TERMS OF USE for NEWTEK ADVANTAGE

PLEASE READ THE TERMS CAREFULLY BEFORE
ACCESSING, VIEWING, DOWNLOADING OR
OTHERWISE USING NEWTEK ADVANTAGE

IMPORTANT NOTICES

YOU MUST BE AT LEAST 18 YEARS OF AGE AND HAVE THE FULL RIGHT, POWER AND AUTHORITY TO ACCEPT THESE TERMS OF USE (THESE “TERMS”). IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF AN ENTITY, YOU PERSONALLY REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS.  ALL REFERENCES HEREIN TO “YOU” OR “LICENSEE” REFER TO THE PERSON OR ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THESE TERMS (WHETHER ON YOUR OWN BEHALF OR BEHALF OF A THIRD PARTY ENTITY).   THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND NEWTEK BUSINESS SERVICES CORP. (“LICENSOR”) FOR NEWTEK ADVANTAGE (AS DEFINED BELOW), INCLUDING ANY UPDATES, UPGRADES AND MODIFICATIONS TO NEWTEK ADVANTAGE THAT MAY BE PROVIDED TO YOU BY LICENSOR.  ANY OTHER SOFTWARE OR CONTENT PROVIDED ALONG WITH, OR ACCESSED THROUGH, NEWTEK ADVANTAGE THAT IS ASSOCIATED WITH A SEPARATE AGREEMENT IS LICENSED TO YOU UNDER THE TERMS OF THAT AGREEMENT.  LICENSOR IS WILLING TO LICENSE NEWTEK ADVANTAGE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THESE TERMS.  

BY CLICKING “I ACCEPT”, “I AGREE”, “CONTINUE” OR SIMILAR INDICATION OF YOUR ACCEPTANCE OF THESE TERMS OR BY ACCESSING NEWTEK ADVANTAGE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS, VIEW, DOWNLOAD OR OTHERWISE USE NEWTEK ADVANTAGE.

NEWTEK ADVANTAGE IS A VALUABLE AND PROPRIETARY ASSET OF LICENSOR.  YOU ARE HEREBY NOTIFIED THAT ANY VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY RESULT IN DIRECT AND CONSEQUENTIAL DAMAGES TO THE LICENSOR FOR WHICH YOU MAY BE HELD LIABLE.

The “Effective Date” of these Terms is the date you first access, view, download or otherwise use any or all of NEWTEK ADVANTAGE (as defined below).

1. GRANT OF LICENSE.  Licensor grants you, during the term of these Terms, a personal, non-exclusive, non-transferable right and license to access and use for business purposes in accordance with the terms and conditions of these Terms (a) Licensor’s proprietary operating platform NEWTEK ADVANTAGE, as it is provided for use by Licensor on its website and affiliated websites (“Licensor’s Sites”), as the same may be updated, modified, revised and upgraded and made available to you by Licensor from time to time (the “Licensed Content”), from any location providing access to the Licensor’s Sites; and (b) any printed or electronic copy of any documentation for the Licensed Content provided by Licensor on Licensor’s Sites or any other method of delivery such as e-mail (“Documentation”) (the Licensed Content and Documentation are sometimes collectively referred to as “NEWTEK ADVANTAGE” in these Terms).
   
   
2. OWNERSHIP.  You have no ownership rights in NEWTEK ADVANTAGE.  Rather, you have a license to access and use NEWTEK ADVANTAGE as long as these Terms remain in full force and effect.  Ownership of NEWTEK ADVANTAGE and all intellectual property rights related to NEWTEK ADVANTAGE shall remain at all times with Licensor.  Any other use of NEWTEK ADVANTAGE by any other individual or entity is strictly forbidden and is a violation of these Terms.
   
   
3. RESTRICTIONS. You may not sell, lease, assign, grant, transfer or otherwise make available for the benefit of others, access to or use of NEWTEK ADVANTAGE.  You may not reverse engineer, decompile, disassemble, translate, or derive the source code of NEWTEK ADVANTAGE.  You may not modify, enhance, add on to, or create derivative works of NEWTEK ADVANTAGE.  You may not copy or duplicate by any means, in whole or in part, NEWTEK ADVANTAGE.  You may not publish, distribute, or publicly display NEWTEK ADVANTAGE or any portion thereof.  These Terms do not grant you any rights in connection with any trademarks or service marks of NEWTEK ADVANTAGE or Licensor.  These Terms will automatically terminate without notice upon a violation of this Section 3.
   
   
4. COPYRIGHT.  NEWTEK ADVANTAGE contains material that is protected by U.S. copyright and trade secret law and by international treaty provisions and is the subject of a pending patent. You may not remove any proprietary notice of Licensor or any of its licensors from any of the Licensed Content, printouts generated from the Licensed Content or any printed copy of the Documentation.  You must reproduce and include any such proprietary notices on any printed copy of the Documentation.
   
