Terms and Conditions
Welcome to Facolending LLC. These Terms of Service (“Terms”) are a binding contract between you (“you” or “your”) and Facolending LLC (“we”, “us” or “our” or “Facolending”) with respect to our website at www.facolending.com and its subdomains, if any (our “Site”), through which we offer our services (together with our Site, our “Services”) as a lender to professional real estate investors. Before you click on the “I accept” button or use our Services, read these Terms carefully. By clicking on the “I accept” button or using our Services, you are agreeing to be bound by and are becoming a party to these Terms. You represent and warrant that you have the authority to enter into these Terms on behalf of any group or entity you represent. You covenant to ensure that all users that gain access to our Services from you are bound by these Terms. If you do not agree to all of these Terms, then do not click “I accept” and do not access and/or use our Services.
Additionally, by clicking “I accept,” you agree to transact with us electronically. This means that you agree to receive electronically all disclosures, communications, notices and other information that we may send to you or be required to send to you under applicable law or otherwise pursuant to the terms and conditions set forth below. If you do not wish to transact with us electronically, do not click “I accept.” You have the option to receive disclosures, communications, notices and other information from us in paper format. You also have the option to withdraw your consent to transact with us electronically in the future by emailing us at info@facolending.com. You may update your contact details for receiving documents electronically or non-electronically by emailing us at info@facolending.com.
Facolending’s Services are currently offered in the United States only.
1. Scope of Services
We offer our Services as a lender to professional real estate investors.
We may alter, suspend, discontinue or subcontract our Services, in whole or in part, at any time and for any reason, without notice to the extent permitted under applicable law. Our Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use our Services, you must have a computer or mobile device with Internet access that can access our Site.
2. Right to Use; Privacy Policy
Subject to these Terms and any other agreement between you and us, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable right to use our Services solely in the manner enabled by us and for your personal, non-commercial use. Your right to use our Services is automatically revoked if you violate these Terms to the extent allowed under applicable law. From time to time, we may upgrade our Services or make improvements to our Services. You agree that these Terms will apply to any such upgrades or improvements. The foregoing right is not a sale of any aspect of our Services or a sale of a copy of any aspect of our Services, and we and our partners and suppliers retain all right, title and interest in our Services. We reserve all rights not expressly granted under these Terms.
Our Privacy Policy (the “Privacy Policy”) describes our collection, use and disclosure of data and information in connection with our Services. We may update our Privacy Policy from time to time in accordance with its terms. Our Privacy Policy is incorporated into these Terms, and you agree to the collection, use and disclosure practices in our Privacy Policy.
3. Login Credentials; Communications
Acknowledgement for You to Receive Communications. You agree as follows:
- To receive communications, including emails, text messages, push notifications, mail and telephone calls, that are related to the Services.
- That any communications from us may also include marketing materials from us or from third parties.
- That any notices, agreements, disclosures or other communications that we send to you electronically are deemed to satisfy any legal communication requirements to the fullest extent allowed under applicable law.
You may update your contact details for receiving these communications by emailing us at info@facolending.com.
You may opt out from receiving our marketing communications by emailing us at info@facolending.com. or selecting to unsubscribe as may be provided in the applicable correspondence. You may update your contact details for receiving marketing communications by emailing us at info@facolending.com.
To the extent in compliance with applicable law, we may record and monitor any telephone or electronic communications with you for quality or security purposes, to evidence your transactions or communications with us, or to comply with applicable law.
4. Fees and Payments
Fees:
- Access to our Site is Free. If you choose to purchase third-party products or services through our Service, the price of such products or services will be provided to you prior to completing your purchase.
Payments:
- Payment Methods and Currency. You agree that we may charge your payment method for any products or services you purchase through our Services (including, but not limited to, any taxes, payment processing fees and/or late fees, as applicable). All payments must be made in United States Dollars.
