LAST UPDATED: SEP 2022
By accessing or using any Backyard Finance LLC website (individually and collectively, the “Website”) and/or mobile app (individually and collectively, the “Mobile Application”), or other systems maintained by us and/or our affiliates (collectively, “Backyard Finance”, “we”, “us”, “our”, or “System”), you (the “User” or “you”), whether you are
- a consumer seeking financing (a “Customer”),
- an individual employee or other representative (a “Client Representative”) of a business (a “Client”) that provides, products and/or services that may be financed through our System,
- an employee or other representative (a “Financier Representative”) of a financing source (a “Financier”) that may provide financing for a Customer’s purchase of a product and/or service from a Client or another business, or
The Website, all associated pages and services that you can access on the Website, and all software therein are collectively referred to as the “System.” Backyard Finance provides a System to help match Customers who are looking to obtain a loan to purchase certain product and/or service with Financiers that may or may not be willing to provide said loans (“Backyard Finance Program”).
Backyard Finance is not a lender or a broker, we are a third-party vendor who supplies a software solution to lenders and/or brokers. Any information provided through Backyard Finance is not an application for a loan from Backyard Finance. Backyard Finance makes no representations of any rates, points, or loan programs offered through lenders and brokers. Any issues related to money, payments or approvals is between you and lender/broker. Any information submitted through Backyard Finance is for the purpose of obtaining additional information regarding a potential loan provided through a third-party lender.
- you will only be permitted to pursue claims and seek relief against Backyard Finance on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and
- you are waiving your right to seek relief in a court of law and to have a jury trial on your claims. the arbitration provisions set forth in Section 16 of these terms could affect your right to participate in pending class action litigation.
You acknowledge that:
- While Backyard Finance may provide a software applications that assist Clients in setting prices for their products and services, including, without limitation, assuring that the Clients’ cover all direct costs in providing those products and/or services (including any costs associated with the financing those products and/or services), the Clients, in their sole and absolute discretion, set the pricing for their costs and/or services and Backyard Finance has no control over the prices charged by the Clients for their products and/or services, and
- Backyard Finance will receive compensation from a Financier and/or a Client if a Customer finances a purchase through a loan made by that Financier under the Backyard Finance Program.
3. The Backyard Finance System is for Use by Individuals 18 Years of Age and Older
4. Backyard Finance System Use Restrictions
Without our prior written consent, you may not:
- Use any automated means to access the System or collect any information from the Backyard Finance System (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);
- Frame the System in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any System pages, or otherwise affect the display of any pages on the System;
- Engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining content or other information;
- Use the Backyard Finance System in any manner that violates applicable law or that could alter, damage, disable, overburden, or impair the Backyard Finance System or interfere with any other party’s use and enjoyment of the Backyard Finance System;
- Access, use, or monitor our Backyard Finance System for benchmarking or any direct competitive purposes.
- Copy, modify, or create derivative works or improvements of the Backyard Finance Systems;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any portion of the Backyard Finance System to any person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Systems, in whole or in part;
- Bypass or breach any security device or protection used by the Systems or allow access or use of the Systems by anyone other than by you using your own then valid access credentials;
- Input, upload, transmit, or otherwise provide to or through the Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to
- permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any
- computer, software, firmware, hardware, system, or network; or
- any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or
- prevent anyone from accessing or using the Backyard Finance Systems as intended;
- Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Backyard Finance System, in whole or in part;
- Access or use the Backyard Finance System in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any Customer, Client or Financier), or that violates any applicable law;
- Access or use the Backyard Finance System for purposes of competitive analysis of same, the development, provision, or use of a competing software services, systems or products or any other purpose that is to Backyard Finance’s detriment or commercial disadvantage; or
5. User Representations
Parts of the System may be accessed only by registering for an account and creating a password. Keep your password secure. You are responsible for the activities on your account. Backyard Finance is not responsible for the information, activities, or data associated with your account. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the System will violate or infringe upon the rights of any third party, including, without limitation, any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your account. We are not responsible for any losses resulting from unauthorized use of your account.
