Borrower Agreement
Kiva Microfunds ("Kiva," "we" or "us") desires to permit you (“you”) to participate in Kiva’s direct lending program, pursuant to which users of Kiva’s websites and web applications (collectively, the "Website") have the ability, through Kiva and the Website, to connect with and loan debt capital ("Capital") to borrowers to use for the business purposes specified by such borrowers. THE FOLLOWING TERMS (this "Agreement") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND KIVA. BY CLICK-ACCEPTING THIS AGREEMENT, YOU SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THIS AGREEMENT, AND YOU INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT. These terms affect your rights, and you should keep a copy of this Agreement for your records.
You understand and agree that you are applying for a loan for your business. However, given the nature of the Kiva model and its emphasis on the importance of personal connections, you further understand and agree that you will need to provide some personal information, in part to help Kiva assess whether your requested loan is consistent with Kiva’s charitable purpose and social mission. Therefore, (a) with respect to provisions of this Agreement dealing with the loan and its terms, you are entering into this Agreement in your capacity as either a sole proprietor or the authorized representative of a duly formed partnership, limited liability company, or corporation; and (b) with respect to provisions of this Agreement dealing with your personal rights and information (such as name, photograph, credit history, safety precautions, waivers, etc.), you are entering into this agreement in your personal capacity.
1. Borrower Registration. Registration as a borrower on the Website (“Borrower”) is limited to sole proprietors or business entities approved by Kiva, in Kiva's sole discretion. Your use of the Website is subject to the terms of this Agreement, as well as the terms of use posted on the Website, as modified by Kiva from time to time ("Terms of Use Agreement"), to the extent applicable to you. Registration as a Borrower on the Website allows you to submit loan applications to Kiva ("Loan Applications"). You may be endorsed by an individual or organization from your community that is registered with Kiva to endorse Borrowers (a “Trustee”). You may also be connected with one of Kiva’s local community partners (a “Kiva Hub”) for the purposes of helping you with your loan application. A Kiva hub can also be a Trustee and can endorse your loan. Kiva has the right in its sole discretion, with or without cause and with or without notice, to restrict your access to the Website.
2. Loan Application.
(a) Your Loan Application must include all information reasonably requested by Kiva, including but not limited to your name, photograph, date of birth, household information, annual income, outstanding debts, business name, business-related finances, savings, credit score and credit report, and PayPal account information. As indicated in the Loan Application, some of the information Kiva collects (including but not limited to your name, photograph, location, credit history with Kiva, a description of your business, and if applicable, information provided by your Trustee) will be displayed publicly on the Website if your Loan Application is approved by Kiva. We reserve the right to verify any information you submit by requiring you to produce appropriate documentation or other proof, and we also reserve the right to conduct such verification through a third party. You authorize us to request and obtain data from third parties to verify any information you provide to us in connection with your Loan Application and to otherwise assist us in reviewing your Loan Application. We have the right to terminate consideration of your Loan Application at any time in our sole discretion.
(b) Kiva contracts with third party service providers and partners like Kiva Hubs (local organizations that work with Kiva to assist borrowers in their community) to facilitate various parts of the Kiva Loan process, and to monitor Kiva’s impact. By applying for a Loan through the Kiva platform, you authorize Kiva to share the business and personal information you provide to us, as well as information about your credit history, background checks, Kiva Loans and repayments with (i) your Trustee, if applicable, (ii) your local Kiva Hub, if applicable, and/or (iii) Kiva’s third party service providers, all to the extent necessary to review and process your Loan Application, to manage your Loan, to assess the impact of Kiva’s lending programs, and in the case of Hubs, to offer you additional services related to your business. You further authorize Kiva and any of the aforementioned third parties to contact you by mail, telephone, text message, email or other electronic method in connection with your Loan Application, Loan, other use of Kiva’s platform, and/or services offered to you.
(c) By applying for a Loan through the Kiva platform, you authorize and instruct Kiva to obtain credit reports on you and/or your business from one or more credit reporting agencies. Kiva may use the credit reports for any legal purpose, including but not limited to (i) to verify your identity, (ii) to obtain information about you and verify information you have provided to Kiva, (iii) to determine how much debt you currently have, and (iv) to make credit decisions. You also agree that Kiva may contact third parties without further notice to you to verify any information contained in a credit report. Upon your request (i) you will be informed whether or not Kiva obtained any consumer reports and (ii) if reports were obtained, you will be informed of the names and addresses of the credit reporting agencies that furnished the reports.
