Terms and Conditions

 

Welcome to ewhale.co (together with its subdomains, Content, Marks and services, the "Site"). Please read the following Terms of Use ("Terms") carefully before: (i) visiting or using this Site; and/or (ii) applying to use, or using, eWhale marketplace, eWhale crowdfunding, services (the "Service"), so that you are aware of your legal rights and obligations with respect to eWhale co. or any of its affiliates and subordinates, subsidiaries, or an agent acting on their behalf ("eWhale", "we", "our" or "us").

These Terms apply to: (i) all visitors and users of our Site; and (ii) all applicants to, and users of, our Service. All references to "You" or "you" include: (i) visitors and users of our Site, (ii) the Customers of our Service; and (iii) the authorized individuals that are using the Account, and Service, on behalf of our Customers.

Unless the Site and Service are separately referred to in these Terms, all references herein to the "Services" shall include both the Site and the Service.

Please note that Section 23 of these Terms includes provisions that govern how claims we may have against each other are resolved. These provisions limit eWhale's liability and require individual arbitration for any dispute that you assert against us. These provisions include important terms regarding your rights related to fees, dispute resolution and governing law.

 

1. Definitions.

a. “Advance” means the cash amount provided to a Customer by eWhale for purchased Invoices that are submitted through the Advance Service.

b. “Advance Agreement” means a contractual agreement between eWhale and a Customer approved for the Advance Service by eWhale, which sets forth the provisions and conditions of eWhale's purchase of a Customer’s Invoices.

c. “Advance Service”  means a transaction involving the purchase and sale of Invoices, whereby eWhale purchases all right, title, and interest to a Customer’s outstanding Invoices with limited recourse to the Customer, in exchange for providing the Customer (i.e. “seller”) with an Advance in an amount equal to the aggregate dollar amount of the purchased Invoices.

d. “Customer” means a Business (as defined in Section 4, below) that has created an Account for use of the Service, and has been approved for a specific Service by eWhale, as well as the individuals authorized to use the Account or Service on the Customer’s behalf.

e. “Business Financing Service” means a loan transaction whereby eWhale or its bank partner provides a Customer with a revolving credit facility (i.e., line of credit) that shall be utilized by the Customer to fund the documented Invoices issued by the Customer in the course of providing goods and services to its clients.

f. “Dispute” means any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and eWhale including but not limited to any claims relating in any way to these Terms (including its formation, validity, performance, breach, termination, or interpretation), any other aspect of our relationship, eWhale advertising, and any use of eWhale software or services. “Dispute” also includes any claims that arose before these Terms of Use and that may arise after termination of these Terms of Use.

g. “eWhale,” “we”, “us” or “our” means eWhale or any affiliates, subordinates, subsidiaries, or an agent acting on its behalf.

h. “Invoice” means the outstanding invoices the Customer generates as part of its typical business activity.

 

2. Acceptance of Agreement.

a. By visiting this Site, and/or applying to use, or using, the Service, you acknowledge and agree that you have read and understood and agree to comply with these Terms, and are entering into a binding legal agreement with eWhale (and any eWhale affiliate may enforce these Terms as a third party beneficiary thereof). If you do not agree to comply with and be bound by these Terms, please do not accept these Terms or visit, access or use the Site and/or Service.

b. eWhale's Advance Service and Business Financing Service are components of eWhale's Services, and therefore, Customers utilizing either are subject to these Terms. However, the provisions and conditions of the Advance Service shall be governed by an Advance Agreement, while the provisions and conditions of the Business Financing Service shall be governed by a separate Master Revolving Credit Agreement. These Agreements must be properly executed before the Advance Service or Business Financing Service (as appropriate) may be utilized, and will be provided to Customers in conjunction with eWhale's approval of the appropriate transaction contemplated.

c. Consent to Electronic Transactions and Disclosures. Because you are using the Internet on the Site, it is necessary for you to consent to transact business with us online and electronically. We need you to consent to our giving you certain Disclosures electronically, either via our Site or to the email address you provide to us. By agreeing to the Terms, you agree to receive electronically all documents, communications, notices, contracts, and agreements—arising from or relating to you—regarding any loans you may request or receive, your use as user on our Site, any funding, the servicing of any loan, if funded as a borrower (each, a “Disclosure”), from us.

d. Scope of Electronic Consent. Your consent is applicable to receive Disclosures and transact business electronically. Our agreement to do so applies to any transactions to which such Disclosures relate, whether between you and eWhale. Your consent will remain in effect as long as you are user of the Site and, if you are no longer user of the Site, will continue until such a time as all Disclosures relevant to transactions that occurred while you were user have been made.

e. Consenting to Do Business Electronically. Before you decide to do business electronically with eWhale, you should consider whether you have the required hardware and software capabilities described below.

f. Hardware and Software Requirements. To access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions (such as Microsoft Edge, mobile Safari, Firefox, Chrome, or the equivalent software); and hardware capable of running this software.

g. Request for Paper Disclosures. If you require paper copies of Disclosures, you ma send us an email message at pof@ewhale.co. 

h. Consent to Telephone Calls. You also expressly consent to receiving servicing, collection, marketing and other calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, marketing partners, agents, and others calling at their request or on their behalf, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers). Your cellular or mobile telephone provider may charge you according to the type of plan you carry. Your consent to these calls may be revoked by informing the telemarketing representative, or by any other reasonable method that ensures we receive the revocation. Your consent to telemarketing calls is not a condition of obtaining your loan.

