In consideration of the covenants, agreements, representations, and warranties hereinafter set forth, and for other good and valuable consideration, receipt of which is hereby acknowledged, it is agreed as follows:
2.1 - Definitions
“Account” means a non-depository cash account used in connection the real estate aspect of our business including but not limited to the taking of deposits, escrow, custodian, fees, and collecting of rent and mortgage associated with real property. Any and all payout promised by the Account is a reward governed by this Agreement.
“ACH” means Automated Clearing House, which may also be referred to as automatic payments, are funds transferred to or from your Account through an automated clearing house network. Tellus may use more than one ACH network or provider, in its sole discretion.
“Active Boost” means a Boost that is applied to the Account for the purposes of calculating the Applicable Interest Rate.
“Aging Period” means a 60-day holding period for anti-fraud prevention.
“Applicable Interest Rate” means the interest rate used for your Account’s daily interest calculation based on a combination of the Base Interest Rate, Introductory Interest Rate, and/or any Active Boosts.
“Base Interest Rate” means the annual interest rate published within the App used to calculate daily interest.
“Boost” means the short-term limited increases to the Base Interest Rate Tellus may offer through in-app boosts from time to time.
“Business Day” means any day that is not a Saturday, Sunday, legal holiday or other day on which banking institutions are required or authorized by law or other government action to be closed in the State of Delaware.
“Chargebacks” means charges that are returned to a payment card or payment account after you successfully disputed an item on your account statement or transactions report. Tellus reserves the right to withhold, execute a chargeback, off-set, or take any action necessary to ensure that such dispute is resolved to the sole satisfaction of Tellus.
“Introductory Interest Rate” means the interest rates Tellus may offer from time to time that vary from the standard Base Interest Rate for specified periods of time. The Introductory Interest Rate may replace the Base Interest Rate for interest payment calculations.
“Lifetime Interest” means the sum total of all accumulated interest payments that have been earned by you within your Boost Account as well as any and all Sub-Accounts. Lifetime Interest may exclude interest payments that are made but subsequently reversed because of Chargebacks, NSF Transactions or other similar payment failures.
“NSF Transactions” means Non-Sufficient Funds Transactions, which are transactions that are not honored by your bank because you do not have enough funds in your bank account (checking or savings) or the bank account has been closed to process the transaction.
“Outstanding Balance” means, as of any date of determination, the sum of the principal balance and accrued interest amount on the Account that remains unpaid.
“Reserve Account” means a Sub-Account that is capped at a maximum account size. The Reserve Account pays a base interest rate that is clearly displayed. Boosts cannot be applied to funds in a Reserve Account and Boosts do not increase the Applicable Interest Rate of the Reserve Account.
“Stack Account” means a Sub-Account that is a Boost Account. Boosts applied to your main Boost Account also apply fully to your Stack Account (Sub-Account). The Base Interest Rate and the Applicable Interest Rate of Stack Accounts are equivalent to that of the Boost Account. Because interest accrues, is paid and compounds daily a minimum deposit amount may be required to fund a new Stack account.
“Vault Account” means a Sub-Account that has a Base Interest Rate that is defined by its maturity. The Base Interest Rate of a particular Vault Account is fixed for the duration of its maturity at the time of its initial funding. Boosts cannot be applied to funds in a Vault Account and Boosts do not increase the Applicable Interest Rate of the Vault Account.
“Wire Transfers” means the electronic transfer of funds via a bank or payment network that is administered by banks and transfer service agencies accepted and used in the United States of America.
“1099-INT Form” means a tax form required to be reported from you by the Internal Revenue Service for payments of interest income.
2.2 - Disclaimer
- TELLUS IS NOT A BANK. BOOST ACCOUNT IS NOT FDIC INSURED. TELLUS IS NOT A SAVINGS ACCOUNT NOR A CHECKING ACCOUNT.
- NO ENTITY OR PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS AGREEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY TELLUS.
Your Account is operated and managed by Tellus. Your relationship with Tellus and the Account is entirely covered by this Agreement.
- 3.1 - Depositing to the Account.
Subject to the terms and conditions of this Agreement, we will provide you with the opportunity to deposit cash funds with minimum denominations of US$0.01 (minimum legal tender amount) and a minimum account threshold balance of US$200 (collectively, “Minimum Thresholds”). These Minimum Thresholds are subject to change at Tellus’ sole discretion at any time without prior notice. At the time you commit to deposit to the Account, you must have sufficient funds to complete the transaction, and you will not have access to those funds after you make a depositing commitment until the withdrawal decision is available to you. Your commitment to deposit to the Account pursuant to the terms and conditions of this Agreement will be made by you through an acceptance of this Agreement on the App available on Apple Store and Google Play Store. Such acceptance is legally binding upon you. The received funds will not be placed in escrow and will be immediately available to us.
