360 Payments – Merchant CFP Terms and Conditions
These Terms & Conditions (“Terms”) govern your access and use of the consumer finance platform (“CFP”) offered by 360 Payment Solutions, LLC (“360P”), which CFP facilitates your (or your customer’s) access and use of certain third party consumer financing and lending services (the “Financing Services”). By accessing or using the CFP, you accept all term and conditions contained in these Terms. YOU MAY NOT ACCESS OR USE THE CFP OR THE FINANCING SERVICES IF: (A) YOU ARE NOT AT LEAST 18 YEARS OLD; OR (B) YOU DO NOT AGREE TO BE BOUND BY AND SUBJECT TO ALL OF THE PROVISIONS CONTAINED IN THESE TERMS.
1. Platform. The CFP is designed to connect you and your customers with third party providers of Financing Services. The CFP and 360P’s role with respect thereto is solely to provide a convenient and consolidated platform on which you and your customers may interact with, access, apply for, and potentially receive Financing Services. All operations and provision of the Financing Services are provided by those third party banks, lenders, and other financial institutions identified in the CFP (the “Providers”), which such Providers may change from time-to-time based on any given bank’s, lender’s, financial institution’s, or other Provider’s election to participate in the CFP. 360P IS NOT PROVIDING ANY FINANCING SERVICES, AND THE CFP IS SOLELY FOR THE CONVENIENCE OF YOU AND YOUR CUSTOMERS. YOU ARE FREE TO, AND YOUR CUSTOMERS ARE FREE TO, APPLY FOR FINANCING SERVICES DIRECTLY WITH ANY PROVIDER OR OTHERWISE OBTAIN FINANCING SERVICES FROM ANY PERSON DIRECTLY OR BY USING A SEPARATE WEBSITE OR SERVICE THAT PROVIDE CONSOLIDATED ACCESS TO FINANCIAL INSTITUTIONS.
2. Separate Agreements. The Providers will require you to agree to and accept the agreements, terms, and conditions such Providers set forth with respect to your access to, ability to submit applications for, acceptance of, use of, and other interaction with the Financing Services offered by such Providers over the CFP. In order to access or use the Financing Services of any Provider, you will be required to agree to and accept such agreements, terms, and conditions required by such Provider. 360P may condition your access or use of the CFP on your acceptance of all agreements, terms, and conditions required by each of the Providers. Your agreement with the relevant Provider will govern your use of the Financing Services, any loans, advances, or other borrowings in connection therewith, and your interaction with such Provider, 360P will have no responsibility or liability associated with any such agreement, or any related terms, conditions, or obligations, and will have no obligation or duty with respect thereto. You will look solely to the Provider with respect to any discrepancies, concerns, issues, disputes, litigation, losses, damages, or other claims arising with respect to the Financing Services.
3. Integration. The CFP is offered through integrations with various third party software providers and vendors that have integrated with 360P’s software solutions and have elected to support or offer the CFP (“Participating Vendors”). 360P will have no responsibility for any error, failure, loss, damage, or other issue arising from or in connection with the integration and you will look solely to the Participating Vendor with respect thereto.
4. Marketing. Occasionally 360P may facilitate marketing or promotional efforts provided by one or more Providers. Such marketing or promotional efforts (including without limitation any advertisements, promotions, solicitations, offers, or other marketing materials or events) are subject to the terms, conditions, and requirements of the relevant Providers and 360P makes no representation, warranty, or guaranty as to the accuracy thereof or the compliance thereof with respect to any requirements that may be associated with such marketing or promotional efforts. You will look solely to the relevant Provider with respect to any or all such marketing and promotional communications and materials and 360P will have no responsibility or liability therefore. You are responsible for, and encouraged to, conduct adequate due diligence on each Provider that you elect to engage with using the CFP and the terms, conditions, and obligations associated therewith.
