IN PARTICULAR, PLEASE NOTE THAT THESE TERMS CONTAIN SPECIFIC DISCLAIMERS REGARDING WARRANTIES AND LIABILITY, IN ADDITION TO IMPORTANT PROVISIONS REQUIRING ARBITRATION OF ALL DISPUTES AND A CLASS ACTION WAIVER (PLEASE SEE SECTIONS BELOW ENTITLED “Disclaimers and Limitations Of Liability,” AND “Dispute Resolution”).
If you do not accept these terms, you are not authorized to access the Site or use our Services.
We reserve the right to change or discontinue any feature of the Site or Services and Products, and modify the terms applicable to Users, including these Terms, at any time and in our sole and absolute discretion. Such changes will be effective immediately upon their being posted on the Site. It is your responsibility to review these Terms periodically to be aware of any modifications and any use by you of the Site, or the products and services offered, will be deemed to constitute your acceptance of such changes. Changes that are made may not be consistent across all platforms. We also reserve the right to prohibit use of the Site or Services by any User who breaches these Terms.
The Site is intended for individuals who are at least 18 years of age and reside in the United States. If you are under 18 years of age or reside outside of the United States, you should not visit the Site or use our Services. Use of the Site or Services, including any provision of personally or non-personally identifiable information, by anyone under 18 years of age is strictly prohibited.
If you have any questions or complaints about us, the Site features, the Site content, or any of our Services, please contact us by using our contact form.
Introduction to the Site and Services
Paydayfly provides online marketplace and information services for personal financial products, including credit cards, personal loans, automobile (auto) loans and similar products (collectively, “Products”). In doing so, we act as intermediary between consumers who are interested in such Products, and a variety of non-affiliated banks, lenders, and other financial services institutions (“Providers”) who provide opportunities to apply for such Products. Product opportunities are presented as display advertisements on our Site that, when clicked on, take you to the website of a Provider.
We are NOT a bank, lender, credit card issuer, or any other type of creditor, and therefore DO NOT make loans or credit decisions in connection with loans or issuing credit cards. We offer marketing and other business services to the Providers who advertise their Product opportunities through our Site. We are paid fees by these Providers for our Services. Your use of the Site and our Services constitutes your consent to this compensation arrangement. We do not charge you any fees for this Service, but please be advised that if and when you close a loan, secure a credit card, or obtain any other credit product with a Provider, you may be responsible for paying associated closing costs, if any (such costs may include origination fees or other processing fees).
We are ALSO NOT a credit repair organization, credit counselor, financial advisor, or legal advisor as defined under federal or state law. Use of our Site or Services should not be considered a replacement for professional advice or assistance regarding your finances or credit profile.
Please keep in mind the following when using any of our Services:
- We do not endorse or recommend any particular Provider, or the products of any such Provider.
- The Provider is solely responsible for its products and services. You agree that we will not be liable for any damages or costs arising out of, or in any way connected with, your use of such products or services.
- We are not an agent of either you or any Provider.
- Our Services are for informational purposes only, and do not account for your complete financial situation. Think carefully about your decision to take out a loan, obtain a credit card, or otherwise purchase a new credit product. You are solely responsible for deciding which available Product(s) and terms, if any, best suit your needs.
- Please consult with a competent professional financial advisor before making any final decisions, especially if you are unfamiliar with consumer credit and/or inexperienced with personal financial management.
- Regardless of whether you qualify for, or get a loan, a credit card, or other Products from, a Provider through our Site, the Provider(s) may obtain and keep the information that you, we, or any third-parties have provided to them as part of your Inquiry or other use of the Site and Services.
Providers have their own credit application processes and will typically require additional information from you prior to providing a final offer of credit. If you meet their credit and other applicable standards at the time your application is submitted to them, the Provider(s) will contact you directly to discuss your application, the specific terms of your offer, and what, if any, additional data or documents they need from you.
While using any of our Services, you represent that all the information you have provided to us, whether through our Site or by any other means, is true and complete. When you create a membership account on our paydayfly site (“Member Account”), submit an Inquiry, or otherwise use Services through the Site, or by any other methods, you acknowledge and agree that you have established a business relationship with us. You also acknowledge that you will only use your Member Account and the Site and Services for personal, non-commercial purposes.