3.2 - Term.
The initial term of any Account shall be temporary and, in any event, not to exceed the maximum duration of time permissible by law in the State where you reside. At the close of the Account (“Close Date”), the Outstanding Balance shall be issued and payed by Tellus in full within five (5) business days after the Close Date. On or prior to the Close Date, and upon election by you on your Account on the Platform, you may close the Account or extend the Close Date of the Account for up to two (2) additional years. This Agreement is automatically renewed for another one (1) year unless Tellus chooses to close the Account or you choose to close the Account.
- The Term of the Account will automatically be extended and renewed to encompass any Term, or the maturity, of any Sub-Account.
3.3 - Account Deposit Requests.
- Each time you initiate and request a deposit of funds to your Account, your account balance will be increased by the deposited amount. Your Account will be credited and you will begin to earn interest on your deposit that same day (only for deposits initiated prior to 23:59:59 Pacific Standard Time (“Midnight”)).
- You may add funds to your Account by using ACH or wire. Once you initiate any deposit, Tellus will credit the funds to your Account so you can begin to interest that same day. All ACH deposits are subjected to the standard Aging Period in compliance with applicable anti-fraud policies.
- An ACH deposit request may not necessarily be processed on the same day it is requested due to payment processing delays arising from the ACH network and the networks’ banking partners. Typical processing times for ACH deposits run 4 to 5 Business Days. Upon receipt of funds through the ACH network, Tellus shall deem your ACH deposit request to be processed and fund Aging Period will commence. For wire or other non-ACH deposits, Tellus will confirm your deposit once it is confirmed by Tellus’ institutional banking partners.
- Tellus retains the right to introduce monetary amount limits on ACH transfers and/or introduce additional fees for unique amount transfers.
- At Tellus’ sole discretion, Tellus reserves the right to reject any deposit requests without cause and without prior notice. Tellus also reserves the right to reverse any processed deposit requests due to payment processing issues including but not limited to Chargebacks and NSF Transactions. In the event of a Chargeback, deposit request rejection, processed deposit reversal or if the deposit is voided in anyway, the requested or deposited amounts plus any credited interest related to such requested or deposited amounts will be reversed from your Account without prior notice.
- 3.4 - Purpose of the Account.
- 3.5 - Wire Transfers.
Tellus does not charge fees for wire transfers. However, your respective bank may charge a fee associated with wire transfer, please check your respective bank rules regarding wire transfer fees. Funds transferred to Account with wire transfers are not subject to the standard Aging Period.
3.6 - Fees.
- Withdrawal Limit Fee. Tellus reserves the right to charge a fee of $5 per withdrawal for withdrawal requests of less than $50.
- Other fees. Tellus reserves the right to set fees, including but not limited to Account maintenance fees.
- 3.7 - Interest Calculation.
Interest is calculated daily based on a 365-day year using the Applicable Interest Rate (a combination of the Base Interest Rate, Introductory Interest Rate, and/or Active Boosts). Each daily interest payment calculation will use the prior day’s Account balance at Midnight as the Outstanding Balance. Any interest is rounded down to the nearest penny, accounts that earn daily interest below one penny will not be entitled to partial pennies.
Tellus reserves the right to alter, modify, eliminate, change the interest rate offered or provided to you at any time without prior notice as Tellus deems fit. Notification, if any, will be sent to your App and not any other place. You are responsible for tracking the status of your interest rate at Tellus.
- 3.8 - Interest Payments and Adjustments.
The time of daily interest payments may vary depending on server load and time zones. Furthermore, Tellus reserves the right, at its sole discretion and without prior notice to you, to perform periodical account reconciliations and adjustment to account balance to reflect the adjusted interest earned.
- 3.9 - Boost.
Boosts are rewards given to users at sole Tellus discretion and requires no consent from you. If you do not wish to receive Boost you may notify us. Tellus may or may not award boosts to other users and shall not transfer, assign or delegate boost to a third party. Boost is worth zero economic value outside of the app. Tellus has the sole discretion to change awarded Boosts at any time without notice; however Tellus cannot take away a boost claimed by you, nor can Tellus retroactively alter a boost you already claimed.
Interest accrual on the boost: For as long the boost is in effect when Tellus makes the daily interest payment and adjustment, it will credit an additional interest amount to your account as indicated by the boost award description. (e.g. a 14-day boost +0.5% on your Boost account)
3.10 - Potential Disruption of Service of Tellus or the Account.
