Terms of Service
Please read these terms carefully before using our services.
Agreement
These Customer Terms of Service, along with any other agreements incorporated herein by reference (collectively, the "Agreement"), are a contract between Functional Finance, Inc. (the "Company") and the Customer using the Services ("you," "your," or "yourself"). A "Customer" is the individual, sole proprietorship, corporation, general or limited partnership, limited liability company, or other legal entity that creates an Account. This Agreement governs your use of the Services through the Website.
By accepting this Agreement, you agree to comply, and to cause any person you authorize to use the Services on your behalf (each a "User" and collectively, the "Users") to comply, with this Agreement. If you do not agree to be bound by this Agreement you may not access or use the Services.
PLEASE BE AWARE THAT SECTION 19 (DISPUTE RESOLUTION) OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.
PLEASE BE AWARE THAT SECTION 10 (COMMUNICATIONS) OF THIS AGREEMENT CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS, AND PUSH NOTIFICATION.
We reserve the right to update and make changes to this Agreement at any time in our sole discretion by updating this webpage, providing notice to you, or as otherwise permitted under applicable law. We will also update the "Last Updated" date at the top of the Terms of Use and any changes will be effective as of that date. If you do not agree to any change(s), you shall stop using your Account. Otherwise, your continued use of your Account constitutes your acceptance of such change(s).
1. Services
Through the Website, we may make available certain services which allow you to collect payments from your insureds or other payers, maintain your Account, and access any additional service we may provide (each a "Service" and collectively, the "Services"). The Services are designed to be used by insurance companies and their partners. We are not a bank or financial institution, and we do not offer banking services as defined by the United States Department of Treasury or other applicable law. In addition, we do not assume any liability, and you expressly waive any claim against us, for any insurance policies for which payment is made via the Services, nor do we make any representations or warranties regarding such insurance policies.
1.1 ACH Transfer Services.
We may permit you to initiate ACH debits and credits ("ACH Transfer") through your Account ("ACH Transfer Services"). We partner with Moov Financial Inc. ("Moov") to provide the ACH Transfer Services. The ACH Transfer Services are subject to the Moov Platform Agreement, available at https://moov.io/legal/platform-agreement, as such agreement may be amended from time to time by Moov ("Moov Platform Agreement"), which is incorporated herein by reference. By using the ACH Transfer Services, you agree to comply with all terms set forth in the Moov Platform Agreement. You will not be able to use the ACH Transfer Services until you have reviewed and accepted the Moov Platform Agreement.
1.2 Card Payment Services.
We may permit you to accept credit or debit card payments ("Card Payment") through your Account ("Card Payment Services"). We partner with a third party ("Card Services Vendor") to provide the Card Payment Services. The Card Payment Services are subject to the Sub-Merchant Agreement, as such agreement may be amended from time to time by the Card Services Vendor ("Sub-Merchant Agreement"), which is incorporated herein by reference. By using the Card Payment Services, you agree to comply with all terms set forth in the Sub-Merchant Agreement. You will not be able to use the Card Payment Services until you have reviewed and accepted the Sub-Merchant Agreement.
1.3 Premium Finance Services.
We may permit you and/or your Users to obtain certain premium finance services ("Premium Finance Services") through your Account. We do not currently provide premium financing, and any such Premium Finance Services would initially be provided by a third party (the "PF Vendor"), which PF Vendor would be responsible for the provision of such Premium Finance Services. We do not assume any liability for any such Premium Finance Services, nor do we make any representations or warranties regarding such Premium Finance Services.
1.4 Bank Account Verification.
You may provide us with your bank account information in connection with certain Services. You authorize us to verify such account information is valid and to periodically review the balance and transaction information in connection with the Services. You understand that we may use a third party to conduct any such verification or review.
1.5 Other Services.
Your use of, and participation in, certain Services may be subject to additional terms, as such may be amended from time to time ("Supplemental Terms"), which are incorporated herein by reference, and may be presented to you for your acceptance when you sign up to use a Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
2. Your Account
2.1 Your Account.
In order to access the Services, you are required to create an account with us ("Account"). You agree to use your Account only for business or commercial purposes.
2.2 Registration.
In creating an Account, you must provide certain information about yourself as prompted by the registration form (the "Registration Data"). You certify that all Registration Data you provide is true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties.
2.3 Eligibility.
You represent that you are (a) of legal age to form a binding contract, if an individual Customer, or duly authorized to enter agreements on behalf of the Customer, if a legal entity Customer; (b) not a person barred from using Company Properties under the laws of the United States, your place of residence, or any other applicable jurisdiction; and (c) duly organized, validly existing, and in good standing under the laws of the state of formation, if a legal entity Customer.
2.4 Keeping Information Current.
You agree to keep all Registration Data up to date and to notify us immediately of any changes to your Registration Data by updating your Account or emailing us at support@functionalfi.com. Updating certain Registration Data may require our review and approval which may result in processing delays. We are not liable for any fees, costs, or other losses incurred as a result of such delays.