By clicking any button, checking any box, or taking any other action on the Site indicating an acceptance of terms to, a continuance of processing for, or submission of an Inquiry, you acknowledge and agree to any and all terms and conditions related to that action, whether express or implied. These terms and conditions include, but are not limited to, the following (as outlined in more detail in the subsequent sections):
- Consent for Electronic Signatures, Records, and Disclosures (“E-Consent”)
- Consent to Access Your Credit Profile
- Consent to Information Retention and Sharing Between Us and Providers
- Consent to Receiving Communications from Us and Providers
Consent for Electronic Signatures, Records, and Disclosures (“E-Consent”)
Please read this information carefully and print a copy and/or retain this information for future reference.
Introduction and Scope of Consent. By clicking any button, checking any box, or taking any other action on the Site indicating your consent to the use of electronic transactions, consents, signatures, records, and communications, you agree to conduct transactions and execute contracts and documents electronically, and/or receive online or by electronic communication (including email, texts and popup push notifications) all notices, disclosures, and other important communications (collectively, “Communications”) that in any way relate to the Site or the Services or Products.
Communications will either be posted on the Site, in your Member Account, and/or sent to you by email, by popup push notifications, or by SMS service (text), which may include attachments or embedded links. To update the email address we have on file for you, please contact us by using our contact form.
Option for Paper or Non-Electronic Records. You may request any Communication in paper copy by contacting the service Provider directly. The Provider will retain all Communications as applicable law requires. If the Communication is coming from us, please email us by using our contact form.There will be no charge for a paper copy of any Communication we have sent you electronically. The request for a paper copy of a Communication will not by itself constitute a withdrawal of your Consent to receive Communications electronically. We reserve the right, but are not required, to send a paper copy of any Communication you authorize us to provide electronically.
Consenting to Do Business Electronically. Before you decide to do business electronically with a Provider, you should consider whether you have the required hardware and software capabilities. To view, obtain, print, and save the Communications, you must have access to: (1) a personal computer capable of internet access and equipped with a widely-used, recent-generation web browser (for example, Internet Explorer, Chrome, Safari or Firefox); (2) a valid and functional email address; and (3) a printer capable of printing from your computer. You may also need a PDF file reader like Adobe® Acrobat Reader to view certain documents. If any of these equipment and software requirements for accessing and receiving Communications change, we will amend these Terms accordingly.
Withdrawing Consent. Your E-Consent for our connecting service and for our Providers’ consideration of your connecting request cannot be withdrawn because it is a one-time transaction. If you are connected with one or more Provider, you are free to withdraw your E-Consent with them at any time and at no charge. However, if you withdraw this E-Consent before receiving credit, you may be prevented from obtaining credit from them. Contact the them directly if you wish to withdraw this E-Consent. You may withdraw this Consent from us at any time by sending a notification of your withdrawal to us by using our contact form. If you withdraw this Consent at a later time, we will send any further Communications to you in paper form. We will not impose any fee in connection with any withdrawal of this Consent but our Communications with you will be slower and in some cases, we may need to discontinue providing our Services to you. Any withdrawal of this Consent will be effective only after we and our Providers have a reasonable period of time to process your withdrawal request and your withdrawal will not apply to Communications that were furnished before the date on which your withdrawal takes effect.
YOUR ABILITY TO ACCESS DISCLOSURES. BY CLICKING THE LINK, YOU ASSENT TO OUR TERMS. YOU ACKNOWLEDGE THAT YOU CAN ACCESS THE DISCLOSURES IN THE DESIGNATED FORMATS DESCRIBED ABOVE.
