These Terms were last revised on September 1, 2021.
These Terms state that any disputes between you and Feng Capital must be resolved in binding arbitration, that you waive the right to participate in any class action, and that the law of the state of New York applies to all interactions between you and Feng Capital. You may opt out of arbitration and the class action waiver by following the procedures in Section 10.g below.
Feng Capital matches qualified small business owners with active banks, credit unions, and other lending sources. Through a proprietary matching technology, Feng Capital helps business owners to identify the business loan category and specific lender(s) that offer the best opportunity for that business owner to prepare for and acquire a business loan. Once prepared, small business owners are then introduced to the most appropriate lending source via our proprietary technology.
Changes to these Terms
Please check these Terms periodically for changes because we reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. Please see the beginning of the Terms to determine when the Terms were last revised.
All text, graphics, user interfaces, visual interfaces, photographs, trademarks (whether registered or not), logos, sounds, artwork of any kind, and computer code (collectively, “Content”), including but not limited to the design, structure, coordination, selection, appearance, and arrangement of the Content, contained on the Site is owned by Feng Capital and is protected by trade dress, copyright, trademark, and other property laws and unfair competition laws. Any misuse of the Content will be at your peril and Feng Capital will do all that is lawful to enforce and protect the Content.
Use of Site and Service
Links to Third-Party Websites/Dealings with Advertisers and Sponsors
Disclaimer of Warranty
Limitation of Liability
Dispute Resolution by Binding Arbitration; Class Action Waiver
Communication and Privacy
Term and Termination
Specific Terms Controlling Other Services and Products
1. Defined Terms
As used in these Terms, the following words shall have the following meanings. “Feng Capital” includes “Feng Capital, Inc.”, “Feng Capital”, “we”, “us” and variations such as “our”. “Service” includes the products, services and software that you order, receive or access as part of the Feng Capital service.
2. Use of Site and Service
As a user of the Site or a user registered to use any of the Services (a “Registered User”), you agree to the following:
a. Exclusive Use. Your account is to be used only by you and only for your business needs. You may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Feng Capital is not responsible for third-party access to your account that results from theft or misappropriation of your user name and passwords.
b. Information Submitted. You are solely responsible for, and assume all liability regarding (i) the information and content you provide through your use of the Site and any Services, (ii) the information and content you make available in any manner through the service, and (iii) your interaction with any and all third-parties. Any attempt to enter information to create a duplicate account will be rejected and your account will be put on hold.
c. Risk Assumption and Precautions. You assume all risk when using the Services, including but not limited to all of the risks associated with any interactions with third-parties, including but not limited to any lenders to which you are matched, referred or provided.
d. No Guarantees. Feng Capital may not be able to provide matches for every Registered User seeking to use its services. Further, Feng Capital makes no guarantees as to the number of matches or the ability to obtain business funding.
e. No False Information. You agree to provide accurate, true, current and complete information.
f. Legal Purpose. You agree to not use the Site or Services for any illegal purpose. You will only use the Site or Service in accordance with federal, state and local laws.
g. Business Purpose. You agree to only use the Site or Services for a bona fide business purpose. You agree not to use the Site or Services for personal, family or household purposes. You may not use the Site or Services to obtain information about or make decisions about anyone but yourself and/or your business.
3. Proprietary Rights
a. Ownership of Proprietary Information. You hereby acknowledge and agree that Feng Capital is the owner of all rights in and to the Site and Services. Federal, state, and local laws and regulations protect these proprietary rights. You are permitted to use the Site and Services only as expressly authorized by these Terms. You may not copy, reproduce, distribute or create derivative works, reverse engineer or reverse compile any of the Site or Services or technology.
b. No Use of Confidential Information. You will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce in any way any (i) confidential information or (ii) other copyrighted material, trademarks, or other proprietary information accessible via the Site or Services, without first obtaining the prior written consent of the owner of such proprietary rights.
c. License to Provided Content. By providing information or content to any account or public area of the Site or Service, you automatically grant, and you represent and warrant that you have the right to grant, to Feng Capital and its users, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, reproduce, publicly perform, publicly display and distribute such information and content, and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sub-licenses of the foregoing. From time to time, we may create, test or implement new features or services on the Site in which you may voluntarily choose to participate, in accordance with the additional terms and conditions of such features or programs. By your voluntary participation in such features or programs, you grant us the rights stated in this subsection in connection with the additional terms and conditions (if any) of such features or services.