i. Consent to Monitoring and Recording of Calls. You consent to the recording and monitoring, for quality assurance, training, risk management, collection, or other purposes, of any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.

j. Additional Mobile Technology Requirements. If you are accessing our site and the Disclosures electronically via a mobile device (such as a smart phone, tablet, and the like), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print and save the Disclosures presented to you during the application process. These applications can be found for most mobile devices in the device’s respective “app store.” If you do not have these capabilities on your mobile device, please access this through a device that provides these capabilities.

k. Withdrawing Consent. You may withdraw your consent to receive Disclosures electronically by contacting us at the address below. However, once you have withdrawn your consent you will not be able to post any funding requests on our Site. If you have a pending request on our Site, we will terminate it and remove it from our system. If you have already received funding, all previously agreed to terms and conditions will remain in effect, and we will send Disclosures to your verified business address provided during registration.

l. How to Contact Us regarding Electronic Disclosures. You can contact us via email at pof@ewhale.co.

 

3. Privacy Policy.

eWhale's Privacy Policy (available at: https://www.ewhale.co/privacy), which is incorporated by reference into these Terms as if it were set forth herein in its entirety, describes the types of personal, business, and anonymous information (collectively “Information”) we collect from you in connection with the Services, as well as the manner in which we treat, share, and protect such information. By providing us with, or allowing us to access, Information and/or utilizing a eWhale Service, you agree to, and are bound by the terms of the Privacy Policy. 

 

4. Businesses.

a. While any person can access the Site, the Service is only intended for use by businesses, companies and organizations (each a "Business"). The Service is not intended for use by individuals in their personal capacity and the proceeds of all loans made through the Service must be used for business purposes. You will not use the Service for personal, household, or family purposes. An individual may only apply to use, and use, the Service on behalf, and with the authorization, of a Business.

b. Prohibited Business Policy. You are prohibited from using eWhale Services for the following categories of business activities (the "Prohibited Businesses").

Prohibited Businesses include:

  • Adult entertainment and services
    • Pornography and other obscene materials (including literature, imagery and other media)
    • Sites offering any sexually-related services such as prostitution, escorts, pay-per view, adult live chat features
  • Firearms and weapons
  • Online gaming and gambling
    • Bidding fee auctions
    • Sports forecasting or odds making
    • Fantasy sports leagues with cash prizes
    • Internet gaming
    • Contests
    • Sweepstakes
    • Games of chance
  • Drugs, dispensaries, and drug paraphernalia, including  equipment for making or using drugs, such as bongs, vaporizers, and hookahs
  • Money Services Businesses (MSBs)
    • Money transmitters
    • Check cashing
    • Wire transfers
    • Money orders
    • Currency exchanges or dealers
    • Bail bonds
    • Collections agencies
    • Law firms collecting funds for any purpose other than to pay fees owed to the firm for services provided by the firm
  • Non-profit organizations, such as charities and religious organizations.

 

5. Account.

a. In order to use the Service, a Business must create an account ("Account"). You may only create an Account if you do so on behalf of a Business. If you create an Account on behalf of a Business then you represent and warrant that you are over the age of 18 years and have full authority to: (i) bind said Business to these Terms (if it has not already done so); and (ii) use the Service on behalf of the Business that you are registering a Service account for. If you do not have the foregoing authority you must not create an Account or apply to use, or access or use, the Service on behalf of the Business.

b. If you create an Account for a Business then the Business will become our Customer. Please be aware that these Terms are a binding legal agreement between the Customer named in the Account and eWhale (and any eWhale affiliate may enforce these Terms as a third party beneficiary thereof).

c. We reserve the right in our sole discretion to refuse to approve the creation of an Account.

d. Customer must not allow anyone other than its authorized employees or agents acting on its behalf ("Authorized User") to access and use its Account. Customer acknowledges and agrees: (i) to provide accurate and complete Account and login information when creating an Account; (ii) to keep, and ensure that Authorized Users keep, all Account login details and passwords secure at all times; (iii) that Customer remains solely responsible and liable for the activity that occurs in connection with Customer's Account, (iv) that if separate login details are provided for different Authorized Users then the login details for each Authorized User may only be used by that Authorized User, and that multiple people may not share the same login details; and (v) to promptly notify eWhale in writing if Customer becomes aware of any unauthorized access or use of its Account or the Service. 

e. You agree not to use a Customer's account without its express permission and authorization to do so.

 

6. Third Party Software Products.

a. Connection and Interaction. The Service may enable Customer to select and connect or interact with a third party software product, such as an e-invoicing, accounting software product, or event hosting product, that Customer is using (each a "Third Party Software Product"). In order to connect or interact with a specific Third Party Software Product, Customer will need to have, and actually be signed-in to, an active user account for that Third Party Software Product (each a "Third Party Software Product Account"). Customer is solely responsible for: (i) registering Customer's Third Party Software Product Account; (ii) keeping Customer's Third Party Software Product active; (iii) Customer's choice to connect, interact with and use Customer's Third Party Software Product; and (iv) the payment of any Third Party Software Product fees to the provider of the Third Party Software Product in connection with Customer's use of the Third Party Software Product. We are not affiliated with, have no control over, and assume no responsibility for, the policies or practices of any Third Party Software Product or Third Party Software Product provider. Customer acknowledges and agrees to review and be bound by the terms of use and privacy policy of any Third Party Software Product that Customer uses and connects with, and Customer agrees to indemnify and hold us harmless, and expressly release us, from any and all liability arising from Customer's use of, and/or connection to, a Third Party Software Product.