5. Compliance. The CFP functions as an aggregation of various offers from and opportunities from various Providers, similar to other websites and services pursuant to which users are able to search for, filter through, and identify potential lenders. As such, the CFP is merely a communication platform and all offers and opportunities are provided directly by the relevant Provider. CFP makes no representation or warranty with respect to the compliance of the Financing Services or any offers or opportunities with respect thereto, and such compliance is the sole responsibility of the Provider. By accessing and using the CFP, for yourself or on behalf of any other person or entity, you agree to fully comply with, and ensure each such other person or entity complies with, all applicable laws, rules, and requirements. You will not market, advertise, promote, solicit for, or otherwise utilize or permit to be utilized the Financial Services in any manner that is in violation of any applicable law, rule, regulation, or other requirement, including without limitation any lending laws, or in any manner that would require any license, permit, approval, or other consent from any governmental or regulatory authority.
6. Restrictions. You will not: (a) sell or transfer your access to the CFP; (b) allow third parties to access any information transferred via the CFP or the API or other tools used in connection with the CFP; (c) use the CFP or any page in which information is displayed regarding the CFP or any financing program to collect any information, including personal data; (d) use your access to the CFP in violation of any applicable law, rule, regulation, or other requirement; (e) modify or amend any application form, agreement, or other document or instrument related to the CFP or any loan, financing, or other Financing Services without the prior written consent of 360P and the applicable Provider(s), and all such materials will be presented and returned solely in the manner designated by the applicable Provider (as communicated by 360P from time to time); (f) use or display any trademarks or other intellectual property of 360P or a Provider without the prior written consent of 360P or such Provider and, upon the revocation of any such consent, shall immediately cease all use and display of such trademarks and other intellectual property rights; (g) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the CFP or Financing Services, whether in whole or in part, or any content displayed on or accessible through the Financing Services, except as expressly permitted by 360P in writing; (h) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the CFP or the Financing Services; (i) build a similar or competitive product or service as the CFP or Financing Services; or (j) copy, reproduce, distribute, republish, download, display, post, or transmit the CFP or Financing Services except as explicitly authorized by 360P in writing.
7. Information Protection. To the extent any CFP information is gathered, collected, stored, transmitted, or otherwise obtained by you or as a result of the software or systems you use (including without limitation Confidential Information), you will ensure you have and at all times maintain an information security program sufficient to prevent any such information from being accessed, used or disclosed other than for purposes of the CFP. You shall promptly notify 360P of any actual or reasonably suspected breach in information security or unauthorized access involving: (a) personally identifiable information of any applicant or borrower; (b) any software, products, databases, networks, storage, transmissions, or other systems or technology you use or provide; or (c) otherwise originating from or in connection with you or your software or hardware. You agree that you will reasonably cooperate with 360P in investigating any such breach or unauthorized access. With respect to any such breach in data security, you agree to take action promptly, at your own expense, to investigate any breach, to identify, mitigate and remediate the effects of any breach and to implement any other reasonable and appropriate measures in response to any breach. You will also provide 360P and each applicable Provider with reasonable information regarding any breach to assist 360P and each Provider in implementing an information security response program and, if applicable, in notifying affected applicants or borrowers. You shall pay for the costs of any such notification, which notification shall be subject to the prior written consent of 360P and the applicable Providers.
8. Complaints and Investigations. You will notify 360P if you becomes aware of any inquiries, investigations, proceedings, or questions (whether verbal or written, formal or informal) by any state attorney general, regulatory authority, governmental figure, the better business bureau, or similar organization, or any customer complaint that is directed or referred to any state attorney general or similar organization, relating to the CFP or any aspect of any lending or program offered through the CFP (including without limitation the offering of any Provider) within five business days of becoming aware of the foregoing. You will provide 360P with all documentation related to the foregoing. You agree to submit to any examination of the CFP or any program or materials associated with the CFP that may be required by a regulatory authority during regular business hours and upon reasonable prior notice (or otherwise, if required by the applicable regulatory authority) and to otherwise cooperate with 360P and each Provider in responding to any regulatory authority’s inquiries and requests. You shall cooperate in good faith at 360P’s request to permit 360P or any Provider to resolve or address any investigation, proceedings, or regulatory complaint or consumer compliant.
