Alert Message

Last Updated: 08/15/18

Welcome to earnest.com. Please carefully review the following rules that govern your use of the Site, and also read our Privacy Policy regarding the information that you provide to us.

These Terms and Conditions of Use (“Terms of Use”) apply to the World Wide Web site located at www.earnest.com and owned, operated, licensed, and controlled by Earnest, as well as to associated Earnest sites linked to this World Wide Web site and to Earnest’s mobile device-enabled website content and mobile application (collectively, the “Site”) and the products and services offered thereunder. The Site is the property of “Earnest” which consists of Earnest LLC, Earnest Operations LLC, Earnest Home LLC, Navient Corporation and/or Navient Solutions, LLC, and their respective subsidiaries, affiliates, agents, successors, and assignees. By using the Site, you agree to these Terms of Use; if you do not agree, do not use this Site.

Earnest reserves the right at its sole discretion, to change, modify, add or remove portions of these Terms of Use and our Privacy Policy, at any time. Earnest also reserves the right to modify or discontinue, temporarily or permanently, the Site for any reason, at its sole discretion, with or without notice to you. You agree to check these Terms of Use and our Privacy Policy periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes.

Privacy

Please review our online Privacy Policy (which also governs your visit to the Site) to understand our practices. Additionally, by using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, notwithstanding Earnest’s efforts to protect such transmissions.

Your Use Of Site

As long as you comply with these Terms of Use, Earnest grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site. You agree to abide by all applicable local, state, national, and international laws and regulations in regard to your use of the Site. Our Site is available only to individuals who are permitted to use it under applicable law. If you do not qualify, please do not use our Site. You agree that all access and use of the Site and its contents is at your own risk. You agree to be solely responsible for your actions and the contents of your transmissions through the Site. You agree not to impersonate any person or entity or falsely state or otherwise misrepresent your identity or affiliation with a person or entity. You agree that we may terminate your password, account, or use of the Site in Earnest’s sole discretion for any reason as permitted by law. All notices you give to us shall be in writing and shall be made either via email or conventional mail. In addition, Earnest may post notices or links to notices through the Site to inform you of changes to the Terms of Use, the Site, or other matters of importance. 

You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our Web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any information or technology obtained from the Site.

You agree that all access and use of the Site and its contents is at your own risk. By using the Site, you acknowledge that we specifically disclaim any liability (whether based in contract, tort, negligence, strict liability or otherwise) for any direct, indirect, incidental, common law, statutory, regulatory, consequential, compensatory, punitive, or special damages arising out of or in any way connected with your access to or use of the Site (even if we have been advised of the possibility of such damages) including, but not limited to, any liability associated with any viruses which may infect your computer equipment.

Calculators and tools on the Site provide you with ESTIMATES that may be different than actual amounts.

Your Payments To Earnest

We typically accept loan payments through approved electronic fund transfers from your financial institution (or personal check for home loans). Although other forms of payment may be accepted, Earnest does not require any borrower or loan applicant to submit payment by gift card or cash card of any type, credit card, PayPal®, money order or cryptocurrency (such as Bitcoin). Contact our Client Happiness team at [email protected] or 1-888-601-2801 with any questions about your payments to Earnest.

Your Credit Report

We may request consumer reports on you in connection with your application for credit and subsequently in connection with any extension of credit, update, renewal, review or collection of your account or any other lawful purpose. Upon your request, we will inform you of the name and address of any consumer reporting agency from which we obtained your consumer report.

You are allowed to receive one free credit report under the Fair Credit Reporting Act from each of the three U.S. nationwide consumer reporting agencies (Experian, Equifax, and Trans-Union) during any twelve-month period. You may also be able to receive free credit reports as permitted by state law (you may contact your state or local consumer protection agency or state attorney general to learn more about your rights under state law). For information on obtaining your credit reports free of charge, contact www.annualcreditreport.com, or you can contact Experian, Equifax or TransUnion, individually, at www.experian.com, www.equifax.com and www.transunion.com.