   
5. AUTHORIZATIONS.  You hereby authorize Licensor to obtain all information related to products and services you have procured through Licensor or any of its affiliates and to make such information available to you through NEWTEK ADVANTAGE, and you likewise authorize Licensor and its affiliates to make such information available to Licensor for your use through NEWTEK ADVANTAGE.  Furthermore, to the extent you use NEWTEK ADVANTAGE to access information from any third-party, you hereby authorize Licensor to access such information and to make such information available to you through NEWTEK ADVANTAGE, and you authorize the third party to make such information available to Licensor for your use through NEWTEK ADVANTAGE. 
   
   
6. CONFIDENTIALITY.  You acknowledge that NEWTEK ADVANTAGE contains copyrighted and proprietary trade secrets of Licensor and is the subject of a pending patent, and you hereby agree that you will maintain the confidentiality of NEWTEK ADVANTAGE using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information, but in no event less than reasonable care, and that you will not use or disclose (or permit any third party to use or disclose) to any third party any or all of the proprietary trade secrets of Licensor at any time.  You agree to reasonably communicate the terms and conditions of these Terms to those persons employed or engaged by you who come into contact with NEWTEK ADVANTAGE, and to use reasonable best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of NEWTEK ADVANTAGE for the purpose of deriving the source code of NEWTEK ADVANTAGE.
   
   
7. MALWARE.  YOU AGREE THAT (a) ANY DOCUMENTS, DATA OR INFORMATION YOU UPLOAD OR OTHERWISE STORE THROUGH NEWTEK ADVANTAGE (“STORED INFORMATION”) WILL NOT CONTAIN ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FORM OF MALWARE OR BE CORRUPT IN ANY RESPECT AND (b) THAT YOU HAVE THE FULL LEGAL RIGHT TO UPLOAD/STORE THE STORED INFORMATION THROUGH NEWTEK ADVANTAGE AND YOUR DOING SO WILL NOT VIOLATE ANY LAW OR THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY.  YOU AGREE TO BE RESPONSIBLE, AND FULLY REIMBURSE NEWTEK, FOR ANY AND ALL LOSSES, DAMAGES, COSTS OR LIABILITES INCURRED BY NEWTEK OR ANY OF ITS AFFILIATES AS A RESULT OF YOUR BREACH OF THE FOREGOING SENTENCE.
   
   
8. NO WARRANTIES.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, VENDORS AND SUPPLIERS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED AND STATUTORY, WITH RESPECT TO NEWTEK ADVANTAGE AND ANY OTHER INFORMATION, CONTENT, SERVICES OR MATERIALS LOCATED ON, OR COMMUNICATED, ACCESSED, TRANSMITTED, PROVIDED OR LINKED THROUGH NEWTEK ADVANTAGE OR LICENSOR’S SITES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  NEWTEK ADVANTAGE IS PROVIDED “AS IS” AND WITH ALL FAULTS. ANY USE OF NEWTEK ADVANTAGE BY YOU IS AT YOUR OWN RISK.  LICENSOR DOES NOT WARRANT THAT NEWTEK ADVANTAGE SHALL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF NEWTEK ADVANTAGE WILL BE SECURE, ACCURATE, AVAILABLE, UNINTERRUPTED OR ERROR-FREE OR BUG-FREE OR THAT ANY ERRORS OR BUGS WILL BE CORRECTED OR THAT NEWTEK ADVANTAGE WILL BE COMPATIBLE WITH ANY PARTICULAR TECHNOLOGY PLATFORM OR THAT ANY OPERATION OF NEWTEK ADVANTAGE WILL BE FREE OF ANY NEGLIGENT DESIGN OR OPERATION.  LICENSOR DOES NOT WARRANT THAT NEWTEK ADVANTAGE WILL BE FREE OF ANY THIRD-PARTY MALWARE, INCLUDING VIRUSES, TROJAN HORSES, SPYWARE, RANSOMWARE, AND THE LIKE. THERE IS NO GUARANTY THAT ANY INFORMATION YOU HAVE UPLOADED/STORED ON OR THROUGH NEWTEK ADVANTAGE (“STORED INFORMATION”) WILL BE SECURE, RETRIEVABLE, UNCORRUPTED OR EVEN AVAILABLE.  LICENSOR DOES NOT BACK-UP ANY STORED INFORMATION.  YOU ARE SOLELY RESPONSIBLE FOR BACKING UP STORED INFORMATION, AND WE STRONGLY ADVISE YOU TO DO SO.  YOU AGREE THAT NEWTEK ADVANTAGE WILL NOT BE THE ONLY OR PRIMARY LOCATION AT WHICH YOU STORE OR UPLOAD THE STORED INFORMATION AND TO RETAIN BACK-UPS OF ANY AND ALL STORED INFORMATION AT A LOCATION OTHER THAN NEWTEK ADVANTAGE. YOU FURTHER AGREE THAT YOU WILL NOT USE NEWTEK ADVANTAGE AS A MEANS TO COMPLY WITH DATA RETENTION POLICIES, LAWS OR REGULATIONS. LICENSEE UNDERSTANDS THAT LICENSOR MAY PROVIDE UPDATES OR MAINTENANCE TO THE LICENSED CONTENT FROM TIME TO TIME, BUT LICENSOR IS UNDER NO SUCH OBLIGATION, NOR SHALL SUCH UPDATES OR MAINTENANCE CONSTITUTE A WAIVER OR LIMITATIONS OF THIS SECTION. IF AND TO THE EXTENT THIS SECTION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ANY EXPRESS AND/OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE MINIMUM NECESSARY PERIOD UNDER APPLICABLE LAW NOT TO EXCEED THIRTY (30) DAYS FROM THE EFFECTIVE DATE, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF NEWTEK ADVANTAGE, REMAINS WITH LICENSEE. NO ACTIVITY, SERVICE, ADVERTISING, PACKAGING, STATEMENT OR COMMUNICATION BY LICENSOR, ANY OF ITS AFFILIATES, EVEN IF PRESENTED IN A FORM OF PRODUCT WARRANTY, WHETHER PRIOR TO, ON OR POST THE DATE OF THESE TERMS, SHALL BE INTERPRETED AS AN ANNULMENT, IMPAIRMENT OR MODIFICATION TO THIS SECTION.
   