In addition, you agree not to use the Backyard Finance System to:
- Except where authorized by us, register for more than one User account, or register or operate a User account on behalf of or for the benefit of any person who is not eligible to register for or operate a User account in their own name;
- Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person or entity;
- Upload, post, transmit, share, store, or otherwise make publicly available through the System any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers, unless expressly authorized to do so by that third party;
- Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Backyard Finance System;
- Use or attempt to use another’s account or information, including personally protected information, without express authorization from that other person, or create a false identity through the Backyard Finance System; or
- Make any false or misleading statements or provide any false of misleading information through the Backyard Finance.
Your use of the System is an acknowledgement that you have reviewed Backyard Finance’s policies and acknowledge Backyard Finance is not a lender. You also agree to abide by any and all applicable consumer lending regulations, including but not limited to the Equal Credit and Opportunity Act (“ECOA”) and Unfair Deceptive, or Abusive Acts or Practices (“UDAAP”) as outlined within the Consumer Protection Act of 2010 (“CPA”).
6. Information Posted through the System
You are solely responsible for the information that you post or, in the case of a Customer, a Client posts about you on or through the System and your conduct regarding the Backyard Finance System. By posting information, or permitting information about you to be posted, to or through the System, you agree to:
- provide, or cause to be provided, accurate, current, and complete information;
- maintain the security of your password and identification, to the extent you are provided a password and identification;
- promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the Backyard Finance System; and
- be fully responsible for all use of your account and for any actions that take place using your account.
7. Consent to Electronic Records and Communication
As part of your relationship with us, you have the right to receive certain information “in writing” – which means you are entitled to receive such information on paper. The federal ESIGN Act and certain state laws allow us to provide this information to you electronically, instead, with your prior consent. To better serve you, we need your consent to use Electronic Records (defined below) in our relationship with you generally. This document informs each Customer of his/her rights when receiving Electronic Records from us in connection with any Backyard Finance Program loan for which such Customer applies (an “Account”). Each Customer must read and consent to the terms outlined below.
- Definitions. For purposes of this Consent to Electronic Records and Communication, the following terms have the following meaning: “We,” “us,” and “our” refer to Backyard Finance, the Customer’s Client and Financier and their current and future affiliates, agents, and assigns and any other person or entity who provides services related to your Account, including the Backyard Finance Program. “You” and “your” means the each Customer giving this consent, and also each additional applicant, accountholder, authorized user, and account contact on any Backyard Finance Program loan for which such Customer applies. “Electronic Records” are any legally-required disclosures, agreements, Account information, notices, statements, and other information provided to you electronically. Electronic Records may include, but are not limited to, applicable disclosures pursuant to the Equal Credit Opportunity Act and Regulation B; ESIGN Act Disclosure and Consent; the Truth in Lending Act and Regulation Z; the Gramm-Leach-Bliley Act and Regulation P; and any other federal, state or local law, or regulation applicable to your application or Account.
- Your Consent to Use Electronic Records and Signatures. By agreeing to this Consent to Electronic Records and Communication, you acknowledge receipt of this document, and consent to the use of Electronic Records and electronic signatures in connection with your Account (collectively, “Your Consent”). Your Consent is effective until you withdraw Your Consent. We may always, in our sole discretion, provide you with a document in writing, even when you have chosen to receive it electronically.
- Requesting Paper Copies. You may request paper copies of Electronic Records at no cost by contacting us. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described below.
- Hardware and Software Requirements. To access and retain Electronic Records electronically, you will need to use the computer software and hardware identified below. “Current Version” means a version of the software or hardware that is currently being supported by its publisher. You will need the following:
- Internet access,
- Current Version (defined above) of a PDF reader (such as Adobe® Acrobat),
- Current Version of an Internet browser (such as Internet Explorer, Firefox, Chrome, Safari),
- A means to retain documents by printing or storing electronically,
- A valid email address, and
- A personal computer, mobile device, or other device capable of supporting the requirements listed above. If these requirements change in a way that creates a material risk that you would not be able to receive or retain your Electronic Records, we will notify you. Continuing to use electronic Account services after receiving notice of the change is reaffirmation of Your Consent.
