ParticipateSM is owned by BankLabs. It
connects financial institutions, credit officers and other Users. Its
primary goals are to digitize loan participation documents; to make
the loan participation process more efficient, and to allow financial
institutions to connect with a wider audience in the participation
market.
These Terms of Use, as BankLabs may amend them from time to time,
govern each User’s access to and use of the Site and its related
services and applications (the “Service”). By viewing content on
Participate (the “Site”) or otherwise using Participate in any way,
User, on behalf of himself or herself, his or her affiliated financial
institution, and any person who accesses the Site through User’s
account, agrees to, and will abide by, these Terms of Use.
1. DEFINITIONS
BankLabs. Radius Group, LLC dba BankLabs, an Arkansas limited
liability company with its principal office located at
6001 Valley Ranch Dr., Little Rock, AR 72223.
Opportunity. An Opportunity is a loan participation published
on the Site.
User. A User is any person that visits the Site or views any
information on the Site.
Authorized User. An Authorized User is any User who has been
authorized by a Participating Financial Institution to publish or
purchase Opportunities using the Service, to request and review
confidential loan documents and to enter into binding agreements on
the Financial Institution’s behalf.
Offering Financial Institution. An Offering Financial
Institution is any financial institution with an Authorized User who
publishes an Opportunity using the Service.
Provider. A Provider is a third-party that provides information
or data to or related to the Site, for example, links to third-party
web sites, market data and other information related to financial
institutions.
2. USE OF THE SERVICE
General Agreement
User agrees to abide by all of the Terms of Use, and to use the Site
and Services only for the purposes for which they were designed. User
shall not use the Site or Services to reverse engineer, recompile or
reconstruct any portion of the Site or its processing. User shall not
use the site to determine pricing or terms of loans in violation of
any applicable laws. Use acknowledges that neither the Services nor
any portion of the underlying software may be accessed by means of a
none-human user, and that the use of automation scripts in conjunction
with the Services is expressly prohibited. If User violates any of
these Terms of Use, the Company may terminate User’s access to the
Site, delete User’s profile and any content or information that User
has posted on the Site and/or prohibit User from using or accessing
the Service or the Site (or any portion, aspect or feature of the
Service or the Site), at any time in the Company’s sole discretion,
with or without notice.
Age Eligibility
An Authorized User must be eighteen (18) years of age or older, and
any violation of this is unauthorized, unlicensed and in violation of
these Terms of Use. By using the Site, an Authorized User represents
and warrants that the Authorized User is 18 years of age or older.
Limited License in Proprietary Content
All content on the Site, including but not limited to designs, text,
graphics, pictures, video, information, software, music, sound and
other files, and their selection and arrangement (the "Site Content"),
are the proprietary property of BankLabs with all rights reserved. No
Site Content may be modified, copied, distributed, framed, reproduced,
republished, downloaded, displayed, posted, transmitted, or sold in
any form or by any means, in whole or in part, without BankLabs’ prior
written consent, except as provided in the following sentence and
except that the foregoing does not apply to User’s own User Content
(as defined below) that User legally posts on the Site. Provided that
User is eligible for use of the Site, User is granted a limited
license to access and use the Site and to download or print a copy of
any portion of the Site Content solely for User’s use in analyzing,
publishing or purchasing an Opportunity; provided that User keep
intact all copyright or other proprietary notices. Except for User’s
own User Content (as defined below), User may not republish Site
Content on any Internet, Intranet or Extranet site or incorporate the
information in any other database or compilation. Any use of the Site
or the Site Content other than as specifically authorized herein,
without the prior written consent of BankLabs, is strictly prohibited
and will automatically terminate the license granted herein. Such
unauthorized use also may violate applicable laws including without
limitation copyright and trademark laws and applicable communications
regulations and statutes. Unless explicitly stated herein, nothing in
these Terms of Use shall be construed as conferring any license to
intellectual property rights, whether by estoppel, implication or
otherwise. This license is revocable by the Company at any time
without notice and with or without cause.
User Content
User and User’s affiliated financial institution are is solely
responsible for the photos, profiles, messages, notes, text,
information, data, music, video, contact information for User,
advertisements or other content that User uploads, publishes, provides
or displays (collectively hereinafter, "Posts") on or through the
Service or the Site, or transmits to or shares with other Users
(collectively the "User Content"). User understands and agrees that
BankLabs may, but is not obligated to, review and delete or remove
(without notice) any User Content in its sole discretion, including
without limitation, User Content that in the sole judgment of BankLabs
violates these Terms of Use, might be offensive or illegal, or might
violate the rights of, harm, or threaten the safety of, Users or
others.
