and representatives harmless from and against any and all such claims, losses, liabilities, costs and expenses (including reasonable attorneys’ fees). Upperdeck shall have the exclusive right to choose counsel, at your expense, to defend any such claims.
g. Release of Claims. To the fullest extent allowed by law, in consideration for you accessing and availing yourself of the information and services provided by this Site, you hereby release Upperdeck from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms resulting from or relating to telephone calls or text messages, including without limitation any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
h. General. You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service providers, mobile service, and other services needed to receive calls and text messages. Text messaging may only be available with select carriers with compatible handsets. Your obligations under this Section will survive termination of these Terms of Use.
This Agreement will become effective upon your acceptance of the Terms of Use by clicking to confirm your acceptance when you first visit this Site and will remain in effect and govern your use of the Site, and your and Upperdeck’s rights and obligations hereunder.
a. Controlling Law and Jurisdiction. You agree that Massachusetts law (without giving effect to its conflicts of law principles) will govern these Terms and the Site and that any dispute arising out of or relating to these Terms and the Site, if not resolved by binding arbitration, will be subject to the exclusive jurisdiction and venue of the federal and state courts in the Commonwealth of Massachusetts, County of Middlesex, to which exclusive jurisdiction you and Upperdeck agree to submit. Further, you agree to waive any claim of inconvenient forum. You acknowledge and agree that any violation of these Terms may cause Upperdeck irreparable harm, and therefore agree that Upperdeck will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Upperdeck may have for a breach of these Terms. For the avoidance of doubt, Upperdeck may seek this recourse through the binding arbitration process, or before courts of the Commonwealth of Massachusetts, County of Middlesex.
b. Miscellaneous. These Terms and the Privacy Policy, and any terms and agreements incorporated herein by reference, comprise the entire agreement between you and Upperdeck regarding the use of this Site, superseding any prior agreements between you and Upperdeck related to your use of this Site (including, but not limited to, any prior versions of this Terms). The FAQ’s found on the Site are for informational purposes only and are not deemed to be part of the Terms. The failure of Upperdeck to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. If any provision of these Terms is held invalid, the remainder of the Terms will continue in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and have no legal or contractual effect.
In order to resolve a complaint regarding the Site or to receive further information regarding the use of the Site, please contact Upperdeck at:
Upperdeck Consulting, LLC
607 Boylston Street, Suite #196
Boston, MA 02116
888-270-6011
legal@myupperdeck.com