9. Representations and Warranties. You represent, warrant, and covenant to 360P as follows:
(a) You are duly organized, validly existing, and qualified and authorized to enter into these Terms and any amendments thereto. You will promptly notify 360P of any direct change in ownership, location, dissolution, insolvency, direct merger, or conversion, but in any event no later than 30 days after such occurrence.
(b) All approvals, authorizations, consents, permits, licenses, and other actions by, notices to, and filings with any person, entity, or governmental authority required to be obtained for the execution, delivery, and performance of these Terms by you have been obtained and will be maintained for the period of time necessary to ensure the foregoing remains true and correct in all respects.
(c) You will promptly provide any information regarding or held by you that is required by 360P or the Providers for purposes of enabling or providing the CFP or the Financing Services. All information that you provide to 360P and the Providers will be true, correct and complete in all respects and will not be presented in any manner that is misleading. You authorize the Providers and 360P to obtain business and personal credit reports on you, as applicable.
(d) There are no pending or threatened legal proceedings or investigations by or against you that would materially or adversely affect, restrict, or prohibit your performance of these Terms, and you will promptly notify 360P of any pending or threatened legal proceedings or investigations that would adversely affect, restrict, or prohibit your performance of these Terms.
(e) Any and all software and systems used by you in connection with the CFP and any software licensed by or to you, if any, and the use thereof as contemplated herein, does not violate or infringe upon, or constitute an infringement or misappropriate of, any U.S. patent, copyright, or U.S. trademark, service mark, trade name, trade secret, or other intellectual property or proprietary right of any person or entity.
(f) You are, and will remain, compliant with all laws, rules, regulations, requirements, and obligations applicable to you and your business and operations.
10. Review. 360P and each Provider will have the right to periodically review the CFP offerings and materials associated therewith, and you shall cooperate with any such review.
11. Function. In furtherance of, and not in lieu or limitation of, the foregoing provisions, the CFP will be run such that 360P is solely providing an interface between you, applicable customers, and the Providers, pursuant to which you or your customer may apply for financing from the Providers. Under no condition will: (a) 360P be deemed as having provided, solicited, marketed, or offered, loans or other financing (other than financing for 360P’s own products or services) to you or customer or otherwise having acted as a lender, broker, dealer, loan referrer, solicitor, or similar business, all of which shall be done and performed solely by the Providers; (b) you provide, solicit, market, or offer, loans or other financing (other than financing for your own products or services) to any customer or otherwise act as a lender, broker, dealer, loan referrer, solicitor, or similar business, all of which shall be done and performed solely by the Providers. Loans, if provided, will be provided by or through, and at and in the sole discretion of, the Providers, and any loan or application for financing or other Financing Services may be approved or rejected by the Providers in their sole and absolute discretion. Each loan and other financing will be governed by the agreements entered into by and between the Provider, on the one hand, and you and/or the borrower, on the other hand, and in no event will 360P be liable for any obligations, terms, rights, covenants, breaches, omissions, errors, illegal acts, or other issues, actions or disputes arising out of or relating to any such loan or financing. The information collected through the CFP is routed to the applicable Providers with respect to any submission, application, or interaction with the Financing Services, and you represent and warrant that you are authorized to deliver all such information to 360P and that 360P is authorized to deliver all such information to the Providers and all other relevant vendors, and with respect to each of the foregoing authorizations they have been obtained from all relevant customers, applicants, or other persons to whom such information belongs or about whom such information relates and no such authorizations have been revoked in any manner.
12. Cessation of Services. These Terms, as modified from time-to-time, will remain in effect at all times during your use of or access to the CFP and indefinitely thereafter with respect to all prior use of or access to the CFP. 360P may discontinue provision of the CFP at any time and for any reason in 360P’s sole discretion, with or without notice. You may cease using the CFP at any time upon written notice to 360P. Cessation of your use of the CFP will not limit any of your liability or obligations arising pursuant to these Terms or any agreements or arrangements that are entered into between you and any third party (including without limitation any Provider). Any Provider may cease providing, or may modify or adjust the provisions and terms of, any or all Financing Services at any time with or without notice. Any Provider may elect not to provide Financing Services to any person or entity for any reason.