By posting User Content to any part of the Site, User, on behalf of
User and User’s affiliated financial institution, automatically grants
to BankLabs, and User represents and warrants that User has the right
to grant, to BankLabs an irrevocable, perpetual, non-exclusive,
transferable, fully-paid, worldwide license (with the right to
sublicense) to use, copy, publicly perform, publicly display,
reformat, translate, excerpt (in whole or in part) and distribute such
User Content for any purpose on or in connection with the Site or the
promotion thereof, to prepare derivative works of, or incorporate into
other works, such User Content, and to grant and authorize sublicenses
of the foregoing. As part of this license, BankLabs may make User
profiles and information on financial institutions and participation
opportunities publicly searchable and viewable by persons not
registered on the Site. User may remove its User Content from public
view on the Site at any time. However, if any such User Content is
removed, the license granted shall continue without expiration, and
BankLabs may retain a copy of any removed or deleted User Content.
User History
As explained in the Site’s Privacy Policy, BankLabs maintains data on
the actions taken by Users on the Site. BankLabs may disclose certain
of these actions to some or all other Users; for example, we may
disclose which Users have viewed specific User profiles, which Users
have viewed or participated in specific Opportunities or disclose a
history of Opportunities in which a User was involved.
User Feedback
After completing a loan participation on the Site, User may have the
ability to review or provide feedback on the other Users involved in
the transaction. By providing any user feedback, User warrants that
the feedback accurately reflects the User’s opinion at the time of
posting. If any such User feedback is considered to be defamatory or
harmful in any way, User and User’s affiliated financial institution
agree to indemnify BankLabs and its officers, directors, employees and
agents, and to hold them harmless from any and all loss, claim, damage
or expense, including reasonable attorneys’ fees and expenses, arising
out of or related to any such claim of harm or defamation. BankLabs
does not verify user feedback, and user feedback does not reflect the
views or opinions of BankLabs in any way.
Borrower Information
User will have the ability to post personally identifiable information
regarding the identity of borrowers and guarantors (“Borrower
Information”) as part of the loan participation process. By posting
Borrower Information, User represents that User has received consent
from the borrowers and guarantors to share such Borrower information
as part of the loan participation process. User agrees that it will
not share Borrower Information on any publicly accessible areas of the
site unless User has been authorized by the borrower or guarantor to
do so.
Confidentiality
User will have access through BankLabs’ proprietary Site to personally
identifiable information and other confidential information about
borrowers and guarantors underlying the loans subject to participation
and to information confidential to other Users (collectively,
“Confidential Information”). User agrees to use Confidential
Information solely for purposes of finding, publishing or purchasing
loan participations and will not reveal Confidential Information to
any person not participating in the loan, whether provided in a
general summary format on the site or in any resulting loan document
packages. User agrees to immediately destroy any Confidential
Information in User’s possession if User chooses not to purchase an
Opportunity or such information is no longer needed to analyze an
Opportunity. Whether or not a User purchases an Opportunity, User
agrees that it may not use Confidential Information to solicit
business from a borrower or guarantor.
Non-Solicitation of Borrowers and Participation Opportunities
By publishing an Opportunity to the Site, User agrees to make all
reasonable efforts to complete the Opportunity using the Site and
agrees to not attempt to contact any financial institution or other
User to complete the Opportunity outside of the Site. By viewing
Opportunities, each User agrees to not attempt to contact any
financial institution or other User to complete the purchase of an
Opportunity outside of the Site and further agrees to
transfer funds to the Offering Financial Institution through the
Company’s designated custodian. BankLabs reserves the right to
designate and use any custodian to transmit funding and may change
its designated custodian at any time. Each User agrees to report promptly to BankLabs any information
indicating that any portion of an Opportunity has been completed
outside of the Site. Any User violating these terms agrees to pay
BankLabs, as liquidated damages and not as a penalty, a transaction
fee of .50% of the participated loan amount, and may be prohibited
from using the Site thereafter.
User Information Accuracy
User and its affiliated financial institution warrant that any and all
information User posts to the Site is true and accurate to the best of
User’s knowledge, including without limitation User’s name, email
address and other profile information, and User’s affiliation with a
financial institution. Either BankLabs or a financial institution may
withdraw a User’s right to continue using the Site at any time and.
BankLabs may remove a User’s profile at any time at its sole
discretion. BankLabs is not responsible for confirming or verifying
any information posted to the Site, but reserves the right to monitor
and record activity on the Site.