3. Loan Requests.
(a) In order to post a loan request on the Website ("Loan Request"), Kiva must approve your Loan Application on the basis of certain Borrower criteria, as determined from time to time by Kiva in its sole discretion. If you post a Loan Request, all Website users ("Users") will be able to review your Loan Request and will have the right to make public comments on the Website in connection with your Loan Request. In your Loan Request, you must specify the amount of Capital that you desire to borrow ("Loan Request Amount") and the specific business purposes for which you will use such Capital ("Loan Business Purpose"), as well as all other information that we reasonably request. Kiva will provide written notice to you of the minimum and maximum Loan Request Amounts available for you to request, which are subject to change in Kiva's sole discretion. Kiva reserves the right to review and either approve or deny all Loan Requests.
(b) Loan Requests that are approved by Kiva will be eligible for funding on the Website. Prior to your Loan Request being posted to the public portion of the Website, Kiva may require you to recruit a certain number of lenders from your personal network to begin funding your Loan Request ("Private Loan Period"). If you do not recruit the specified number of lenders during the Private Loan Period, Kiva reserves the right not to post your Loan Request to the public portion of the Website for additional fundraising. If you do fulfill the Private Loan Period funding requirements, your Loan Request will be made publicly available to all Users, who may elect to contribute additional Capital towards your Loan Request. Your Loan Request may remain in general fundraising status on the Website for a period of time such as thirty (30) or forty-five (45) days ("Fundraising Period"). Both the Private Loan Period and the Fundraising Period will be for periods of time designated by Kiva in Kiva's sole discretion, and Kiva reserves the right to extend the Private Loan Period and/or the Fundraising Period without providing notice to you. You acknowledge that each User makes its own decision regarding whether to contribute Capital towards your Loan Request and that a User's commitment to fund all or a portion of your Loan Request does not confer any rights to you. Subject to the terms of this Agreement, you will be eligible to receive the Loan Request Amount only if your qualifying Loan Request has been fully funded by Users by the end of the Fundraising Period. You may not contribute Capital toward your own Loan Request, either directly or through third parties. In no event will we be obligated to notify you of the date on which your Loan Request may or will fully fund or the date on which you may or will receive any Capital.
(c) You authorize us to disburse Capital to you through the account that you designated in your Loan Application ("Designated Account"). You must be an owner of the Designated Account. If your qualifying Loan Request has been fully funded by Users within the Fundraising Period, Kiva will disburse the Loan Request Amount to you within ten (10) business days of the date of such full funding, provided that you are in full compliance with your obligations under this Agreement. Except as expressly communicated to you in writing by Kiva, you are solely responsible for and shall bear all fees, costs and other expenses that you may incur in connection with your Designated Account, including without limitation receiving Capital into, withdrawing Capital from, and making payments to Kiva from your Designated Account.
(d) WE DO NOT WARRANT OR GUARANTEE THAT (i) YOUR LOAN APPLICATION WILL BE APPROVED, (ii) YOUR LOAN REQUEST WILL BE FUNDED, OR (iii) YOU WILL RECEIVE ANY CAPITAL AS A RESULT OF POSTING A LOAN REQUEST.
4. Loan Terms.
(a) BY SUBMITTING YOUR LOAN APPLICATION, POSTING YOUR LOAN REQUEST AND RECEIVING CAPITAL IN YOUR DESIGNATED ACCOUNT, YOU SIGNIFY THAT YOU HAVE AGREED TO OBTAIN A BUSINESS LOAN THROUGH KIVA ON THE TERMS SET FORTH IN THIS AGREEMENT ("Loan"). YOU HAVE NO RIGHT TO RESCIND THE LOAN ONCE THE CAPITAL HAS BEEN DISBURSED TO YOUR DESIGNATED ACCOUNT, BUT YOU MAY PREPAY THE LOAN AT ANY TIME WITHOUT PENALTY.
