This Services Agreement and all Attachments (this "Agreement") is a binding contract between you ("Customer," "you," or "your") and Loan Vision LLC. (“Loan Vision”, "Provider," "we," or "us") (collectively, the “Parties”). This Agreement governs your access to and use of the Services (as defined below).
THIS AGREEMENT TAKES EFFECT AS OF THE DATE YOU ACCEPT THIS AGREEMENT (the "Effective Date"). YOU ACCEPT THIS AGREEMENT BY EXECUTING THE ASSOCIATED TRANSACTION DOCUMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
INDIVIDUALS ACCEPTING THIS AGREEMENT REPRESENT THAT THEY ARE ACCEPTING ON BEHALF THEMSELVES OR ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY THAT HAS AUTHORIZED THEM TO BIND SUCH ENTITY TO THIS AGREEMENT AND TO USE THE SERVICES ON SUCH ENTITY’S BEHALF AS ITS AUTHORIZED USER. FOR PURPOSES OF THIS AGREEMENT, “CUSTOMER” SHALL REFER TO THE INDIVIDUAL OR ENTITY ON WHOSE BEHALF THIS AGREEMENT IS ACCEPTED AND “AUTHORIZED USER” SHALL REFER TO THE INDIVIDUAL ACCEPTING THIS AGREEMENT AND ANY OTHER INDIVIDUALS AUTHORIZED BY THE APPLICABLE CUSTOMER TO ACCESS AND USE THE SERVICES FOR CUSTOMER’S BENEFIT HEREUNDER, AS FURTHER DEFINED BELOW.
INDIVIDUALS OR ENTITIES WHO ARE NOT CUSTOMERS OR AUTHORIZED USERS MAY NOT ACCESS, USE, OR AUTHORIZE ACCESS TO OR USE OF THE SERVICES WITHOUT THE PRIOR WRITTEN APPROVAL OF PROVIDER.
1. Definitions.
(a) "Aggregated Statistics" means data and information related to Customer's use of the SaaS that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS.
(b) "Authorized User" means Customer's Affiliates, employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder.
(c) “Customer-Side Software” means the software required to be installed and operated on Customer’s equipment in order to access or use the SaaS, as provided by Provider.
(d) "Customer Data" means information, data, and other content, in any form or medium, that is submitted by an Authorized User through the SaaS, but does not include Aggregated Statistics.
(e) "Documentation" means all materials related to the Services provided by Provider to Customer, including but not limited to user manuals, handbooks, guides, training materials, training recordings, demonstration videos, specifications, and any other written or recorded materials that provide instructions, guidance, or information about the use, features, and functionalities of the Services, whether provided electronically or in hard copy form..
(f) "Law" means any law, rule or regulation.
(g) “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, and translations and “Modify” has a corresponding meaning.”
(h) “Professional Services” means any implementation, support, training, consulting or other professional services ordered by Customer for provision by Provider, as described in the Transaction Document. The term “Professional Services” does not include the SaaS, Software or Customer-Side Software.
(i) "Provider IP" means (i) the Services, the Documentation, (ii) anything developed, provided or made available by or on behalf of Provider under this Agreement, including but not limited to Feedback; and (iii) any Modifications to any or all of the foregoing. Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(j) “SaaS” means the software-as-a-service offering, as described in the Transaction Document.
(k) “Service Commencement Date” means the date on which Loan Vision anticipates starting Services. Service shall begin upon receipt of the initial payment by Customer as detailed in the Statement of Work & Order, or Order document.
(l) “Services” means the SaaS, Software, Customer-Side Software, the Professional Services and any support services described in Section 4.
(m) "Software" means the product described in the Transaction Document in object code format, including any Updates provided to Customer pursuant to this Agreement."
(n) Third-Party Products" means any third-party products provided with or incorporated into the Software, including any open-source software. For greater certainty, Third-Party Products shall not include any third-party materials or information which are incorporated into, integrated with, or linked with or to the Services, and which Provider distributes or licenses to Customer generally without the Customer’s knowledge or consent.