Authority of User to Act on Behalf of a Financial Institution
User represents and warrants, on behalf of User and User’s affiliated
financial institution, that such financial institution has duly
authorized User to take all actions permitted by User’s designated
role on the Site, as defined above, and agrees that if such
authorization is withdrawn, User will ensure that User’s role on the
Site is immediately changed or removed accordingly.
Verification of Borrower Credit Worthiness
BankLabs does not perform any review or credit analysis on loans
listed for participation on the Service. By using the Service, each
User agrees to perform its own due diligence on each loan Opportunity
and borrowers or guarantors, including but not limited to any
diligence required or desired by law or by any governmental entity
having regulatory authority over User or User’s affiliated financial
institution.
SNC Reporting Compliance
Each Offering Financial Institution that would is subject to the
Federal Reserve’s Shared National Credit reporting program agrees to
file, and takes full responsibility for filing, any required
documentation in a complete and timely manner.
3. FEES
BankLabs may charge both subscription fees and transaction fees for
the use of the Service. Transaction fees are generally stated as a
percentage the loan amount offered for participation. Such fees may
change from time to time and may differ from loan to loan. By
publishing an Opportunity, each Offering Financial Institution agrees
to pay the fee charged for that transaction and authorizes BankLabs or
its affiliates to subtract such fees directly from amounts paid to the
Originating Bank by participating financial institutions.Each User
with an account has a user name, password, authentication and other
security codes (“User Codes”) that give User access to User's profile
and account information. These are private keys allowing a User to
access specific account information in the Site. Each User agrees to
keep User Codes strictly confidential and to take all steps necessary
to protect the Site and information on the Site from unauthorized use
and disclosure. BankLabs recommends that each User change his or her
password upon first use and regularly thereafter. For security
purposes, BankLabs recommends that User memorize his or her password
and not write it down. Each User must assure that he or she signs off
when leaving User’s computer. Each User agrees to notify BankLabs
immediately if he or she becomes aware of any loss, theft or
unauthorized use of User's User Codes at 501-313-3414.
BankLabs has no duty to inquire as to the authority or propriety of
any instructions or information provided by any User and may act and
rely upon any such instructions or information without any duty or
liability to any person.
Encryption
Participate employs sophisticated encryption technology and advanced
security protocols on its Site to protect Site information. To access
the Site, User’s browser must allow 128-bit encryption (also called
domestic-grade, U.S.-grade, high, or strong encryption) and Secure
Socket Layer (SSL) protocol. This helps to protect the safety and
confidentiality of User’s information when User receives or transmits
information online. If User sends an e-mail to BankLabs from within
the Site, it is secured with the same technology used in User's e-mail
system, not the site’s 128-bit encryption.
Privacy
Please review the Site’s Privacy Policy. By using the Site, User and
User’s affiliated financial institution agrees to be bound by the
terms of the Privacy Policy.
5. OTHER TERMS
Electronic Signatures
User consents to the use of electronic signatures on the Site in lieu
of paper-based signatures. User acknowledges and agrees that
legislation such as the Electronic Signatures in Global and National
Commerce Act (the “E-Sign Act”) and the Uniform Electronic
Transactions Act (“UETA”) have provided that electronic signatures are
the legal equivalence of handwritten signatures on paper and are
legally binding in the United States and in other countries.
Accuracy of Information Posted by Users
BankLabs reserves the right to verify User information, including
without limitation User’s affiliation with a financial institution,
but has no obligation to do so. BankLabs does not recommend or endorse
any financial institution or User as an appropriate partner to
participate in any investment. It is the responsibility of individual
financial institutions to verify that Users are properly affiliated
with, and authorized by, their stated financial institutions. BankLabs
does not recommend or endorse any Opportunity listed on the site from
time to time or opine as to the appropriateness of any Opportunity for
any User or its affiliated financial institution. Each User is
obligated to complete any underwriting analysis and due diligence
necessary to decide whether to participate in any Opportunity.
DMCA Notifications
In accordance with the Digital Millennium Copyright Act (the “DMCA”),
BankLabs has adopted a notice and takedown policy to remove infringing
material. If you believe that your protected work has been infringed,
notify the Company’s copyright agent. Your notification must include
the following information required under the DMCA:
1. A physical or electronic signature of a person authorized to act on
behalf of the owner of the infringed copyright;
2. Identification of the copyrighted work or works claimed to have
been infringed;
3. Identification of the material that is claimed to be infringing or
to be the subject of infringing activity and that is to be removed,
and information reasonably sufficient to permit us to locate the
material;
4. Your contact information (i.e., address, telephone number, and
email address);
5. A statement that you have a good faith belief that use of the
material is not authorized by the copyright owner; and
6. A statement that information in the complaint is accurate and that
the complaining party is authorized to act on behalf of the copyright
owner.
