Terms of Use - Lender


ATB LENDR– TERMS OF USE

Please read these terms of use (“Agreement” or “Terms of Use”) carefully before using the services offered by Alberta Treasury Branches, operating as ATB Financial, on www.atblendr.ca (“ATB LendR” or the “Site”). This Agreement sets forth the legally binding terms and conditions for your use of ATB LendR and the service owned and operated by ATB Financial and its service providers (collectively with the Site, the “Service”). This Agreement does not constitute an agreement to lend money (a “LendR Loan”) to a borrower (“Borrower”) and the terms of any LendR Loan will be set out in a loan agreement among you, other lenders, ATB Financial and the Borrower. By using the Site or Service in any manner, including but not limited to visiting, browsing or funding on the Site, you agree to be bound by this Agreement. This Agreement applies to all users of the Site or Service, including users who are also contributors of content, information, and other materials or Services on the Site.

The Service and the Site are provided under an exemption order (the “Order”) from the Alberta Securities Commission dated September 1, 2015 and available at www.albertasecurities.com. The Order cannot be relied on unless all information provided to Lenders, including a Lending Profile (as defined below), is fair and balanced and not misleading or untrue in a material respect at the time and in light of the circumstances in which it is provided. Capitalized terms not defined herein have the meanings given to those terms in the Order.


1. ACCEPTANCE OF TERMS

The Service is offered subject to acceptance without modification of all of the terms of this Agreement, including the Privacy Policy and any document incorporated by reference. Policies published on ATB LendR from time to time or additional terms are incorporated by reference. Such policies and terms may be updated from time to time by service providers, or by ATB Financial in accordance with Section 2 below.

You represent and warrant that: (i) you are of legal age to form a binding contract, (ii) you reside in Alberta, and (iii) all registration information you submit is accurate and complete. ATB Financial may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time.


2. MODIFICATION OF TERMS OF USE

ATB Financial reserves the right, at its sole discretion, to modify or replace any of these Terms of Use, or change, suspend or discontinue any portion of the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you an email. ATB Financial may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes.


3. ACCEPTABLE USE

As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms of Use or prohibited by law. You are responsible for all of your activity in connection with the Service. For purposes of the Terms of Use, the term “Content” includes, without limitation, any Lending Profile, information, financial information, data, text, photographs, software, graphics, and interactive features generated, provided, or otherwise made accessible on Alberta LendR by ATB Financial or its partners on or through the Service.

Additionally, you shall not: (i) take any action that imposes or may impose (as determined by ATB Financial in its sole discretion) an unreasonable or disproportionately large load on the ATB LendR (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures ATB LendR may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run Mail list, Listserv, any form of auto-responder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site.

You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Service; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, provincial, federal and international laws and regulations.


4. REGISTRATION

You may browse the Site and view Content without registering, but as a condition to using certain aspects of the Service, you may be required to register for an ATB LendR account with ATB Financial on ATB LendR and select a password and screen name (“User ID”). You shall provide accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your ATB LendR account.

You shall not (i) select or use as a User ID or domain a name of another person with the intent to impersonate that person; (ii) use as a User ID or domain a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a User ID or domain a name that is otherwise offensive, vulgar or obscene. ATB Financial reserves the right to refuse registration of, or cancel a User ID and domain in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your ATB LendR password. You shall never use another user’s account without such other user’s express permission. You will immediately notify ATB Financial in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

ATB will hold and handle on your behalf any funds submitted by you through the Site in a “Platform Account”). ATB will maintain records in respect of such Platform Account, including without limitation a record of all deposits and withdrawals, all LendR Loans made with funds from your Platform Account, and all repayments of principal and interest to such Platform Account. You may access these records on the Site, and ATB will provide regular updates to you on the Site in respect of status of your funds, the amount of LendR Loans outstanding and/or repaid, and the amount of interest earned.

ATB will credit to your Platform Account, without deduction, all funds received from you no later than 5 business days after the earlier of (i) the date a Borrower notifies ATB Financial that it no longer wishes to obtain a loan via the Service; and (ii) the second business day following the end of the Crowd Distribution Period if a Crowd Investment amount has not been reached.


5. PROJECTS: FUND-RAISING & PROJECT EXECUTION

Each potential Borrower will provide on the Site a description of the Borrower’s business, business plans, the requested LendR Loan sought and other information required to be provided by the Alberta Securities Commission (collectively, a “Lending Profile”).

Until a Borrower has raised the Crowd Investment, ATB Financial will hold all funds received from each Crowd Lender through the Platform on behalf of each of the Crowd Lenders and will not release any funds to a Borrower.

Two-day cancellation right – If you agree to make a loan, you have a short period in which to change your mind and cancel your agreement. To do so, you must send ATB Financial written notice by midnight on the second business day after you sign the agreement to make a loan.