- Withdrawing Consent. You have the right to withdraw Your Consent at any time and at no cost to you. If you withdraw Your Consent prior to the approval of your application, this will prevent you from receiving various electronic information from us. If at any time you wish to withdraw Your Consent, contact us. If you withdraw Your Consent, the legal enforceability of any prior Electronic Record will not change. You provide your consent and agree that we may contact you for any lawful reason, including, but not limited to, in connection with your application and Account, including for the collection of amounts owed to us under any loan granted, and to market goods and services of various Clients and Financiers, their servicers, or any unaffiliated third-parties. We may contact you at such addresses or numbers (including wireless cellular telephone numbers and ported landline numbers) as you may provide to us from time to time. We may use any means of communication, including, but not limited to, postal mail, telephone, electronic mail, text messaging, voice messages, or other technology, to reach you. You agree that we may use automated dialing and announcing devices that may play recorded messages. We may also send text messages to your telephone. You are not required to provide your mobile telephone number as a condition of receiving credit, and you may withdraw your consent to use automated dialing systems and pre-recorded messages in connection with your mobile telephone number at any time by contacting us. By providing Your Consent, you:
- Acknowledge that you have the technical ability to access the Electronic Records in the designated formats described above;
- Acknowledge that you have read the information about Electronic Records and Communication;
- Consent to having legally-required disclosures, agreements, Account information, notices, statements, and other information provided or made available to you in electronic form and doing business with us electronically;
- Acknowledge that you may request a paper copy of an Electronic Record at no charge to you; and
- Indicate your intent to utilize electronic signatures to apply for credit and process transactions on your account.
8. Consent to be Contacted
To the extent required by applicable law, we endeavor to make the proper disclosures and obtain consumer consent when collecting your contact information.
9. Third Party Services
Backyard Finance offers services provided by third parties. You consent to Backyard Finance providing your contact information to these third-party providers for any and all purposes Backyard Finance, in its sole discretion, deems appropriate.
10. Intellectual Property
- Trademarks. Backyard Finance, its names and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress in the United States. Backyard Finance’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Backyard Finance in each instance.
- Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“Submissions”) provided by you to us through the Backyard Finance System are non-confidential and shall become the sole property of Backyard Finance. Backyard Finance shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Copyright Complaints. If you believe that any material on the System infringes upon any copyright that you own or control, you may contact us about such infringement.
- Notice Requirements. To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication and include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
11. Third-Party Links & Ads
We reserve the right to change any and all content within the System and any service offered through the Backyard Finance Program at any time without notice. We provide the Backyard Finance System “AS IS” and assume no responsibility for any failure to provide the Backyard Finance System to you. The System may be temporarily unavailable from time to time for maintenance or other reasons. We may discontinue the System or any goods or services available through the System at any time and for any reason. We are not responsible for any problems or technical malfunction of any telephone or cable network or lines, servers or providers, computer equipment, software, failure of email, or technical problems or traffic congestion on the Internet or on or through the System, including injury or damage to Users or to any other person’s devices related to or resulting from use of the Backyard Finance System. Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any user data, financial damages, lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Backyard Finance System.
You agree that your use of the Backyard Finance System is at your own risk, and that we expressly disclaim all warranties, terms and conditions, including, but not limited to, the implied warranties, terms and conditions of merchantability, fitness for a particular purpose, noninfringement of third party rights and satisfactory quality.
13. Limitation of Certain Damage Types
Except in jurisdictions where such provisions are restricted or prohibited, in no event will Backyard Finance, any client, any financier, or any of their directors, employees, or agents be liable to you or any third-party for any indirect, consequential, exemplary, incidental, special, or punitive damages, including for any lost profits or lost data arising from your use of the Backyard Finance system or any of the content or other materials on or accessed through the Backyard Finance system, even if any of us is aware of or has been advised of the possibility of such damages.
14. Limitation of Liability Amount
To the extent not prohibited by applicable law, our liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the greater of the amount paid by you to us for the Backyard Finance program service at issue in the three months prior to the event giving rise to the claim and $100. You acknowledge that if no fees are paid to us for a Backyard Finance product service, you shall be limited to money damages or $100, at most, or injunctive relief, unless otherwise prohibited by applicable law, and shall not be entitled to any other damages, regardless of the cause of action. Nothing in these terms shall limit or exclude our liability for:
- death or personal injury resulting from our willful misconduct;
- fraud or fraudulent misrepresentations; or
- any other liability that cannot be excluded by applicable law.