If you fail to comply with these notice requirements, your
notification may not be valid. Additionally, any person that knowing
materially misrepresents that material is infringing may be subject to
liability under the copyright act.
In accordance with the DMCA, BankLabs may terminate the account of any
User who is a repeat infringer, and may terminate User accounts based
on even a single infringement.
Information ”As Is“
All information, names, data, documents and materials (collectively
referred to in this Terms of Use as ”Information“) on this Site or a
linked site are provided ”as is,“ without any warranty of any kind,
either express or implied, by any person. To the fullest extent
allowed by applicable law, there are no express or implied warranties
of merchantability, fitness for a particular purpose, or
non-infringement. No oral or written information or communications
provided by BankLabs or any of its Providers or affiliates, or their
directors, officers, employees, agents, representatives, predecessors,
successors or assigns shall create any warranty about the Information
or the Site.
BankLabs does not warrant the accuracy of any information provided on
the Site, whether provided by BankLabs or by a third party. Such
information may include technical inaccuracies or typographical
errors. BankLabs may change any of the information on the Site or
discontinue the Site at any time without notice. The information on
the Site may be out of date, and BankLabs makes no commitment to
update the information or the Site.
To the extent that the Site uses Internet, wireless or related
electronic or telephonic services to transport data or communications,
BankLabs takes reasonable security precautions to create a secure and
reliable Site, but disclaims any liability or responsibility for
third-party interception of any such data or communications or for the
access, speed, availability or interruptions of such communications or
transmissions. BankLabs does not warrant that the Site or Service will
be uninterrupted or free from errors, viruses or other harmful
elements. User is solely responsible for the cost, security and
maintenance of User's computer systems, software and data, including
but not limited to taking protective measures (such as encryption,
virus and firewall protection) to prevent unauthorized access to
User's computer systems, software and data and repairing damage caused
by such unauthorized access. User understands that any information
provided on or through the Site is for general information use only
and is not advice to User. User is solely responsible for confirming
the timeliness, accuracy, adequacy, completeness, and quality of all
information provided on or through the Site before acting on it.
Third-Party Providers
The Site may provide access to information and data from third-party
providers (“Provider Information”), for example, links to third-party
web sites, market data and other information related to financial
institutions. BankLabs has obtained the Provider information through
sources believed reliable, but is not responsible for such
information. BankLabs makes no representation or warranty with respect
to, nor does it, guarantee, warranty (either express or implied) or
endorse the accuracy, completeness, timeliness, reliability, legality,
compliance, availability or correct sequencing of, the Provider
information or any web site operated by a third party. BankLabs does
not support, endorse, oppose, or edit any opinion, analysis or
information provided by any third party.
With respect to any areas on this Site where Users transmit or Post
communications, whether to Participate, to each other or to third
parties, including but not limited to chat rooms, bulletin boards or
user forums, BankLabs may, but is not obligated to, monitor or review
the activity in such areas and/or the content of such communications
and remove any such information in its sole discretion. User agrees to
not post any illegal information, including without limitation
information that violates applicable copyright, libel, privacy, or
obscenity laws, or any other law that may be applicable.
No Offer of Securities
Nothing on this Site represents an offer to sell or solicitation of an
offer to buy any securities.
No Legal Advice
BankLabs does not provide legal advice with respect to the use of the
Site or any Opportunity. Each User is encouraged to complete its own
due diligence and legal review of all documents and information made
available through the Services. BankLabs does not warrant the
completeness or accuracy of any such documents of information provided
through the Site may not be sufficient to conduct full and complete
due diligence on a potential loan participation Opportunity. Offering
Financial Institution, and User agree to conduct all necessary or
desirable due diligence before entering into a transaction. Nothing on
this Site represents an offer or solicitation of Services or products
in any jurisdiction where the offer or sale would not comply with such
jurisdiction’s laws, which User has sole responsibility to understand
and implement. BankLabs does not guarantee the legal, accounting, tax,
or regulatory treatment of any Opportunity offered on the Site. It is
the User’s responsibility to comply with all regulatory requirements
inherent in the participation process, and to ensure that any
Opportunity that the User offers or purchases on the Site meets the
User’s unique regulatory requirements. BankLabs is not responsible for
any losses incurred as a result of the legal, accounting, tax, or
regulatory treatment of any Opportunity offered on the Site.
