Terms of use

SOFTWARE LICENSE AGREEMENT & PRIVACY POLICY

This Software License Agreement (“Agreement”) is made and effective this date: Licensee activation date by and between The Loan Post Inc., dba LendingWise (“Developer”) and “Licensee” (“Licensee(s)”).

Developer has developed and licensed to licensee(s) its software platform, for Web Based, CRM & Loan Origination Software(the “Software,”) and as further described in Exhibit “A”, attached hereto.

Licensee desires to utilize a copy of the Software at the Licensee’s pre-selected domain, and through Developer’s domain: www.TheLoanPost.com.

NOW THEREFORE, in consideration of the mutual promises set forth herein, Developer and Licensee agree as follows:

License.

Developer hereby grants to Licensee a monthly or Annual (See Client Invoice), non-exclusive, limited license to use the Software in the United States of America as set forth in this Agreement.

Restrictions.

Licensee shall not attempt to modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey access to the Software or any right in the Software to anyone else or any other site without the prior written consent of Developer. Any/all such licensed sites shall be listed on Exhibit “A” as attached hereto and may be modified from time-to-time by agreement of both parties in exchange for fair consideration in fees.

Fees.

In consideration for the grant of this web-based INTERNET application license and the use of the Software, Licensee agrees to pay Developer the license fee as specified in the Client Invoice.

Warranty of Title.

Developer hereby represents and warrants to Licensee that Developer is the owner of the Software and has the right to grant to Licensee the rights set forth in this Agreement.

Warranty of Functionality.

Developer warrants that the Software shall perform in all material respects according to the Developer’s specifications concerning the Software when used with the appropriate computer equipment. Material Respects means…

  • The software application will automatically perform under the developers then current specifications to produce documents reviewed and approved by Licensee. Examples of documents could be for Loan Applications, 1003, HUDs, Mortgage instruments, etc… All auto-generated documents must be reviewed and approved by client. Custom packages can be developed at client request and will be subject to a fee.
  • The software application will organize client files, securely store client’s sensitive information like Date of Birth and Social Security Number and secure/encrypt file paths to all documents (PDFs, Images, Word Docs, etc…) uploaded and stored on Developers cloud server.
  • Server Uptime is guaranteed 99% of the time with all planned downtimes for server reboot, maintenance, or upgrades during late night non-business hours.

In the event of any breach or alleged breach of this warranty, Licensee shall promptly notify Developer. Licensee’s sole remedy shall be that Developer shall correct the Software so that it operates according to the warranty, as long as the non-functional issues are controllable by the developer.

Software Maintenance.

  1. Standard maintenance. Developer shall provide to Licensee any new, corrected or enhanced version of the Software as created by Developer. Such improvements, which occur weekly and sometimes daily, shall include modifications to the Software which increase the speed, efficiency or ease-of-use of the Software, and some additional capabilities or functionality to the Software, and shall include any new or rewritten versions of the Software. At the Developer’s sole discretion will certain upgrades or functionality be released to the client at a cost agreed to by both parties.
  2. Enhancement maintenance. Licensee will receive enhancement maintenance support on an ongoing basis, consistent with the licensing term (see Exhibit “A”, as attached hereto). The fees for such enhancement maintenance support shall be included within the original licensee fee. Licensee shall notify Developer in writing if they desire to receive additional, optional maintenance or custom programming changes and Developer agrees to charge the rates consistent with Exhibit “A” attached hereto or at a price agreed to by both parties.
  3. Industry Regulatory related maintenance. Developer shall maintain the software system to correspond to industry changes related to and not limited to the client application process, proposal generator, and other modules built into the application streamlining common user functions for loss mitigation, loan origination of business loans, and other pertinent loan products. Developer will make changes in a timely manner, but does not guarantee a specific time frame in which updates will be made. The developer will make attempts to stay abreast of industry regulations and modify the application to comply with these regulations. Please provide any updates or suggestions to us, so we may continually improve the software for your use.

Payment.

The setup & license fee pursuant to this Agreement shall be due and payable at the beginning of setup. Monthly licensing fees will be due up front and charged monthly thereafter until licensee cancels account. Refer to licensee invoice for details. Annual plans are available for a discount.