Access to the App, Platform, Site or our customer service may from time to time be unavailable, delayed, limited or slowed due to, among other things:
- Hardware failure, including but not limited to failures of computers (including your own computer), servers, networks, telecommunication lines and connections, and other electronic and mechanical equipment;
- Software failure, including but not limited to bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents or other content;
- Overload of system capacities;
- Damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters;
- Interruption (whether partial or total) of power supplies or other utility of service;
- Strike or other stoppage (whether partial or total) of labor;
- Governmental or regulatory restrictions, exchange rulings, court or tribunal orders or other human intervention; and
- Any other cause, whether similar or dissimilar to any of the foregoing, beyond the control of Tellus.
3.11 - Deactivating Accounts.
- You expressly acknowledge the Account is temporary and should be terminated at any time by Tellus. If you do not agree to the terms and conditions, you must stop using Tellus services, close your Account and terminate your relationship with us without cost or penalty.
Tellus has the right to deactivate and close any Accounts after:
- if any rules or conditions have been violated from our Terms of Service agreement;
- account has been inactive for more than six  months; and
- The user commits any fraudulent actions.
- In case of deactivation, the remaining funds will be returned to your original funding bank account on the App (“Original Bank Account”). It is your responsibility to ensure the Original Bank Account information is up-to-date.
3.12 - Closing Accounts.
- You will remain liable for all obligations related to your Account even after the Account is closed. You are permitted to close your Account if you do not have a remaining balance in your Account; any Users with remaining balance on their Account must withdraw all the remaining balance before account closure. Any incomplete transactions or transfers must be completed or canceled, and you must transfer any money from any personal or business profiles of your Account before closing it. If funds in the Account are subject to the Aging Period, you will be required to wait until such funds have fully aged in order to withdraw the funds and proceed with Account closure.
- We are not required to close your Account at your request if you have pending transactions, the Account is overdrawn or your Account is subject to legal process (such as a garnishment, attachment, execution, levy or similar order). In those cases, we will restrict your Account against all future withdrawals other than under legal process until pending transactions are paid or returned, the balance is no longer negative, and any legal restriction has been released. After we restrict your Account in preparation for closing, we will not pay any additional interest on the Account.
- We may automatically close your account if the balance is US$0 or negative. We may send you written notice that we have closed or will close your Account and return the balance less any fees, claims, setoffs or other amounts if the balance is greater than US$1 to your Original Bank Account. If your Original Bank Account is no longer active, Tellus will hold onto your funds and use reasonable efforts to return the funds to you. You will not earn any interest after your Account is closed.
After your Account is closed:
- We have no obligation to accept deposits or pay any outstanding checks, but we may reopen your Account if we receive a deposit. We will have no liability for refusing to honor any check drawn on a closed Account.
- You will still be able to retrieve your account statements, tax documents, and trade confirmations in your App.
- Re-downloading the App will not reactivate your Account. Please keep in mind, regulations require us to preserve certain books and records. We take the security of all collected data very seriously, and we do not intend to use this data for anything beyond the fulfillment of our regulatory requirements.
In certain cases, you may not close your Account, including:
- to evade an investigation;
- if you have a pending transaction or an open dispute or claim;
- if you owe amounts to us;
- if your Account is subject to a hold, limitation or reserve.
- 3.13 - Right to Data upon closure or deactivation of Account.
- 3.14 - Reserve Accounts.
A Reserve Account is a Boost Sub-Account with a funding cap of $2,500. Interest accrued and deposits made beyond $2,500 to a Reserve Account will be redirected and deposited into the parent Boost Account. The Applicable Interest Rate of a Reserve Account is displayed in writing for user and may be updated from time to time with you having the choice of terminating the Reserve Account with the old Applicable Rate and going to a new Reserve Account with an updated Applicable Rate. Boosts cannot be applied to funds in a Reserve Account and the rate of a Reserve Account cannot be boosted.
- 3.15 - Stack Sub-Accounts.
A Stack Account is a Boost Sub-Account. The Base Rate of a Stack Account is the same as the Base Rate of its parent Boost Account. An active Boost applied to a Boost Account also applies to all associated Stack Accounts. The Applicable Interest Rate of a Stack Account is the same as the Applicable Interest Rate of its parent Boost Account.
- 3.16 - Vault Sub-Accounts.
A Vault Account is a Boost Sub-Account with a Base Rate that is defined and fixed at the time of its funding and determined by its maturity. A Vault Account has a minimum opening balance of $1,000. The maturity of a Vault is selected and fixed at the time of its funding. By funding a Vault Account you’re explicitly agreeing to the maturity date that has been selected as part of the Vault Account creation process. Interest accrued in the Vault Account will not be available for withdrawal until the maturity date of the Vault is reached. A Vault Account may be closed at any time, including prior to the maturity date of the Vault, and the principal may be withdrawn. If a Vault is closed and its principal is withdrawn prior to the maturity date, you agree to forego the interest accrued within the Vault Account. At the time of closure, including when the maturity date is reached, all Vault Account funds are transferred to the parent Boost Account. Boosts cannot be applied to funds in a Vault Account and the rate of a Vault Account cannot be boosted.