CONSENT. BY CLICKING THE LINK, YOU ASSENT TO THE TERMS OF THIS SECTION. YOU ACKNOWLEDGE YOU HAVE READ THIS INFORMATION ABOUT ELECTRONIC SIGNATURES, RECORDS, DISCLOSURES, AND DOING BUSINESS ELECTRONICALLY. YOU CONSENT TO USING ELECTRONIC SIGNATURES, HAVING ALL DISCLOSURES PROVIDED OR MADE AVAILABLE TO YOU IN ELECTRONIC FORM AND TO DOING BUSINESS WITH THE SERVICE PROVIDERS ELECTRONICALLY. YOU ACKNOWLEDGE THAT YOU MAY REQUEST A PAPER COPY OF THE ELECTRONIC RECORDS AND DISCLOSURES, WHICH WILL BE PROVIDED TO YOU AT NO CHARGE. IF YOU REFRAIN FROM PROCEEDING THEN YOU NEITHER WISH TO USE ELECTRONIC SIGNATURES NOR CONDUCT THIS TRANSACTION ELECTRONICALLY. YOU ALSO ACKNOWLEDGE THAT YOUR CONSENT TO ELECTRONIC DISCLOSURES IS REQUIRED TO RECEIVE SERVICES FROM THIRD PARTY SERVICE PROVIDERS OVER THE INTERNET.
Under the federal E-SIGN Act and related state laws, with your consent, we can deliver such required information to you electronically and can use electronic records and electronic signatures in connection with your transactions with the Providers in our network. If you do not want to receive the required information electronically, or do not want to use electronic signatures in connection with your transactions with our Providers, you should not agree to these Terms. If you do not consent to receiving the required information electronically, or do not consent to the use of electronic signatures in connection with your transactions with Providers in our network, we will not be able to proceed with you.
Consent to Access Your Credit Profile
By signing up for a Member Account, or submitting an Inquiry on the Site, you understand that you are providing written instructions in accordance with the Fair Credit Reporting Act and other applicable law for us and our affiliates, Providers, and/or any other entities as necessary to provide the Services and Products, to request and receive copies of consumer reports, scores, and other related information about you from third-party credit reporting bureaus, including, but not limited to, TransUnion, Experian, and Equifax. You also understand that you are allowing us and our affiliates and Providers to request and receive such information at any time for as long as you have an active Member Account.
When requesting your information from credit bureaus, we will perform a “soft pull” of your credit file, which means that your credit score will not be impacted. Providers may also perform a soft pull when you submit an Inquiry, or at a later time. Please note, however, that the Providers may be required to do a “hard pull” of your credit profile that could impact your credit score. If you complete multiple applications with different Providers, there may be multiple hard pulls performed that could impact your score.
You agree that we may use and analyze your credit profile, credit score(s), and other credit information as we deem necessary to provide our Services. Such use may include, but is not limited to (a) providing you with an overview of your credit history and scores; (b) showing you Product and service opportunities; and (c) serving you targeted ads and other communications based on your preferences and/or Information.
Consent to Information Retention and Sharing Between Us and Providers
We adhere to state and federal regulatory requirements in addition to our own internal policies regarding data reporting and record retention, which applies to any Information you submit to us and possibly certain other Information that we may receive about you from third parties. In addition, as described above, we will share Information you submit to us with our Providers in the course of transmitting your Inquiry or providing other Services to you. We may also collect information about you, or about loans, credit cards, or other credit you have taken out, from Providers.
By using or continuing to use the Site and Services, you are providing express consent for us and your selected credit Provider to share your PII and other Information for purposes including, but not necessarily limited to, litigation, regulatory actions/investigations, law enforcement requests, internal analytics, and/or marketing. Such Information may include the disposition of your loan, credit card, or other credit application, any applicable credit limits, the amount of your loan, the interest rate, the APR, the duration, the fees charged, the delinquency status, if any, and other information.
Consent to Receiving Communications from Us and Providers
By submitting an Inquiry, signing up for a Member Account, or otherwise saving your Information on or through our Site, you consent to receive text messages to the cell phone number(s) you provide, popup push notifications to the computer browser, mobile phone or other device addresses you provide, and emails at the email address(es) you provide, or at another email address that may be associated with you that we receive from Providers or other parties. You agree that any such communications will not be considered spam or unauthorized by any local, state, or federal law or regulation. You further agree not to report such communications as spam to any party.
If you no longer wish to receive communications from us, please contact us by using our contact form. You can deactivate push messaging at any time by changing the notification settings on your mobile device or browser. You agree to notify specific Providers directly if you no longer wish to receive communications from them.
Additional Terms for Inquiry Services
When you submit an Inquiry for a Product on the Site, we collect certain Information from you, which may include data such as your name, address, phone number, and social security number (SSN). We then retrieve other Information about you (including your credit report and history) from certain data vendors, including one or more of the national credit bureaus. Finally, we process (a) the Information you submitted, (b) Information from your credit profile, and (c) possibly Information from other sources, in order to determine which Providers in our Network present credit opportunities that are suited to your situation.