Use Of Credit Report For Loan Related Verifications

By submitting a loan application, you are certifying that you understand that the services being requested are regulated by the Fair Credit Reporting Act and that Earnest has a permissible purpose to obtain and use your credit report provided by a consumer reporting agency, such as Experian. By using the Site to request a loan rate quote or submit a loan application, you certify that you have initiated a transaction with Earnest and you agree that Earnest may order and use your personal credit profile and credit report for such transaction. You acknowledge that your credit profile and credit report information may be used to verify your eligibility for the loan for which you have applied as well as to confirm your identity to avoid fraudulent transactions in your name.

Collection And Use Of Information

If Earnest extends credit to you, it may take into account the bank account you provided during the application process and collect payments from this account if you permit Earnest to do so. Earnest may require that you provide, or otherwise obtain, additional information in order to determine loan eligibility or to provide ongoing loan services. As part of Earnest’s information collection process, we may review additional bank or financial accounts under your ownership. You agree that Earnest may consider these additional accounts to be part of the application process and may use information from or about such accounts, or any other information received or gathered, in deciding whether to approve your loan application. Earnest is permitted to disclose certain information you provide to financial institutions, educational institutions and other authorized third parties.

Account Information From Third Party Sites

For some loan products, Earnest offers a “Connect Accounts” feature through which you may direct Earnest to retrieve your information maintained online by third-party financial institutions with which you have customer relationships, maintain accounts, or engage in financial transactions (“Account Information”). Earnest works with one or more online financial service providers under contract to access this Account Information. Earnest does not store any user account credentials for your information. The online financial service providers store your login credentials securely in a separate database using multi-layered hardware and software encryption.

Earnest uses the information to which you provide us access from third-party sites – including account balances, transaction history, and age of account – in order to determine your eligibility for a loan, to service your account, and in responding to your questions. Earnest is not responsible for the accuracy of the information maintained by or on third-party sites, nor for products or services offered by or on such sites. If you access and use services from such third-party sites, you are responsible for reviewing and understanding the terms and conditions governing such services and sites. Earnest has no control over third-party services and sites and your ability to access and use such may be subject to suspension or termination at any time, for any reason, at the third-party service provider’s discretion. Anonymous, aggregate information, comprised of financial account balances, other financial account data, or other available data that is provided by you, may be used by us and/or our third-party vendors to conduct certain analytical research, performance tracking and benchmarking. We and/or our third-party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third-parties except as permitted by law and disclosed in our Privacy Notice.

Rights You Grant To Us

By submitting information, data, passwords, usernames, PINs, other sign-in information, materials and other content to Earnest through the Site, you are licensing that content to Earnest for the purpose of evaluating your loan application, and potentially originating a loan to you, servicing such loan, and providing related services to you. Earnest may use and store the content to evaluate your loan rate request, loan application and to provide ongoing services to you. Earnest will store and use this information from such connected accounts for a reasonable period of time in connection with your loan application and or loan. By submitting this content to Earnest, you represent that you are entitled to submit it to Earnest for use for this purpose, without any obligation by Earnest to pay any fees or be subject to any other limitations.

By using the Connect Accounts feature, you expressly authorize Earnest’s designated third-party service provider to access your Account Information maintained by identified third-parties, on your behalf. Earnest’s service provider will submit information, including usernames and passwords, that you have provided to sign you into the third-party site. You hereby authorize Earnest and its designated third-party service provider to store and use information submitted by you to the Site to accomplish the foregoing and to configure the Site so that it is compatible with the third-party sites for which you submit your information. This authorization will continue for a reasonable period of time in connection with your loan application and or loan. You may request to disconnect your connected accounts by notifying Earnest at [email protected].

You understand and agree that the Site is not sponsored by any third-parties accessible through the Site.

