Last Modified: September 17, 2021
These Standard Terms of Service (the “Terms”) set forth the terms and conditions that govern access to and use of the content, features, and functionality of business lending and other financial services applications and products available and accessible on the Atlas platform (the “Atlas Services”) by you (“Client”) pursuant to the Agreement (the “Agreement”) between Client and Fiserv Solutions, LLC (“Fiserv”), as reseller of the Atlas Services provided by StreetShares, Inc. (“StreetShares”).
1. Definitions. In addition to those definitions appearing above and elsewhere in these Terms, the following terms have the following meaning, as used in these Terms:
“Applicable Law” means the laws, court opinions, attorney general opinions, rules, and regulations of the United States or of any state or the various agencies, departments, or administrative or governmental bodies thereof, and any regulatory guidance, determinations of (or agreements with) an arbitrator or regulatory authority and written direction from (or agreements with) any arbitrator or regulatory authority, as the same may be amended and in effect from time to time, including, without limitation, to the extent applicable to a party: (i) the federal Fair Credit Reporting Act (15 U.S.C. § 1681, et seq.) (the “FCRA”); (ii) the federal Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) (“ECOA”); (iii) Title V of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801, et seq.) (“GLBA”); (iv) the federal Bank Secrecy Act (12 U.S.C. § 1951 et seq.), as amended by the USA Patriot Act or otherwise from time to time (“BSA”); (v) any and all sanctions or regulations enforced by the United States Department of Treasury’s Office of Foreign Assets Control (“OFAC”); (vi) state and federal prohibitions against unfair, deceptive, or abusive acts or practices; (vii) state and federal data privacy or security laws; (viii) all federal and state statutes or regulations relating to marketing, including the CAN-SPAM Act (15 U.S.C. §§ 7701–7713); and (ix) all federal and state statutes or regulations relating to financial institutions, banking, or lending.
“Business” means any individual, corporation, company, association, partnership, estate, trust, and any other entity or organization that operates for business or commercial purposes and not for personal, family, or household purposes.
“Business Customer” means any Business that uses or accesses the Atlas Services provided to Client under the Agreement.
“Business Customer Data” means any information or data related to a Business Customer provided by the Business Customer while using or accessing the Atlas Services provided to Client under the Agreement.
“Business Customer User” means any individual using or accessing the Atlas Services on behalf of a Business Customer.
“Business Services” means business lending services and other business financial services offered to Business Customers by Client via the Atlas Services.
“Client Data” means the data, media, and content provided by Client in connection with its use of the Atlas Services or otherwise in connection with the Agreement (“Client Provided Data”) and Business Customer Data.
“Client User” means any individual authorized by or with permissions from Client to use Atlas Services pursuant to Client’s rights under the Agreement. Client Users may include Client’s employees, representatives, consultants, contractors, and agents (including marketing agents).
“Documentation” means StreetShares’ standard user manual and related materials which describe the use, operation, and functions of the Atlas Services, which are generally made available to users of the Atlas Services, as may be updated and amended by StreetShares from time to time.
“Service Limits” mean the limitations on the use of the Atlas Services set forth in these Terms, the Agreement, and the Documentation.
“StreetShares Data” means any and all data, data models, databases, structures, or statistical data created, developed, owned, licensed, or derived by StreetShares, including data from third-party sources and data related to a Business Customer (other than Business Customer Data or Client Provided Data).
2. Atlas Services—Access and Usage Restrictions.
(a) Client Access to Atlas Services. The Atlas Services and Client’s access thereto are delivered by electronic means. Client may permit any Client User or Business Customer User to access and use the Atlas Services in accordance with these Terms and the Agreement (including the Service Limits). The Atlas Services are only available to Client Users and Business Customer Users; and Client will not allow any other prospective or current customer or member to access or use the Atlas Services. Each Client User and Business Customer User is subject to the usage restrictions herein and any end user license agreement or other terms of service or use applicable to the Atlas Services as posted on any StreetShares’ website from time to time. Client will only allow Client Users who have been assigned a unique user identification (“User ID”) to access the Atlas Services and Client will be responsible for the access and use of the Atlas Services by each Client User. User IDs cannot be shared or used by more than one Client User. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Atlas Services, and will notify Fiserv or StreetShares promptly of any such unauthorized access or use known to Client. Client will perform entitlement reviews for access controls of its Client Users.