b. Authorization. If Customer chooses to connect or interact with a Third Party Software Product then Customer: (i) hereby grants us authorization to access Customer's Third Party Software Product Account in accordance with the rules for doing so prescribed by the Third Party Software Product provider; and (ii) agrees to cooperate with us and provide any information that we or the Third Party Software Product provider may request in order to enable us to access Customer's Third Party Software Product Account. We will only access and use Customer's Third Party Software Product in order to: (i) perform Background Checks (please see Section 8 (Background Checks) below, for more information about this); and (ii) provide the Service to Customer.

c. Data. If Customer connects or interacts with a Third Party Software Product then we will collect certain data and materials from that Third Party Software Product ("Third Party Software Product Data"). We only collect Third Party Software Product Data that the Third Party Software Product provider enables us to collect by utilizing the Third Party Software Product provider's "connect" tool. If we collect Third Party Software Product Data then we may use it to: (i) perform Background Checks on Customer; and (ii) provide the Service to Customer (collectively, "Data Uses"). Customer hereby provides its express consent for us to collect, store, and use Customer's  past, present and future Third Party Software Product Data for the purpose of performing the Data Uses. Please also see Section 7 (Customer Data), below, which includes additional information about our collection and use of Third Party Software Product Data.

d. eWhale Credentials. If we provide Customer with any eWhale credentials, identification or other information to enable Customer to connect with a Third Party Software Product, Customer agrees not to use said information for any purpose except to connect to the Third Party Software Product as part of Customer's participation in the Service.

e. Customer acknowledges that any failure to take any of the steps described in Sections 6.1 (Connection and Interaction), 6.2 (Authorization), and 6.3 (Data) of these Terms, above, may restrict us from enabling a connection or interaction with Customer's Third Party Software Product Account and may prevent Customer from being able to apply for and/or use our Service.

 

7. Customer Data.

a. Customer may choose to provide, transmit, upload, import or make accessible certain data, including without limitation Third Party Software Product Data, to us (collectively, "Data") for us to use in connection with the Service. We will use Customer's Data to perform Background Checks on the Customer and to provide our Service to the Customer (the Data Uses, as defined above). In addition, we may use Customer’s Data to send messages to recipients of Customer’s Invoices regarding the Service unless otherwise requested by Customer or the applicable recipient. Customer hereby provides its express consent for us to collect and use Customer's Data for the foregoing purposes, including for the purpose of performing the Data Uses. Customer retains ownership of its Data.

b. We follow generally accepted industry standards to protect the security and confidentiality of Data. We will maintain any personally identifiable information that we collect and/or receive in accordance with our Privacy Policy which is available at www.ewhale.co/privacy. Notwithstanding any other provision herein, Customer agrees that we may use aggregate Data that is anonymous and is not personally identifiable in order to evaluate, develop and improve the Service and our products and services and for the other purposes set forth in our Privacy Policy.

c. Customer represents and warrants that: (i) it owns or has obtained the right to all of the intellectual property rights subsisting in its Data, and has the right to provide eWhale the license granted herein to such Data; (ii) Customer's Data is accurate, current and complete; (iv) Customer's Data is not misleading or false; (iv) Customer's Data does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party; and (v) Customer’s Data does not contain any protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or similar federal or state laws, rules or regulations or other medical or health information identifiable with a particular individual (“Sensitive Data”);. Customer shall remain solely responsible and liable for its Data, including without limitation for our reliance upon Customer's Data in order to perform Background Checks and to provide the Service to Customer, and Customer agrees to indemnify and hold us harmless, and expressly release us, from any and all liability arising from the foregoing.

d. Customer acknowledges that: (i) the Service does not operate as an archive or file storage service and we do not store all of the Data that Customer may provide, upload, import, or otherwise generate during Customer's use of the Service; (ii) Customer is solely responsible for the backup of its Data; and (iii) Customer will lose access to any Data that Customer deletes.

 

8. Background Checks.

If Customer registers an Account with eWhale, Customer hereby agrees and consents that we may perform an initial background check (and subsequent periodic follow-up checks) on Customer and any of its directors and officers to help us determine Customer's suitability for a Service and whether eWhale is willing to approve the purchase of the Customer’s Invoices through the Advance Service from us (each a "Background Check"). Each Background Check may, without limitation, include a review of the following information, which Customer hereby expressly authorizes and consents to,: (i) Customer's Data; (ii) credit history; (iii) whether Customer, or any of its directors and officers, has any state or federal convictions and criminal records; (iv) information that is publicly available about Customer and/or any of its directors and officers; (v) information that we obtain from third party service providers, including information derived or prepared by third-party data aggregation and analysis companies; and (vi) whether Customer, or any of its directors and officers, have ever been declared bankrupt. Customer agrees to cooperate with eWhale with respect to Background Checks and shall promptly, upon request, provide (or sign) any information, documentation and/or consent that we may require to perform a Background Check. For the avoidance of doubt, Customer is responsible to obtain and maintain the consent of its directors and officers for us to perform a Background Check on them (solely for the purposes set forth in these Terms), and will defend, indemnify and hold us harmless from any failure by Customer to do so. Customer acknowledges that any failure to provide the foregoing information and said cooperation may preclude Customer from being: (i) approved to participate in our Service and/or obtain a revolving line of credit through our Business Financing Service Advance or (ii) able to sell its Invoices to us through our Advance Service.