Personal Information Retention

Earnest will maintain information necessary to enable Earnest to provide requested services, and will do so for at least as long as it takes Earnest to provide any such service or as otherwise required by law or by legal mandate. You may choose to opt out of allowing Earnest to use your personally identifiable information for marketing purposes as described in our Privacy Notice. If you have chosen to opt out of allowing Earnest to use your personal details for marketing purposes, Earnest may still need to keep your personal details to ensure that our systems reflect your preferences. Earnest may keep records of any transactions a client enters into with us for a minimum of six years from the end of our relationship with the client. We may keep other information about you to the extent necessary to comply with applicable laws and for further legitimate business needs.

Intellectual Property

The contents of the Site including its “look and feel” (e.g., text, graphics, images, logos, and button icons), editorial content, notices, software (including html-based computer programs), and other material are protected under both United States and foreign copyright, patent, trademark, and other laws. The contents belongs to Earnest or to others as indicated. All rights, title and interests therein shall remain the property of Earnest and/or such third-parties. Intellectual property includes but is not limited to copyrights, patents, database rights, graphics, designs, text, logos, trade dress, trademarks and service marks.

You are authorized solely to view and retain a copy of the pages of the Site for your own personal, non-commercial use. You may also view and make copies of relevant documents, pages, images or other materials on the Site for the purpose of transacting business with Earnest. You agree that you will not duplicate, publish, modify, create derivative works from, participate in the transfer of, post on the World Wide Web, or in any way distribute or exploit the Site, or any portion of the Site for any public or commercial use without the express written consent of Earnest. Additionally, you agree that you will not: (i) remove or alter any author, trademark or other proprietary notice or legend displayed on the Site (or printed pages produced from the Site); and (ii) make any other modifications to any documents obtained from the Site, other than in connection with completing information required to transact business with Earnest.

Electronic Communication

When you visit the Site or send emails to us, you are communicating with us electronically and you consent to receive communications from us electronically to the extent permitted by law. We will communicate with you primarily by email, text message or by posting notices on the Site. (Communication by text message is not required and you may choose to instruct Earnest to stop such communications at any time.) You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing to the extent permitted by law. You agree that we may use electronic communications for the purpose of advising you of changes or additions to the Site, informing you of loan or loan application status and activities or about any of our products or services, or for such other purposes as we deem appropriate and as permitted by law. You agree that it is your responsibility to maintain updated electronic contact information in your online Earnest account throughout the application process and for the life of your Earnest loan.

Cookies

“Cookies” are small data files transferred by a website to your computer’s hard drive. Earnest or its service providers send cookies when you visit the Site or sites where Earnest ads appear, make purchases, request or personalize information, or register yourself for certain services. Accepting the cookies used on the Site, sites that are “powered by” another company on Earnest’s behalf, or sites where our ads appear may give us access to information about your browsing preferences, which we may use to personalize and enhance your experience. Cookies are typically classified as either “session” cookies or “persistent” cookies.

Session cookies do not stay on your computer after you close your browser. Persistent cookies remain on your computer until you delete them or they expire. Generally speaking, web browsers automatically accept cookies by default. That being said, you can typically prevent cookies or selectively accept cookies by adjusting the preferences in your browser. If cookies are not accepted, most features of the Site will not be available to you.

Earnest does not store passwords or any other information about a visitor without an Earnest account in a cookie that would identify them, locate them, or determine their preferences or their financial activity. Aggregated client information may be used to help Earnest assess the performance of its website and develop strategies to maximize utility.

Data Use

Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is provided to you, may be used by us and/or our third-party vendors to conduct certain analytical research, performance tracking and benchmarking. We or our third-party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third-parties except as permitted by law and disclosed in our Privacy Notice.