Limitation of Liability
To the fullest extent permitted by applicable law, BankLabs and its
affiliates and their directors, officers, employees, agents,
representatives, predecessors, successors, assigns, suppliers or third
parties are not and will not be liable for any direct, incidental,
indirect, known or unknown, foreseeable or not, consequential,
economic, punitive, special or other damages whatsoever (including,
without limitation, those resulting from lost profits, lost data,
delay, loss of Service use or business interruption) arising out of
the use of, inability to use, or the results of use of this Site, and
of the Services, and any Web sites linked to this Site, any User
posting to the Site, or the materials or information contained at any
or all such sites or in connection with the use or performance of
software or of failure to provide services, whether based on warranty,
contract, tort, negligence or any other legal theory and whether or
not BankLabs knew or should have known or was advised of the
possibility of such damages.
Neither BankLabs nor its service Providers or other agents are or will
be liable for any loss or liability resulting in whole or in part from
any act or failure to act of User’s equipment or software, by any
Internet browser Provider, by any Internet access Provider, by any
online service Provider or by an agent, employee, officer, director or
subcontractor of any of the above.
Indemnification
User agrees on behalf of User and User’s financial institution to
indemnify and hold BankLabs, its affiliates and their vendors,
directors, officers, employees and agents (“Indemnified Persons”)
harmless from all claims, losses, damages, liabilities, costs,
charges, demands, judgments, expenses and attorney fees (“Claims”)
arising out of or in any way connected with use of this Site by User,
User’s representative and any person to whom User has provided any of
User’s security information (including without limitation User name or
password), including without limitation any Claims arising from or out
of User's failure to comply with this Agreement or the use or misuse
of the Site by User or User's agents. However, User and User’s
financial institution’s obligation to indemnify BankLabs shall not
extend to claims of copyright infringement based on information for
which BankLabs is solely responsible for publishing on the Site.
Third-Party Rights; Specific Performance
An Offering Financial Institution shall have the right to specific
performance and any other remedies available at law or in equity
against a User with respect to any Opportunity that the Offering
Financial Institution published that was purchased in whole or in part
by such User. The Site shall create no other third-party rights,
obligation or remedies.
Assignment
User may not assign any rights and obligations under this these Terms
of Use without prior written consent from BankLabs. BankLabs may
assign its interest in these Terms and Conditions to any direct or
indirect subsidiary or affiliate of BankLabs and may delegate any of
its responsibilities related to the Services to any person.
Governing Law and Jurisdiction
These Terms of Use are governed by the laws of the State of Arkansas,
without giving effect to the state's principles of conflicts of law.
User consents and submits to the personal jurisdiction of the courts
of the State of Arkansas to interpret or enforce any or all of the
Terms of Use. Any dispute relating to this Site in any manner shall be
exclusively brought in the state or federal courts located in Pulaski
County, Arkansas. If a court of competent jurisdiction deems any
provision of these Terms of Use unenforceable, that provision will be
enforced to the maximum extent permissible, and the remaining
provisions will remain in full force and effect.
Entire Agreement; Waivers
These of Use, as amended from time to time by BankLabs, and any other
disclosures that BankLabs may post on the Site or otherwise provide to
User from time to time make up the entire and sole agreement between
User and BankLabs concerning the Site and Services. If these Terms of
Use conflict in any way with any other agreement between the User and
BankLabs, these Terms of Use will control and the conflicting term in
the other agreement will be disregarded. Failure of BankLabs to insist
at any time to strict compliance with these Terms of Use or any of its
terms shall not constitute or be considered a waiver by BankLabs of
its rights or privileges under these Terms of Use. To be effective, a
waiver of any term or condition of these Terms of Use must be in
writing and signed by an authorized representative of BankLabs.
Headings
The headings in these Terms of Use are solely for convenience of
reference and shall be given no effect in the construction or
interpretation of these Terms of Use.
Termination
User may stop using the Site at any time, but User’s responsibilities
under these Terms of Use shall continue with respect to any of User’s
use of the Site or Services. BankLabs in its sole discretion may
terminate User’s access to the Site or the Site. If BankLabs
terminates the Site, it will use commercially reasonable efforts to
assist in the wind-down of any Opportunities then in process. The
rights of termination are in addition to all other rights and remedies
of Participate in these terms and conditions, or by law or in equity.
The information received through this Service or in any e-mail alerts
does not constitute consulting, banking, investment, legal, accounting
or other professional advice and should not be relied upon for
personal or financial decisions. User is responsible for User’s own
decisions on the suitability of Opportunities available on the Site.
By accessing the site, User understands and agrees to be bound by
these Terms of Use.