3. Users
3.1 Administrators.
When creating an Account, you must identify a User to act as the administrator for the Account ("Administrator"). The Administrator is responsible for overseeing your Account and identifying and setting permissions for other Users. There must be at least one Administrator at all times. You may designate more than one Administrator. We may impose a limit on the number of Administrators for your Account.
3.2 User Information.
When registering each User, we may collect certain information, including a name, e-mail address, telephone number, or other identifying information about the User. You certify that all such information is true, accurate, current, and complete. You agree to keep all information up to date and to notify us immediately of any changes to the information.
3.3 Responsibility for Users.
You are responsible for all activities that occur under your Account by any User, regardless of whether you authorized or intended such action, until such time as you remove the User from your Account.
4. Account Security
4.1 Passwords.
Each User must maintain a valid username and password to access your Account. You are responsible for ensuring the security of all passwords and must prevent Users from sharing their password with anyone. We reserve the right to remove or reclaim any usernames at any time and for any reason.
4.2 Security Procedures.
In addition to a username and password, we may require additional security procedures ("Security Procedures") to access certain Services, including the ACH Transfer Services. You agree that such Security Procedures constitute a commercially reasonable method of limiting access to the Services to those persons you have authorized. You agree to be bound by all ACH Transfers, whether or not authorized, initiated through your Account and accepted by us in accordance with the Security Procedures.
4.3 Reporting Unauthorized Access.
You agree to notify us immediately of any unauthorized use of any password, unauthorized access to any Services, or any other breach of security and to exit from your Account at the end of each session.
5. Responsibility for Content
5.1 Types of Content.
You acknowledge that all data, information, materials, documents, or other content (collectively, "Content") is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit, or otherwise make available ("Make Available") through Company Properties ("Your Content").
5.2 Storage.
Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content that you Make Available on Company Properties. Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties.
6. Use of the Services and Company Properties
6.1 Copyright.
The Website, the Services, and the information and content available on the Website and the Services (each, a "Company Property" and collectively, the "Company Properties") are protected by copyright laws throughout the world.
6.2 License and Use.
We grant you a limited, revocable, non-exclusive, non-transferable right during the Term to use and access the Services. The Services, and all information provided in connection with the Services, are licensed, not sold, to you. By using the Services, you agree to comply with all applicable laws and payment network rules.
6.3 Updates.
You understand that Company Properties are evolving. As a result, we may require you to accept updates to Company Properties that you have installed on your computer or mobile device. You acknowledge and agree that we may update Company Properties with or without notifying you.
6.4 Equipment.
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). You are also responsible for maintaining the security of the Equipment, Account, User passwords, and files, and for all uses of the Account or the Equipment by each User.
6.5 Information Sharing.
You understand that we may partner with third parties to provide certain Services to you. You agree that we, including any third party, may collect, store, process, share, or use any information you provide to us in connection with the Services. Such information will be used in accordance with our Privacy Policy, available at https://www.functionalfi.com/privacy-policy.
7. Customer Restrictions and Responsibilities
You represent, warrant, and agree that you will not use, nor allow any User to use, Company Properties to:
Post, upload, publish, submit or transmit any Content that infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy;
Violate any applicable law or regulation;
Violate any agreement between you and any third party, including without limitation any agreement with any payment network;
Use the Services other than in connection with lawful insurance premium billing and payment activities;
Use, display, mirror, frame or utilize framing techniques to enclose any portion of the Company Properties, or any Company trademark, logo or other proprietary information, without our express written consent;
Access, tamper with, or use non-public areas of the Company Properties, our computer systems, or the technical delivery systems of our providers;
Attempt to probe, scan or test the vulnerability of any of the Company Properties or any related system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us or any of our providers or any other third party to protect the Company Properties;
Attempt to access or search the Company Properties or download any content from the Company Properties through the use of any engine, software, tool, agent, device, or mechanism other than the software and/or search agents provided by us or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Company trademark, logo, URL or product name without our express written consent;
Use the Company Properties for any commercial purpose or the benefit of any third party or in any manner not permitted by this Agreement;
Forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Company Properties to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Company Properties;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Company Properties;
Collect or store any personally identifiable information from the Company Properties without our express permission;
Impersonate or misrepresent your affiliation with any person or entity; or
Encourage or enable any other individual or entity to do any of the foregoing.
8. Fees
By registering for the Services, you agree to pay the fees specified in your Order Form, as may be updated from time to time in accordance with this Agreement ("Fees"). Unless otherwise noted in an Order Form, Fees are due monthly in advance of the period to which they relate.
We reserve the right to change our prices at any time. If you are on a paid plan, we will give you notice before changing the Fees applicable to your plan.
9. Payment of Fees
You agree to pay all Fees due under this Agreement by the due dates set forth in the applicable Order Form or as otherwise invoiced by Company. If you fail to pay any Fees when due, we may suspend or terminate your access to the Services.
All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. You shall be responsible for payment of all such taxes, levies, or duties associated with your purchase of the Services, excluding taxes based on our net income.
If you dispute any invoice or charge, you must notify us in writing within thirty (30) days of the invoice date. If you do not notify us within that time period, you agree that you waive the right to dispute such charge.