 

9. Fees & Payment.

Customers approved for the Advance Service or Business Financing Service will be required to pay certain fees. Specifically, the Customer’s timely payment of applicable drawing fees in accordance with the provisions of the Advance Agreement will be required to complete the purchase and sale of Invoices. In addition, a Customer’s ability to obtain and maintain a revolving credit facility though the Business Financing Service shall be contingent on the Customer making timely payments of principal, interest, and certain fees in accordance with the provisions of the Master Revolving Credit Agreement.

 

10. Restrictions.

You shall not, and shall not permit any third party to: (i) copy, distribute or modify any part of the Services or to copy, use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose Content (defined below), except as expressly authorized herein; (ii) decompile, disassemble, reverse-engineer, or derive or attempt to derive the source code form of, the Services; (iii) disrupt any servers or networks connected to the Services; (iv) use or launch any automated system (including without limitation, "robots" and "spiders") to access the Services; (v) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on the Services; (vii) use the eWhale name, logo or trademarks without our prior written consent; (viii) use the Services to develop a competing service or product; and/or (ix) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches these Terms.

 

11. SMS and Text Messaging.

By registering to receive communications including account update alerts ("Account Alerts") via Short Message Service or text ("SMS/MMS Alerts Service"), you are agreeing to the terms and conditions of this Agreement ("Terms") and the eWhale website Terms of Use and Privacy Policy.

a) Authorization: You certify that you are authorized: (a) to enroll the designated mobile phone number in the SMS/MMS Alerts Service, and (b) to incur any mobile message or data charges that may be incurred by participating in the SMS/MMS Alerts Service.

b) Subscribing to SMS Alerts: You may subscribe to SMS/MMS Alerts by entering and submitting your phone number in the provided submission form available on our website and our mobile application. By entering your phone number and completing the submission form, you consent to these terms and to receive text message communications from eWhale as described herein. A text message will be delivered to the mobile number you provided confirming your enrollment once you have submitted your phone number. You must confirm your enrollment at that time to complete the subscription. You are responsible for managing the types of texts (whether SMS or MMS) you receive.

c) By subscribing to SMS/MMS Account Alerts, you expressly consent and agree to accept and receive Account Alerts and related communications via text message to your mobile device and to the cellular/mobile telephone number(s) that you provided to us. The information in any message may be subject to certain time lags and/or delays.

d) Frequency of Messages: The number and frequency of SMS/MMS Alerts sent to your device depends on several factors including the number of transactions you perform through eWhale which includes but is not limited to: updating your account details, drawing funds, repayment alerts for upcoming payments, and so forth.

 

12. Intellectual Property Rights.

a. Content and Marks. The: (i) text, documents, articles, blogs, descriptions, graphics, photos, sounds, videos and interactive features on the Site and Service (collectively, the "Materials"), (ii) Site and Service products, services and software (collectively, the "Software", and together with the Materials, the "Content"), and (iii) the trademarks, service marks and logos contained therein ("Marks"), are the property of eWhale and our affiliates and/or our licensors and may be protected by applicable copyright or other intellectual property laws and treaties. 

b. Use of Content. The Content on the Services is provided to you on an 'as is' and 'as available' basis. The Content on the Service is for your use of the Service only, and the Content on the Site is for your informational and personal use only. The Content may not be used, modified, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent or as expressly permitted herein. If you download or print a copy of any Content you must retain all copyright and other proprietary notices contained therein.

 

13. Information Description.

We attempt to be as accurate as possible. However, we cannot and do not warrant that the Content available on the Services is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the Content, or any part thereof, in our sole judgment, without the requirement of giving any notice prior to or after making such changes to the Content. Your use of the Content, or any part thereof, is made solely at your own risk and responsibility.

 

14. Disclosure.

We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Services, and your use thereof, as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce these Terms, including to investigate potential violations of them, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of eWhale, its users or the public.

 

15. Links.

The Site may contain links, and may enable you to post content, to third party websites that are not owned or controlled by eWhale. We are not affiliated with, have no control over, and assume no responsibility for the content, privacy policies, or practices of, any third party websites. You: (i) are solely responsible and liable for your use of and linking to third party websites and any content that you may send or post to a third party website; and (ii) expressly release eWhale from any and all liability arising from your use of any third party website. Accordingly, we encourage you to read the terms and conditions and privacy policy of each third party website that you may choose to visit, link to or post content on.