   
9. LIMITATION OF LIABILITY; INDEMNIFICATION. To the maximum extent permitted by applicable law, in no event shall Licensor be liable for any direct, indirect, incidental, special, consequential or punitive damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use or access NEWTEK ADVANTAGE, including without limitation the unauthorized access or use of any confidential, sensitive and/or personal information through NEWTEK ADVANTAGE, even if Licensor has been advised of the possibility of such damages. In any case, Licensor’s entire liability under any provision of these Terms shall be limited to the greater of the amount actually paid by you for the use of the Licensed Content or Fifty Dollars ($50.00).  
   
   You agree to indemnify, defend, and hold harmless Licensor and its stockholders, affiliates, successors, assigns, officers, directors, employees, agents and representatives, from and against any and all actions, suits, proceedings, investigations, demands, claims, judgments, liabilities, obligations, liens, losses and damages and any related fees and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to your use of NEWTEK ADVANTAGE, including without limitation the unauthorized access or use of any confidential, sensitive and/or personal information through NEWTEK ADVANTAGE, or your violation of the terms and conditions of these Terms.
   
   
10. TERM AND TERMINATION. These Terms are effective until it is terminated.  Licensor may terminate these Terms at any time for any reason whatsoever, including but not limited to a determination by Licensor that you have violated any of the terms of these Terms.  Upon notification of termination, you agree to immediately discontinue all use of NEWTEK ADVANTAGE, or any portion thereof, and you further agree that Licensor may disable, delete, or limit any account you use or maintain to access NEWTEK ADVANTAGE.  Termination of these Terms will not terminate any other agreements between you and Licensor or any its affiliates, including those agreements pursuant to which you procured any other products or services from Licensor or any of its affiliates.  These Terms will also automatically terminate without notice upon a violation of Section 3 or upon a transfer of any of your rights under these Terms contrary to the terms and conditions set forth herein, and any such transfer shall be void as if such transfer never occurred.  All provisions relating to ownership, copyright, warranties, confidentiality, indemnification and limitation of liability shall survive the termination of these Terms.
    
    
11. AMENDMENT. Licensor may amend these Terms at any time with notice to Licensee that Licensor deems, in its sole discretion, to be reasonable under the circumstances, including without limitation by email, by posting the revised version on its website or communicating it to Licensee through the Licensed Content ( including without limitation in form of a “click-through” agreement) (each a “Revised Version”). Licensee agrees and acknowledges that Licensor may restrict or prohibit Licensee’s access to the Licensed Content should Licensee fail to accept the Revised Version in the manner Licensor requires Licensee to accept the Revised Version.  Notwithstanding the foregoing, Licensee’s continued use of the Licensed Content after the posting of a Revised Version constitutes Licensee’s acceptance of such Revised Version.
    
    
12. OTHER TERMS. These Terms are governed by the laws of the State of New York without regard to its conflict of laws principles as it may exist on the Effective Date or be subsequently amended.  The exclusive forum for any disputes arising out of or relating to these Terms shall be any federal or state court sitting in the in the State of New York.  Your use of NEWTEK ADVANTAGE shall comply with all applicable laws and regulations.  These Terms, including the Important Notices at the beginning of these Terms, shall constitute the entire agreement between you and Licensor.  These Terms, the rights granted hereunder and NEWTEK ADVANTAGE shall not be assigned by you without the prior written consent of Licensor.  Any waiver of these Terms shall only be effective if it is in writing and signed by both you and Licensor; notwithstanding the foregoing, Licensor’s may amend these Terms pursuant to Section 11.  The captions and headings used in these Terms are used for convenience only and are not to be given any legal effect.  If any provision of these Terms are found invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified with retroactive effect to render such provision valid and enforceable to the maximum extent permissible so as to effect the intent of the parties hereto, and the remainder of these Terms shall continue in full force and effect.