Terms of Use

TERMS OF USE 

Effective Date: July 25, 2019

The following terms of use (“Terms of Use”) govern all use of the www.encinabc.com  and www.encinabusiness.com websites (the “Site”) and/or any of the services (“Services”) offered by Encina Business Credit, LLC (“Encina”) on and through its Site, which is owned and operated by Encina. Please review these Site terms of use as they govern your use of the Site. BY ACCESSING, BROWSING, OR USING THIS SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING, WITHOUT LIMITATION, BINDING ARBITRATION. IF YOU DO NOT AGREE TO THESE TERMS THEN PLEASE DO NOT USE THIS SITE.

Encina reserves the right, in its sole discretion, to revise these Terms of Use at any time upon posting the amended terms on the Site without providing notice to you. The amended terms shall automatically be effective upon posting. You should visit this page from time-to-time to review the then-current terms, because they are binding to you. Your continued use of the Site and following the Encina’s posting of any changes will constitute your acceptance of such changes.

Encina controls and operates this Site from its offices within the United States. Claims relating to, including the use of, this Site and the Contents contained herein are governed by the laws of the United States and the State of Illinois, without regard for its conflicts of law provisions. Encina and you agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Use or your use of this Site shall be filed only in the state or federal courts located in Illinois, United States of America, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action that is not subject to binding arbitration as set forth herein. You expressly submit and consent in advance to such jurisdiction in any action or suit commenced in such court, and you hereby waive any objection that you may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. If you do not agree, please do not use this Site. If you choose to access this Site from another location, you do so on your own initiative and are responsible for compliance with applicable local laws.

ENCINA SERVICES

Your access to or use of the Services constitutes your acceptance of all the provisions of these Terms of Use. These Terms of Use apply to any user of the Site and Services, regardless of whether or not the user submits content for public display on the Site. If you wish to use Encina’s Services, you may need to provide Encina with certain information, including information about your identity, finances, and business performance. While any person can access the Site, the Site and Services are only intended for use by businesses, companies and organizations (each a “Business”). The Site and Services are not intended for use by individuals in their personal capacity. You will not use the Site or Services for personal, household, or family purposes. An individual may only use the Site and Services on behalf, and with the authorization, of a Business. Although the purpose of the Site and Services are only intended for use by Businesses, we may collect personal information incidentally during the course of business, which may include banking information, obtain a credit report, retrieve bank account data, or collect other third party data about you (collectively, the “Personal Information”). Please see our Privacy Policy for further details. The content of the Site is fact-checked to the best of Encina’s abilities but may contain errors of typing, spelling, intent, or presumption.  

BINDING ARBITRATION

You and Encina agree that any controversy or claim arising out of or relating to the Site, use of the Site, these Terms of Use and/or the Privacy Policy shall be settled by binding arbitration in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for you in your hometown area), or at such other location as may be mutually agreed upon by both Encina and you, in accordance with the applicable procedural rules set forth in the then prevailing Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The JAMS Rules and Procedures are available at www.jamsadr.com or by calling (800) 352-5267. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. Alternatively, you may assert your claims in small claims court in accordance with the terms of this Agreement if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The arbitrator shall apply Illinois law consistent with the Federal Arbitration Act and applicable statutes of limitations and shall honor claims of privilege recognized at law. If you initiate arbitration against Encina, you will be responsible for professional fees for the arbitrator’s services or any other JAMS fees. If Encina initiates arbitration against you, Encina will pay for the arbitrator’s services and any other JAMS fees associated with the arbitration. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither you nor Encina shall be entitled to arbitrate their dispute. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. DO NOT USE THIS SITE IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.

SITE CONTENTS, OWNERSHIP, AND USE RESTRICTIONS

The information contained in this Site including all images, illustrations, designs, photographs, video clips, writings and other materials that appear herein are copyrights, trademarks, trade dress or other intellectual property owned, controlled, or licensed (all of which, collectively, are herein referred to as the “Contents”) by Encina or are the property of their respective owners. 

The term ENCINA BUSINESS CREDIT is a trademark of Encina Business Credit, LLC. The Contents on the Site are provided to you AS IS for your information and personal use only. Neither the Site or the Contents may be copied, reproduced, downloaded, displayed, performed, modified, republished, uploaded, transmitted, mirrored in any manner, or distributed except as explicitly stated herein. Modification or use of the Contents for any other purpose is a violation of the respective owner’s copyright and other proprietary rights and is strictly prohibited.

Permission is granted to display, copy, distribute, download, and print in hard copy portions of this Site for the purposes of using this Site as a personal, non-commercial resource, provided you do not modify the Site and that you retain, without modification, all copyright and other proprietary notices contained in the Contents. Please note that the permission granted herein terminates automatically if you breach any of these Terms of Use. 