 

16. Warranty Disclaimers.

a. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. EWHALE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EWHALE DOES NOT GUARANTEE THAT THE SERVICES WILL BE FREE OF BUGS, SECURITY BREACHES, OR VIRUS ATTACKS. THE SERVICES MAY OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. YOU AGREE THAT EWHALE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS. EXCEPT AS EXPRESSLY STATED IN OUR PRIVACY POLICY, EWHALE DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SECURITY OF ANY INFORMATION YOU MAY PROVIDE OR ACTIVITIES YOU ENGAGE IN DURING THE COURSE OF YOUR USE OF THE SERVICES.

b. EWHALE DOES NOT OPERATE AS A BROKER OR AN ACCOUNTING, FINANCIAL OR INVESTMENT PLANNER OR ADVISOR. WE DO NOT PROVIDE FINANCIAL, BUSINESS, ACCOUNTING, SECURITIES, TAX OR LEGAL ADVICE. YOUR USE OF THE SERVICES IS AT YOUR SOLE DISCRETION AND RISK.

c. EWHALE IS NOT ACTING AS A BUSINESS ASSOCIATE OR SUBCONTRACTOR (AS SUCH TERMS ARE DEFINED AND USED IN HIPAA) AND THE SERVICES PROVIDED BY EWHALE ARE NOT HIPAA COMPLIANT. EWHALE HAS NO LIABILITY UNDER THIS AGREEMENT FOR SENSITIVE DATA.

 

17. Limitation of Liability.

a. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EWHALE SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND ARISING UNDER THESE TERMS OR OUT OF YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF EWHALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitations may not apply to you.

b. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EWHALE FOR ANY DAMAGES ARISING UNDER THESE TERMS OR OUT OF YOUR USE OF, OR INABILITY TO USE, THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO EWHALE FOR USING THE SERVICES DURING THE THREE (3) MONTHS PRIOR TO BRINGING THE CLAIM.

 

18. Indemnity.

You agree to defend, indemnify and hold harmless eWhale and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of the Services; (ii) your violation of these Terms; and (iii) your transmission of Sensitive Data to eWhale.

 

19. Term and Termination.

These Terms are effective until terminated by eWhale or you. We, in our sole discretion, have the right to terminate the Terms and/or discontinue your access to the Site and/or Service, or any part thereof, immediately at any time and with or without cause (including, without any limitation, for a breach of these Terms). eWhale shall not be liable to you or any third party for termination of the Site or Service, or any part thereof. If you object to any term or condition of these Terms, or any subsequent modifications thereto, or become dissatisfied with the Services in any way, your only recourse is to immediately discontinue use of the Services. Upon termination of these Terms, you shall cease all use of the Services.

 

20. Survival.

All provisions of these Terms that by their nature extend beyond the expiration or termination of these Terms, including, without limitation, Sections 3 (Privacy Policy), 10 (Restrictions), 11 (Intellectual Property Rights), and 16 (Warranty Disclaimers) to 26 (General).

 

21. Independent Contractors.

You and eWhale are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship between you and eWhale. You must not under any circumstances make, or undertake, any warranties, representations, commitments or obligations on behalf of eWhale.

 

22. Assignment.

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by eWhale without restriction or notification to you.

 

23. Disputes.

If a dispute of any kind arises between you and eWhale, you and eWhale agree that this Dispute will be resolved in accordance with the provisions set forth in this Section (Section 23: Disputes). Please read this Section carefully. It affects your rights and will impact how claims you and we have against each other are resolved.

a. Contact eWhale. If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction and, if we are unable to do so, provide you with a neutral and cost effective means of resolving the dispute quickly. Please contact eWHale support at pof@ewhale.co

 

24. Right to Amend.

eWhale has the right to change or add to these Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at ewhale.co or any other website maintained or owned by us for the purposes of providing the Service. Such change will be effective ten (10) days following posting of the revised Terms on the Site. If you do not agree to any amendment to the Agreement, you must stop using the Site and Services. Any use of the Service after our publication of any such changes shall constitute your acceptance of these Terms as modified. However, any Dispute that arose before the modification shall be governed by the Terms (including the binding individual arbitration clause) that were in place when the Dispute arose.

 

25. Electronic Signature.

With respect to these Terms, you hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.

 

26. General.

All references in this Section 26 to the "Terms" include the Terms of Use and our Privacy Policy. These Terms, along with any applicable Advance Agreement or Master Revolving Credit Agreement, shall constitute the entire agreement between you and eWhale concerning the Site and Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and a party's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

 

What are the terms of use?

Welcome to ewhale.co (together with its subdomains, Content, Marks and services, the "Site"). Please read the following Terms of Use ("Terms") carefully before: (i) visiting or using this Site so that you are aware of your legal rights and obligations with respect to eWhale, or any of its affiliates and subordinates, subsidiaries, or an agent acting on their behalf ("eWhale", "we", "our" or "us").

These Terms apply to: (i) all visitors and users of our Site; and (ii) all applicants to, and users of, our Service. All references to "You" or "you" include: (i) visitors and users of our Site, (ii) the Customers of our Service; and (iii) the authorized individuals that are using the Account, and Service, on behalf of our Customers.

Unless the Site and Service are separately referred to in these Terms, all references herein to the "Services" shall include both the Site and the Service.

Please note that Section 23 of these Terms includes provisions that govern how claims we may have against each other are resolved. These provisions limit eWhale's liability and require individual arbitration for any dispute that you assert against us. These provisions include important terms regarding your rights related to fees, dispute resolution and governing law.