(b) Your Loan is an unsecured, fixed-term business loan with zero percent (0%) interest and no fees payable to Kiva, the Trustees or the Users. For value received, you promise to repay the Loan Capital to the order of Kiva or any assignee or successor to this Agreement in installments over a term set by Kiva and agreed to by you (and your Trustee, if applicable). The frequency of these installments ("Loan Cycle") shall be determined by Kiva to be weekly (7 days), bi-weekly (14 days), monthly (30 days), or an alternative time period set by Kiva. The first installment due to Kiva shall be on or before the end of the first Loan Cycle beginning on the Loan disbursal date, unless otherwise modified by Kiva and agreed to by you. Each successive installment shall be due to Kiva on or before the end of each successive Loan Cycle until all amounts owed on your Loan have been paid to Kiva. The amount of each installment shall in most cases be equal, unless modified by Kiva. We will never be obligated to notify you of the Loan disbursal date or the dates on which your installments are due. All payments made by you under this Agreement shall be made in immediately available lawful money of the United States and shall be paid to Kiva's PayPal account (paypalzip@kiva.org) or such other account as Kiva communicates to you in writing. Except as expressly communicated to you in writing by Kiva, you are solely responsible for and shall bear all fees, costs and other expenses that you may incur as a result of making payments under this Agreement. You acknowledge and agree that Trustees have no obligation to make any payments on your Loan.
(c) You may make any payment early, in whole or in part, without penalty or premium at any time. Any partial prepayment will be applied towards the following installments that are due. If you prepay under this Agreement in part, you agree to continue to make regularly scheduled payments until all amounts due under this Agreement are paid. Any overpayments made at the end of the Loan term may be refunded to you or deposited into your Kiva lender account, in Kiva’s discretion. Kiva has the right to accept late payments or partial payments without losing any rights under this Agreement, even if the payments are marked "paid in full" or are not marked late, delinquent or in default. Kiva does not have to (i) demand payment of amounts due (known as "presentment"), (ii) give notice that amounts due have not been paid (known as "notice of dishonor"), or (iii) obtain an official certification of nonpayment (known as "protest"), before collecting any Loan repayments that are due. You waive presentment, notice of dishonor and protest.
5. Consent for Borrower Information and Content.
(a) You acknowledge and agree that Kiva, in its sole discretion, has the right to publish on the Website, and in other forms and media (whether now known or later created), information about you, including without limitation (i) your image (such as a photo), likeness (such as a drawing), voice, full name, location, (ii) information from the public section of your Loan Application, (iii) your Loan Request, (iv) other personal information about you and your business (such as your creditworthiness and credit history), (v) endorsement by a Trustee (if applicable), (vi) status and performance as a Borrower (such as whether you are delinquent or in default of your payment obligations), (vii) any breach, violation or dispute by you in connection with or arising from this Agreement or your participation in Kiva’s lending program, and (viii) Borrower Provided Content (defined in Section 5(c) below) (collectively, "Borrower Information"). We will strive to use Borrower Information in ways that reflect fairly on you and our relationship under this Agreement, including providing explanatory information for delinquencies or defaults. You agree to provide Borrower Information to Kiva, as reasonably requested by Kiva. You acknowledge and agree that we have the right to rely without independent verification on the accuracy, authenticity, and completeness of all Borrower Information that you provide to us (including without limitation by submitting to or posting on the Website).
(b) By registering as a Borrower, submitting a Loan Application or posting a Loan Request, you irrevocably grant to Kiva and Kiva's affiliates, licensees, assignees and successors on a royalty-free fully-paid basis, the right to copy, distribute, create derivative works, publicly perform, publicly display and otherwise use the Borrower Information in all forms and media (whether now known or later created) throughout the world and in perpetuity for all purposes, including without limitation (i) on the Website and Kiva newsletters and blogs, (ii) in any other media or materials to promote Kiva's microfinance mission and work, and (iii) in educational presentations and other audiovisual productions regarding Kiva and its programs. Kiva is permitted, although not obligated, to include your name as a credit in connection with the Borrower Information.
(c) Kiva has sole discretion to review and determine whether information, photos, content and other materials are appropriate to post to the Website. You will not provide to Kiva any information, photos, comments, content or other materials on the Website (collectively, "Borrower Provided Content") that are inappropriate, including without limitation profanity, lewd content, sexual content, violent content, politically or religiously divisive content, or propaganda of any sort. Kiva has the right to delete all or any portion of any Borrower Provided Content that in the sole judgment of Kiva violates this Agreement or which might be inappropriate, offensive, illegal, harmful or that might violate the rights or threaten the safety of others.