The Site may also contain links to third party websites that are not owned or controlled by Encina. Encina makes no representations or warranties regarding any websites, information or content that may be accessible through this Service that is not maintained, controlled or created by Encina. Further, if you choose to leave this Site via links to other non-Encina sites, Encina assumes no responsibility for the content, privacy policies, cookies, or practices of any third-party websites. 

Encina will not censor or edit the content of any third-party websites. Additionally, because Encina does not control non-Encina sites or the products advertised therein, you acknowledge and agree that Encina is not responsible for the availability of such non-Encina sites, products, or services, and is neither responsible nor liable for any content, advertising, products, services or other materials on or available from such sites. In no event shall any reference to any non-Encina site, product or service be construed as an approval or endorsement by Encina of such site, product or service. Please see our Privacy Policy for further details. By using the Site, you expressly relieve Encina from any and all liability arising from your use of any third-party website.

You shall not, on behalf of yourself or of a Business:

  1. modify, translate or reverse engineer any portion of the Site or Services
  2. launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Site in a manner that sends more request messages to the Encina servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Encina grants the operators of public search engines permission to use spiders to copy Contents from the Site for the sole purpose of creating publicly available searchable indices of the Contents, but not caches or archives of such Contents and provided that such spiders do not affect operation of the Site. Encina reserves the right to revoke these exceptions either generally or in specific cases;
  3. collect or harvest any personally identifiable information, including e-mail addresses, from the Site, nor to use the communication systems provided by the Site for any commercial solicitation purposes;
  4. solicit, for commercial purposes, any users of the Site with respect to their Transmissions (as defined below);
  5. create or transmit unwanted electronic communications such as “spam” to other users or members of the Site or otherwise interfere with other user’s or member’s enjoyment of the Site and/or Services;
  6. transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature;
  7. use the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene; or
  8. use any device, software or routine that interferes with the proper working of the Site and/or Services.

DISCLAIMER OF WARRANTY

ENCINA IS PROVIDING THIS SITE AND ITS CONTENTS ON AN “AS IS” BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ALTHOUGH ENCINA BELIEVES THE CONTENT TO BE ACCURATE, COMPLETE, AND CURRENT, ENCINA DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THIS SITE IS ACCURATE, COMPLETE, OR CURRENT. ENCINA DOES NOT WARRANT THAT THE SERVICES, DESCRIPTIONS, INFORMATION OR MATERIAL INCLUDED ON THE SITE WILL BE AS REPRESENTED BY THIRD-PARTY PROVIDERS, WILL BE FREE OF DEFECTS OR LAWFUL TO SELL, OR WILL BE SATISFACTORY TO YOU, OR THAT THIRD-PARTY PROVIDERS WILL PERFORM AS PROMISED. 

Encina’s obligations with respect to the Services and materials it provides, as well as the obligations of the parties it contracts with, are governed solely by the agreements under which they are provided. Nothing on the Site should be construed to alter such agreements. In the event of any conflict between this Terms of Use and any such agreements regarding arbitration or governing law, the applicable agreement shall control.  The Services at the Site may be out of date and Encina makes no commitment to update the information regarding materials and the Services at the Site. However, in an effort to provide its customers with the most current information, Encina will, from time to time, make changes in the Contents and in the Services described on this Site. Encina does not operate as a broker or an accounting, financial, or investment planner or advisor. Encina does not provide financial, business, accounting, securities, tax, or legal advice. Your use of the Services is at your sole discretion and risk. 

DISCLAIMER OF LIABILITY

IN NO EVENT SHALL ENCINA OR ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER (COLLECTIVELY, “DAMAGES”), INCLUDING BUT NOT LIMITED TO, LOSS OF USE, DATA, OR PROFITS, WITHOUT REGARD TO THE FORM OF ANY ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS, ALL ARISING OUT OF OR IN CONNECTION WITH THE USE, COPYING, OR DISPLAY OF THE CONTENTS OF THIS SITE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES; AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE OR IN PART AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF ENCINA’S NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT.

You agree to indemnify and hold Encina (and its officers, directors, members, managers, agents, subsidiaries, joint ventures, employees and third-party service providers), harmless from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, including reasonable attorneys’ fees, costs, expenses or damages relating to defending such claims, arising out of or related to: (a) a breach of these Terms of Use; (b) breach of your representations and warranties set forth herein; (c) any wrongdoing, willful misconduct or negligence on your part with respect to your use of the Site or Services, or (d) your violation of any law or the rights of a third party.