Software Use Storage And Access

We shall have the right, in our sole discretion and with reasonable notice, to establish or change limits concerning use of the Site features, temporarily or permanently, including but not limited to the number of times and the maximum duration for which you may access the Site in a given period of time. We reserve the right to make any such changes effective immediately to maintain the stability or security of the system or Licensee Access Information or to comply with any laws or regulations. You may reject changes by discontinuing use of the Site features to which such changes relate. Your continued use of the Site will constitute your acceptance of and agreement with such changes. Maintenance upon the Site may be performed from time-to-time resulting in interrupted service, delays or errors in the Site features. Attempts to provide prior notice of scheduled maintenance will be made, but Earnest cannot guarantee that such notice will be provided.

Links To Other Websites And Services

The Site may contain links to outside services and resources, the availability and content of which Earnest does not control. We are not responsible for examining or evaluating, and we cannot guarantee and expressly do not warrant the offerings of these businesses or individuals or the content of their web sites. Except where an endorsement or relationship is expressly disclosed, links to and from such sites do not constitute an Earnest endorsement and Earnest does not represent or imply that there is any business relationship between Earnest and the other entities. Earnest does not assume any responsibility or liability for the actions, products, and content of these and any other third-parties. Any concerns regarding any such service or resource, or any link thereto, should be directed to the particular outside service or resource.

Site Security

As a condition of your use of the Site, you agree that you will not, and you will not take any action intended to: (i) access data that is not intended for you; (ii) invade the privacy of, obtain the identity of, or obtain any personal information about any Earnest client or other user of the Site; (iii) probe, scan or test the vulnerability of the Site or the Earnest network or breach security or authentication measures without proper authorization by Earnest; (iv) attempt to interfere with service to any user, host or network or otherwise attempt to disrupt our business, including, without limitation, via means of submitting a virus to the Site, overloading, “scraping,” “flooding,” “spamming,” “credential stuffing,” “mail bombing,” or “crashing;” or (v) send unsolicited email or other electronic communication, including promotions and/or advertising of products and services. Violations of system or network security may result in civil or criminal liability.

Developer Applications Security

You also agree that you will not permit any third-party to, directly or indirectly: (a) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the source code to the applications developed or owned by Earnest (the “Developer Applications”) that are contained in the Site; (b) rent or time-share the Developer Application or host the Developer Application in a multi-tenant environment; (c) remove or destroy any copyright notices, proprietary markings or confidential legends placed upon or contained within the Developer Application or any copies thereof; (d) engage in any activity with the Developer Application that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third-party; and (e) use the Developer Application or data provided via the Developer Application in any way in furtherance of criminal, fraudulent, or other unlawful activity. You must comply with applicable laws and regulations in using, accessing or distributing the Developer Application, including any data provided via the Developer Application.

Export Restrictions

You acknowledge that the Site features and any software underlying such Site are subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the software or Site features, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions; (2) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that this product may include technical data subject to export and re-export restrictions imposed by U.S. law.

Additional Terms Regarding Third Party Providers And Data Access

a. Protecting Access Information and Account Data

You are responsible for maintaining the confidentiality and security of your access information, including user name, password and any other security or access information necessary to access Site features and your provider accounts (collectively, “Licensee Access Information”). You are also responsible for preventing unauthorized access to or use of the information, files or data that you store or use in or for Site features (collectively, “Account Data”). You are responsible for all electronic communications, including account registration, messaging, financial and other data, entered using the Licensee Access Information (“Site Communications”). It is assumed that all Site Communications were sent or authorized by you. You agree to immediately notify us if you become aware of any loss, theft or unauthorized use of any Licensee Access Information and to change this information immediately upon learning of such. We reserve the right to deny you access to the Site features (or any part thereof) if we reasonably believe that any loss, theft or unauthorized use of Licensee Access Information has occurred. Earnest and our third-party service providers may access and use your Licensee Access Information to enable us to provide the Site features to you, including but not limited to updating and maintaining Account Data, addressing errors or service interruptions, and to enhance the types of data and services we may provide to you in the future.