OUR RESPONSIBILITY TO OBTAIN PERSONAL INFORMATION
- 4.1 - It is your responsibility to provide correct and honest (to the best of your knowledge) information
4.2 - We require the submission of United States state or government issued ID for KYC (Know Your Customer) and AML (Anti-Money Laundering) compliance purposes in addition to our own Fraud prevention policies.
- We require the submission of your social security number (“SSN”) or substitute tax id number (“TIN”) to generate a 1099-INT form for tax purposes.
- IRS Form 1099-INT: will be issued to users who have earned more than $10 in interest over a given calendar year.
- We require the submission of your Residential Address to generate a 1099-INT form for tax purposes and to further validate your identity.
4.3 - Bank Account Requirements
- In order to link your bank account to Tellus, certain bank account information may be required and collected from you. As a general matter, Tellus does not keep, hold or store your bank account information but such account information may be held by our payment processing partners like Stripe and Plaid.
4.4 - Security and Encryption
- Any and all personally identifying information and bank account information that may be held by Tellus will be held only in an encrypted and secure fashion.
MANAGING AND MAINTAINING YOUR ACCOUNT
- 5.1 - Solely owned account.
Only one individual is listed as the owner of the Account and we will treat the Account as a solely owned account and not as a joint nor business account
- 5.2 - Power of attorney.
A power of attorney is a document you sign that authorizes someone else, called the agent, to act on your behalf. If you sign a power of attorney, the agent can sign on your behalf and do anything you could do regarding the account, including withdrawing or spending all of the money in the account. Do not sign a power of attorney unless you trust the agent to act in your best interest. If you choose to add an agent, you must provide a power of attorney form that we agree to accept. We may rely on a copy of an original power of attorney. We are not required to investigate the facts relating to any power of attorney provided to us on your behalf, including whether your signature on the power of attorney is authentic or whether the agent continues to have authority. We may follow or refuse to follow the agent’s instructions at any time, including if we suspect fraud or abuse on your account, unless state law requires otherwise. We may also refuse an agent’s request to become a joint owner or a beneficiary of an account, but we have no liability to anyone if we do so. We have no liability when we follow or refuse to follow any instructions from an agent, for example, if your agent misuses the authority you have given them. An agent’s power of attorney on an account is terminated when the account owner dies.
- 5.3 - Death or Incompetence of Account Owner or Sole Signer.
Tellus shall be notified immediately if any Account owner dies or is declared incompetent by a court. We may act as if all owners are alive and competent until we receive notice otherwise. After we receive notice of death or incompetence. We may freeze your balance, refuse to accept transactions, and reverse or return deposits. We are not required to release your funds until we receive any documents we reasonably request to verify your death or incompetence.
YOUR COVENANTS AND ACKNOWLEDGEMENTS
By entering into this Agreement, you understand and acknowledge the following:
- Holding a positive balance on the Account does not represent an ownership interest in any specific Tellus loans, their proceeds, or their assets. You understand that an Account is a general obligation of Tellus only and not of any Tellus borrower.
- You have no right, and shall not, make any attempt, directly or through any third-party, to collect from borrowers. All agreements and obligations relating to your Account are between you and Tellus and not with Tellus's third-party borrowers.
- You understand that Tellus has a limited operating history, and, as an online company in the early stages of development, we face increased risks, uncertainties, expenses, and difficulties. Tellus has incurred net losses in the past and expects to incur net losses in the future.
- The Account and any agreement related to the account including this Terms of Service will be governed by and interpreted in accordance with the laws of the State of Delaware.
- Your account balance represents Tellus’ indebtedness to you.
YOUR REPRESENTATIONS AND WARRANTIES
- 7.1 - You further represent and warrant to Tellus, as of the date of this Agreement and as of any date that you commit to deposit funds into the Account that (i) you have the power to enter into and perform your obligations under this Agreement; (ii) this Agreement has been duly authorized, executed and delivered by you; (iii) the funds were sourced in a legal way and you bear sole responsibility for any misrepresentation; and (iv) in connection with this Agreement, you have complied in all material respects with applicable federal, state and local laws.
- 7.2 - You should check the Office of Foreign Assets Control (“OFAC”) website at <http://www.treas.gov/ofac> before making the following representations. You represent that the amounts invested by you in Platform were not and are not directly or indirectly derived from activities that contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by OFAC prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at <http://www.treas.gov/ofac>. In addition, the programs administered by OFAC (“OFAC Programs”) prohibit dealing with individuals or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists.
- Tellus REPRESENTATIONS AND WARRANTIES.