- Billing and Payment Policy. All information that you provide to us, including your credit card information or payment account information, is subject to our Privacy Policy. We may use a third-party payment service to bill you through an online account for your payment or purchase of products or services. By submitting your payment account information, you grant us the right to store and process your information with the third-party payment service and for us to store any identification token provided by the third party payment service; you agree that we will not be responsible for any failures of the third-party to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third-party payment service in addition to these Terms. You further acknowledge that future payments may be processed on your behalf automatically per the terms of the product purchased. You acknowledge that we may change the third-party payment service and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology.
- Except as may be expressly set forth on our Site from time to time or as required by applicable law, we have no obligation to provide refunds or credits.
5. Prohibited Conduct
We reserve the right, without prior notice and in our sole discretion, to decide whether your use of our Services violates these Terms for any of the above or below reasons or for any other reason, and if we do so, we may terminate your access to our Services.
You shall not, and shall not authorize or facilitate any attempt by another person to, use our Services to:
- Damage, disable, overburden, impair or interfere with any other party’s use of our Services.
- Obtain or attempt to obtain any materials or information through any means not intentionally made available through our Services.
- Use false or misleading information in connection with your user account or impersonate any other person living or dead (you acknowledge that we reserve the right to disable any user account with a profile that we reasonably believe is false or misleading, including a profile that impersonates a third party).
- Harass, threaten, stalk or intentionally embarrass or cause distress to another person or entity.
- Exploit children under 18 years of age.
- Invade the privacy of any person, including without limitation, posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age).
- Create a false identity or engage in fraudulent activities.
- Circumvent, remove or otherwise interfere with any security-related features of our Services, features that prevent copying or using any part of our Services, or features that enforce limitations on the use of our Services or Facolending’s content.
- Introduce viruses, worms, Trojan horses and/or harmful code to our Services.
- Use any robot, spider, site search/retrieval application or other automated device, process, or means to access, retrieve, scrape or index any portion of our Services or any content available through our Site.
We reserve the right to consider other conduct to be prohibited; the restrictions above are intended to be illustrative only.
6. Intellectual Property Rights
You agree and acknowledge that the structure, organization and code used in conjunction with our Services are proprietary to us. You shall not, and shall not permit any person or entity to: (i) use our Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance or make derivative works of our Services or any content available through the foregoing; or (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive, source code from our Services. You shall not sell, transfer, publish, disclose, display or otherwise make available our Services including any modifications, enhancements, derivatives and other software and materials provided hereunder by us or copies thereof to others in violation of these Terms.
Unless otherwise noted, all of Facolending’s content contained in our Services is the property of us and/or our affiliates or licensors and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws.
All trademarks, service marks, trade names, logos, icons, and domain names, if any, are proprietary to Facolending and/or our affiliates. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, service marks, trade names, logos, icons, and domain names displayed on the Site without the written permission of Facolending. Your use of the trademarks, service marks, trade names, logos, icons, and domain names displayed on the Site, or any other content on the Site, except as provided herein, is strictly prohibited. Images displayed on the Site are either used with permission, or are the property of Facolending, and the use of these images by you or anyone else authorized by you is strictly prohibited.
7. Indemnification
By using our Services, you hereby agree to indemnify and hold harmless us and our officers, directors, managers, members, owners, employees and agents from any claims, damages, losses, liabilities and all costs and expenses of defense (collectively, “Claims”), including without limitation, attorneys’ fees, and any consequential, incidental, special, exemplary, punitive and enhanced damages, resulting directly or indirectly from or arising out of any breach of the Terms hereunder, or any negligent act, error or omission under the Terms hereunder or where such Claims are incurred by reason of any claims, actions, suits or governmental investigations or proceedings by a third party that arises in connection with (i) your posting of any content; (ii) your use of our Services; and/or (iii) any user or other third party’s use of any content that you post to our Services. At our option, you agree to defend us from any such Claims. The indemnity obligations hereunder shall survive the maturity, payoff, and/or satisfaction of any loan product you may have obtained through our services or any other products or services you may have purchased or procured from or through Facolending or any of its affiliated companies.
8. Third Party Sites
Our Services may contain links to third party sites, which are independent of us and not under our control. These links are provided to you as a convenience only, and we are not responsible for the content of any linked third-party site. In addition, a link to any third-party site does not imply that we endorse or accept any responsibility for the content or use of such site.