b. Access to Provider Services

In connection with your use of the Site features and as part of the functionality of the Site, you may have access to certain online services or information that may be made available by your provider(s) (“Provider Services”), including online banking, online payment, online investment account download, online bill pay, online trading, and other account information available from your provider(s). The Site is designed to allow you to access certain of your Provider Services (if and to the extent provided by your provider(s)) to set up banking and other information, schedule the Site to access your account(s), download transactions into the Site and otherwise aggregate information from your account(s) with your provider(s). You acknowledge and agree that we have no control over the provision of Provider Services or provision of access to the Provider Services by your provider(s), do not guarantee that you will be able to use the Site features with the Provider Services, and will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in your inability to use the Site to access your accounts, obtain data, download transactions, or otherwise use or access the Provider Services.

c. Collection of Provider Account Information

You acknowledge that in accessing your data and information through the Site features, your provider account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, and the actual data in your account(s) with such provider(s) such as bank and other account balances, credit card charges, debits and deposits (collectively, “Provider Account Data”), may be collected and stored in the Site. You authorize us and our third-party vendors, in conjunction with the operation and hosting of the Site features, to use certain Provider Account Data to (i) collect your Provider Account Data, (ii) reformat and manipulate such Provider Account Data, (iii) create and provide hypertext links to your provider(s), (iv) access the providers’ websites using your Provider Account Data, (v) update and maintain your account information, (vi) address errors or service interruptions, (vii) enhance the type of data and services we can provide to you in the future, and (viii) take such other actions as are reasonably necessary to perform the actions described in (i) through (vii) above. You hereby represent that you are the legal owner of your Provider Account Data and that you have the authority to appoint, and hereby expressly do appoint, us or our third-party vendors as your agent with limited power of attorney to access and retrieve your Provider Account Data on your behalf. You further acknowledge that we do not, nor does our third-party vendor review your Provider Account Data and agree that we are not responsible for its completeness or accuracy. Any transactions or informational activities performed at any provider’s website are not made through the Site and we assume no responsibility for such transactions or activities. You are solely responsible for any charges associated with your provider(s).

d. Information from Providers’ Websites

You acknowledge and agree that (i) some providers may not allow the Site to access the Provider Services, (ii) providers may make changes to their websites, with or without notice to us, that may prevent or delay aggregation of information from such websites, and (iii) the Site may “refresh” the Provider Account Data by collecting the Provider Account Data nightly, so your most recent transactions may not be reflected in any account balances or other account information presented to you in the Site features. If you see a discrepancy in the Provider Account Data, and in any case before making any transactions or decisions based on such account information presented in the Site features, you should check the last refresh date for the account and confirm Provider Account Data is correct by following the link back to the applicable provider or otherwise confirm that Provider Account Data is up to date and accurate.

Additional Terms Regarding Our Mobile App

a. Usage Rules and Responsibilities for the Earnest App

Earnest has developed a mobile application available in the Apple Inc. App Store, for the offer and provision of certain products and services (the “Earnest App”). You agree to use the Earnest App in accordance with these Terms of Use and any applicable usage rules of your third-party mobile telephone, tablet or other device (each a “Mobile Device”) service provider or the third party from whom you are downloading the Earnest App (each an “App Venue”). Supported App Venues include Apple’s App Store and iTunes; other App Venues are NOT supported. It is your responsibility to review the terms and conditions of use for all Mobile Device service providers and App Venues utilized by you to determine what usage rules may apply to you depending on (i) your Mobile Device, (ii) the method by which you downloaded the Earnest App, and (iii) the App Venue from which you downloaded the Earnest App (collectively, the “Usage Rules”).