(b) General Usage Restrictions. Client, each Client User, and each Business Customer User will only access and use the Atlas Services in the United States. Client, each Client User, and each Business Customer User will not (i) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of the Atlas Services are compiled or interpreted, and Client acknowledges that nothing in these Terms or the Agreement will be construed to grant Client any right to obtain or use such code; (ii) create any derivative product from any of the foregoing; (iii) duplicate the Atlas Services or any software component of the Atlas Services; (iv) license, sublicense, or transfer the Atlas Services to a third party or allow third parties to gain access to the Atlas Services; (v) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (vi) interfere with or disrupt the integrity or performance of the Atlas Services or the data contained therein; (vii) attempt to gain unauthorized access to the Atlas Services, computer systems, or networks related to the Atlas Services; or (viii) interfere with another user’s use and enjoyment of the Atlas Services.
(c) Legal and Regulatory Usage Restrictions. Client will ensure that its use of the Atlas Services complies with all Applicable Laws.
(i) GLBA Data. Some of the information contained in the Atlas Services may be “nonpublic personal information,” as defined in the GLBA and related state laws and is regulated by the GLBA and related state laws (“GLBA Data”). Client will not obtain and/or use GLBA Data through the Atlas Services in any manner that would violate the GLBA, or any similar state or local laws, regulations and rules. Client acknowledges and agrees that it may be required to certify its permissible use of GLBA Data falling within an exception set forth in the GLBA. Client certifies with respect to GLBA Data processed or received through the Atlas Services that it complies with the Interagency Standards for Safeguarding Customer Information issued pursuant to the GLBA.
(ii) Non-FCRA Data. The Atlas Services are not provided by “consumer reporting agencies,” as that term is defined in the FCRA and do not constitute “consumer reports,” as that term is defined in the FCRA. Accordingly, the Atlas Services may not be used in whole or in part as a factor in determining eligibility for credit, insurance, employment or another purpose in connection with which a consumer report may be used under the FCRA. Client certifies that it will not use any of the information it receives through the Atlas Services (A) to determine, in whole or in part an individual’s eligibility for any of the following products, services or transactions: (1) credit or insurance to be used primarily for personal, family or household purposes; (2) employment purposes; (3) a license or other benefit granted by a government agency; or (4) any other product, service or transaction in connection with which a consumer report may be used under the FCRA or any similar state statute, including without limitation apartment rental, check-cashing, or the opening of a deposit or transaction account; or (B) to take any “adverse action,” as that term is defined in the FCRA. Without limiting the foregoing, Client may use, except as otherwise prohibited or limited by the Terms, information received through the Atlas Services for the following purposes: (1) to verify or authenticate an individual’s identity; (2) to prevent or detect fraud or other unlawful activity; (3) to locate an individual; and (4) to review the status of a legal proceeding.
(iii) Economic Sanctions Law and BSA Compliance. Client will comply with all economic sanctions’ laws of the United States. Client will not provide access to the Atlas Services to any individuals identified on OFAC’s list of Specially Designated Nationals (“SDN List”). Client will not take any action which would place StreetShares in a position of non-compliance with any such economic sanctions laws. Client will comply with the BSA and is responsible for all BSA compliance and reporting in connection with its use of the Atlas Services, including with respect to its Client Users and Business Customer Users and their applications for Business Services.
(iv) Collection and Transmission of Information. Client is responsible for all marketing communications sent in connection with or via the Atlas Services, which includes Client’s responsibility for processing unsubscribe, opt-out, and similar requests in connection with such marketing communications in compliance with Applicable Law. Client, including any Client User, will not, in connection with the Atlas Services: (i) send any messages in violation of Applicable Law, including the CAN-SPAM Act or the Telephone Consumer Protection Act of 1991; (ii) harvest, collect, gather, or assemble information or data regarding Business Customers or other users without their consent; (iii) use StreetShares Data for marketing or targeting; or (iv) transmit through or post unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors.