9. Disclaimer
Under no circumstances will we be liable for any loss or damage caused by failure of our Services to operate as intended, your reliance on information from our Services, information provided by another user or by your use of our Services. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through our Services.
Our Services and all content on or accessible from our Services are provided “as is” without warranty of any kind, either express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose and non-infringement. Specifically, but without limitation, we do not warrant that: (i) the information available through our Services is free of errors; (ii) the functions or services provided by our Services will be uninterrupted, secure or free of errors; (iii) defects will be corrected; or (iv) that our servers or the server(s) that make our Services available are free of viruses or other harmful components.
The information provided through our Services and Site is only a general description of the loan and related products and services that may be available to you. The precise loan or other related product or service provided or extended to you by Facolending or any of its affiliated companies is subject to the terms, provisions, conditions, exclusions and company underwriting guidelines of Facolending and/or an affiliated company. The loan and/or related product or service that is provided or extended to you, including the definitive and final related loan documents and/or other written legal documentation, , if any, and not the general information made available on this Site, will form the contract between you and Facolending (or its applicable affiliated company). Note that any loan or other related product or service that is provided or extended to you may be in the name, or through, one of FAcolending’s licensed (as applicable) affiliated companies.
If you have any questions, please contact us by email at info@facolending.com. or by phone at (800) 227-8107 to obtain advice from one of our loan underwriters, originators or other professionals before making any coverage decision.
10. Limitation of Liability
- Disclaimer. In no event shall we be liable to you, any other user of our Services, third party providers or any other person or entity for any special, incidental, punitive, consequential, exemplary or other indirect damages (including, without limitation, damages for loss of profits, loss of data, loss of use or costs of obtaining substitute goods or services) arising out of the use, inability to use, unauthorized access to or use or misuse of our Services, your contact information, content or any information contained thereon, whether based upon warranty, contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages or losses.
- Limitation. Our aggregate liability for all claims arising from these terms shall not exceed $10,000.00.
- Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you but shall instead apply to the maximum extent permitted by law.
11. Release from Liability
In consideration for the Services, you release, on your own behalf and on behalf of each of your past, present and future beneficiaries, heirs, successors and assigns, to the fullest extent permitted by law, Facolending and its past, present and future affiliates, its directors, managers, members, officers, members, employees, representatives, consultants, agents, successors, assigns, affiliates, suppliers and/or distributors from responsibility, liability, claims, demands and/or damages (whether actual, absolute, contingent, liquidated or unliquidated, punitive or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with (i) disputes between or among users; (ii) third party sites, products and services, including without limitation, loan products and related loan documents; and (iii) claims relating to the unauthorized access to any data communications or content stored under or relating to your account, including unauthorized use or alteration of such communications or your content.
You hereby waive applicability of California Civil Code §1542, and any similar statute or principle of common law. California Civil Code §1542 provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party..”
12. California Users
If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297.
13. Void Where Prohibited
Our Services are intended only for users located in those states in the United States in which Facolending or any of its affiliates are licensed or otherwise authorized (i.e., in states where licensure is not required by applicable law) to originate and/or service, as applicable, a relevant loan product. Our Services are not intended as a solicitation for a loan or related product or service in any state in which Facolending or any of its affiliates are not licensed or otherwise authorized as a lender or loan servicer, as applicable. Although our Services may be accessible in other geographic locations, the features, products or services discussed, referenced, provided or offered as part of the Services are only available to users in the United States. We reserve the right to limit, in our sole discretion, the provision and quantity of any feature, product or service to any person or geographic location. Any offer for any feature, product or service made available through our Services is void where prohibited by law.
