END USER LICENSE AGREEMENT for NEWTEK BUSINESS SERVICES, INC.
PLEASE READ THE TERMS CAREFULLY BEFORE ACCESSING, VIEWING, DOWNLOADING OR OTHERWISE USING NEWTEK ADVANTAGE.
YOU MUST BE AT LEAST 18 YEARS OF AGE AND HAVE THE FULL RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS END USER LICENSE AGREEMENT (“EULA”). THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND NEWTEK BUSINESS SERVICES, INC. (“LICENSOR”) FOR NEWTEK ADVANTAGE (AS DEFINED BELOW), INCLUDING ANY UPDATES, UPGRADES AND MODIFICATIONS TO NEWTEK ADVANTAGE THAT MAY BE PROVIDED TO YOU BY LICENSOR. ANY OTHER SOFTWARE OR CONTENT PROVIDED ALONG WITH, OR ACCESSED THROUGH, NEWTEK ADVANTAGE THAT IS ASSOCIATED WITH A SEPARATE AGREEMENT IS LICENSED TO YOU UNDER THE TERMS OF THAT AGREEMENT. LICENSOR IS WILLING TO LICENSE NEWTEK ADVANTAGE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS EULA.
BY CLICKING “I ACCEPT” AT THE END OF THIS AGREEMENT OR BY ACCESSING NEWTEK ADVANTAGE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS, VIEW, DOWNLOAD OR OTHERWISE USE NEWTEK ADVANTAGE.
IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION BY LICENSOR TO ACCESS, VIEW, DOWNLOAD OR OTHERWISE USE NEWTEK ADVANTAGE. IN SUCH CASE, PLEASE CLICK “I REJECT” AND PROMPTLY RETURN AND/OR DELETE ANY MATERIALS RELATED TO NEWTEK ADVANTAGE, IF ANY, THAT YOU HAVE RECEIVED FROM LICENSOR OR THAT YOU OTHERWISE HAVE IN YOUR POSSESSION.
NEWTEK ADVANTAGE IS A VALUABLE AND PROPRIETARY ASSET OF LICENSOR. YOU ARE HEREBY NOTIFIED THAT ANY VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY RESULT IN DIRECT AND CONSEQUENTIAL DAMAGES TO THE LICENSOR FOR WHICH YOU MAY BE HELD LIABLE.
The “Effective Date” of this EULA is the date you first access, view, download or otherwise use any or all of NEWTEK ADVANTAGE (as defined below).
1. GRANT OF LICENSE. Licensor grants you, during the term of this EULA, a personal, non-exclusive, non-transferable right and license to access and use for business purposes in accordance with the terms and conditions of this EULA (a) Licensor’s proprietary operating platform NEWTEK ADVANTAGE, as it is provided for use by Licensor on its website and affiliated websites (“Licensor’s Sites”), as the same may be updated, modified, revised and upgraded and made available to you by Licensor from time to time (the “Licensed Content”), from any location providing access to the Licensor’s Sites; and (b) any printed or electronic copy of any documentation for the Licensed Content provided by Licensor on Licensor’s Sites (“Documentation”) (the Licensed Content and Documentation are sometimes collectively referred to as “NEWTEK ADVANTAGE” in this EULA).
2. OWNERSHIP. You have no ownership rights in NEWTEK ADVANTAGE. Rather, you have a license to access and use NEWTEK ADVANTAGE as long as this EULA remains in full force and effect. Ownership of NEWTEK ADVANTAGE and all intellectual property rights related to NEWTEK ADVANTAGE shall remain at all times with Licensor. Any other use of NEWTEK ADVANTAGE by any other individual or entity is strictly forbidden and is a violation of this EULA.
3. RESTRICTIONS.You may not sell, lease, assign, grant, transfer or otherwise make available for the benefit of others, access to or use of NEWTEK ADVANTAGE. You may not reverse engineer, decompile, disassemble, translate or derive the source code of NEWTEK ADVANTAGE. You may not modify, enhance, add on to, or create derivative works of NEWTEK ADVANTAGE. You may not copy or duplicate by any means, in whole or in part, NEWTEK ADVANTAGE. You may not publish, distribute or publicly display NEWTEK ADVANTAGE or any portion thereof. This EULA does not grant you any rights in connection with any trademarks or service marks of NEWTEK ADVANTAGE or Licensor. This EULA will automatically terminate without notice upon a violation of this Section 3.