Any Information you provide to us IS NOT, AND WILL NOT BE TREATED AS, an application for credit, a request to be pre-approved or pre-qualified for credit, or any similar concept. Rather, it is an inquiry to receive conditional opportunities for credit Products from Providers in our Network.
Please also note the following important conditions of the Inquiry process:
- We do not guarantee that you will be approved for any particular credit card, loan or other Product, or that credit will be granted on any particular terms. You may not be approved for any credit opportunity.
- Selecting a Provider’s conditional credit opportunity is not legally binding. It is often subject to additional application review, market conditions at the time of underwriting, and possibly other variables. Your credit request may be denied even after you have gotten a conditional offer, or the terms on which credit can be granted may change (for example, the maximum amount you can borrow or charge to your credit card may be lowered). Unless expressly stated in writing, nothing contained herein or on the Site will constitute an offer or promise to issue any particular credit card, loan commitment or an interest rate lock-in agreement.
- In addition, the final rates and fees for the Product may be higher or lower than those shown in on our Site, depending on additional information the Provider may receive, including the Provider’s determination of your debt-to-income ratio, collateral value assessments (if applicable), or other factors.
- Product approval standards are established and maintained solely by the individual Providers in our Network. Accordingly, we do not guarantee that the terms or rates offered by the Providers are the best terms or lowest rates available in the market.
- Providers may not offer their products in all states and jurisdictions. If you reside in a state where a Provider does not offer credit, you will not be shown any credit opportunities from that Provider.
- We and the Providers who advertise on the Site and/or participate in the Network expressly reserve the right to discontinue, suspend, or terminate the advertising of any loan or other product in any state or other jurisdiction at any time, without prior notice.
By clicking any button on the Site indicating an acceptance of terms to, a continuance of processing for, or submission of an Inquiry, you acknowledge and agree that you are submitting an Inquiry for a credit Product through us to each of the Providers in our Network to whom we transmit your Inquiry.
Additional Terms for Other Services
From time to time, we may advertise or otherwise market other products and services on the Site. This may include display or email advertising for third-party personal finance or other products, additional options to submit Inquiries for conditional credit opportunities, and/or attempts to connect you with lenders or other third-party providers, whether or not they are part of our Network, if you are declined for credit after submitting an initial Inquiry.
In addition to our product marketing services, we may also use your credit profile, credit score, and other relevant information that we obtain from third parties or from you to organize, analyze, and report on that data for internal analytics and for your education and benefit. This may include providing you assessments of your outstanding debt balances, trends in those debt balances over time, how your credit score and credit profile compare to your peer group, aggregation of transactions across your financial accounts, or other similar information and features.
Please note that there is a wide variety of credit profile data sources and credit score types that typically do not align with one another, and therefore we do not guarantee that the information we present as part of our Services, including credit profile or credit score information, is the same information that will be used or reviewed by any third parties to assess your creditworthiness or eligibility for any particular product or service.
In addition, any estimates or analyses we provide are presented for illustrative and informational purposes only. Such estimates and analyses are based on certain assumptions we make and will only take into account the limited data that we have available. Any estimates or analyses are neither endorsed nor commissioned by any of our Providers. The strategies, procedures, and methodologies we use to determine which Product opportunities, estimates, analyses, or other information to present to you are confidential and proprietary, and we may consider, ignore, emphasize, or de-emphasize certain factors in our sole and absolute discretion.
Your Member Account
In the course of exploring our Site and using our Services, you may be presented with the option to sign up for a Member Account. Signing up for a Member Account is optional, but does automatically occur when you submit an Inquiry. Please note that if you do not sign up, you may not be able to access certain parts of our Site and Services.
By signing up for a Member Account, you certify that:
- You are 18 years of age or older.
- You have a valid U.S. Social Security Number.
- Any information you provide to us at time of sign up, or at any later time, is and will be true, accurate, current and complete.
- You will keep all information in your Member Account up to date.
- You are only registering a Member Account for yourself.
- You will not sell, transfer, or assign your Member Account to any third party.