13. Indemnification and Limitation on Liability. You agree to defend, indemnify, and hold harmless 360P, the Providers, their affiliates, and the officers, directors, members, managers, employees, representatives, shareholders, agents, and attorneys of each of the foregoing from and against any and all claims, actions, liability, judgments, damages, costs, fees, fines, expenses, penalties, assessments, and other obligations of any nature, including without limitation attorneys’ fees and court costs, that arise from or are related to: (a) your breach of these Terms (including without limitation any representation, warranty, or covenant herein); (b) the actual or alleged violation of any third party’s intellectual property rights or other proprietary rights by you or as a result of any of your software, services, systems, processes, or materials; (c) any violation of applicable law or any rule, regulation, or requirement applicable to you; (d) the unauthorized access or use of any personally identifiable or confidential information by, from, or through you or as a result of your access, use, storage, or disclosure (whether intended or unintended) of the foregoing; (e) any malfunction, error, omission, failure, or unauthorized access or use of your software or systems; and (f) any negligence, misconduct, or fraud by you or your employees, officers, agents, or representatives. In no case shall 360P’s total aggregate liability with respect to the CFP and the Financing Services exceed the lesser of (i) the amount paid by 360P to you for your use of and participation in the CFP and Financing Services or (ii) one thousand dollars ($1,000). In no event will 360P have any liability with respect to the actions, decisions, agreements, arrangements, products, circumstances, services, contracts, or agreements of any third party, including without limitation of any borrower, Provider, you, or any other person and, in furtherance of the foregoing, in no event will 360P have any liability with respect to any loan, financing, or other product or service provided by any Provider using the CFP. The foregoing indemnification obligations and limitations on liability are material inducements to 360P to enter into this arrangement and make the CFP available, and 360P would not have made the CFP or Financing Services available to you without the foregoing provisions.
14. Confidentiality. In addition to all other confidentiality obligations, you will use all information about or related to the CFP, including without limitation the programs and Financing Services offered through the CFP, the documentation, instructions, software, and other integration information associated with the CFP, the names, contact information, and pricing of the Providers, the terms pursuant to which loans or other financing services are provided, the information collected through or in connection with the CFP from any person or entity, all borrower information, all customer information, and all other information associated with the CFP, 360P, and the Providers, including without limitation business plans, product ideas, marketing concepts, financial information, projections, CFP specific screenshots, demos, methods, processes, procedures, and functions (collectively “Confidential Information”) confidential and will not use or disclose the Confidential Information other than to your employees, subject to equally restrictive confidentiality obligations, that need to know such information to enable you to perform your obligations pursuant to the Terms. You will immediately notify 360P of any breach of the confidentiality or information security obligations set forth in these Terms. Upon any cessation of use of the CFP or Financing Services, you shall return to 360P or securely destroy all Confidential Information in your possession or control. In addition to all other rights and remedies available, you acknowledge and agree that the unauthorized access or use of Confidential Information will cause irreparable harm and significant injury, which may be difficult to ascertain, and thus 360P shall be entitled to equitable relief (including without limitation an immediate injunction enjoining any breach of this Section 14) in addition to all other remedies available at law or in equity.
15. Modification and Discontinuation. Any Provider may, or 360P may, at any time and without prior written notice, modify or discontinue the CFP or the Financing Services, in whole or in part, in each case in their sole discretion.
(a) Entire Agreement. These Terms set forth the entire understanding between you and 360P relating to the subject matter herein and supersedes any other agreement relating to such subject matter. These Terms do not amend or replace any agreement or arrangement between you and any Provider or other third party and do not amend or replace any merchant agreement or agreement or arrangement you may have with 360P for payment processing services or any other services.