Tellus represents and warrants to you, as of the date of this Agreement and as of any date that you commit funds to the Account, that: (i) Tellus is duly organized and validly existing as a corporation in good standing under the laws of the State of Delaware and has the requisite corporate power to enter into and perform its obligations under this Agreement; (ii) this Agreement has been duly authorized, executed, and delivered; and (iii) Tellus has complied in all material respects with applicable federal, state, and local laws in connection with the offer of the Account.
- SUSPICIOUS TRANSACTIONS.
Tellus reserves the right to cancel any transactions that it deems suspicious at its sole discretion without prior notice. Tellus also reserves the right to closing accounts and ban users who are suspected of fraudulent activity. Tellus may report any suspected fraudulent activities to the respective authorities for further investigation.
- NO ADVISORY RELATIONSHIP.
You acknowledge and agree that depositing funds to the account pursuant to this agreement is an arms-length transaction between you and Tellus. Tellus is not an investment adviser, broker or dealer. In connection with depositing funds to the Platform, Tellus is not acting as your agent or fiduciary. Tellus assumes no advisory or fiduciary responsibility in your favor in connection with any investment. Tellus has not provided you with any legal, accounting, regulatory, investment or tax advice with respect to the Account. You have consulted your own legal, accounting, regulatory, investment and/or tax advisors to the extent you have deemed appropriate.
- FURTHER ASSURANCES.
The Parties agree to execute and deliver such further documents and information as may be reasonably required in order to effectuate the purposes of this Agreement.
CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES.
As Tellus operates only on the Internet, it is necessary for you to consent to transact business with us online and electronically. As part of doing business with us, therefore, we also need you to consent to us giving you certain disclosures electronically. Full terms and conditions are stipulated in the Consent to Electronic Transactions and Disclosures. By entering into this Agreement, you consent to accept Consent to Electronic Transactions and Disclosures and to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating in any way to you or our rights, obligations, or services under this Agreement (each, a “Disclosure”). The decision to do business with us electronically is yours. This section informs you of your rights concerning Disclosures.
- Electronic Communications. Any Disclosures will be provided to you electronically through Platform or via electronic mail to the verified email address you provided.
- Scope of Consent. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate.
- Consenting to Do Business Electronically. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described below.
- Hardware and Software Requirements. In order to access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions, and hardware capable of running this software.
- How to Contact Us regarding Electronic Disclosures. Please refer to the full terms and conditions in Consent to Electronic Transactions and Disclosures for further details.
- You agree and acknowledge that you can access, receive, and retain all Disclosures electronically sent via email or posted on the Site, and you will print a copy of this Agreement for your records.
- AUTHORIZATION TO SHARE INFORMATION; TELEPHONE AND ELECTRONIC COMMUNICATION.
You authorize us to share information about you and your account with affiliates and third parties, unless the law or our Privacy Notice prohibits us from doing so. Please see our Privacy Notice for your choices about information sharing.
We may record and/or monitor any of our telephone conversations with you. If we do record, we do not have to keep the recordings, unless the law says we must. We may use your voice to verify your identity. When you give us your mobile number, we have your permission to contact you at that number about all of your Accounts.
All notices, requests, demands, required disclosures, and other communications to you from Tellus will be transmitted to you only by email to the email address you have registered on the site or will be posted on the Site, or communicated via App and shall be deemed to have been duly given and effective upon transmission or posting. If your registered email address changes, you must notify Tellus promptly via contacts stated in “Consent to Electronic Transactions and Disclosures” so that you can continue to receive all Disclosures or notices timely. You also agree to promptly update your registered residence/mailing address and your telephone number on the Platform if you change your residence or your telephone number. You shall send all notices or other communications required to be given hereunder to Tellus via email at email@example.com.
- 15.1 - Amendments.
- 15.2 - Effectiveness and Assignment.
The terms of this Agreement shall survive until the termination of this Agreement. The Parties stipulate that there are no third-party beneficiaries to this Agreement. You may not assign, transfer, sublicense, or otherwise delegate your rights or responsibilities under this Agreement to any person without prior written consent from Tellus. Any such assignment, transfer, sublicense, or delegation in violation of this section shall be null and void.
- 15.3 - Governing Law.
This Agreement and Account shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to principles of conflict of laws.
- 15.4 - Entire Agreement.
Except as otherwise expressly provided herein, this Agreement represents the entire Agreement between you and Tellus regarding the subject matter hereof and supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between us. If this Agreement conflicts with any statements made by one of our employees or by our affiliates’ employees, this Agreement shall prevail.
- 15.5 - No Waiver.
Any waiver of a breach of any provision of this Agreement will not be a waiver of any subsequent breach. Failure or delay by Tellus to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition.
- 15.6 - Severability.
If at any time subsequent to the date hereof, any of the provisions of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, such provision shall be of no force and effect, but the illegality and unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provisions of this Agreement.