Taxes.

In addition to all other amounts due hereunder, Licensee shall also pay to Developer, or reimburse Developer as appropriate, all amounts due for any Federal/State tax on the Software for sales, use, excise taxes or other taxes which are measured directly by payments made by Licensee to Developer. In no event shall Licensee be obligated to pay any tax paid on the income of Developer or paid for Developer’s privilege of doing business.

Warranty Disclaimer.

DEVELOPER’S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

Limitation of Liability.

Developer shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue, legal liability, or otherwise, regardless of whether Developer was advised of the possibility of such losses in advance. In no event shall Developer assume any liability hereunder, regardless of whether Licensee’s claim is based on contract, tort, strict liability and product liability, legal liability, or other recognizable caused action under Florida law or Federal Law.

The Licensee shall be responsible for providing any and all full disclosures when and where necessary related to Federal or State regulations on a per customer basis. The Developer will provide a standard set of disclosures for use to customers on behalf of Licensee, which will indemnify Developer from any third party or first party liability arising from the use, sale, transmission, or reliance upon Developer’s Software Application. It is recommended that Licensee develop and display or provide their own customer disclosures.

It is the Licensee’s sole responsibility to monitor and train all “Agents”, “Branchs/AEs” and “Back Office Employees” on uses of the system, potential exposure of liability, and overall usage. The Developer will sponsor “Train the Trainer” type programs to teach higher level executives or manager level users on how the whole system works.

Licensee Responsibilities

Licensee shall assume all responsibility of researching, understanding, and complying with all current and future local, State, and Federal rules and regulations, laws, and legislation relating to lending, loan modification and foreclosure related services.

Privacy Policy, Data Management & Handlining of Customer Sensitive Data

The Developer and all staffed programmers with access to internal databases ensure that all data will remain under the ownership of the licensee nor disclose to any 3rd party unless permission is granted as in the acceptance and usage of 3rd party tools like credit pulling or background check services and then in such case only in connection with the use of such tool(s). Under no circumstances will the licensee data be used for any solicitation or to compete directly or indirectly with licensee. The licensee assumes responsibility in protecting their data from any front end access through compromised user names and passwords. Additionally, all data will be automatically backed up on a 2nd server daily. Access to client data is available for managers only, through the “Pipeline Page” via an Excel export function.

Licensee may be subject to certain privacy and information security laws and regulations, specifically including § 501(b) of the Gramm-Leach-Bliley Act and the Interagency Guidelines Establishing Standards for Safeguarding Customer Information (12 C.F.R. Section 208, Appendix D-2) (collectively, the “Privacy Laws”), pursuant to which Licensee is required to ensure that Developer appropriately safeguards all non-public, personally identifiable information, including but not limited to personal or financial information regarding Licensees’ former, current or prospective customers or employees (“Customer Sensitive Data”) that is provided or made available to Developer pursuant to this Agreement.

To the extent Developer receives Customer Sensitive Data in the performance of Services, Developer represents and warrants that it has, and will continue to have adequate administrative, technical, and physical safeguards designed to: (i) to ensure the security and confidentiality of Customer Sensitive Data; (ii) to protect against any anticipated threats or hazards to the security or integrity of Customer Sensitive Data; and (iii) to protect against unauthorized acquisition of, access to or use of Customer Sensitive Data which could result in a “breach” as that term is defined under applicable Privacy Laws, or substantial harm to Licensee, any Licensee employee or customer, or any individual about whom Licensee has or collects financial and other information.

Developer agrees to provide Licensee with information regarding its privacy and information security systems, policies and procedures as Licensee may reasonably request relating to compliance with this Agreement and applicable Privacy Laws. Developer agrees to provide training in the Privacy Laws and Developer’s information security policies to all personnel whose duties pursuant to this Agreement and/or a Statement of Work could bring them in contact with Customer Sensitive Data.

In the event of any actual or apparent theft, unauthorized use or disclosure of any Customer Sensitive Data, Developer will commence all reasonable efforts to investigate and correct the causes and remediate the results thereof, and as soon as practicable following discovery of any such event, provide Licensee notice thereof, and such further information and assistance as may be reasonably requested.