 

1. Definitions.

a. “Advance” means the cash amount provided to a Customer by eWhale for purchased Invoices that are submitted through the Advance Service.

b. “Advance Agreement” means a contractual agreement between eWhale and a Customer approved for the Advance Service by eWhale, which sets forth the provisions and conditions of eWhale's purchase of a Customer’s Invoices.

c. “Advance Service”  means a transaction involving the purchase and sale of Invoices, whereby eWhale purchases all right, title, and interest to a Customer’s outstanding Invoices with limited recourse to the Customer, in exchange for providing the Customer (i.e. “seller”) with an Advance in an amount equal to the aggregate dollar amount of the purchased Invoices.

d. “Customer” means a Business (as defined in Section 4, below) that has created an Account for use of the Service, and has been approved for a specific Service by eWhale, as well as the individuals authorized to use the Account or Service on the Customer’s behalf.

e. “Business Financing Service” means a loan transaction whereby eWhale or its bank partner provides a Customer with a revolving credit facility (i.e., line of credit) that shall be utilized by the Customer to fund the documented Invoices issued by the Customer in the course of providing goods and services to its clients.

f. “Dispute” means any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and eWhale including but not limited to any claims relating in any way to these Terms (including its formation, validity, performance, breach, termination, or interpretation), any other aspect of our relationship, eWhale advertising, and any use of eWhale software or services. “Dispute” also includes any claims that arose before these Terms of Use and that may arise after termination of these Terms of Use.

g. “eWhale,” “we”, “us” or “our” means eWhale Co. or any of their affiliates, subordinates, subsidiaries, or an agent acting on their behalf.

h. “Invoice” means the outstanding invoices the Customer generates as part of its typical business activity.

i. “Master Revolving Credit Agreement” means a contractual agreement between eWhale or its bank partner and a Customer approved for the Business Financing Service, which sets forth the provisions and conditions of the revolving credit facility.

 

2. Acceptance of Agreement.

a. By visiting this Site, and/or applying to use, or using, the Service, you acknowledge and agree that you have read and understood and agree to comply with these Terms, and are entering into a binding legal agreement with eWhale (and any eWhale affiliate may enforce these Terms as a third party beneficiary thereof). If you do not agree to comply with and be bound by these Terms, please do not accept these Terms or visit, access or use the Site and/or Service.

b. Scope of Electronic Consent. Your consent is applicable to receive Disclosures and transact business electronically. Our agreement to do so applies to any transactions to which such Disclosures relate, whether between you and eWhale. Your consent will remain in effect as long as you are user of the Site and, if you are no longer user of the Site, will continue until such a time as all Disclosures relevant to transactions that occurred while you were user have been made.

c. Consenting to Do Business Electronically. Before you decide to do business electronically with eWhale, you should consider whether you have the required hardware and software capabilities described below.

d. Hardware and Software Requirements. To access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions (such as Microsoft Edge, mobile Safari, Firefox, Chrome, or the equivalent software); and hardware capable of running this software.

e. Consent to Telephone Calls. You also expressly consent to receiving servicing, collection, marketing and other calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, marketing partners, agents, and others calling at their request or on their behalf, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers). Your cellular or mobile telephone provider may charge you according to the type of plan you carry. Your consent to these calls may be revoked by informing the telemarketing representative, or by any other reasonable method that ensures we receive the revocation. Your consent to telemarketing calls is not a condition of obtaining your loan.

f. Consent to Monitoring and Recording of Calls. You consent to the recording and monitoring, for quality assurance, training, risk management, collection, or other purposes, of any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.

g. Additional Mobile Technology Requirements. If you are accessing our site and the Disclosures electronically via a mobile device (such as a smart phone, tablet, and the like), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print and save the Disclosures presented to you during the application process. These applications can be found for most mobile devices in the device’s respective “app store.” If you do not have these capabilities on your mobile device, please access this through a device that provides these capabilities.

h. Withdrawing Consent. You may withdraw your consent to receive Disclosures electronically by contacting us at the address below. However, once you have withdrawn your consent you will not be able to post any funding requests on our Site. If you have a pending request on our Site, we will terminate it and remove it from our system. If you have already received funding, all previously agreed to terms and conditions will remain in effect, and we will send Disclosures to your verified business address provided during registration.

i. How to Contact Us regarding Electronic Disclosures. You can contact us via email at pof@ewhale.co

 

3. Privacy Policy.

eWhale's Privacy Policy (available at: https://www.ewhale.co/privacy), which is incorporated by reference into these Terms as if it were set forth herein in its entirety, describes the types of personal, business, and anonymous information (collectively “Information”) we collect from you in connection with the Services, as well as the manner in which we treat, share, and protect such information. By providing us with, or allowing us to access, Information and/or utilizing a eWhale Service, you agree to, and are bound by the terms of the Privacy Policy.

 

4. Businesses.

a. While any person can access the Site, the Service is only intended for use by businesses, companies and organizations (each a "Business"). The Service is not intended for use by individuals in their personal capacity and the proceeds of all loans made through the Service must be used for business purposes. You will not use the Service for personal, household, or family purposes. An individual may only apply to use, and use, the Service on behalf, and with the authorization, of a Business.

b. US Business Only. The Service is currently only provided for Businesses in the United States. If your Business is not located in the United States then please do not create an Account.

c. Prohibited Business Policy. You are prohibited from using eWhale Services for the following categories of business activities (the "Prohibited Businesses").

By registering with us, you are confirming that your business is not a Prohibited Business. Any account using the eWhale Services in connection with a Prohibited Business is subject to immediate termination.