(o) “Transaction Document” means a valid Transaction Document, statement of work, quote, purchase order, or similar addendum that includes a scope of work to be performed and pricing, executed and entered into between the Provider and Customer, whether digitally or physically, as applicable to the Services.
(p) "Updates" means any updates, bug fixes, patches, or other error corrections to the Software that Provider generally makes available free of charge to all Customers of the Software.
2. License, Access and Use.
(a) Software, SaaS and Document Rights. Subject to Customer's compliance with the terms and conditions of this Agreement, Provider grants to Customer, the limited, non-exclusive, non-sublicensable, non-assignable (except in compliance with Section 13(i)), non-transferable (except in compliance with Section 13(i)) right, during the applicable Transaction Document Term (as defined in Section 12(a)), solely for Customer’s internal business purposes, to: (i) use the Software ordered by Customer pursuant to an Transaction Document, which notwithstanding the foregoing, may be either a limited or perpetual license pursuant to the Transaction Document; (ii) access and use the SaaS ordered by Customer pursuant to the Transaction Document, (iii) install, execute and make a reasonable number of copies of the Customer-Side Software, in each case solely for use by Authorized Users in accordance with the terms and conditions herein, and (iv) use the Documentation applicable to the Services ordered by Customer pursuant to the Transaction Document, in each case on the terms and conditions set out in this Agreement. Customer’s Affiliates (as defined below) may (i) use the Services under and in accordance with the terms of this Agreement and the Transaction Document, provided that Customer represents and warrants that Customer has sufficient rights and the authority to make this Agreement binding upon each of the Affiliates, or (ii) enter into a separate Transaction Document to purchase Services from the Provider under this Agreement, provided such Affiliate agrees to be bound by the terms of this Agreement, in each case, Customer and each of Customer’s Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services. “Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
(b) Restrictions.
(i) Customer shall not use the Services or Documentation for any purposes beyond the scope of the license and rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not itself, and shall not permit others to: (1) copy, Modify (except user configurable functionality), or create derivative works of any of the Services or the Documentation; (2) rent, lease, lend, sell, sublicense, assign, transfer, distribute, publish, transfer, or otherwise make available the Services or the Documentation; (3) use the Services to permit timesharing, service bureau use or commercially exploit the Services; (4) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any of the Services; (5) remove or obscure any proprietary notices or labels on the Services or the Documentation, including brand, copyright, trademark and patent or patent pending notices; (6) access or use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (7) use or access the Services in a manner that threatens the security or functionality of the Services; (8) access or use the Services for the purpose of building a similar or competitive product or service; or (9) perform any vulnerability, penetration or similar testing of the Services.
(ii) Customer Data Restrictions. Customer shall not itself, and shall not permit others to, use the Services to create, collect, transmit, store, use or process any Customer Data: (i) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data: (ii) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or (iii) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party.
(iii) Authorized User Restrictions. The total number of Authorized Users will not exceed the number set forth in the applicable Transaction Document, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.
(c) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement.
(d) Suspension; Modification. Notwithstanding anything to the contrary in this Agreement, Provider may, at its discretion: (i) suspend Customer's or any Authorized User's access to or use of the SaaS, or Provider’s provision of support services: (A) for scheduled maintenance in accordance with this Agreement; (B) to address any actual or threatened security concerns or harm to Provider, Customer Data, the Services or Provider’s other customers, (C) if Customer or any Authorized User violates any provision of this Agreement (any such suspension described in this Section 2(f)(i), a “ Service Suspension”); and (ii) Modify the Services. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. Customer is required to accept all patches, bug fixes and updates made by or on behalf of Provider to the Services
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for (i) all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement; and (ii) identifying and authenticating all Authorized Users. Without limiting the generality of the foregoing, Customer is responsible any Authorized Users’ breach of this Agreement, as if by Customer.
(b) Third-Party Products. Provider may distribute certain Third-Party Products with the Services. For purposes of this Agreement, such Third-Party Products are subject to their own license terms and the applicable flow through provisions referred to in the Transaction Document. If Customer does not agree to abide by the applicable terms for such Third-Party Product, then Customer should not install or use such Third-Party Products.