- 15.7 - Headings.
All headings in this Agreement are for reference purposes only and shall not modify or affect the meaning, construction or interpretation of any provisions of this Agreement in any way.
- GENERAL LIABILITY.
Any provision of this Agreement that limits Tellus’ liability does not negate Tellus’ duty, if any, under applicable law to act in good faith and with reasonable care. If any provision of this Agreement is determined to limit Tellus’ liability in a way prohibited by applicable law, the provision will nevertheless be enforced to the fullest extent permitted under that law.
We will not be liable for anything we do when following your instructions. In addition, we will not be liable if we do not follow your instructions if we reasonably believe that your instructions would expose us to potential loss or civil or criminal liability, or conflict with customary banking practices.
- LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL TELLUSAPP BE LIABLE FOR ANY PROFITS, LOST OPPORTUNITY OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF ANY USE OF OR INABILITY TO USE THE WEBSITE OR ANY PORTION THEREOF, REGARDLESS OF WHETHER TELLUSAPP HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. IF WE FAIL TO STOP PAYMENT ON AN ITEM, OR PAY AN ITEM BEARING AN UNAUTHORIZED SIGNATURE, FORGED SIGNATURE, OR FORGED ENDORSEMENT OR ALTERATION, OUR LIABILITY, IF ANY, WILL BE LIMITED TO THE FACE AMOUNT OF THE ITEM. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER PARTY REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON THE FOREIGN, FEDERAL, STATE, OR LOCAL TAX LIABILITY OF THE OTHER.
LINKS TO NON-Tellus APPS, WEBSITES OR NON-TELLUAP APPS ARE PROVIDED SOLELY AS POINTERS TO INFORMATION ON TOPICS THAT MAY BE USEFUL TO YOU OR THE WEBSITE, AND TELLUSAPP HAS NO CONTROL OVER THE CONTENT ON SUCH NON- TELLUSAPP WEBSITES. IF YOU CHOOSE TO LINK TO A WEBSITE NOT CONTROLLED BY TELLUSAPP, TELLUSAPP MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, CONCERNING THE CONTENT OF SUCH SITE, INCLUDING THE ACCURACY, COMPLETENESS, RELIABILITY OR SUITABILITY THEREOF FOR ANY PARTICULAR PURPOSE, NOR DOES TELLUSAPP WARRANT THAT SUCH SITE OR CONTENT IS FREE FROM ANY CLAIMS OF COPYRIGHT, TRADEMARK OR OTHER INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES OR THAT SUCH SITE OR CONTENT IS DEVOID OF VIRUSES OR OTHER CONTAMINATION. TELLUSAPP DOES NOT GUARANTEE THE AUTHENTICITY OF DOCUMENTS ON THE INTERNET. LINKS TO NON- TELLUSAPP SITES DO NOT IMPLY ANY ENDORSEMENT OF OR RESPONSIBILITY FOR THE OPINIONS, IDEAS, PRODUCTS, INFORMATION OR SERVICES OFFERED AT SUCH SITES, OR ANY REPRESENTATION REGARDING THE CONTENT AT SUCH SITES.
BECAUSE OF THE POSSIBILITY OF HUMAN AND MECHANICAL ERROR AS WELL AS OTHER FACTORS, THE SITE (INCLUDING ALL INFORMATION AND MATERIALS CONTAINED ON THE SITE) IS PROVIDED "AS IS" "AS AVAILABLE". TELLUSAPP AND THIRD PARTY DATA PROVIDERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE WEBSITE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE. TELLUSAPP AND THIRD PARTY DATA PROVIDERS DO NOT WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE INFORMATION AND MATERIALS CONTAINED ON THE WEBSITE AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE MATERIALS AND INFORMATION. FURTHER, TELLUSAPP AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THIS WEBSITE, OR FOR THE INCOMPATIBILITY BETWEEN THIS WEBSITE AND FILES AND THE USER'S BROWSER OR OTHER SITE ACCESSING PROGRAM. NOR WILL TELLUSAPP AND ITS AFFILIATES BE LIABLE FOR ANY OTHER PROBLEMS EXPERIENCED BY THE USER DUE TO CAUSES BEYOND TELLUSAPP AND ITS AFFILIATES' CONTROL. NO LICENSE TO THE USER IS IMPLIED IN THESE DISCLAIMERS. NOTHING HEREIN SHALL BE CONSTRUED AS LIMITING OR REDUCING TELLUSAPP RESPONSIBILITIES AND OBLIGATIONS TO CLIENTS IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS.
EVENTS OF DEFAULT.