- You will keep your password confidential and will not allow anyone else to log in to your Member Account. You are solely responsible for maintaining the confidentiality of your Member Account and the associated information.
- You are solely responsible for any and all activities that occur under your Member Account, including by any person who accesses the Member Account with or without authorization.
- You will comply with applicable laws when using our Site and Services. You are not permitted to use our Services to obtain any consumer credit report, score, or other consumer credit information under false pretenses or in violation of the Fair Credit Reporting Act or applicable state or federal law.
- You will only use your Member Account for personal, non-commercial purposes.
- You will not use another individual’s Member Account, set up multiple accounts, authorize another individual to use another individual’s Member Account, provide false information, use any bots, or post or transmit viruses.
If at any time you believe that your Member Account has been compromised and/or is no longer secure, please notify us immediately by using our contact form. You can also notify the Federal Trade Commission; the national credit reporting bureaus including TransUnion, Experian, and Equifax; and/or local law enforcement if you believe that identity theft is involved.
Links to Third-Party Websites or Applications
We may display third-party content or links to third-party websites or applications on our Site or in emails or other communications we send to you. Such content could include advertisements for third-party products and services, or applications that allow you to connect your Member Account with your social media, financial institution, and other third-party accounts. We do not operate, control, or endorse any such third-party content, products, services, systems, or applications (“Third-Party Features”) or the companies that provide them.
Please be advised that when you leave our Site or Services and interact with any Provider or Third-Party Features, we are not responsible for the accuracy or reliability of the information or services provided therein. Your interactions with these companies are solely between you and those companies. We are not responsible or liable for any damages, losses, or other problems caused by or related to your use of any Provider or Third-Party Features.
We are also not responsible for any PII, NPII, or other Information that you share with third parties. You should read the applicable privacy policies and terms of service of those parties so that you understand their own information collection and sharing practices.
Monitoring of the Site and Services
Ownership and Infringement of Rights
Content Rights of BMG and Associated Third Parties. Our Site contains copyrighted material, trademarks, and other proprietary information of BMG, and of our Providers, marketing partners, vendors, and other third parties (collectively, the “Associated Parties”) including, but not limited to, text, data, software, icons, graphics, charts, photos, videos, and music and sound (“Content”). In addition, the entire contents of the Site are copyrighted as a collective work under United States copyright laws. We own a copyright in the selection, coordination, arrangement and enhancement of such Content, as well as in the content original to it.
You are permitted to use our Content only when visiting our Site or using our Services, and you may not copy, modify, sell, reproduce, distribute, republish, display, post, exploit, create derivative or collective works from, or transmit in any form (including in-line linking or mirroring) our Content, in whole or in part, without our express prior written consent.
Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial or non-commercial exploitation of downloaded material will be permitted without our express written permission and the permission of the copyright owner. Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means.
You also may not reverse engineer or reverse compile any of our Services or the technology used to operate our Services. Nothing in these Terms or our Services grants you, by implication, estoppel, or otherwise, any license or right to use our Content except as expressly stated in these Terms.
The Content may not be used to disparage us, our Associated Parties, or the applicable products and services of such parties, nor shall it be used in any manner that may damage any goodwill in the Content itself.
All contents of the Site are Copyright © 2019 BMG Services, LLC and/or its Associated Parties; 114 N. Egan Avenue, Madison, South Dakota 57042, U.S.A. All rights reserved. Product and company names mentioned herein, including the names of Associated Parties, may be the trademarks of their respective owners.
You may not use our Site or Services in any manner that infringes the rights of any third party. If you believe, in good faith, that any of our Content infringes your copyrights, you may send a notice of infringement under the federal Digital Millennium Copyright Act (“DMCA”) by regular mail to:
BMG Services, LLC
114 N. Egan Avenue
Madison, SD 57042
or by using our contact form.
To find out more about what to include in the notice and about the procedures we will follow, click here to read the DMCA: https://www.gpo.gov/fdsys/pkg/USCODE-2015-title17/html/USCODE-2015-title17-chap5-sec512.htm
We reserve the right, in our sole discretion, to block or otherwise prohibit from using our Site and Services any person who repeatedly posts materials that infringer, or are alleged to infringe, the intellectual property rights of others.