4. User Information
b. Disclosure by Law. You acknowledge and agree that Feng Capital may disclose information you provide if required to do so by law, at the request of a third-party, or if we, in our sole discretion, believe that disclosure is reasonable to (i) comply with the law, requests or orders from law enforcement, or any legal process (whether or nor such disclosure is required by applicable law); or (ii) protect or defend Feng Capital’s, or a third-party’s, rights or property.
c. Information Security. We work hard to protect Feng Capital and our users from unauthorized access to or unauthorized alteration, disclosure or destruction of information we hold. In particular:
We encrypt many of our services using SSL.
We review our information collection, storage and processing practices, including physical security measures, to guard against unauthorized access to systems.
We restrict access to personal information to Feng Capital employees, contractors and agents who need to know that information in order to process it for us, and who are subject to strict contractual confidentiality obligations and may be disciplined or terminated if they fail to meet these obligations.
d. Use of Anonymous Information for Research. By using the Site and/or Services, you agree to allow Feng Capital to anonymously use the information from you and your experiences through the Services to continue Feng Capital’s research into successful business practices and to improve the Services.
e. License Regarding Your Content. You retain all ownership interest in and to the content you provide to the Site or as part of your use of the Services. However, by submitting your content, including your personal and business information, you hereby grant to Feng Capital a perpetual, non-exclusive, irrevocable, royalty-free license to: reproduce, adapt, edit, modify, translate, publish, transfer, and/or distribute any of your content. This license specifically includes the right for Feng Capital to make such content available to other trusted companies, organizations, and/or individuals with whom Feng Capital has a business relationship in order to carry out the performance of the Services. As part of its performance of the Services, Feng Capital may (i) transmit or distribute your information over various public networks and in various forms; and (ii) make necessary changes to your content in order to perform its obligations.
Feng Capital offers a free subscription service to assist you with your business needs. As explained above, Feng Capital matches you with various potential lenders and loan products to meet your business needs. As part of the Services, we request and you provide various items of information to be used in order to provide the best match for your business needs from among our partners.
6. Links to Third-Party Websites and Dealings with Advertisers and Sponsors
7. Disclaimer of Warranty
a. No Warranties. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FENG CAPITAL PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE SITE (INCLUDING ALL INFORMATION CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FENG CAPITAL DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. FENG CAPITAL DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES.
b. Third-Party Content. Opinions, advice, statements, offers, or other information or content made available through the Site or Services, but not directly by Feng Capital, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. FENG CAPITAL DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE SERVICES, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN FENG CAPITAL. UNDER NO CIRCUMSTANCES WILL FENG CAPITAL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE OR SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
c. Beta Features. From time to time, Feng Capital may offer new “beta” features or tools with which its users may experiment on the Site or Services. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Feng Capital’s sole discretion. The provisions of this Disclaimer of Warranty section apply with full force to such features or tools.
8. Limitation of Liability
a. Incidental Damages and Aggregate Liability. IN NO EVENT WILL FENG CAPITAL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF FENG CAPITAL KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL FENG CAPITAL’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS TERMS OR THE USE OF THE SERVICES OR SITE, EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT OR SUBSCRIPTION, OR, IF YOU HAVE NOT PAID FENG CAPITAL FOR THE USE OF ANY SERVICES, THE AMOUNT OF US$25.00 OR ITS EQUIVALENT.
b. No Liability for non-Feng Capital Actions. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL FENG CAPITAL BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES.
c. Information Verification. Feng Capital and its contractors may use various methods of verifying information that users have provided. However, none of those ways are perfect, and you agree that Feng Capital and its contractors will have no liability to you arising from any incorrectly verified information.
You agree to indemnify, defend and hold harmless Feng Capital, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) your use of or inability to use the Site or Services, (ii) any user postings made by you, (iii) your violation of any terms of these Terms or your violation of any rights of a third-party, or (iv) your violation of any applicable laws, rules or regulations. Feng Capital reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Feng Capital in asserting any available defenses.
10. Dispute Resolution by Binding Arbitration; Class Action Waiver.
In the interest of resolving disputes between you and Feng Capital in the most expedient and cost-effective manner, you and Feng Capital agree to resolve disputes through binding arbitration instead of in courts of general jurisdiction (“Agreement to Arbitrate”). Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, condenses discovery, and is subject to very limited review by courts. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. You acknowledge and agree that the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that individual party’s claim(s). Any relief awarded cannot affect other users.