In the event it is necessary for Developer to disclose Customer Sensitive Data to a third party in order to perform the Services, Developer shall, before such disclosure is made, ensure that any recipient of such information agrees to be bound by terms materially equivalent to those contained herein.

Software Licensing Fees

The Developer reserves the right to adjust pricing up to 15% from original agreement, no more than an annual basis. Developer will provide 30 day notice of any price changes.

Notice.

Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services. E-mail will be considered acceptable to [email protected]

Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida.

Final Agreement/Termination Clause

This agreement may be terminated within a 30 day notice provided in writing via certified mail, or E-mail from either party. The developer will ensure verbal communication expressing and executing the termination clause and we ask that the licensee do the same. The developer shall provide a full export of client data and completely erase all such data from the developer’s database upon request. Within the 1st 30 day period, licensee can request a refund for only the license fee. All setup fees, Website Fees, and ancillary services will NOT be refunded unless agreed to within this agreement.

Severability.

If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then the balance of this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

Arbitration

If a dispute should arise with respect to this Agreement or the interpretation thereof, either party may deliver a written notice of such dispute to the other party. After a fifteen (15) day “cooling off” period has lapsed during which both Consultant and Client shall meet at times reasonably convenient to both to discuss the dispute, if the dispute shall not have been resolved, then such dispute shall be determined by an expedited arbitration proceeding conducted in Miami, Florida. All arbitration fees and other costs and expenses shall be paid equally by the parties when required during the arbitration; provided, that the parties shall be entitled to reimbursement of such fees and costs in such other proportion as the arbitrator may determine. If judicial enforcement of such arbitrators’ award is sought by either party, judgment may be entered upon such award in any court of competent jurisdiction, or application may be made to such court for judicial acceptance of the award and an order of enforcement. All discussions and documents prepared pursuant to any attempt to resolve a dispute under this provision are confidential and for settlement purposes only and shall not be admitted in any court or other forum as an admission or otherwise against a party for any purpose including the assertion of the applicability of federal and state court rules.

IN WITNESS WHEREOF, Developer and Licensee have executed this Software License Agreement on the day and year first above written.

EXHIBIT A

Software Modules:

-Web Based CRM & LOS Software hosted and made available via the domain www.theloanpost.com and www.LendingWise.com

Term:

Annually, Quarterly or Monthly

Fee based services: (Refer to Invoice/Proposal for actual amounts)

Setup/Training-

-Includes web form integration support to client’s website or hosted by developer

-On Demand Training/Support via live chat, E-mail, phone, & GoToMeeting

Dedicated/Managed VIP Support:

We offer VIP support for lenders to fast track their deployment by customizing the software, configuring their workflows, & optimizing the overall user experience for all user types including borrower, broker/agent, branch, and back office users. Pricing varies case by case based on client requirements. See invoice/proposal for details.

Custom Programming:

Billed at a rate of $175 per hour for custom programming. In most cases, there are no additional charges for features already on our roadmap or improvements to the platform.

Custom (Auto-populating) forms, loan docs, etc…

-We have a built in library of forms, disclosures & loan docs. You may use them fo business use, but you must fully review & get your own legal counsel to validate & review them for acceptable use. We are not a law firm or represent that the provided docs are legally acceptable in State. In many cases, lenders will provide us with their legally approved loan docs, and our development team with make them available in your account. There is a one-time setup cost for loan docs, forms, etc… which varies based on the complexity of the docs, # of pages, # of fields auto-populating… Typically it is around $250-$1200.

Maintenance:

Bug corrections, phone support and basic on-going upgrades and weekly updates are included within the license fee. Telephone support is available Monday through Friday, from 8:00am to 7:00pm EST. 888-400-6516 Email [email protected]

Monthly Licensing/Subscription Includes:

-Hosting of client application- Dedicated, high-end, redundant, Servers

-Daily Back Up of ALL client data with unlimited export functionality to client

-Encryption and Security of secure/sensitive client data and uploaded documents via SSL (HTTPS)

-Periodic software updates/upgrades to keep up with industry standards and regulations- (All feature requests accepted on case by case basis- some fees may apply- see below)