Prohibited Businesses include:

  • Adult entertainment and services
    • Pornography and other obscene materials (including literature, imagery and other media)
    • Sites offering any sexually-related services such as prostitution, escorts, pay-per view, adult live chat features
  • Firearms and weapons
  • Online gaming and gambling
    • Bidding fee auctions
    • Sports forecasting or odds making
    • Fantasy sports leagues with cash prizes
    • Internet gaming
    • Contests
    • Sweepstakes
    • Games of chance
  • Drugs, dispensaries, and drug paraphernalia, including  equipment for making or using drugs, such as bongs, vaporizers, and hookahs
  • Money Services Businesses (MSBs)
    • Money transmitters
    • Check cashing
    • Wire transfers
    • Money orders
    • Currency exchanges or dealers
    • Bail bonds
    • Collections agencies
    • Law firms collecting funds for any purpose other than to pay fees owed to the firm for services provided by the firm
  • Non-profit organizations, such as charities and religious organizations.

 

5. Account.

a. In order to use the Service, a Business must create an account ("Account"). You may only create an Account if you do so on behalf of a Business. If you create an Account on behalf of a Business then you represent and warrant that you are over the age of 18 years and have full authority to: (i) bind said Business to these Terms (if it has not already done so); and (ii) use the Service on behalf of the Business that you are registering a Service account for. If you do not have the foregoing authority you must not create an Account or apply to use, or access or use, the Service on behalf of the Business.

b. If you create an Account for a Business then the Business will become our Customer. Please be aware that these Terms are a binding legal agreement between the Customer named in the Account and eWhale (and any eWhale affiliate may enforce these Terms as a third party beneficiary thereof).

c. We reserve the right in our sole discretion to refuse to approve the creation of an Account.

d. Customer must not allow anyone other than its authorized employees or agents acting on its behalf ("Authorized User") to access and use its Account. Customer acknowledges and agrees: (i) to provide accurate and complete Account and login information when creating an Account; (ii) to keep, and ensure that Authorized Users keep, all Account login details and passwords secure at all times; (iii) that Customer remains solely responsible and liable for the activity that occurs in connection with Customer's Account, (iv) that if separate login details are provided for different Authorized Users then the login details for each Authorized User may only be used by that Authorized User, and that multiple people may not share the same login details; and (v) to promptly notify eWhale in writing if Customer becomes aware of any unauthorized access or use of its Account or the Service. 

e. You agree not to use a Customer's account without its express permission and authorization to do so.

 

6. Third Party Software Products.

a. Connection and Interaction. The Service may enable Customer to select and connect or interact with a third party software product, such as an e-invoicing, accounting software product, or event hosting product, that Customer is using (each a "Third Party Software Product"). In order to connect or interact with a specific Third Party Software Product, Customer will need to have, and actually be signed-in to, an active user account for that Third Party Software Product (each a "Third Party Software Product Account"). Customer is solely responsible for: (i) registering Customer's Third Party Software Product Account; (ii) keeping Customer's Third Party Software Product active; (iii) Customer's choice to connect, interact with and use Customer's Third Party Software Product; and (iv) the payment of any Third Party Software Product fees to the provider of the Third Party Software Product in connection with Customer's use of the Third Party Software Product. We are not affiliated with, have no control over, and assume no responsibility for, the policies or practices of any Third Party Software Product or Third Party Software Product provider. Customer acknowledges and agrees to review and be bound by the terms of use and privacy policy of any Third Party Software Product that Customer uses and connects with, and Customer agrees to indemnify and hold us harmless, and expressly release us, from any and all liability arising from Customer's use of, and/or connection to, a Third Party Software Product.

b. Authorization. If Customer chooses to connect or interact with a Third Party Software Product then Customer: (i) hereby grants us authorization to access Customer's Third Party Software Product Account in accordance with the rules for doing so prescribed by the Third Party Software Product provider; and (ii) agrees to cooperate with us and provide any information that we or the Third Party Software Product provider may request in order to enable us to access Customer's Third Party Software Product Account. We will only access and use Customer's Third Party Software Product in order to: (i) perform Background Checks (please see Section 8 (Background Checks) below, for more information about this); and (ii) provide the Service to Customer.

c. Data. If Customer connects or interacts with a Third Party Software Product then we will collect certain data and materials from that Third Party Software Product ("Third Party Software Product Data"). We only collect Third Party Software Product Data that the Third Party Software Product provider enables us to collect by utilizing the Third Party Software Product provider's "connect" tool. If we collect Third Party Software Product Data then we may use it to: (i) perform Background Checks on Customer; and (ii) provide the Service to Customer (collectively, "Data Uses"). Customer hereby provides its express consent for us to collect, store, and use Customer's  past, present and future Third Party Software Product Data for the purpose of performing the Data Uses. Please also see Section 7 (Customer Data), below, which includes additional information about our collection and use of Third Party Software Product Data.

d. eWhale Credentials. If we provide Customer with any eWhale credentials, identification or other information to enable Customer to connect with a Third Party Software Product, Customer agrees not to use said information for any purpose except to connect to the Third Party Software Product as part of Customer's participation in the Service.

e. Customer acknowledges that any failure to take any of the steps described in Sections 6.1 (Connection and Interaction), 6.2 (Authorization), and 6.3 (Data) of these Terms, above, may restrict us from enabling a connection or interaction with Customer's Third Party Software Product Account and may prevent Customer from being able to apply for and/or use our Service.