(d) No less than once per Loan Term, you shall post an update to a forum on the Website ("Conversations Forum") regarding your status and progress towards the Loan Business Purpose and towards repaying your Loan ("Update"). Your Update(s) shall be deemed Borrower Provided Content and subject to all provisions of this Agreement, including without limitation compliance with this Section 5. Kiva shall have the right, in its sole discretion, to make the Conversations Forum available to the public, all Users or any subset of Users. To protect your own safety and well-being, you agree to take prudent safeguards and precautions in your participation in Kiva’s lending program, including without limitation in any of your interactions with Trustees and Users, whether offline or online. In order to enhance and enrich the Website and program for all Users, you agree to be respectful and not to engage in off-topic, meaningless or annoying interactions or communications through the Website and program. Although Kiva assumes no obligation to monitor the interactions or communications of any person on or off the Website, Kiva strongly recommends that you do not post any personal contact information (for example, personal email addresses, personal phone numbers or home addresses) and that you use discretion if any person (i) requests to communicate outside of the Website (for example, by email, phone or in-person), (ii) requests any assistance (whether material, personal or financial) or (iii) requests personal contact information or financial information. You agree NEVER to share your (1) credit card number or bank information, (2) Social Security Number or other government-issued identification numbers (for example, driver's license number) or (3) mother's maiden name or other private information that can be used to access your financial information. As with any interaction, keep in mind that it is always possible for people to misrepresent themselves.
6. Release and Waiver.
(a) To the extent permitted by law, you, on behalf of yourself and your spouse, children, survivors, heirs, beneficiaries, executors and administrators, irrevocably and unconditionally release Kiva and Kiva's affiliates, licensees, assignees and successors, and their respective officers, directors, members, agents, attorneys, employees and representatives, from any claims and damages of whatever kind or nature (in law, equity or otherwise), whether now known or unknown, that may arise from or in connection with (i) the use of Borrower Information as permitted under this Agreement, (ii) your participation in Kiva’s lending program, (iii) the Website or (iv) this Agreement, including without limitation any claims of defamation, invasion of privacy, personal injury, illness, death, costs, fees, expenses and infringement of moral rights, rights of publicity and copyright. You understand that Kiva is not obligated to use any of the rights granted in this Agreement. You waive the right to inspect or approve the form or version of Borrower Information that may be used by Kiva and Kiva's assignees, licensees, affiliates and successors. Kiva is not responsible or liable to you for the quality, safety, legality or any other aspect of any property or services purchased with the Capital.
(b) By accepting this Agreement, you expressly waive any benefits of Section 1542 of the Civil Code of the State of California, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
7. Borrower Representations and Warranties.
(a) You represent and warrant that you will not, in connection with your Loan Application, Loan Request or otherwise in connection with the Website: (i) make any false, misleading or deceptive statements or omissions of fact, including without limitation in the Loan Request title or description; (ii) misrepresent your identity, or describe, present or portray yourself as a person other than yourself; (iii) give to or receive from, or offer or agree to give to or receive from any User, Trustee or Kiva officer, director, member, agent, attorney, employee or representative or other person any fee, bonus, interest, kickback or thing of value of any kind except in accordance with the terms of this Agreement; (iv) represent yourself to any person, as a representative, employee, or agent of Kiva, or purport to speak to any person on Kiva’s behalf; (v) violate any applicable law or conduct any illegal activity or terrorist activity; or (vi) use any Capital to fund any post-secondary educational expenses (as defined in Federal Reserve Board Regulation Z, 12 C.F.R. Section 226.26(b)(3)), including, but not limited to, tuition, fees, books, supplies, miscellaneous expenses, or room and board.
(b) You certify that the Capital will not be used for the purpose of purchasing or carrying any securities or to fund any illegal activity or terrorist activity. You represent and warrant that you shall not use the Website to obtain, or attempt to obtain, any loan or debt capital for someone other than yourself. You represent and warrant that you have the legal competence and capacity to execute and perform this Agreement.
(c) You represent and warrant to Kiva that you own or have all necessary rights concerning all Borrower Provided Content (including without limitation Borrower Information) to grant the licenses to Borrower Provided Content that you are granting under this Agreement and that the exercise of such licenses pursuant to this Agreement will not violate the intellectual property, privacy, publicity, proprietary or any other rights of any person or entity.
(d) You represent and warrant that you have provided notice to Kiva in writing if you are involved with any person or entity that could reasonably be considered comparable to Kiva ("Comparable Business"), which generally includes any person or entity operating a person-to-person microfinance website, person-to-person lending website or crowd-funding website. Until you pay all amounts under this Agreement, you represent and warrant that you will provide Kiva with written notice thirty (30) days prior to any involvement with a Comparable Business.
(e) You represent and warrant that you have the legal capacity and all necessary right, power, and authority to enter into this Agreement with Kiva on behalf of your business.
