1.0 Terms of Service
1.1 Customer acknowledges and agrees to the following terms of service, which together with the terms of the license agreement entered into between Customer and PrecisionLender, shall govern Customer's access and use of the Service (the "Agreement") unless agreed to otherwise in writing signed by both parties. Capitalized terms not otherwise defined herein shall have the meaning given to them in the agreement signed by the Customer. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s), subsequently purchased by the Customer will be subject to this Agreement.
- 2.1 "Customer Data" shall mean any data, information, or other materials of any nature whatsoever, provided to PrecisionLender by Customer in the course of implementing and/or using the Service.
- 2.2 "Electronic Communications" shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically.
- 2.3 “Nonpublic Personal Information” means any Customer Data that is defined in 15 USC Section 6809(4) of the Gramm-Leach-Bliley Act (“GLBA”).
- 2.4 “Consumer” is defined in 15 USC Section 6809(9) of the GLBA.
3.0 Accuracy of Customer's Contact Information
3.1 Customer agrees to provide accurate, current and complete information on Customer's legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
4.0 Passwords, Access, and Notification
4.1 Customer must designate users under Customer's account and must provide and assign unique passwords and user names to each authorized user. Customer agrees that Customer is prohibited from sharing passwords and/or user names with any unauthorized user. Customer will also be responsible for the confidentiality and use of Customer's user's passwords and user names.
5.0 Electronic Communications
5.1 Customer will be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer's account. Customer shall not send to PrecisionLender (by email or otherwise) or enter electronically through the Service: (i) at any time, any Nonpublic Personal Information relating to its Consumers,, or (ii) after implementation of the Service, any social security numbers, driver’s license numbers, financial account numbers, passwords, tax identification numbers or customer information file (CIF) numbers for any customer (“Prohibited Customer Data”). Any Electronic Communication of Customer Data during the implementation of the Service shall be communicated in writing to, and acknowledged in writing by, the receiving party prior to transmission by the sending party, and such transmissions shall be fully encrypted. PrecisionLender will act as though any Electronic Communications it receives under Customer's passwords, user name, and/or account number will have been sent by Customer. Each party agrees to immediately notify the other if Customer inadvertently sends, or PrecisionLender receives, any Prohibited Customer Data. Customer agrees that PrecisionLender is not responsible and shall have no liability: (i) for any Prohibited Customer Data, or (ii) for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by PrecisionLender, including, but not limited to, the Internet. In addition, Customer agrees that PrecisionLender is not responsible and shall have no liability for any and all third party information that may be provided to Customer through the Service (e.g. through the integration of the Service with a third party’s CRM application).
6.0 Lawful Conduct
6.1 Each party agrees to comply with all applicable local, state, federal and foreign laws, treaties, regulations, and conventions in connection with the Service. Neither party will send any Electronic Communications from the Service that are unlawful, harassing, libelous, defamatory, or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by PrecisionLender. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any unauthorized user, including but not limited to, by "mirroring" or "framing" any part of the Service, or by creating Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including but not limited to rights of trade secrets, publicity and privacy) without first obtaining the permission of the owner of such rights. Customer shall ensure that any use of the Service by Customer's employees (or Customer's other authorized users) is in accordance with the terms and conditions of this Agreement.
7.0 PrecisionLender's Support
7.1 PrecisionLender will make commercially reasonable efforts to promote Customer's successful utilization of the Service, including but not limited to providing Customer with online help and video training sessions, telephone and email accessed support during standard business hours, and free access to webinars.
8.0 Trademark Information
8.1 PrecisionLender, the PrecisionLender logo, and other PrecisionLender service marks, logos and product and service names are marks of PrecisionLender (the "PrecisionLender Marks"). Customer agrees not to display or use the PrecisionLender Marks in any manner without PrecisionLender's express prior written permission.
9.0 Confidential Information
9.1 For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential or that the receiving party should, in the exercise of reasonable judgment, recognize to be confidential ("Confidential Information"). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a "need to know" basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient; and (5) was rightfully in the recipient’s possession at the time of disclosure. Notwithstanding the foregoing, this section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
9.2 Each party undertakes, within ten (10) business days of written notice from the disclosing party, (i) to return the Confidential Information in its possession, custody or control, together with all copies thereof; or (ii) on direction by the disclosing party, to destroy by using reasonable and appropriate destruction methods, all documents and other material in its possession, custody or control which bear or incorporate any part of the disclosing party’s Confidential Information and to certify to the disclosing party that this has been done; provided, however, that it may retain one (1) copy of such materials for archival purposes.
9.3 In the event either party sustains a breach in the security of the other’s Confidential Information, that party shall immediately notify the other party of said breach take any and all necessary steps to insure and further protect the safety and integrity of any Confidential Information remaining in the receiving party’s possession, and perform an internal investigation as to what Confidential Information was breached.
10.0 License from Customer
10.1 Customer understands and agrees that it is PrecisionLender's practice to make backup copies of the Customer Data in Customer's account. Customer acknowledges and agrees that PrecisionLender may store and maintain such data. Subject to the terms and conditions of this Agreement, Customer grants PrecisionLender a royalty-free, worldwide, transferable, sublicenseable, and (a) revocable license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Customer Data to the extent necessary to provide the Service to Customer, and (b) irrevocable, perpetual license to (i) use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services, which shall be the property of PrecisionLender; and (ii) aggregate Customer Data with data from other sources. Customer acknowledges that Customer Data which has been aggregated with data from other sources, including potentially other PrecisionLender customers, or from which all information which specifically identifies Customer or its authorized users as the source of such data has been removed, shall be the sole property of PrecisionLender, which may be used and disclosed by PrecisionLender as it sees fit in its sole discretion.