(c) Passwords and Access Credentials. Customer shall keep all passwords and access credentials associated with the Services confidential and secure. Customer will not sell or transfer them to any other person or entity. No Authorized User may share them with any other person. Customer will promptly notify Provider about any unauthorized access to the Services or Customer’s passwords or access credentials. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the SaaS.
(d) Privacy Policy. Provider complies with its privacy policy, ("Privacy Policy"), as updated from time-to-time, in providing the Services. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted Provider’s Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of Provider’s Privacy Policy. If the Services require processing of personal information as defined by applicable data privacy laws and regulations, Provider will enter into a Data Processing Addendum ("DPA") containing appropriate language to comply with applicable laws and regulations. Loan Vision’s privacy policy upon request.
4. Support and Service Levels.
(a) Customizations. Customer acknowledges and agrees that the Software is a ready-to-configure, industry-focused mortgage accounting and finance solution built on the Microsoft Business Central platform. As such, the Software does not permit customer-specific code changes or customizations. All requests for amendments, enhancements, or modifications to the Software (collectively, “Amendments”) must be submitted by Customer to Loan Vision for review and consideration. Loan Vision shall have sole and absolute discretion to accept or reject any such Amendment requests. Any accepted Amendments shall be developed exclusively by Loan Vision in accordance with its then-current Software Development Life Cycle (“SDLC”) process and, if implemented, shall be deployed to the Software as part of Loan Vision’s regular update and release process. All rights, title, and interest in and to any accepted Amendments, including without limitation all related intellectual property rights, shall vest exclusively in Loan Vision, and Loan Vision shall have the unrestricted right to incorporate such Amendments into its Software and to use, license, or otherwise commercialize such Amendments without limitation or obligation to Customer. Loan Visions SDLC is available upon request.
(b) Service Levels.
(i) Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels available at www.loanvision.com/sla
(ii) The Software will reside in a Microsoft Azure Cloud Environment, which is a fully managed service provided by Microsoft as part of the Subscription License to use the Software. Customer acknowledges that all documentation and resources relevant to the Azure environment—including, without limitation, materials relating to data security, back-ups, and data recovery—are made available directly by Microsoft and may be accessed through Microsoft’s official documentation resources. Customer further acknowledges that Microsoft publishes the applicable service level agreements governing the Azure environment, which may be accessed through Microsoft’s official online service agreement resources. Loan Vision shall have no responsibility or liability for Microsoft’s performance or non-performance of its obligations under such documentation, resources, or service level agreements, and any limitations or exclusions of liability set forth in Section 11 shall apply in full to this Section. The provisions of this Section shall survive the expiration or termination of this Agreement.
5. Fees and Payment
(a) Fees; Payment; Customer shall pay Provider the fees, costs and expenses ("Fees") set forth in the Transaction Document(s), without offset or deduction. Provider will prepare and send to the Customer, at the then-current contact information on file with Provider, one or more invoices for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts in the currency stipulated on the Transaction Document(s) within 15 calendar days of the invoice date. If Customer’s use of the Services exceeds the service capacity set forth on the Transaction Document or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
(b) The Customer understands and acknowledges that for Loan Vision to meet the agreed upon project timelines, certain project components, including but not limited to, the Loan Vision Azure Environment and Loan Vision license must be ordered in advance of specific project tasks. The Monthly billing of these items or services will begin immediately following receipt of initial payment and will continue until the contract is terminated, regardless of project status.
(c) Late Payment;
(i) If Customer fails to make any payment when due, Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, plus all expenses of collection, until fully paid.
(ii) If Customer fails to make any payment when due, Loan Vision reserves the right, upon written notice, to suspend performance of the Services until all overdue amounts are paid in full. In addition, Loan Vision may, in its sole discretion, modify the credit or payment terms extended to Customer at any time if Loan Vision reasonably determines that Customer’s financial condition has materially deteriorated or that Customer’s payment history does not conform to the agreed-upon payment terms.