If any one of the following events shall occur and be continuing (each, an “Event of Default”):
- Tellus shall fail to pay as and when due in accordance with the terms hereof any Outstanding Balance, and such failure shall continue for five (5) business days after Tellus has received notice thereof from you; or
- Tellus shall file a petition for relief or commence a proceeding under any bankruptcy, insolvency, reorganization or similar law (or its governing board shall authorize any such filing or the commencement of any such proceeding), have any liquidator, administrator, trustee or custodian appointed with respect to it or any substantial portion of its business or assets, make a general assignment for the benefit of creditors or generally admit its inability to pay its debts as they come due;
then in any such event you may, by written notice to Tellus, declare the entire Outstanding Balance thereon to be immediately due and payable, whereupon this Outstanding Balance shall become and be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Tellus.
Tellus is an early-state company working in the space of real estate and financial technologies. Depositing funds with Tellus implies taking a number of risks that you should consider. Below we provide a list of risks, but you should be aware that it is virtually impossible to list all possible risks.
- The lending industry is highly regulated. Changes in regulations or in the way regulations are applied to our business could adversely affect our business.
- Worsening economic conditions may result in decreased demand for loans, cause borrowers’ default rates to increase, and harm our operating results.
- Competition for employees is intense, and we may not be able to attract and retain the highly skilled employees whom we need to support our business
- We operate in a competitive market which may intensify, and competition may limit our ability to implement our business model and have a material adverse effect on our business, financial condition, and results of operations.
- We are an early-stage startup with no operating history, and we may never become profitable.
- We may be dependent on advances from our control persons or affiliate companies and the funds to be raised in this offering in order to be able to implement our business plan.
- We have no operating history in a rapidly evolving industry, which makes it difficult to evaluate our future prospects and may increase the risk that we will not be successful.
- If the information provided by borrowers is incorrect or fraudulent, we may misjudge a customer’s qualification to receive a loan, and our operating results may be harmed.
- Our risk management efforts may not be effective.
- We will rely on various referral sources and other borrower lead generation sources, including lending platforms.
- The value of the property collateral securing our loans may decrease significantly due to economic or other factors
- Significant disruption in our computer systems or a cybersecurity breach could adversely affect our operations.
- Our ability to protect the confidential information of our borrowers, investors, depositors or other users of the platform may be adversely affected by cyber-attacks, computer viruses, physical or electronic break-ins or similar disruptions.
- If our estimates of loan receivable losses are not adequate to absorb actual losses, our provision for loan receivable losses would increase, which would adversely affect our results of operations.
- We will face increasing competition and, if we do not compete effectively, our operating results could be harmed.
- Many of our competitors have significantly more resources and greater brand recognition than we do and may be able to attract borrowers more effectively than we do.
- The collection, processing, storage, use, and disclosure of personal data could give rise to liabilities as a result of governmental regulation, conflicting legal requirements, or differing views of personal privacy rights.
- We are subject to the risk of fluctuating interests rates, which could harm our planned business operations.
- As an Account holder you are exposed to the credit risk of our company.
- The Account Outstanding Balance is an unsecured obligations to you by Tellus
- There is no public market for the Account, and none is expected to develop.
- There is a risk that the Tellus Platform may be hacked.
NOTICE OF DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION/CLASS ARBITRATION WAIVER.
- 20.1 - IMPORTANT: PLEASE READ CAREFULLY. THE FOLLOWING PROVISION (“ARBITRATION PROVISION”) CONSTITUTES A BINDING AGREEMENT THAT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES THROUGH COURT ACTION OR AS A MEMBER OF A CLASS. THAT MEANS THAT, IN THE EVENT THAT YOU HAVE A COMPLAINT AGAINST Tellus THAT THE Tellus IS UNABLE TO RESOLVE TO YOUR SATISFACTION, YOU AND Tellus AGREE TO RESOLVE YOUR DISPUTE THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT, INSTEAD OF THROUGH COURTS OF GENERAL JURISDICTION OR THROUGH A CLASS ACTION. BY ENTERING INTO THIS AGREEMENT, YOU AND Tellus ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN ANY CLASS ACTION, EXCEPT IN CASES THAT INVOLVE PERSONAL INJURY.
- 20.2 - “Claim” shall mean any dispute or controversy arising out of or relating to this Agreement, your use of the All, Site, Platform and/or the transactions, activities, or relationships that involve, lead to, or result from any of the foregoing (except for cases pending in Small Claims Court as provided in Section 20.8 below, or claims for personal injury). Claims include but not limited to breach of contract, fraud, misrepresentation, express or implied warranty, and equitable, injunctive, or declaratory relief, as well as claims relating to loan servicing, credit/collections, and securities matters, regardless of the originating source (common law, statute, constitution, regulation, etc.); and matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise and include those brought by or against your assigns, heirs, or beneficiaries.