Right of action in the event of a misrepresentation – If there is a misrepresentation in the Lending Profile, you have a statutory right to sue (a) the Borrower to cancel your agreement or (b) the Borrower, its directors or both for damages.

This right to sue is available to you whether or not you relied on the misrepresentation. However, there are various defences available to the persons or companies that you have a right to sue. In particular, they have a defence if you knew of the misrepresentation when you agreed to make the loan.

If you intend to rely on these rights, you must do so within strict time limits. An action to cancel your agreement must be commenced no more than 180 days from the date of the transaction giving rise to the cause of action. An action for damages must be within the lesser of (a) 180 days from the day that the plaintiff first had knowledge of the facts giving rise to the cause of action, and (b) 3 years from the day of the transaction giving rise to the cause of action.

ATB Financial is not a registered dealer for the purposes of securities law and no registered dealer is involved in the operation of ATB LendR.


6. FEES AND PAYMENTS

Joining ATB LendR is free. However, there are fees charged for certain services. Please see the Fees section on the Site for details on applicable fees. Fees may change from time to time, so please check the Site regularly. ATB Financial may choose to temporarily change the fees for the Services for promotional events or new services, and such changes are effective when ATB Financial posts the temporary promotional event or new service on the Site.


7. INITIAL RISK ACKNOWLEDGEMENT

By entering into this Agreement, you acknowledge that:


a) You understand that this is a risky investment. You could lose all the money you lend.
b) You might not earn any income, such as interest, on this loan.
c) You will not be able to sell or transfer this loan.
d) You have read, and you understand, the information in the Lending Profile and this Initial Risk Acknowledgement.
e) ATB Financial will not provide investment advice or recommendations to you respecting the suitability of making a LendR Loan.
f) ATB Financial will not guarantee, or purport to guarantee, the repayment of all or any portion of a LendR Loan.


8. THIRD PARTY SITE

The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When you access third party websites, you do so at your own risk. These other websites are not under ATB Financial's control, and you acknowledge that ATB Financial is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by ATB Financial or any association with its operators. You further acknowledge and agree that ATB Financial shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.


9. CONTENT AND LICENSE

You agree that the Service contains Content specifically provided by ATB Financial or its partners and that such Content may be protected by copyrights, trade-marks, patents, trade secrets or other proprietary rights and laws in Canada and elsewhere. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Service.


10. INTELLECTUAL PROPERTY RIGHTS

The Service provides Borrowers with the ability to upload Content to the Site. Each Borrower must represent and warrant that it have all necessary rights and licenses to submit and upload such Content (including without limitation that contained in a Lending Profile) to the Site, and to make it available in connection with the Service. ATB Financial has no ownership rights in Content submitted by Borrowers. However, ATB Financial and its service providers are granted a license by each Borrower to perform the Service, and the worldwide, non-exclusive, royalty-free, and right to publish and host the Content that such Borrower submits in connection with the Service.

ATB Financial does not endorse any Content. ATB Financial cannot guarantee the authenticity of any data that users may provide about themselves. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting there from.

ATB Financial does not guarantee that any Content will be made available on the Site or through the Service. ATB Financial has no obligation to monitor the Site, Service or Content. However, ATB Financial reserves the right to remove, edit or modify any Content in its sole discretion, from the Site or Service at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if ATB Financial is concerned that you may have violated the Terms of Use).


11. RELATIONSHIP BETWEEN LENDERS

No Lender, including without limitation, ATB Financial, assumes or shall have any responsibility to any other Lender for the financial condition of the Borrower or for the repayment of any amount, whether principal, interest, costs, fees or expenses, payable by the Borrower in respect of any Loan. No Lender, including without limitation ATB Financial, makes any representation or warranty, or accepts and assumes any responsibility or duty, to any other Lender, including without limitation in respect of any Borrower or the financial condition or prospects thereof, any Credit Agreement, any security documents or the sufficiency, enforceability, registration, priority or perfection thereof, any Loan or any collateral. No Lender has been induced by ATB Financial or any other Lender to make a Loan or enter into any Credit Agreement.

ATB Financial is not and shall not be or become or be deemed to be acting as agent on behalf of any other Lender, in any capacity and irrespective of any present or future holding out, course of conduct or practice on the part of ATB or any other Lender. Neither the execution of any Credit Agreement, nor the sharing of any Loan, nor any agreements to share in profits or losses arising as a result thereof is intended to be, nor will it be construed to be the formation of a partnership or joint venture between the Lenders.


12. YOUR RIGHTS

Two-day cancellation right – If you agree to make a loan, you have a short period in which to change your mind and cancel your agreement. To do so, you must sent ATB Financial written notice by midnight on the second business day after you sign the agreement to make a loan.