(d) Suspension of Service. If any Client User or Business Customer User breaches any of the usage restrictions, or if Client breaches any other provision of these Terms or the Agreement, StreetShares will have the right, in addition to any of its other rights or remedies, available at law or in equity to: (i) immediately suspend the Atlas Services to Client; and/or (ii) immediately suspend access to the Atlas Services for any Client User or any Business Customer User. StreetShares will incur no liability for taking any action under this Section. In addition, StreetShares may immediately suspend access to the Atlas Services of Client, any Client User, or any Business Customer User if StreetShares believes that they may be misusing them, or that the use of Client, any Client User, or any Business Customer User may cause StreetShares or Client to be exposed to legal, compliance, or regulatory risk.
3. Business Services.
(a) Application Submission. The Atlas Services allow Client to receive an electronic application for Business Services from a Business Customer of Client. Through the Atlas Services, a Business Customer may submit the application and supporting documentation to Client. Client will at all times be deemed the lender or financial services provider to which a Business Customer is applying for Business Services. StreetShares may, to the extent it deems appropriate, provide statements to Business Customers and Business Customer Users regarding Client’s relationship with StreetShares and disclosing that Client is the lender or financial servicer provider of record and that StreetShares is serving as a technology and service provider to Client.
(b) Business Customer Information. StreetShares is not responsible for the determination of the accuracy or completeness of the information or documents submitted by Business Customers to Client through the Atlas Services. StreetShares will use commercially reasonable efforts to compile and present information gathered by StreetShares from selected third-party records and sources used in the provision of the Atlas Services; provided, however, that the Client accepts all information “AS IS”. Client acknowledges and agrees that StreetShares obtains its data from third-party sources, which may or may not be completely thorough and accurate, and that Client will not rely on StreetShares for the accuracy or completeness of information supplied through or presented in the Atlas Services.
(c) Client Decision. Client is responsible for underwriting and for any decision regarding whether a Business Customer is eligible for Business Services from Client. Client agrees that any programmed or automated eligibility criteria within the Client’s Atlas Services constitute the Client’s decision with respect to the eligibility of a Business Customer. Client understands that any recommended decision within the Atlas Services does not constitute legal, accounting, or any professional advice from StreetShares and that Client at all times retains the sole responsibility for making any decision to offer or decline any Business Services to a Business Customer.
(d) Credit Authorization. Client is responsible for obtaining a Credit History Authorization (defined below) from each applicable Business Customer and/or Business Customer User in compliance with Applicable Law, including ECOA. “Credit History Authorization” means the Business Customer’s and/or Business Customer User’s consent, in compliance with Applicable Law, for Client and StreetShares on behalf of Client, to obtain and use the following consumer and business report information (“Credit History Information”): (i) information about Business Customers, their authorized representatives, and owners from various federal, state, and other agencies; (ii) information about Business Customers, their authorized representatives, and owners maintained in public and private databases; (iii) information about Business Customers, their authorized representatives, and owners maintained by various credit bureaus, ratings agencies, or consumer reporting agencies; (iv) information about Business Customers, their authorized representatives, and owners relating to previous contractual engagements and relationships; (v) and information about Business Customers’, their authorized representatives’, and owners’ criminal history. Client agrees that it will only use Credit History Information in compliance with Applicable Law and the usage restrictions of these Terms and the Agreement, including when taking any “adverse action” with respect to a Business Customer, as that term is defined in ECOA.
(e) Materials Generated by the Atlas Services. If included in the Atlas Services ordered by the Client, the Atlas Services may generate Credit History Authorizations, offer letters, adverse action letters, and other documents related to the Business Services applied for via the Atlas Services (“Atlas Generated Materials”). StreetShares will use commercially reasonable efforts to compile and present the Atlas Generated Materials; provided, however, that the Client accepts all Atlas Generated Materials “AS IS”. Client will not rely on StreetShares for the Atlas Generated Materials to be complete, accurate, or in compliance with Applicable Law. If Client deems any Atlas Generated Materials as insufficient or non-compliant, Client should not use such Atlas Generated Materials. Client should notify StreetShares of any Atlas Generated Materials it believes to be non-compliant with Applicable Law; provided, however, that StreetShares is not required to make any modifications to the Atlas Generated Materials upon such notification or at the request of Client. It is the Client’s responsibility to review, complete, perform quality assurance, obtain signatures upon, save, transfer to a repository, or otherwise take possession and custody of such Atlas Generated Materials in a manner that is consistent with Applicable Law.