15. Disputes, Governing Law, Venue, and Jurisdiction
- the courts of the State of Florida located in Palm Beach County.
16. Arbitration Agreement & Dispute Resolution
Please read this Arbitration Agreement carefully. It is part of each Customer’s contract with Backyard Finance and affects each Customer’s rights. It contains procedures for mandatory binding arbitration and a class action waiver.
- Scope of Arbitration Agreement (“Arbitration Agreement”). Each Customer acknowledges and agrees that any dispute or claim relating in any way to his/her access or use of the Backyard Finance System or to any other aspects of his/her relationship with Backyard Finance will be resolved by binding arbitration, rather than in court, except that (1) each Customer may assert claims in small claims court if such claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) Backyard Finance may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior Agreement. Now or in the future, there may be lawsuits against Backyard Finance alleging class, collective, and/or representative claims. Such claims, if successful, could result in some monetary recovery to Customer. The existence of such class, collective, and/or representative lawsuits does not mean that such lawsuits will ultimately succeed. But if Customer agrees to arbitration with Backyard Finance, Customer is agreeing in advance that Customer will not participate in or seek to recover monetary or other relief under such class, collective, and/or representative lawsuits. Instead, by agreeing to arbitration, Customer may bring your claims against Backyard Finance in an individual arbitration proceeding. If successful on such claims, Customer could be awarded money or other relief by an arbitrator.
- Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, Customer must contact us requesting arbitration and describing Customer’s claim. The arbitration will be conducted by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under its rules, including JAMS’ Consumer Arbitration Minimum Standards. The JAMS’ rules are available at www.jamsadr.com or by calling JAMS at 1-800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’ rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Backyard Finance will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
- Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this arbitration agreement must be arbitrated on an individual basis and not on a class basis. Claims of more than one customer cannot be arbitrated or litigated jointly or consolidated with those of any other customer. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Backyard Finance is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 15 (Disputes, Governing Law, Venue, and Jurisdiction) above.
This Section 16 does not apply to Clients, Client Representatives, the Financiers or the Financier Representatives.
19. Remedies Cumulative
20. Provisions Relating to Client Representatives and Financier Representatives
As used in this Section, a “Business Source” means any Client Representative, any Financier Representative or any Backyard Finance Representative, as applicable.
- Confidentiality. Except for disclosures that are required to be made under law or in connection with any dispute between any Business Source and Backyard Finance and to its Client, Financier or Backyard Finance, as applicable, who have a need to know same to provide service to a Customer, no Business Source (as such, “Recipient”) will disclose or use, and will direct its representatives not to disclose or use, any Confidential Information (as defined below) of Backyard Finance (“Disclosing Party”) for any reason other than in referring or providing services under the Backyard Finance System for Customers and Recipient agrees to protect Disclosing Party’s Confidential Information by using the same degree of care it uses to protect its own confidential information. As used herein, “Confidential Information” means Disclosing Party’s information
- that is not generally known or ascertainable (that is, secret),
- from which Disclosing Party derives economic value or business advantage by keeping the information secret, and
- Non-Solicitation; Non-Circumvention. No Client Representative shall, directly or indirectly, solicit, service, contact or attempt to contact, during such Client Representative’s employment or engagement with his/her Client, and for the 12-month period following the termination or his/her employment with the Client (whether terminated for cause, without cause, or by either Party) (the “Restriction Period”), any Financier with which such Client Representative did not have a relationship prior to its interactions with such Financier as part of any Backyard Finance Program, for purposes of assisting a consumer in obtaining financing through such Financier outside the Backyard Finance Program. Each Client Representative shall provide Backyard Finance with prompt notice if any Financier attempts to circumvent Backyard Finance in any manner during the Restriction Period.
- Each Business Source, at its sole expense, shall comply with all applicable laws, rules and regulations, pay all taxes applicable to it, and obtain all required licenses, permits and approvals to provide its services to the Customers, whether as part of the Backyard Finance Program or any agreement with the Customer.