Earnest may offer services to you through the Earnest App (the “Services”). You acknowledge and understand that certain services available to you through the Earnest App, including, but not limited to, your ability to submit a loan application, make loan payments, or view your loan balance, may require internet or wireless data access and capability (“Data Access”). You agree that you are responsible for any and all costs for such Data Access from any source, including your Mobile Device and internet service providers. Earnest does not make any representation or warrant that the Earnest App will be compatible with your Mobile Device, or any specific operating system version of your Mobile Device, or any other hardware, software, equipment or device installed on or used in connection with your Mobile Device. You agree that your functional use of the Earnest App may be affected by, or dependent on, factors such as your wireless or internet connection and the speed of your wireless or internet service.

The functionality of the Earnest App could become disabled during times of poor connection or speed from a wireless or internet service provider while conducting loan-related transactions, including, but not limited to, when you are attempting to schedule or change your loan payment date or amount. You agree that it is your responsibility to verify the status of any attempted transaction by reviewing your account or contacting Client Happiness online at www.earnest.com or at 1-888-601-2801. You acknowledge and agree that Earnest, and its affiliates, agents and licensors, shall have no liability to you for any losses, financial or otherwise, suffered by you arising out of or resulting from compatibility or inoperability problems or the failure of, or your failure to confirm, any attempted transaction.

Use of the Earnest App is subject to the terms of one or more End User License Agreements (each an “EULA”) as identified on the App Venue from which you downloaded the Earnest App. Each EULA grants you a nontransferable license to use the Earnest App on certain products that you own or control, as permitted by the terms of the EULA (the “License”). The terms of each such EULA applicable to the Earnest App are herein incorporated by reference and made a part of these Terms of Use; in the event of any inconsistency between these Terms of Use and such EULA, the provisions of these Terms of Use shall control. The EULA for the Apple Inc. App Store, titled “Licensed Application End User License Agreement” is available at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/.

You acknowledge, understand and agree that your use of the Earnest App and your access to your Earnest account through the Earnest App is governed by these Terms of Use, as well as by and Earnest’s online Privacy Policy and any EULA applicable to the Earnest App.

b. Intellectual Property Rights and the Earnest App

You acknowledge and agree that the Earnest App and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are owned by Earnest or its affiliates, agents or licensors, as applicable. All rights, title and interest in and to the Earnest App are reserved by Earnest and its affiliates, agents or licensors, as applicable. All trademarks (including logos, service marks, trade names and icons), copyrights, patents, trade secrets, content, publicity rights and other intellectual property (collectively, the “Intellectual Property”) are proprietary to Earnest, its affiliates, agents or licensors. You may not remove any proprietary notices, including, but not limited to, copyright and trademark notices, from the Earnest App or alter, obscure or modify such notices in any way. Except as expressly stated in the License or these Terms of Use, you are not granted any intellectual property rights in or to the Earnest App by implication, estoppel or other legal theory, and all rights in and to the Earnest App not expressly granted in the License are hereby reserved and retained by Earnest.

You acknowledge and agree that, in the event of a third-party claim of infringement on any third party’s intellectual property rights caused by or arising out of your use of the Earnest App, you (and not Earnest or its affiliates, or any third-party, Mobile Device service provider, or App Venue) shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim or suit, any third-party claims or any other harm or damages caused by, arising out of, or resulting from your use of or access to the Earnest App. You hereby release Earnest and its employees, officers, directors, affiliates, agents and licensors from any and all liability caused by, arising out of, or resulting from your use of the Earnest App or the Services, including from product liability claims or any claim that the Earnest App fails to conform to any legal or regulatory requirement. You will, however, promptly notify Earnest in writing of any such claim.

Because Earnest values the protection of its intellectual property, it seeks to respect other individual’s intellectual property rights. If you believe that material on our Earnest App violates your copyright, please notify us at [email protected]. If an Earnest client repeatedly infringes upon copyrights through Earnest App, the client’s account access is subject to termination at Earnest’s discretion.