- 11.1 Warranty of Functionality. PrecisionLender warrants to Customer during the Term that the Service will achieve in all material respects the functionality described on PrecisionLender's website and that such functionality will be maintained in all material respects in subsequent upgrades to the Service. PrecisionLender does not warrant that the Service will be error-free. Customer's sole and exclusive remedy for PrecisionLender's breach of this warranty shall be that PrecisionLender shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described on PrecisionLender's website and if PrecisionLender is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the license fees paid for under the Agreement for its use of the Service for the terminated portion of the Term. PrecisionLender shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to billing@PrecisionLender.com. This warranty is made to and for the benefit of Customer only, and shall only apply if the applicable Service has been used in accordance with this Agreement and applicable law.
- 11.2 Service Level Warranty. PrecisionLender will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which PrecisionLender shall give at least 4 hours’ notice via the Services and which PrecisionLender shall schedule to the extent practicable during the weekend hours), and (b) any unavailability caused by circumstances beyond PrecisionLender's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
12.0 Disclaimer of Warranties
12.1 EXCEPT AS STATED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER'S PURPOSES.
13.0 Limitations of Liability
13.1 CUSTOMER AGREES THAT THE CONSIDERATION WHICH PRECISIONLENDER IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY PRECISIONLENDER OF THE RISK OF CUSTOMER'S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OR DISCLOSURE OF CUSTOMER DATA, LOST REVENUE, LOST PROFITS, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. Except with regard to amounts due under this Agreement or willful misconduct, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 12 months in license fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this section are integral to the amount of fees charged in connection with the license of the Service and that, were PrecisionLender to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
- 14.1 PrecisionLender Indemnity. PrecisionLender will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including but not limited to, reasonable attorney's fees) (collectively, "Losses") arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of a claim that the use of the Service infringes any intellectual property rights of third parties (except to the extent such claim arises due to the use of the Service with any software, material or data not provided by PrecisionLender); provided that Customer (a) promptly gives PrecisionLender notice of the claim, suit, action or proceeding; (b) gives PrecisionLender sole control of the defense and related settlement negotiations; and (c) provides PrecisionLender with all reasonably available information and assistance necessary to perform PrecisionLender's obligations under this paragraph. If the Service is held to infringe, PrecisionLender will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Customer against such claim without cost to Customer; or (b) to replace the Service with a non-infringing Service. If PrecisionLender fails to comply with this section, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the license fees paid for under the Agreement for the terminated portion of the Term.
- 14.2 Customer's Indemnity. Customer shall indemnify, defend, and hold PrecisionLender harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against PrecisionLender which arise out of or result from a claim by a third-party (i) alleging that the Customer Data or Customer's intellectual property infringes the intellectual property rights of third parties, or (ii) arising out of Customer's use of the Services in violation of this Agreement, provided that PrecisionLender (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer's obligations under this paragraph.
15.1 The indemnification obligations contained in this agreement shall survive termination of this Agreement.
- 16.1 Suspension for Delinquent Account. PrecisionLender reserves the right to suspend Customer's access to and/or use of the Service (and that of any customer of PrecisionLender that controls, is controlled by, or is under common control with Customer) (a "Customer Affiliate")) for any accounts for which any payment is due but unpaid but only after PrecisionLender has provided Customer a delinquency notice, and at least fifteen (15) days have passed since the transmission of the first notice ("Delinquent Account Status"). PrecisionLender also reserves the right to suspend Customer's access and/or use of the Service in the event that any Customer Affiliate account is in Delinquent Account Status. Customer agrees that PrecisionLender shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service resulting from Customer's nonpayment of fees as described in this section.
- 16.2 In the Event of Breach. Either party may terminate this Agreement upon thirty (30) days formal written notice to the other party in the event of a material breach of any provision of this Agreement by the other party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach ("Notice"). Following receipt of such Notice, the alleged breaching party shall have thirty (30) days to cure such alleged breach, after which time the Agreement shall terminate only if the alleged breach was not cured. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that PrecisionLender shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of a breach on PrecisionLender's part, PrecisionLender shall refund the pro rata portion of any fee paid by Customer for the terminated portion of the Term.
- 16.3 Handling of Customer Data in the Event of the Termination. Customer agrees that following termination of Customer's account and/or use of the Service, PrecisionLender may immediately deactivate Customer's account. In the event that Customer's Service with PrecisionLender terminates, PrecisionLender will grant Customer temporary, limited access to the Service for the sole purpose of permitting Customer to retrieve lawful Customer Data, provided that Customer has paid in full all good faith and undisputed amounts owed to PrecisionLender. Customer further agrees that PrecisionLender shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that PrecisionLender is in compliance with the terms of this section.
17.1 Customer is responsible for paying all local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sale, use or withholding taxes (“Taxes”), excluding only Taxes based on PrecisionLender’s net income. If PrecisionLender has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides PrecisionLender with a valid tax exemption certificate authorized by the appropriate taxing authority.
18.0 Modification to the Terms of Service
18.1 These Terms of Service may be amended by PrecisionLender in its discretion by providing advance notice of any material change to a user designated as an administrator of your PrecisionLender account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided for the administrator(s) for Customer's account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify PrecisionLender via legal@PrecisionLender.com within thirty (30) days after receiving notice of the change. If Customer notifies PrecisionLender as required, then Customer will remain under the Terms of Service in effect immediately prior to the change until the end of the then current license term for such Customer. If the license term is renewed by such Customer, it will be renewed under PrecisionLender’s then current Terms of Service unless agreed to otherwise in writing.