(b) Amendment. 360P may amend these Terms at any time in its sole discretion by (a) posting the update to these Terms on its website or (b) otherwise providing you notice of any such amendment, including without limitation notice on any statement, bill, email, or other communication that such amendment has occurred. It is your responsibility to check the then-current version of these Terms on 360P’s website or portal prior to any use of the CFP or Financing Services. Amendments generally occur if: (a) an amendment is required to comply with applicable law or the rules; or (b) an amendment is required to reflect a change to an agreement between 360P and a Provider, third party service provider, or vendor.
(c) Notices. All notices provided to 360P pursuant to this Terms will be in writing and will be delivered in person, by mail courier, return receipt requested or by a nationally recognized overnight service, in writing to 197 E Hamilton Ave., Suite 102, Campbell, CA 95008 (which such address may be changed by 360P at any time upon notice of any address change or upon any amendment to these Terms). Notices may be provided by 360P to you (a) in a writing to your then-current address on file with 360P (which you may update upon written notice to 360P in accordance herewith); or (b) by sending such notice electronically to your e-mail address or facsimile number then on-file with 360P (which you may update upon written notice to 360P in accordance herewith).
(d) Taxes and Expenses. You will pay your own taxes, expenses, costs, and fees with respect to your obligations hereunder. 360P will not be obligated to withhold any amount on your behalf.
(e) Severability. If any provision of these Terms is illegal, the invalidity of such provision will not affect any other provision, and these Terms will be construed as if the illegal provision is not contained in these Terms.
(f) Waiver. No failure or delay by 360P in exercising any right hereunder will operate as a waiver of that right, nor will any single or partial exercise of a right preclude any further exercise of that right.
(g) Third Party Beneficiaries. These Terms will not be deemed to be for the benefit of any third party other than the Providers and 360P’s vendors and sponsor banks. You are not a third party beneficiary of any agreement or arrangement between 360P or any Provider, on the one hand, and any merchant, borrower, vendor, or customer on the other hand (including without limitation any financing documents or agreements). You will have no interest in or rights under any of the foregoing agreements or arrangements.
(h) Choice of Law; Venue; Jury Trial; Attorney’s Fees. These Terms will be construed exclusively in accordance with the laws of the State of California without regard to principles of conflicts of law. You irrevocably submit to the exclusive jurisdiction of the state and federal courts in Santa Clara County, California, in any action, suit or proceeding brought in connection with these Terms, the CFP, or the Financing Services waive, to the fullest extent you may do so, the defense of forum non conveniens. You waive the right to a jury trial in connection with any dispute arising under or in connection herewith for any reason. In the event of any action or proceeding arising out of or related to these Terms, 360P and its Providers shall be entitled to recover their reasonable attorneys’ fees and expenses including, without limitation, court and expert witness fees from you.
(i) Independent Contractors. 360P and you are independent contractors and neither party shall make any representation otherwise.
(j) Force Majeure and Provider Performance. Any delay in 360P’s performance, or any non-performance by 360P, of its obligations shall be excused if such delay is due to a cause or event beyond 360P’s reasonable control. 360P will not have any liability or responsibility for any action or inaction (including without limitation any negligence, misconduct, or fraud) of any Provider or any other person.
(k) Transfer. 360P may assign or transfer all or a portion of these Terms at any time without notice. You may not sell, assign, or otherwise transfer these Terms or the use or access to the CFP or Financing Services, or any portion or right contained herein or with respect thereto, by operation of law, merger, stock sale, asset sale, or otherwise, without 360P’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Subject to the foregoing, these Terms will inure to the benefit of and will be binding upon the parties and their permitted successors and assigns.
(l) Interpretation. Neither you nor 360P shall be deemed to be the drafter of any of the provisions herein. Neither you nor 360P shall thus take any position in any dispute resolution proceeding or otherwise that any vague or ambiguous provisions of these Terms should be construed against another party hereto simply because such other party may have actually drafted such provision. The section headings herein are for reference purposes only and shall not affect the meaning or interpretation of these Terms.
Last Updated: 2/8/2021