Content you Contribute to the Site. We may provide opportunities for you to contribute content and interact with other members on the Site. Such opportunities may include rating and review sections, message boards, and other similar features where you can create, submit, and publish certain kinds of content and material (“Member Content”).
You are solely responsible for the Member Content that you publish, upload, or submit to our Site or via our Services. By publishing, uploading, or submitting Member Content, you represent and warrant that you are the creator and owner of the Member Content, or have the necessary licenses, rights, consents, and permissions to authorize us and other users to use for our benefit your Member Content as necessary to exercise the licenses granted by you in these Terms, in the manner contemplated by us, our Services, and these Terms.
Member Content that you view on the Site or through our Services may be inaccurate, offensive, indecent, or objectionable. We may, but we are not obligated to, monitor, edit, re-format, alter, delete, remove, or otherwise control Member Content for any reason, including to satisfy applicable law, enforce these Terms, or protect the rights, property, or safety of us, our users, or any third party, in each case without notice and in our sole and absolute discretion.
We do not endorse or represent, nor do we guarantee the completeness, accuracy, reliability, or usefulness of, any Member Content. We disclaim all liability for Member Content and you hereby waive any legal or equitable right or remedy you have against us with respect to Member Content.
Disclaimers and Limitations of Liability
We intend for the information contained on the Site or otherwise provided through our Services to be accurate and reliable. However, errors may occur. Under no circumstances may we be held liable for any loss or damage caused by your reliance on information obtained through the Site, Services or Products. It is your responsibility to evaluate the accuracy, completeness, and usefulness of any information, opinion, advice or other content available through the Site, Services or Products. In addition, we are not responsible for any errors or delays in responding to an Inquiry or other communication that is caused by any technical or other problems beyond our reasonable control.
THE PAYDAYFLY SITE AND THE INFORMATION, CONTENT, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. BMG, ON BEHALF OF ITSELF, ITS AFFILIATES, AND ITS PROVIDERS AND ASSOCIATED PARTIES, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ANY INFORMATION, CONTENT, SOFTWARE, PRODUCTS OR SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
USE OF THE SITE, ANY CONTENT CONTAINED THEREIN, AND SERVICES AND PRODUCTS IS AT YOUR OWN DISCRETION AND RISK. BMG AND ITS AFFILIATES, PROVIDERS AND ASSOCIATED PARTIES ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE, OR THE DELAY OR INABILITY TO USE, THE SITE, SERVICES OR PRODUCTS, OR FOR ANY INFORMATION, CONTENT, SOFTWARE, PRODUCTS, OR SERVICES OBTAINED THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED AT THE SITE, OR THAT RESULT FROM DEFECTS, MISTAKES, INTERRUPTIONS, DELETION OF FILES OR EMAILS, ERRORS, OMMISSIONS, VIRUSES, WORMS, TROJAN HORSES, BACK DOORS, OR OTHER CODE OR COMPUTER PROGRAMMING THAT IS MALICIOUS OR DESTRUCTIVE OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT, OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PRIMERATES RECORDS, PROGRAMS OR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS, PROVIDERS OR ASSOCIATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
YOU ACKNOWLEDGE THAT BMG IS SOLELY AN INTERMEDIARY BETWEEN YOU AND ANY CREDIT BUREAU OR OTHER INFORMATION PROVIDERS SUPPLYING YOUR CREDIT PROFILE, CREDIT SCORES, AND OTHER INFORMATION; AND BETWEEN YOU AND OUR PROVIDERS, ASSOCIATED PARTIES AND OTHER MARKETING PARTNERS WHOSE PRODUCT OPPORTUNITIES WE PRESENT. WE EXPRESSLY DISCLAIM ANY LIABILITY FOR ANY ERRORS OR OMISSIONS IN OUR CONTENT OR OUR SERVICES, INCLUDING THE INACCURACY OR INCOMPLETENESS OF ANY SUCH CREDIT OR OTHER INFORMATION, TOOLS MADE AVAILABLE, OR ANALYSES PRESENTED THROUGH OUR SITE OR SERVICES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” IF YOU ARE A RESIDENT OF ANOTHER JURISDICTION, YOU WAIVE ANY COMPARABLE STATUTE OR DOCTRINE.
NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL AFFECT WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION OR RESTRICTION UNDER APPLICABLE LAW.