(iii) The acceptance or deposit by Loan Vision of any payment from Customer or its affiliates, whether by check, wire transfer, or any other means, that contains a notation, legend, or other reference purporting to constitute “payment in full” or “in full satisfaction” shall not be deemed to constitute an accord and satisfaction, nor shall it operate as a waiver or release of any rights of Loan Vision, at law or in equity, to collect the full amounts due from Customer for all Services provided under this Agreement.
(iv) The provisions of this Section shall survive the expiration or termination of this Agreement.
(d) Modification. Loan Vision reserves the right to modify the Fees at any time with thirty (30) days written notice.
(e) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental, regulatory or other authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income. This responsibility shall survive termination of this Agreement.
6. Additional Fees. Additional fees will be billed to Customer when representative(s) of Loan Vision are required to provide administrative support to the Customer or travel to the Customer’s location to perform duties relevant to services requested by Customer. Such additional fees shall be reasonable and shall reflect actual and necessary costs incurred, including but not limited to travel-related expenses (per diem, accommodation, meals, or transportation costs); and (ii) the reasonable cost of engaging Loan Vision support personnel, including the time of such personnel required to travel and to perform the requested services.
7. Confidential Information. From time to time during the Term, either party may disclose or make available to the other party information marked or otherwise identified in writing by a party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the recipient should recognize as being confidential (collectively, "Confidential Information"). Confidential Information includes, without limitation, (i) proprietary tools, methodologies, software, analytical techniques, and work-products developed by Provider prior to this engagement (“Provider Confidential Information”) and (ii) competitively sensitive or proprietary information of Customer and its subsidiaries (“Customer Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) generally publicly available; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; d) released by either party generally without restriction; or (e) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees and and affiliates, officers, directors, shareholders, agents, consultants and prospective investors (collectively, the “Representatives”) who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder, have been advised of its confidential nature, and are subject to express written obligations to maintain such confidentiality. Each party shall implement and enforce operating procedures reasonably necessary and satisfactory to the other party to minimize unauthorized use, copying, or disclosure. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party shall take all necessary precautions or measures to prevent improper access to the Confidential Information or use or disclosure of the Confidential Information by its Representatives and shall be responsible for any breach of the obligations of this Agreement by any of its Representatives. Each party agrees to notify the other immediately after learning of, or having reason to suspect, any breach of its confidentiality obligations hereunder, unless prohibited by law. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and, on request, certify in writing to the disclosing party that such Confidential Information has been destroyed, provided, however, that the receiving party and its Representatives may retain copies of the Confidential Information for legal or archival purposes, or if they are stored on the receiving party’s information technology backup and disaster recovery systems until their ordinary course deletion. Any such retention shall continue to be governed by his Agreement. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the termination or expiry of this Agreement, whichever earlier; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Privacy & Information Security. Loan Vision represents and warrants that it implements and maintains industry-standard administrative, technical, and physical safeguards, including without limitation employee security training and physical security measures, designed to protect the confidentiality, integrity, and availability of all information submitted by Customer to Loan Vision. In accordance with its Incident Response Policy, Loan Vision shall provide prompt written notice to Customer upon becoming aware of any actual or reasonably suspected incident that (a) involves any data submitted by Customer to Loan Vision, or (b) may reasonably be expected to result in the introduction or propagation of malware, viruses, or similar harmful code into Customer’s environment. Loan Vision understands and agrees that it shall maintain the confidentiality of and keep safe and protect Confidential Information in accordance with all relevant federal and state laws, regulations, rules and guidelines, including but not limited to, the federal Gramm-Leach-Bliley Act of 1999 ("GLBA") and others. Loan Visions' Incident Response Policy is available upon request.
9. Intellectual Property Ownership and Feedback.
(a) Provider IP; Third-Party Products. As between the parties, (i) Provider owns all rights, title, and interests in and to the Provider IP; and (ii) the applicable third-party providers own all rights, title, and interests in and to the Third-Party Products.
(b) Customer Data. As between the parties, Customer owns all right, title, and interest in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to access, store, transmit, use and otherwise process the Customer Data to provide the Services to Customer.