4. COPYRIGHT. NEWTEK ADVANTAGE contains material that is protected by U.S. copyright and trade secret law and by international treaty provisions and is the subject of a pending patent. You may not remove any proprietary notice of Licensor or any of its licensors from any of the Licensed Content, printouts generated from the Licensed Contentor any printed copy of the Documentation. You must reproduce and include any such proprietary notices on any printed copy of the Documentation.
5.AUTHORIZATIONS. You hereby authorize Licensor to obtain all information related to products and services you have procured through Licensor or any of its affiliates and to make such information available to you through NEWTEK ADVANTAGE, and you likewise authorize Licensor and its affiliates to make such information available to Licensor for your use through Newtek Advantage. Furthermore, to the extent you use NEWTEK ADVANTAGE to access information from any third-party, you hereby authorize Licensor to access such information and to make such information available to you through NEWTEK ADVANTAGE, and you authorize the third party to make such information available to Licensor for your use through Newtek Advantage.
6. NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED AND STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEWTEK ADVANTAGE IS PROVIDED “AS IS” AND WITH ALL FAULTS. ANY USE OF NEWTEK ADVANTAGE BY YOU IS AT YOUR OWN RISK. LICENSOR DOES NOT WARRANT THAT NEWTEK ADVANTAGE SHALL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF NEWTEK ADVANTAGE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED OR THAT NEWTEK ADVANTAGE WILL BE COMPATIBLE WITH ANY PARTICULAR TECHNOLOGY PLATFORM. LICENSOR DOES NOT WARRANTY THAT NEWTEK ADVANTAGE WILL BE FREE OF ANY THIRD-PARTY MALWARE. IF AND TO THE EXTENT THIS SECTION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ANY EXPRESS AND/OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE EFFECTIVE DATE, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
7. LIMITATION OF LIABILITY; INDEMNIFICATION. To the maximum extent permitted by applicable law, in no event shall Licensor be liable for any direct, indirect, incidental, special, consequential or punitive damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use or access NEWTEK ADVANTAGE, including without limitation the unauthorized access or use of any confidential, sensitive and/or personal information through NEWTEK ADVANTAGE, even if Licensor has been advised of the possibility of such damages. In any case, Licensor’s entire liability under any provision of this EULA shall be limited to the greater of the amount actually paid by you for the use of the Licensed Content or Fifty Dollars ($50.00).
You agree to indemnify, defend, and hold harmless Licensor and its stockholders, affiliates, successors, assigns, officers, directors, employees, agents and representatives, from and against any and all actions, suits, proceedings, investigations, demands, claims, judgments, liabilities, obligations, liens, losses and damages and any related fees and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to your use of NEWTEK ADVANTAGE, including without limitation the unauthorized access or use of any confidential, sensitive and/or personal information through NEWTEK ADVANTAGE, or your violation of the terms and conditions of this EULA.
8. TERM AND TERMINATION.This EULA is effective until it is terminated. Licensor may terminate this EULA at any time for any reason whatsoever, including but not limited to a determination by Licensor that you have violated any of the terms of this EULA. Upon notification of termination, you agree to immediately discontinue all use of NEWTEK ADVANTAGE, or any portion thereof. Termination of this EULA will not terminate any other agreements between you and Licensor or any its affiliates, including those agreements pursuant to which you procured any other products or services from Licensor or any of its affiliates. This EULA will also automatically terminate without notice upon a violation of Section 3 or upon a transfer of any of your rights under this EULA contrary to the terms and conditions set forth herein, and any such transfer shall be void as if such transfer never occurred. All provisions relating to ownership, copyright, warranties, confidentiality, indemnification and limitation of liability shall survive the termination of this EULA.
9. OTHER TERMS. This EULA is governed by the laws of the State of New York without regard to its conflict of laws principles as it may exist on the Effective Date or be subsequently amended. The exclusive forum for any disputes arising out of or relating to this EULA shall be any federal or state court sitting in the in the State of New York. Your use of NEWTEK ADVANTAGE shall comply with all applicable laws and regulations. This EULA, including the Important Notices at the beginning of the EULA, shall constitute the entire agreement between you and Licensor. This EULA, the rights granted hereunder and NEWTEK ADVANTAGE shall not be assigned by you without the prior written consent of Licensor. Any waiver or modification of this EULA shall only be effective if it is in writing and signed by both you and Licensor. The captions and headings used in this EULA are used for convenience only and are not to be given any legal effect. If any provision of this EULA is found invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified with retroactive effect to render such provision valid and enforceable to the maximum extent permissible so as to effect the intent of the parties hereto, and the remainder of this EULA shall continue in full force and effect.