 

7. Customer Data.

a. Customer may choose to provide, transmit, upload, import or make accessible certain data, including without limitation Third Party Software Product Data, to us (collectively, "Data") for us to use in connection with the Service. We will use Customer's Data to perform Background Checks on the Customer and to provide our Service to the Customer (the Data Uses, as defined above). In addition, we may use Customer’s Data to send messages to recipients of Customer’s Invoices regarding the Service unless otherwise requested by Customer or the applicable recipient. Customer hereby provides its express consent for us to collect and use Customer's Data for the foregoing purposes, including for the purpose of performing the Data Uses. Customer retains ownership of its Data.

b. We follow generally accepted industry standards to protect the security and confidentiality of Data. We will maintain any personally identifiable information that we collect and/or receive in accordance with our Privacy Policy which is available at www.ewhale.com/privacy. 

c. Customer represents and warrants that: (i) it owns or has obtained the right to all of the intellectual property rights subsisting in its Data, and has the right to provide eWhale the license granted herein to such Data; (ii) Customer's Data is accurate, current and complete; (iv) Customer's Data is not misleading or false; (iv) Customer's Data does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party; and (v) Customer’s Data does not contain any protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or similar federal or state laws, rules or regulations or other medical or health information identifiable with a particular individual (“Sensitive Data”);. Customer shall remain solely responsible and liable for its Data, including without limitation for our reliance upon Customer's Data in order to perform Background Checks and to provide the Service to Customer, and Customer agrees to indemnify and hold us harmless, and expressly release us, from any and all liability arising from the foregoing.

d. Customer acknowledges that: (i) the Service does not operate as an archive or file storage service and we do not store all of the Data that Customer may provide, upload, import, or otherwise generate during Customer's use of the Service; (ii) Customer is solely responsible for the backup of its Data; and (iii) Customer will lose access to any Data that Customer deletes.

 

8. Background Checks.

If Customer registers an Account with eWhale, Customer hereby agrees and consents that we may perform an initial background check (and subsequent periodic follow-up checks) on Customer and any of its directors and officers to help us determine Customer's suitability for a Service or whether eWhale is willing to approve the purchase of the Customer’s Invoices through the Advance Service from us (each a "Background Check"). Each Background Check may, without limitation, include a review of the following information, which Customer hereby expressly authorizes and consents to,: (i) Customer's Data; (ii) credit history; (iii) whether Customer, or any of its directors and officers, has any state or federal convictions and criminal records; (iv) information that is publicly available about Customer and/or any of its directors and officers; (v) information that we obtain from third party service providers, including information derived or prepared by third-party data aggregation and analysis companies; and (vi) whether Customer, or any of its directors and officers, have ever been declared bankrupt. Customer agrees to cooperate with eWhale with respect to Background Checks and shall promptly, upon request, provide (or sign) any information, documentation and/or consent that we may require to perform a Background Check. For the avoidance of doubt, Customer is responsible to obtain and maintain the consent of its directors and officers for us to perform a Background Check on them (solely for the purposes set forth in these Terms), and will defend, indemnify and hold us harmless from any failure by Customer to do so. Customer acknowledges that any failure to provide the foregoing information and said cooperation may preclude Customer from being: (i) approved to participate in our Service and/or obtain a revolving line of credit through our Business Financing Service Advance or (ii) able to sell its Invoices to us through our Advance Service.

 

9. Fees & Payment.

Customers approved for the Advance Service or Business Financing Service will be required to pay certain fees. Specifically, the Customer’s timely payment of applicable drawing fees in accordance with the provisions of the Advance Agreement will be required to complete the purchase and sale of Invoices. In addition, a Customer’s ability to obtain and maintain a revolving credit facility though the Business Financing Service shall be contingent on the Customer making timely payments of principal, interest, and certain fees in accordance with the provisions of the Master Revolving Credit Agreement.

 

10. Restrictions.

You shall not, and shall not permit any third party to: (i) copy, distribute or modify any part of the Services or to copy, use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose Content (defined below), except as expressly authorized herein; (ii) decompile, disassemble, reverse-engineer, or derive or attempt to derive the source code form of, the Services; (iii) disrupt any servers or networks connected to the Services; (iv) use or launch any automated system (including without limitation, "robots" and "spiders") to access the Services; (v) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on the Services; (vii) use the eWhale name, logo or trademarks without our prior written consent; (viii) use the Services to develop a competing service or product; and/or (ix) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches these Terms.

 

11. Intellectual Property Rights.

a. Content and Marks. The: (i) text, documents, articles, blogs, descriptions, graphics, photos, sounds, videos and interactive features on the Site and Service (collectively, the "Materials"), (ii) Site and Service products, services and software (collectively, the "Software", and together with the Materials, the "Content"), and (iii) the trademarks, service marks and logos contained therein ("Marks"), are the property of eWhale and our affiliates and/or our licensors and may be protected by applicable copyright or other intellectual property laws and treaties. The Content does not include your Data. 'eWhale', the eWhale logo, "draw your invoice", "never wait to get paid again", "E-cash-flow optimization" and other marks are Marks of eWhale or our affiliates. All other trademarks, service marks, and logos used on the Site and Service are the trademarks, service marks, or logos of their respective owners. We reserve all rights not expressly granted in and to the Services and the Content.

b. Use of Content. The Content on the Services is provided to you on an 'as is' and 'as available' basis. The Content on the Service is for your use of the Service only, and the Content on the Site is for your informational and personal use only. The Content may not be used, modified, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent or as expressly permitted herein. If you download or print a copy of any Con