(c) Warranty. Customer represents and warrants to Provider that Customer has all the rights, power and authority necessary to grant the above Customer Data license and that use of the Customer Data in the manner contemplated will not breach the rights of any third party. Customer is solely responsible for obtaining, and will obtain, all rights, consents, and permissions from, and making all requisite disclosures to, Authorized Users, in each case as required under applicable laws, for: (a) its use of their Authorized Users in connection with the Services; and (b) for Provider to perform the Services and the obligations under this Agreement, including to collect, procure, gather, store, process and access Customer Data. Customer agrees that it will (i) not request any sensitive personal information, including credit card or banking information, or personal health information, from its Authorized Users through the Services; and (ii) inform Provider of any data protection laws applicable to Authorized Users.
(d) Content Responsibilities. Customer is responsible for any and all Customer Data provided hereunder and for compliance with this Agreement, including obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Data to be made available to Provider for Provider to transmit, host and store. For greater certainty, Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. For greater certainty, Customer shall make any disclosures in its privacy notices, or as otherwise required under Law, regarding Customer’s use of the Services to collect and process Customer Data.
(e) Feedback. Customer or any Authorized User or other personnel may from time to time provide suggestions, comments, requests for functionality, suggested improvements or other feedback ("Feedback"), including, with regard to Services. All Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation for Provider. Provider is free to use and exploit the Feedback without obligation.
(f) Source Code. Subject to the terms and conditions of this Agreement, Customer is hereby granted a worldwide, royalty-free, non-exclusive license, for the Term of this Agreement (as set forth in Section 12), to access and use the source code utilized in the creation of the Software (the “Source Code”). Such license is granted solely for Customer’s internal business purposes and may not be assigned, sublicensed, or otherwise transferred to any third party without the prior written consent of Loan Vision. Loan Vision shall retain all rights, title, and interest, including without limitation all intellectual property rights, in and to the Source Code, together with any customizations, modifications, enhancements, and configurations related to the Software, and may use the same without restriction in connection with the further development, improvement, or future versions of the Software.
10. Limited Warranties and Warranty Disclaimer.
(a) To the extent applicable, Provider warrants that SaaS will perform materially as described in the Documentation for the applicable Transaction Document Term. For Software granted on a subscription basis, Provider warrants the Software will perform materially as described in the Documentation for the applicable Transaction Document Term. . The warranties set forth in this Section 9(a) do not apply and become null and void if Customer or any Authorized User: (1) breaches any provision of this Agreement; (2) does not promptly notify Provider in writing of any non-conformance regarding the warranty; (3) installs or uses the Services on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Provider in writing; or (4) misuses the Software or SaaS (as applicable), including any use of the Software other than as specified in the Documentation or expressly authorized by Provider in writing. In the event of a breach of a warranty in Section 9(a) Provider shall, at its sole option, either: (i) repair or replace the applicable Software or SaaS, provided that Customer provides Provider with all information Provider reasonably requests to resolve the reported failure, including sufficient information to enable the Provider to recreate such failure; or (ii) terminate this Agreement or the applicable Transaction Document(s) and refund the pro rata unused portion of any Fees paid for such Software or SaaS, subject to Customer's ceasing all use of the terminating Software and SaaS and, if requested by Provider, returning to Provider all copies of the Software. . The remedies set forth in this Section 9(a) are Customer's sole remedies and Provider's sole liability under the limited warranties set forth in this Section 9(a). THE FOREGOING WARRANTIES DO NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTIES AND UNDERTAKINGS SET FORTH IN SECTION 9(a), THE PROVIDER IP IS PROVIDED "AS IS" AND “AS AVAILABLE AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
11. Indemnification.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable lawyers' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Software, SaaS, Customer-Side Software or Documentation, or any use thereof, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Provider may, to (A) modify or replace the Software, SaaS, Customer-Side Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that none of these alternatives is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, provided it refunds the pro rata unused portion of any Fees paid for such Software (on a subscription basis) or SaaS, subject to Customer's ceasing all use of the terminating Software and SaaS and, if requested by Provider, returning to Provider all copies of the Software.