USER TRANSMISSIONS

You agree that any Materials, Personal Information, or other information that you transmit to this Site or otherwise provide to Encina (“Transmissions”) shall be and remain Encina’s property. By submitting any Transmissions to Encina, you represent and warrant that:

  1. the Transmissions are true, accurate, current, and complete;
  2. you are the sole author and owner of the Transmissions and any intellectual property rights thereto;
  3. you are at least 13 years old;
  4. use of the Transmissions you supply does not violate these Terms of Use and will not cause injury to any person or entity; and

You further agree and warrant that you shall not submit any Transmissions:

  1. that is known by you to be false, inaccurate or misleading;
  2. that infringes any third party’s intellectual property rights or rights of publicity or privacy;
  3. that violates any law, statute, ordinance or regulation;
  4. that is, or may reasonably be considered to be, defamatory, obscene, libelous, hateful, racially, ethnically or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
  5. for which you were compensated or granted any consideration by any third party;
  6. that includes any information that references other websites, addresses, email addresses, contact information or phone numbers that are unrelated to you or the Business you have been authorized by; or
  7. that contains any computer viruses, worms or other potentially damaging computer programs or files.

For any Transmissions that are not owned by Encina, you grant Encina a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, display, perform, delete in its entirety, adapt, publish, translate, create derivative works from, sell and/or distribute such Transmission, and/or incorporate such Transmission into any form, medium or technology throughout the world without compensation to you.

Encina reserves the right to change, condense or delete any Transmissions that Encina deem, in its sole discretion, to violate the Privacy Policy or any provision of these Terms of Use. Encina does not guarantee that you will have any recourse through Encina to edit or delete any Transmissions you have submitted. Encina reserves the right to remove or to refuse to post any Transmissions for any reason. You acknowledge that you, not Encina, are solely responsible for the contents of your Transmissions and the consequences of posting or publishing them. None of the content that you submit shall be subject to any obligation of confidence on the part of Encina, its agents, subsidiaries, affiliates, partners or third-party service providers and their respective directors, officers, members, managers, and employees.

By submitting your email address or username to Encina or its third party service providers in connection with your Transmissions, you agree that Encina and its third party service providers may use your email address to contact you about the status of your Transmissions and other administrative purposes.

NOTICE AND TAKE DOWN PROCEDURES

Encina does not permit copyright infringing activities and infringement of intellectual property rights on its Site, and Encina will remove any material or Transmissions if properly notified that such material or Transmissions infringe on another’s intellectual property rights. If you believe any materials (“Materials”) on the Site infringe your copyright or trademark rights, you may request such Materials be removed by following the notice and take down procedures of the Digital Millennium Copyright Act. To follow those procedures, contact Encina’s designated agent (address below) and provide the following information:

  1. A clear statement identifying the works, or other Materials believed to be infringed.
  2. A statement from the intellectual property owner (“Owner”) or authorized representative that the Materials are believed to be infringing and not authorized by the Owner.
  3. Sufficient information about the location of the allegedly infringing Materials so that Encina can find and verify its existence.
  4. Your name, telephone number and e-mail address.
  5. A statement from you under penalty of perjury that the information supplied is accurate, and that you are authorized to act on the Owner’s behalf.
  6. A signature or the electronic equivalent from the Owner or authorized representative.

Encina’s agent for notice of copyright or trademark issues on the Site can be reached as follows:

Encina Business Credit, LLC
123 N. Wacker Drive Suite 2400
Chicago, IL 60606

Attn: General Counsel

With a copy to jlinstrom@encinabc.com

Encina shall be free to use any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever including, but not limited to, developing, manufacturing, or marketing products incorporating such information. You further agree that Encina may use information about your demographics and use of this Site in any manner that does not reveal your identity.

SECURITY

In using this Site you agree to the following:

  1. you will not use any device, software, or other instrumentality to disrupt, damage or interfere with or attempt to disrupt, damage or interfere with the proper functioning of this Site;
  2. you will not to violate or attempt to violate the security of this Site, including, without limitation, (i) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing” or “crashing”; or (ii) attempt to transmit any “virus”, “Trojan horse” or other software destruction or disruption device; and
  3. you will not intentionally or unintentionally violate any applicable international, federal, state or local law, including but not limited to any regulations applicable to your use of this Site.

We maintain physical, electronic, and procedural safeguards and personnel policies, consistent with generally accepted industry standards that are designed to guard the Site, our systems Transmissions provided by our Users. We will maintain any personally identifiable information that we collect and/or receive in accordance with our Privacy Policy. 

TERMINATION

The Terms of Use is effective until terminated by either party. You may terminate the Terms of Use at any time by destroying all Contents obtained from the Site and all related documentation thereof, whether made under the Terms of Use or otherwise. The Terms of Use will terminate immediately without notice from Encina if in Encina’s sole discretion you fail to comply with any provision of the Terms of Use. Upon termination, you must destroy all materials obtained from the Site, whether made under the provisions of the Terms of Use or otherwise.

PRIVACY POLICY

Encina respects your right to privacy. You can view our Privacy Policy.