YOU UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, YOU AND FENG CAPITAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
a) Claims To Be Resolved By Binding Arbitration. You and Feng Capital agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before this or any prior Terms; claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of these Terms.
b) Exceptions. Notwithstanding Section 10(a), you and Feng Capital agree that no statement herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (ii) seek injunctive relief in any competent court of law; or (iii) to file suit in a court of law to address intellectual property infringement claims.
c) Arbitrator. Any arbitration between you and Feng Capital will be governed by the Commercial Dispute Resolution Procedures (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
d) Notice and Process. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Feng Capital should be addressed to: Feng Capital, Inc., 220-43 67th Ave Suite B, Okaland Gardens NY 11364 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and Feng Capital do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Feng Capital may commence an arbitration proceeding.
e) Fees. In the event that you commence arbitration in accordance with these Terms, Feng Capital will, at your request, reimburse you for your payment of the arbitration filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any request for payment of fees by Feng Capital should be submitted by mail to the AAA along with your Demand for Arbitration and Feng Capital will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), you agree to reimburse Feng Capital for all fees associated with the arbitration paid by Feng Capital on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules.
Any in-person arbitration hearings will take place at a location to be agreed upon in Salt Lake County, New York. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f) No Class Actions. Unless both you and Feng Capital agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
YOU AND FENG CAPITAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
g) Opt-Out. If you are a new Feng Capital user, you can choose to reject the arbitration agreement contained in this Section 10 (“opt-out”) by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept these Terms for the first time. You must mail the Opt-Out Notice to the Notice Address listed in Section 10(d), above.
The Opt-Out Notice must contain your name, address (including street address, city, state and zip code), and the user name(s) and email address(es) associated with the Feng Capital account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Terms will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with Feng Capital.
h) Modifications. If Feng Capital makes any future change to this Agreement to Arbitrate (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Notice Address provided You acknowledge and agree that, in the event you reject any future change, your account with Feng Capital shall be immediately terminated and you will arbitrate any dispute between us in accordance with the language of this provision.
i) Severability and Enforceability. If an arbitrator or court decides that any part of this Section 10 is invalid or unenforceable, the other parts of this Section 10 shall still apply. If the entirety of this Section 10 is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 15 shall govern any action arising out of or related to these Terms, and that the remainder of the Terms will continue to apply.
11. Communication and Privacy
12. Term and Termination
This agreement will become effective upon your acceptance of the Terms by your use of the Site or Services and will remain in effect in perpetuity unless terminated hereunder. Either you or Feng Capital may terminate your account at any time, for any reason or no reason, without explanation, effective upon written notice to the other party. Feng Capital reserves the right to immediately suspend or terminate your access to any of the Services, without notice, for any reason or no reason. We also reserve the right to remove your account information or data from our Services and any other records at any time at our sole discretion. In the event your access to any of the Services is suspended due to the breach of this Terms, you agree that all fees then paid to Feng Capital by you will be nonrefundable and all outstanding or pending payments will immediately be due. You may terminate your account by following the steps in the applicable section under “Cancellations” below
Cancellation At Any Time. The cancellation procedures in this section do not apply to any lender that has entered into a Lead Purchase Agreement with Feng Capital. The terms of cancellation for lenders will be contained in the Lead Purchase Agreement.
The following only applies to potential borrowers. Except as otherwise stated in this section, you may cancel your registration or subscription to any Service at any time during the term of such registration or subscription or any renewal period by accessing the “Account Settings” page on your membership home page, clicking on ”Subscriptions” and clicking on “Cancel This Subscription,” and providing the information requested.
14. Specific Terms Controlling Other Services and Products
15. General Provisions
a. Controlling Law and Jurisdiction. You agree that New York law (without giving effect to its conflicts of law principles) will govern these Terms, the Site and the Services and that any dispute arising out of or relating to these Terms, the Site or the Services will be subject to the exclusive jurisdiction and venue of the federal and state courts in Salt Lake County, New York. You acknowledge and agree that any violation of these Terms may cause Feng Capital irreparable harm, and therefore agree that Feng Capital will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that Feng Capital may have for a breach of these Terms.
c. Securities Statements. WE MAKE NO REPRESENTATIONS, WARRANTIES OR OTHER GUARANTEES OF ANY KIND AS TO THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY PRICE QUOTES, NOR DO WE MAKE ANY REPRESENTATIONS, WARRANTIES OR OTHER GUARANTEES OF ANY KIND AS TO THE PRESENT OR FUTURE VALUE OR SUITABILITY OF ANY SALE, TRADE OR OTHER TRANSACTION INVOLVING ANY PARTICULAR SECURITY OR ANY OTHER INVESTMENT OF ANY KIND. You understand that we are not a broker or dealer in securities, and not an investment or financial advisor. You are solely responsible for your investment research. Prior to undertaking any securities transaction, you should consult a broker or other financial advisor with respect to the price, suitability, value or other aspects of any stock, mutual fund, security or other investment.