(iii) This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination or conjunction with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) use of any version other than the most current version of the Software or Documentation delivered to Customer; (D) Customer Data, (E) Third-Party Products; or (F) Customer’s breach of this Agreement.
(iv) THIS SECTION 10(A) SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR DOCUMENTATION INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim based on Customer's, or any Authorized User's: (i) Customer Data; (ii) Customer’s breach of any of this Agreement; or (iii) use of the Services by Customer or any Permitted User in combination with any third party software, application or service, provided that Customer may not settle any Third-Party Claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such Third-Party Claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
12. Limitations of Liabilities IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) LOST SAVINGS, PROFIT, REVENUES DATA, USE, OR GOODWILL; (c) BUSINESS INTERRUPTION; (d) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (e) BREACH OF DATA OR SECURITY; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THE APPLICABLE TRANSACTION DOCUMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER SHALL BE DEEMED TO BE DIRECT DAMAGES. THIS SECTION 11 APPLIES TO ALL LIABILITIES AND DAMAGES REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE.
13. Term and Termination.
(a) Term. The “Initial Term” & “Renewal Term” of the Agreement is that which is set forth in the Loan Vision Scope of Work & Order or Order (together with any period of extension, the “Term”). By signing the Loan Vision Scope of Work & Order or Order Document The Customer agrees to the number of Users and Modules outlined in the appropriate sections
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure (including any Customer payment obligation hereunder), remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(ii) The Customer may, with 30 Days written notice, cancel The Agreement and the license to use The Software, as of a certain date (“Termination Date”). If The Agreement is so terminated due to no fault of Loan Vision, The Customer will have no further obligations under this Agreement other than to pay Loan Vision its fees for completed professional services, The Software license fees remaining for the term of the agreement and any out-of-pocket expenses up to and including the Termination Date. Payment shall be due to Loan Vision no later than the Termination Date. Loan Vision shall cease work for The Customer and take appropriate measures to limit any further expense occurring between any notice of termination and the Termination Date. Software licenses purchased under this agreement are licensed directly to The Customer and cannot be returned for a refund. Software subscriptions can be suspended or cancelled with 30 days’ written notice. Subscriptions run from the first to the last day of the month. Cancelling after the first of the month will mean the subscription will be billed for the current month and following month. Invoices for subscription licenses that are not paid by the invoice due date may result in a suspension of the subscription which will turn off access to the database. After 90 days the database is deleted if not reactivated.
(c) Effect of Expiration or Termination. For the provision of SaaS, upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. Provider will delete, destroy, or return copies of Customer Data within a reasonable time after Termination. For the provision of Software on a limited license, upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Software and any related Provider IP. Without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Software and Provider IP, and certify in writing to the Provider that they have been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund. In the event of early termination of this Agreement by Customer pursuant to this Section, the Parties each acknowledge and agree that it would be difficult to ascertain the actual costs, expenses and/or damages that would be suffered by Loan Vision due to such early termination. Accordingly, the Parties agree that Customer shall pay an Early Termination Fee equal to the aggregate amount of Fees for Services that would become due under this Agreement had the Agreement not been terminated. The Early Termination Fee shall be paid to Loan Vision on the effective date of such early termination. Notwithstanding the foregoing, the Customer shall not be required to pay an Early Termination Fee in the event that the (i) Customer has elected to terminate this Agreement early for cause and has provided Loan Vision an opportunity to cure any breach or default during the thirty (30) day termination notice period and Loan Vision then has failed to cure, or (ii) Loan Vision has elected to terminate this Agreement early without cause.
(d) Survival. The obligations and rights of the parties that may have arisen or accrued under the Agreement will survive the termination or expiration of the Agreement without prejudice. All provisions of this Agreement which by their nature should survive in order to give effect to this Agreement, shall survive termination or expiration.