You may not rent, lease, lend, sublicense or transfer the Earnest App, the License or any of the rights granted in these Terms of Use. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.

c. Mobile App Export Control

You may not use or otherwise export or re-export the Earnest App except as authorized by United States law and the laws of the jurisdiction(s) in which the Earnest App was obtained. You represent and warrant that you are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (ii) included on any U.S. Government list of prohibited or restricted parties such as the Treasury Department’s list of Specially Designated Nationals or the Department of Commerce’s Denied Person’s List or Entity List. You also agree that you will not use the Earnest App for any purposes prohibited by law.

d. Earnest App Usage Termination

Earnest may, in its sole discretion, at any time and for any or no reason and with or without prior notice, suspend or terminate the License and the rights afforded to you thereunder. Furthermore, if you fail to comply with any terms and conditions of the License, then the License and any rights afforded to you thereunder shall terminate automatically, without any notice or other action by Earnest. Upon the termination of the License, you shall cease all use of and uninstall the Earnest App.

Indemnity

By using the Site, you agree to defend, indemnify, and hold harmless Earnest, its directors, officers, employees, affiliates, and agents from and against any and all losses, claims, damages, costs and expenses (including reasonable legal and accounting fees) that Earnest may become obligated to pay arising or resulting from (i) use of the Site or its content by you or any other person using your user name and password, or (ii) your breach of these Terms of Use or the License incorporated by reference herein; or (iii) your violation of law in connection with the these Terms of Use or such License; or (iv) your negligence or willful misconduct in connection with the these Terms of Use or such License; or (v) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the these Terms of Use or such License. Earnest reserves the right to assume or participate, at your expense, in the investigation, settlement and defense of any such action or claim. The provisions of these Terms of Use apply for the benefit of Earnest and its officers, directors, employees, affiliates, agents, parent company and affiliates. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.

Disclaimers

EARNEST DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, DOCUMENT OR FEATURE OF THE SITE, OR ANY THIRD-PARTY SERVICE OR DATA PROVIDED IN RELATION TO THE SITE (TOGETHER, THE “SITE-RELATED ITEMS”) WILL MEET YOUR REQUIREMENTS, BE ERROR-FREE, RELIABLE, TIMELY, OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED OR THAT YOUR USE OF SITE-RELATED ITEMS WILL PROVIDE SPECIFIC RESULTS. SITE-RELATED ITEMS, SUCH AS THIRD-PARTY DATA, COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. THE SITE-RELATED ITEMS ARE DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL SUCH ITEMS ARE SUBJECT TO CHANGE WITHOUT NOTICE. EARNEST CANNOT ENSURE THAT ANY FILES, DOCUMENTS OR OTHER DATA YOU DOWNLOAD FROM OR THROUGH THE SITE WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES.  EARNEST AND ITS THIRD-PARTY VENDORS AND THEIR LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AND DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SITE, ANY THIRD-PARTY SERVICES OR ANY DATA PROVIDED VIA THE SITE OR THIRD-PARTY SERVICE, IN WHOLE OR IN PART, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. EARNEST DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD-PARTY IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE. EARNEST ASSUMES NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE ANY DATA OR OTHER INFORMATION PROVIDED BY YOU ON THE SITE.

YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, THIRD-PARTY SERVICES AND DATA PROVIDED IN RELATION TO THE SITE, AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST EARNEST FOR DISSATISFACTION WITH THE SITE, THIRD-PARTY SERVICES AND DATA PROVIDED IN RELATION TO THE SITE, OR ANY CONTENT IS TO STOP USING THE SITE, SUCH THIRD-PARTY SERVICES AND DATA, OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. YOU UNDERSTAND AND EXPRESSLY AGREE THAT ANY USE OF SITE-RELATED ITEMS, INCLUDING THE SITE, THIRD-PARTY SERVICES AND DATA PROVIDED VIA THE SITE OR THIRD-PARTY SERVICE, WILL BE AT YOUR SOLE RISK. EARNEST AND ITS (I) THIRD-PARTY VENDORS AND (II) LICENSORS DO NOT WARRANT THE COMPREHENSIVENESS, COMPLETENESS, CORRECTNESS, LEGALITY, OR ACCURACY OF THE SITE, THIRD-PARTY SERVICES OR DATA PROVIDED VIA THE SITE OR THIRD-PARTY SERVICE, IN WHOLE OR IN PART, OR THAT THE SITE OR THIRD-PARTY SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, APPLICATION OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SITE, THIRD-PARTY SERVICES OR DATA PROVIDED VIA THE SITE OR THIRD-PARTY SERVICE.