As a condition of use of the Site and/or our Services, you agree to defend, indemnify, and hold harmless BMG and our Providers and other Associated Parties from and against any and all liabilities, claims, expenses (including attorneys’ fees), demands, and damages arising out of or in any way related to (a) your use of our Site or Services; (b) your violation or alleged violation of these Terms or any applicable law; (c) your infringement or alleged infringement of any intellectual property or other right of any other person or entity; or (d) any dispute between you and a third party, including any provider of Content. You must not settle any such claim or matter without our prior written consent. BMG and our Providers and other Associated Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and you further agree that you will cooperate fully in the defense of any such claims.
You and we each agree to resolve exclusively through final and binding arbitration any and all disputes or claims that have arisen or may arise between you and us (including any affiliates, officers, directors, employees, and agents), whether or not such dispute or claim involves a third party, relating in any way to any aspect of our relationship or any contact between us, direct or indirect, or arising out of this or previous versions of these Terms, your use of or access to our Site or Services, or any products or services sold, offered, or purchased through our Site or Services (“Dispute”).
You and we agree to submit the Dispute to a single arbitrator under the then-current Commercial Arbitration Rules of the American Arbitration Association (AAA), including when applicable the Optional Rules for Emergency Measures of Protection and the Consumer Arbitration Rules, or, by separate mutual agreement, at another arbitration institution. The AAA’s rules, information regarding initiating a claim, and a description of the arbitration process are available at www.adr.org. The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA rules. As an alternative, you or we may bring a claim in your local “small claims” court, if permitted by that small claims court’s rules.
The Federal Arbitration Act governs the interpretation and enforcement of this section regarding our agreement to arbitrate any Dispute, and the arbitrability of the Dispute. The arbitrator will decide whether the Dispute can be arbitrated.
You and we agree that each of us may bring a Dispute against the other only on our own behalf, and not on behalf of a government official or other person or entity, or a class of persons or entities. You and we agree, if we are a party to the proceeding, not to participate in a class action, a class-wide arbitration, a claim brought in a private attorney general or representative capacity, or a consolidated claim involving another person’s use of the site or our services. You and we agree not to combine a claim that is subject to arbitration under these Terms with a claim that is not eligible for arbitration under these Terms. You and we agree to waive the right to a trial by jury for all disputes.
This agreement to arbitrate will survive the termination of your relationship with us. Unless you and we agree otherwise, if this agreement to arbitrate is found by a court to be unenforceable, if your claim is not covered by this agreement to arbitrate, or if you neither are a resident of nor have a principal place of business in the US or Canada, you agree that any Dispute that has arisen, or may arise, between you and us must be resolved exclusively by a United States federal court located in Minnehaha County, South Dakota. You and we agree to submit to the personal jurisdiction of the courts located within Minnehaha County, South Dakota for the purpose of litigating all such claims or disputes.
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make a change to our agreement to arbitrate (other than a change to the notice address or the site link provided herein) in the future, that change shall not apply to a claim that was filed in a legal proceeding between you and us prior to the effective date of the change. The change shall apply to all other disputes or claims that have arisen, or may arise, between you and us.
There Terms hereby incorporates by reference any other provisions applicable to use of the Site and Services, including, but not limited to, any supplemental terms governing the use of certain specific material contained in the Site or through the Services, and any operating rules for the Site established by BMG.
This Agreement shall be subject to and construed in accordance with the laws of the State of South Dakota, excluding conflict of laws provisions.
If any provision of these Terms is deemed to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in full force and effect. Nothing in these Terms shall affect any non-waivable statutory rights or remedies that apply to you.
Our failure to enforce any of our rights or act with respect to a breach of by you or others of these Terms does not constitute a waiver of any rights and will not limit our rights with respect to that breach or any subsequent breaches. No waiver by us of any of the provisions in these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of BMG.
The provisions of these Terms are for the benefit of BMG and its officers, directors, employees, agents, licensors, suppliers, and any third-party Providers and Associated Parties. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf. In addition, we may assign these Terms to any party at any time without notice to you. You may not assign your rights under these Terms, by operation of law or otherwise, without our prior written consent.
The section titles contained in these Terms are inserted only for convenience and have no legal or contractual effect. These Terms will not be construed against us because we drafted it.