14. Miscellaneous.
(a) Entire Agreement. This Agreement, the Transaction Document(s), together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, the following order of precedence governs: (a) the Transaction Document (b) this Agreement, (c) any other documents incorporated herein by reference.
(b) Out of Scope Purchases. Customer acknowledges and agrees that, notwithstanding any recommendations provided by Loan Vision, additional third-party software may be required in connection with Customer’s implementation or use of the Software as a result of Loan Vision’s analysis. Any such additional software purchases shall be deemed outside the scope of this Agreement (“Out-of-Scope”), and Customer shall be solely responsible for acquiring and maintaining all rights, licenses, and approvals necessary for such Out-of-Scope software at its own cost and expense. Loan Vision shall have no responsibility or liability of any kind with respect to any Out-of-Scope software, including without limitation its selection, performance, functionality, compatibility, licensing, support, maintenance, or defects, and Customer’s sole recourse with respect to such Out-of-Scope software shall be against the applicable third-party vendor. For the avoidance of doubt, this clause is in addition to, and shall not limit, the warranty disclaimers, indemnification exclusions, and limitations of liability set forth elsewhere in this Agreement.
(c) Publicity. Provider may publicly identify the Customer as a customer of Provider, including using Customer’s name and logo on its website and in marketing materials. Consent shall not be required for Provider to identify Customer during communications with Provider’s partners, customers, prospects, or investors, which for clarity may include investor and/or earnings calls.
(d) Notices. Notices sent to either party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be in writing and sent: (i) if to Provider, to the following address:
Loan Vision LLC
227 Sandy Springs PL
Ste D #283
Sandy Springs, GA 30328
Attention: Ben Saunders, General Manager & COO
Email: support@loanvision.com
and (ii) if to Customer, to the current postal or email address that Provider has on file with respect to Customer. Provider may change its contact information by posting the new contact information on the Provider’s website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Provider current at all times during the Term.
(e) Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond Provider’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Provider’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites.
(f) Amendment and Modification. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby.
(g) Severability; Waiver. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(h) Governing Law, Venue, Arbitration. This Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions ACT (UCITA). Except as expressly provided in this Agreement, any dispute, claim or controversy arising out of or relating to this Agreement or the relationship between the Parties shall be resolved exclusively through binding arbitration to be administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures (“Rules”). There shall be on Arbitrator agreed to by the Parties within 20 days of receipt by the respondent of the request for arbitration, or in the absence of such agreement, appointed by JAMS pursuant to the Rules. Notwithstanding the above, the Parties agree that the following claims or proceedings shall not be subject to arbitration:
(i) any action to confirm, vacate, modify or enforce an arbitration award may be brought before any state or federal court of competent jurisdiction and (ii) Provider may bring any claim seeking injunctive relief, including but not limited to requests for temporary or permanent injunctive relief in any state or federal court of competent jurisdiction, and nothing in this Agreement shall prevent the Provider from seeking such relief in court. The arbitrator shall have the authority to hear and resolve all disputes as described herein, including, but not limited to claims of arbitrability and the scope of this Agreement. The Parties agree that any arbitration under this Agreement shall be conducted on solely on an individual basis, and not as a class, collective or representative action. The Parties hereby irrevocably waive the right to act as a class representative or to participate in any class, collective, or representative action in any manner whatsoever.(i) Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, by operation of law or otherwise, without the prior written consent of the Provider. Any assignment, transfer, or delegation in violation of this Section is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(j) Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under 6 or, in the case of Customer, Section 2(b), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(k) Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
(l) Independent Contractors. Provider’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
(m) Non-Solicitation. Each party acknowledges that the other party has expended significant time, effort, and resources to recruit, train, develop, and retain its personnel. Accordingly, during the Term of this Agreement and for a period of one (1) year following the termination or expiration of the services rendered by Loan Vision to Customer hereunder, neither party shall, directly or indirectly, solicit for employment or hire any individual who is then employed by the other party without the prior written consent of such other party. Notwithstanding the foregoing, nothing in this Section shall restrict or prohibit either party from employing any individual who responds to a general solicitation or advertisement of employment not specifically directed at such individual.