(f) Compliance with Applicable Law. Client is responsible for compliance with Applicable Laws. The Atlas Services and the Atlas Generated Materials are designed for use only in the United States. It is incumbent on Client to review the Atlas Services and the Atlas Generated Materials with Client’s legal counsel and compliance personnel. StreetShares assumes no responsibility for providing and makes no representations or warranties, express or implied, that the Atlas Services or the Atlas Generated Materials are in compliance with Applicable Law or Client’s policies and procedures.
(g) Client Servicing. Client will have the sole ultimate responsibility to provide servicing to each Business Customer, including servicing of any Business Services offered by Client to a Business Customer via the Atlas Services. At its sole expense, Client will, in addition to performing any other lender or financial institution functions, as necessary: (i) directly collect and receive all installments payments of principal and interest made on any loan or business credit; (ii) allocate and disburse such principal and interest as required by the documentation of such loan or business credit; (iii) receive and review all financial and other reports related to each loan or business credit including the complete underwriting file; (iv) have the responsibility for collection and liquidation activity; and (v) provide all regulated communications to Business Customers or Business Customer Users required by Applicable Law.
(h) Role of the Client. Client understands and agrees that Client will function as lender or financial service provider of record and bear one hundred percent of all losses on Business Services originated by Client using the Atlas Services. Without limiting any further terms set forth in these Terms or the Agreement, the Atlas Services do not include the following, which are the sole responsibility of the Client: (i) determining the eligibility of any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services for Business Services; (ii) authenticating the identity of any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services; (iii) verifying the accuracy or completeness of any information submitted by any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services; (iv) underwriting of loans and other Business Services; (v) closing of loans and other Business Services, including closing documents, obtaining signatures on closing documents, or approval or distribution of funds; (vi) sales of loans or other business credits in the secondary market; (vii) compliance with legal or regulatory requirements by any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services; (viii) compliance with any law or regulation applicable to the origination, onboarding, underwriting, funding, servicing, forgiveness, sale, or repayment of any loans or other Business Services; or (ix) transferring documents to a repository or otherwise taking possession or custody of documents for long-term document management, retention, or storage.
4. Client Representations and Warranties.
(a) Client represents and warrants that it owns or otherwise has obtained all necessary rights or consents to grant StreetShares access to and use of the Client Data in connection with the Atlas Services (including without limitation obtaining any necessary consents from Business Customers) and that the Client’s provision and use of Client Data in connection with the Atlas Services is in compliance with all Applicable Laws and any privacy notices or privacy disclosures of Client. Client will have the sole responsibility for Client’s use of Client Data and for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data.
(b) Client represents and warrants that it has obtained any rights, consents, or approvals required to give StreetShares the right or license to access, use, modify, and make derivative works of any hardware, software, or other products used or to be used by Client and necessary for StreetShares to provide the Atlas Services without infringement or violation of the ownership or license rights of the providers or owners of such hardware, software, or other products.
(c) Client represents and warrants that it is a chartered financial institution or otherwise licensed to offer and provide the Business Services and, while it uses the Atlas Services, Client will keep all such charters, licenses, and authorizations current and in-force.
(d) Client represents and warrants that it has the opportunity to review the Atlas Services and any Atlas Generated Materials with its compliance professionals and legal counsel prior to Client’s use of the same and Client acknowledges that all are provided on an “AS-IS” basis with no warranty or guarantee.
6. Indemnification by Client. Client will indemnify, hold harmless, and, at StreetShares’ option, defend StreetShares from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with (i) Client’s use of the StreetShares Data, the Client Data, the Business Customer Data, the Atlas Services, or the Atlas Generated Materials in breach of these Terms; and (ii) Client’s communications or agreements with Business Customers.