Right of action in the event of a misrepresentation – If there is a misrepresentation in the Lending Profile, you have a statutory right to sue (a) the Borrower to cancel your agreement or (b) the Borrower, its directors or both for damages.

This right to sue is available to you whether or not you relied on the misrepresentation. However, there are various defences available to the persons or companies that you have a right ot sue. In particular, they have a defence if you knew of the misrepresentation when you agreed to make the loan.

If you intend to rely on these rights, you must do so within strict time limits. An action to cancel your agreement must be commenced no more than 180 days from the day of the transaction giving rise to the cause of action. An action for damages must be within the lesser or (a) 180 days from the day that the plaintiff first had knowledge of the facts giving rise to the cause of action, and (b) 3 years from the day of the transaction giving rise to the cause of action.


13. TERMINATION

ATB Financial may terminate the Service, or your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid hereunder are non-refundable. All provisions of the Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

In the event of termination, your funds in a Platform Account will be remitted to you by ATB Financial within [10] business days of such termination.


14. WARRANTY DISCLAIMER

ATB Financial has no special relationship (including any agency relationship) with or fiduciary duty to you other than as set out in respect of a particular Loan. You acknowledge that ATB Financial has no control over, and no duty to take any action regarding: which users gain access to the Site; what Content you access via the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content.

You release ATB Financial from all liability for you having acquired or not acquired Content through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate.

ATB Financial makes no representations concerning any Content contained in or accessed through the Site, and ATB Financial will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or the Service. ATB Financial does not guarantee the repayment of all or any portion of your funds in a Platform Account.

The service is provided “as is” and “as available” and is without warranty or condition of any kind, express or implied, including, but not limited to, the implied warranties or conditions of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties or conditions implied by any course of performance or usage of trade, all of which are expressly disclaimed. ATB Financial, and its directors, employees, agents, suppliers, partners and content providers do not warrant that: (a) the service will be secure or available at any particular time or location; (b) any defects or errors will be corrected; (c) any content or software available at or through the service is free of viruses or other harmful components; or (d) the results of using the service will meet your requirements. Your use of the service is solely at your own risk.

ATB Financial will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on ATB Financial’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.


15. INDEMNIFICATION

You shall defend, indemnify, and hold harmless ATB Financial, its affiliates and service providers and each of its affiliates and its service providers respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your use or misuse of, or access to, the Site, Service, Content or otherwise, violation of the Terms of Use, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. ATB Financial reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with ATB Financial in asserting any available defenses.


16. LIMITATION OF LIABILITY

In no event shall ATB Financial or ATB LendR, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the service (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, substitute goods or services (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) the fees paid by you to Atb Financial.


17. INTERNATIONAL

Accessing the Service is prohibited from territories where such Content is illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws.


18. ELECTRONIC DELIVERY/NOTICE POLICY AND YOUR CONSENT

By using the Services, you consent to receive from ATB Financial all communications including notices, agreements, legally required disclosures or other information in connection with the Services (collectively, “Contract Notices“) electronically. ATB Financial may provide such electronic Contract Notices by posting them on the ATB LendR Site. If you desire to withdraw your consent to receive Contract Notices electronically, you must discontinue your use of the Site and Services.

Any personal information (as defined by the Personal Information Protection Act) being collected under this Agreement is for the purpose of making use of the Site and the Service and will be collected, used, disclosed and retained in accordance with the terms and conditions of this agreement and ATB Financial’s Customer Privacy Code which is available at www.atb.com.


19. GOVERNING LAW

These Terms of Service (and any further rules, policies or guidelines incorporated by reference herein) shall be governed by and construed in accordance with the laws of the Province of Alberta, without giving effect to any principles of conflicts of law. You agree that ATB LendR (and all Services) is deemed a passive website that does not give rise to personal jurisdiction over ATB LendR or its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the Province of Alberta, Canada.

You agree that any action at law or in equity arising out of or relating to these terms, or your use or non-use of the Services, shall be filed only in the provincial or federal courts located in Edmonton, Alberta and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You hereby irrevocably waive any right you may have to trial by jury in any such dispute, action or proceeding.


20. INTEGRATION AND SEVERABILITY

The Terms of Use are the entire agreement between you and ATB Financial with respect to the Service and use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and ATB Financial with respect to the Site. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.


21. MISCELLANEOUS

The Terms of Use are personal to you, and are not assignable or transferable by you. ATB Financial may assign, transfer or delegate any of its rights and obligations hereunder without your consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Use and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Use, the prevailing party will be entitled to recover costs and attorneys' fees. All notices to ATB Financial under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service to the address indicated below:

ATB LendR
C/O ATB Emerge
3699 - 63 Avenue NE
Calgary, AB
T3J 0G7
Email: info@atblendr.ca