10. Communications
By creating an Account, you consent to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that any communications we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
You may opt-out of receiving marketing communications from us at any time by following the unsubscribe link in any marketing email or by contacting us at support@functionalfi.com. Please note that you may not opt out of receiving service-related and transactional communications from us.
Standard message and data rates may apply to text messages. You may opt-out of text messages at any time by replying STOP to any message you receive from us.
11. Ownership
The Company Properties, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all intellectual property rights therein, are and shall remain the sole and exclusive property of Company and its licensors. Your rights to use Company Properties are limited to those expressly granted in this Agreement. No licenses are implied.
You retain all ownership of Your Content. By making Your Content available through Company Properties, you grant Company a worldwide, non-exclusive, royalty-free license to use, copy, modify, and display Your Content as necessary to provide the Services to you.
12. Confidentiality; Proprietary Rights
"Confidential Information" means any non-public information that relates to the actual or anticipated business and/or products, research or development of Company, its affiliates, subsidiaries, or parent companies, or technical data, trade secrets or know-how of Company or its affiliates.
You agree: (a) to hold the Confidential Information in strict confidence; (b) not to disclose the Confidential Information to any third party; and (c) not to use any Confidential Information for any purpose other than evaluating and engaging with the Services.
You acknowledge that the Confidential Information includes proprietary information, trade secrets, and other valuable information, and that any breach of this section may cause irreparable damage to Company.
13. Indemnification
You agree to defend, indemnify, and hold harmless Company and its officers, directors, employees, agents, licensors, and service providers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of this Agreement or your use of the Company Properties, including, but not limited to, any use of the Company Properties' content, services and products other than as expressly authorized in this Agreement.
14. Disclaimer of Warranties and Covenants
THE COMPANY PROPERTIES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. COMPANY AND ITS SUPPLIERS, LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
COMPANY DOES NOT WARRANT THAT THE COMPANY PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE COMPANY PROPERTIES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE COMPANY PROPERTIES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE COMPANY PROPERTIES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT PAID BY YOU TO COMPANY, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
16. Monitoring and Enforcement
We have the right, but not the obligation, to monitor your use of the Services.
We have the right to: (a) take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the Company Properties; and (b) terminate or suspend your access to all or part of the Company Properties for any or no reason, including, without limitation, any violation of this Agreement.
17. Term and Termination
This Agreement shall commence on the date you first access or use the Services and continue until terminated as provided herein.
Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach.
Company may terminate this Agreement immediately without notice if: (a) you violate any provision of this Agreement; (b) you fail to pay any amount owed when due; or (c) Company is required to do so by law or regulatory authority.
Upon termination of this Agreement: (a) your right to access and use the Services will immediately cease; (b) you must immediately cease all use of Company Properties; and (c) we may, but are not obligated to, delete or retain Your Content in accordance with our data retention policies.
18. Service Area
The Company Properties are intended for use by persons in the United States only. We make no claims that the Company Properties or any of its content is accessible or appropriate outside of the United States. Access to the Company Properties may not be legal by certain persons or in certain countries. If you access the Company Properties from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
19. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Company agree to resolve any disputes between you and Company through binding and final arbitration instead of through court proceedings. You and Company hereby waive any right to a jury trial of any Claim.
Any dispute, claim or controversy arising out of or relating to this Agreement, or to your use of the Services or Company Properties (collectively, "Claims") will be settled by binding arbitration administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules, except that either party may bring a claim in small claims court if it qualifies.
The arbitration will be conducted in the English language. A single independent and impartial arbitrator with his/her decision being binding and capable of being entered as a judgment in any court of competent jurisdiction will be appointed for such arbitration.
CLASS ACTION WAIVER: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY AND ALL DISPUTES SHALL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION.
20. General Provisions
Severability; Entire Agreement.
If any provision of this Agreement is found invalid or unenforceable, the remaining provisions will remain in full force and effect. This Agreement constitutes the entire agreement between you and Company regarding the subject matter herein and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Governing Law.
This Agreement and any action related thereto will be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions.
Termination of Warranty Disclaimers and Limitations of Liability.
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 and disclaimers may not apply to you.
Assignment.
You may not assign or transfer this Agreement or any rights or obligations hereunder, without the prior written consent of Company, which may be withheld at Company's sole discretion. Company may freely assign this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
Waiver.
Our failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights.
How to Contact Us.
If you have questions about this Agreement, please contact us at support@functionalfi.com.
Payer Terms of Service and Payment Authorization
The following terms ("Payer Terms") apply to individuals ("Payers") who make payments through the Functional Finance platform on behalf of insurance companies or other customers of Functional Finance ("Customers").
By initiating a payment through the Functional Finance platform, you authorize the applicable Customer to debit the bank account or charge the credit or debit card specified by you for the amount and on the date(s) specified at the time of your payment authorization.
Your payment authorization will remain in effect until you or the applicable Customer cancels it. You may cancel your payment authorization by contacting the applicable Customer.
All payments are subject to the terms of any applicable insurance policy and/or premium finance agreement. Functional Finance is not a party to your insurance policy and is not responsible for the terms or conditions of any insurance policy.
If a payment is returned unpaid for any reason, you may be charged a returned payment fee by the applicable Customer in accordance with applicable law.