- 20.3 - Either Party to this Agreement has the right to require binding confidential arbitration as the sole and exclusive forum and remedy for resolution of a Claim between you and Tellus. The Party initiating arbitration shall do so with the American Arbitration Association (“AAA”). The procedure shall be governed by the AAA Commercial Rules in force. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to controlling law, unless all Parties to the arbitration consent to have the rules and policies of the administrator apply. Arbitration shall take place in the City of Cupertino, California, or in such location as agreed upon by the parties.
- 20.4 - Absent agreement among the Parties, the presiding arbitrator shall determine how to allocate the fees and costs of arbitration among the Parties according to the administrator's rules or in accordance with controlling law if contrary to those rules. Each Party shall bear the expense of that Party's attorneys, experts, and witnesses, regardless of which Party prevails in the arbitration, unless controlling law provides a right for the prevailing Party to recover fees and costs from the other Party. Notwithstanding the foregoing, if the arbitrator determines that your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), we shall not be required to pay any fees or costs of the arbitration proceeding, and any previously paid fees or costs shall be reimbursed by you.
- 20.5 - If the amount in controversy exceeds US$50,000, any Party may appeal the arbitrator's award to a three-arbitrator panel within thirty (30) days of the final award. Additionally, in the event of such an appeal, any opposing Party may cross-appeal within thirty (30) days after notice of the appeal. The three-arbitrator panel may consider all of the evidence and issue a new award, and the panel does not have to adopt or give any weight to the first arbitrator's findings of fact or conclusion. This is called “de novo” review. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.
- 20.6 - The Parties agree that this Arbitration Provision is made pursuant to a transaction between you and Tellus that involves and affects interstate commerce and therefore shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by the law of the State of Delaware, subject to the limitations set forth in this Agreement. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The parties also agree that the proceedings shall be confidential to protect intellectual property rights.
- 20.7 - IF YOU DO NOT AGREE TO THE TERMS OF THIS ARBITRATION PROVISION, YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY SENDING AN ARBITRATION OPT-OUT NOTICE TO Tellus AT 21580 STEVENS CREEK BLVD, STE 210, CUPERTINO, CA 95014 WITHIN THIRTY (30) DAYS OF YOUR FIRST ELECTRONIC ACCEPTANCE OF THIS AGREEMENT. YOUR OPT-OUT NOTICE MUST CLEARLY STATE THAT YOU ARE REJECTING ARBITRATION; IDENTIFY THE AGREEMENT TO WHICH IT APPLIES BY DATE; PROVIDE YOUR NAME, ADDRESS, AND SOCIAL SECURITY NUMBER; AND BE SIGNED BY YOU. YOUR MAY CONVEY THE OPT-OUT NOTICE BY U.S. MAIL OR ANY PRIVATE MAIL CARRIER (E.G. FEDERAL EXPRESS, UNITED PARCEL SERVICE, DHL EXPRESS, ETC.), SO LONG AS IT IS RECEIVED AT THE ABOVE MAILING ADDRESS WITHIN THIRTY (30) DAYS OF YOUR FIRST ELECTRONIC ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF THE NOTICE IS SENT BY A THIRD PARTY, SUCH THIRD PARTY MUST INCLUDE EVIDENCE OF HIS OR HER LEGAL AUTHORITY TO SUBMIT THE OPT-OUT NOTICE ON YOUR BEHALF. IF YOUR OPT-OUT NOTICE IS NOT RECEIVED WITHIN THIRTY (30) DAYS, YOU WILL BE DEEMED TO HAVE ACCEPTED ALL TERMS OF THIS ARBITRATION PROVISION.
- 20.8 - Tellus agrees not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. UNLESS CONSENTED TO IN WRITING BY ALL PARTIES TO THE ARBITRATION, NO PARTY TO THE ARBITRATION MAY JOIN, CONSOLIDATE, OR OTHERWISE BRING CLAIMS FOR OR ON BEHALF OF TWO OR MORE INDIVIDUALS OR UNRELATED CORPORATE ENTITIES IN THE SAME ARBITRATION.
- 20.9 - This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the Parties; (ii) the bankruptcy or insolvency of any Party or other person; and (iii) any transfer of any funds or amounts which you own the Account to any other person or entity. If any portion of this Arbitration Provision other than the prohibitions on class arbitration in Sections 20.1 and 20.8 is deemed invalid or unenforceable under any law or statute consistent with the FAA, it shall not invalidate the other provisions of this Arbitration Provision or this Agreement; if the prohibition on class arbitration is deemed invalid, however, then this entire Arbitration Provision shall be null and void.
- 20.10 - THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT UPON ELECTION OF ARBITRATION BY ANY PARTY. THE PARTIES HERETO WAIVE A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT, OR ANY OTHER AGREEMENTS RELATED THERETO.