Limitation Of Liability

EXCEPT WHERE PROHIBITED BY LAW, NEITHER EARNEST, NOR ITS PARENT COMPANY, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNS OF EACH, SHALL BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF EARNEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS OTHERWISE EXPRESSLY SET FORTH IN A WRITTEN AGREEMENT WITH YOU, EARNEST’S MAXIMUM LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SITE, OR ITS CONTENT, WHETHER IN CONTRACT, TORT OR OTHERWISE SHALL BE LIMITED TO THE AMOUNT YOU PAID TO ACCESS THE SITE.

NOTWITHSTANDING THE FOREGOING, BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY TO THE FULL EXTENT DESCRIBED ABOVE, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU. IF THESE LIMITATIONS OR EXCLUSIONS ARE HELD TO BE INVALID OR UNENFORCE-ABLE FOR ANY REASON, THE MAXIMUM COLLECTIVE LIABILITY OF EARNEST, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENT COMPANY AND AFFILIATES, IF ANY, FOR LOSSES OR DAMAGES SHALL NOT EXCEED $500. ALL OTHER DAMAGES, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE, ARISING OUT OF OR RELATING TO USE OF THE SITE ARE HEREBY EXCLUDED EVEN IF EARNEST, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENT COMPANY OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

Minors

The Site is not directed at children under the age of eighteen (18) and Earnest does not knowingly collect personal information from any child under the age of eighteen (18) at the Site.

Severability

Any failure by Earnest to exercise any rights or enforce any of these Terms of Use shall not constitute a waiver of such rights or terms. If any provision of these Terms of Use or their application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of these Terms of Use, or the application of such provision in other circumstances, shall not be affected thereby, and each provision hereof shall be valid and enforced to the fullest extent permitted by law. These Terms of Use constitute the entire agreement between you and Earnest with regard to your use of the Site, and any and all other written or oral agreements or understandings previously existing between you and Earnest with respect to such use are hereby superseded and cancelled.

Law And Venue

You represent and warrant that you possess the legal right and ability to enter into these Terms of Use and to use the Site in accordance with these Terms.  The Site is located in the State of California. These Terms of Use and the relationship between you and Earnest shall be governed by the laws of the State of California without regard to its conflicts of law provisions. Any dispute or claim relating in any way to the Site, its content or these Terms of Use (a “Claim”) will be submitted to and resolved on an individual basis by binding arbitration under the Federal Arbitration Act, 9 U.S.C. §1 et seq. (the “FAA”) before the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules including the Supplementary Procedures for Consumer-Related Disputes, in effect at the time the arbitration is brought, or before any other party mutually agreed to in writing, provided that such party must not have in place a formal or informal policy that is inconsistent and purports to override the terms of this Arbitration Agreement. The AAA Rules are available online at www.adr.org. These terms include any party named as a co-defendant with Earnest in a Claim asserted by you.

The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply California law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND EARNEST ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.

You agree to the personal jurisdiction by and venue in the state and federal courts in San Francisco County, California, and agree and consent that such courts are the exclusive forum for litigation of any claim or cause of action arising out of or relating to your use of the Site or its content. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or relating to your use of the Site or its content must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Unless otherwise directed in these Terms of Use or by an authorized Earnest representative, direct all questions or comments to the appropriate person found in the Contact Us area of this Site.