14. Modifying and Terminating Service; Changes to Terms
We may terminate your access to our Services, in our sole discretion, for any reason and at any time, upon electronic notice to you at your registered email address in accordance with applicable law; provided, however, that termination of access to our Services will not necessarily terminate or cancel a loan product you have received from, or procured through, us (or an affiliate) unless otherwise stipulated in our notice to you in conformance with applicable law. You agree that we are not liable to you or any third party for any termination of your access to our Services. We may change and update our Services from time to time. We may add or remove features, including without limitation, making free services into paid services and vice versa. You may terminate these Terms at any time by ceasing to use our Services. Termination of these Terms will have no effect on any loans or other related products or services you have received or purchased from, or procured through or in connection with, our Services.
Accrued obligations and all provisions of these Terms that by their nature should survive will survive any termination of these Terms.
These Terms may be modified, changed or revised at any time to reflect changes in the law or in Facolending’s business operations. Any changes will be effective immediately upon the posting of the revised Terms. Sometimes there may be material changes to these Terms that we want to apply retroactively. If so, we will notify you and obtain your consent to the extent required by applicable law.
15. Unsolicited Ideas and Feedback.
We welcome your feedback, ideas and suggestions (collectively, “Suggestions”). If you send us any Suggestions, you agree that (i) your Suggestion(s) become our property and you are not owed any compensation in exchange; (ii) none of the Suggestion(s) contain confidential or proprietary information of any third party; (iii) we may use or redistribute Suggestion(s) for any purpose and in any way; (iv) there is no obligation for us to review your Suggestion(s); and (v) we have no obligation to keep any Suggestions confidential.
16. Notice
We may provide you notice to the email address you provide to Facolending during the registration process. Notice shall be deemed given 24 hours after email is sent. Alternatively, we may give you legal notice by mail to the address provided during the registration or purchase process and you may give us notice to the address set forth on our Site as our address. In such case, notice shall be deemed given three (3) days after the date of mailing.
17. Governing Law; Dispute Resolution
These Terms, and any dispute between you and us, shall be governed by the laws of the State of New York without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that this Section 17 is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate (as defined below) or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in New York, New York, except that you or we are permitted (i) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (ii) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (iii) to seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.
18. Agreement to Arbitrate; Waiver of Class Action
Except for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents) or for items (i)-(iii) set forth in Section 17 above, you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to these Terms, our Services and/or our Privacy Policy shall be finally resolved by arbitration conducted in the English language in New York, New York, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA) and you and we hereby expressly waive trial by jury. You and we shall appoint one arbitrator mutually agreed upon by you and us or, if you and we cannot agree within thirty (30) days of either party’s request for arbitration, such arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms.
Any claims brought by you or us must be brought in that party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor us will participate in a class action or class-wide arbitration for any claims covered by these Terms. You hereby waive any and all rights to bring any claims related to these Terms and/or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on your own behalf.
You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your Facolending (or affiliated company) account or loan number to which the opt out applies and a clear statement that you want to opt out of this Agreement to Arbitrate. 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. You must use this address to opt out:
Facolending LLC, ATTN: Arbitration Opt-out, 645 Madison Avenue, 19th Floor, New York, NY 10022.
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or Site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our Site, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.
In accordance with Section 14 above, this Agreement to Arbitrate will survive the termination of your relationship with us.
19. Miscellaneous
You may not assign or transfer your rights or obligations under these Terms, in whole or in part, to any third party without our written consent. These Terms shall bind and inure to the benefit of the parties to these Terms and their respective successors, permitted transferees and permitted assigns. We and you are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. These Terms contain the entire understanding of the parties with respect to the transactions and matters contemplated herein (other than any terms contained in any applicable written loan documents or other applicable written legal documentation) and, other than with respect to any applicable definitive and final written loan documents, supersede all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by us, and cannot be amended except by a writing signed by both parties or by our posting of an amended version of these Terms on our Site. The headings and captions used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms. If any part of these Terms is held to be unlawful, void or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions. The failure of Facolending to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
20. No Minors
If you are less than 18 years old, you are not authorized to use our Services or Site.
21. For Additional Information
If you have any questions about these Terms, please contact us at 645 Madison Avenue, 19th Floor, New York, NY 10022 or via email at info@facolending.com
Terms of Service, Version Updated, January 1, 2024.