8. Default and Termination. You will be deemed in default on your Loan (each, an "Event of Default") if you: (i) fail to pay timely any amount due on your Loan; (ii) file or have instituted against you/your business any bankruptcy or insolvency proceedings or make any assignment for the benefit of creditors; (iii) commit fraud or make any material misrepresentation in this Agreement or any other documents, applications, information or related materials provided to us in connection with your Loan; (iv) sell or otherwise transfer ownership of your business without Kiva’s prior written consent; or (v) fail to abide by the terms of this Agreement. Upon the occurrence of an Event of Default, we have the right to exercise all remedies available to us under applicable law and this Agreement, including without limitation any or all of the following: (a) immediately remove your Loan Request from the Website, (b) upon providing you thirty (30) days prior notice, demand that you immediately pay all amounts owed on your Loan, and (c) terminate this Agreement. Subject to our right to demand that you immediately pay all amounts owed on your Loan, any Loans you obtained prior to the effective date of termination of this Agreement resulting from Loan Requests you posted on the Website shall remain in full force and effect in accordance with their terms. You acknowledge and agree that your Event of Default may have a negative effect on your Trustee's status and performance as a Trustee with Kiva and on the Website (if applicable).
9. Credit Reporting and Collections.
(a) We reserve the right to report your Loan payment information to one or more credit reporting agencies in accordance with applicable law. You understand that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your loan obligations. You acknowledge and understand that business credit reports, including information on your loan repayment performance, may be viewed by the public. While business credit reports are separate from personal credit reports, institutional lenders and other parties may nevertheless view your business credit report and take it into account in making both business and personal lending decisions.
(b) To the extent permitted under applicable law, you authorize Kiva or a collection agency designated by Kiva to contact you at all of your email addresses and phone numbers, and you authorize Kiva to share your personal information with such collection agency. You agree to pay all costs of collecting any delinquent payments, including reasonable attorneys' fees, as permitted by applicable law.
10. Consent to Electronic Transactions and Disclosures. THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES, WHICH CONSENT IS SET FORTH IN THE TERMS OF USE AGREEMENT.
11. Notices. All notices and other communications to you hereunder may be given by email to your registered email address or posted on the Website, and shall be deemed to have been duly given and effective upon transmission. You acknowledge that you have sole access to such email account and your area on the Website and that communications from us may contain sensitive, confidential, and collections-related communications. If your registered email address, address of residence or telephone number changes, you must promptly email Kiva at borrowers@kiva.org to give us notice of the changes.
12. NO WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATION ON LIABILITY. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON YOUR FOREIGN, FEDERAL, STATE OR LOCAL TAX LIABILITY.
14. Governing Law; Venue. This Agreement shall be construed and enforced in accordance with, and governed by, the internal laws of the State of California without reference to its conflicts of law provisions. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in California unless Kiva seeks injunctive relief that, in Kiva's judgment, would not be effective unless obtained in some other venue. In the event that any proceeding or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including, without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
15. Miscellaneous. You may not assign this Agreement without Kiva's prior written consent. Any such assignment in violation of this Section 15 shall be null and void. Kiva has the right to assign this Agreement and delegate servicing or collection of your Loan, including without limitation, to an affiliate entity of Kiva or a third party, without notice to you. This Agreement represents the entire agreement between you and us regarding the subject matter hereof and supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between us with respect to your Loan Application, Loan Request and Loan. Any changes to this Agreement must be in writing signed by both you and Kiva. The parties acknowledge that there are no third party beneficiaries to this Agreement. Any waiver of a breach of any provision of this Agreement will not be a waiver of any other or subsequent breach. Failure or delay by either party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition. If at any time after the date of this Agreement, any of the provisions of this Agreement are held by any court of competent jurisdiction to be illegal, void or unenforceable, any 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. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement in any way. You acknowledge that this Agreement has been prepared on behalf of Kiva by its legal counsel and that its legal counsel does not represent you, and is not acting on your behalf. You have been provided with an opportunity to consult with your own counsel with respect to this Agreement. In the event that this Agreement is translated into any language other than English, the English version of this Agreement shall control in all instances, and any error or inconsistency in translation shall not affect, modify, amend or change the meaning or construction of any term or provision contained in the English version of this Agreement.
* * * * *
NOTICE TO CALIFORNIA RESIDENTS: A married applicant may apply for a separate account. If Kiva takes any adverse action as defined by § 1785.3 of the California Civil Code and the adverse action is based, in whole or in part, on any information contained in a consumer credit report, you have the right to obtain within 60 days a free copy of your consumer credit report from the consumer reporting agency that furnished the consumer credit report and from any other consumer credit reporting agency that compiles and maintains files on consumers on a nationwide basis. As required by California law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.