THIS SUBSCRIPTION SERVICES AGREEMENT GOVERNS CUSTOMER’S ACCESS TO AND USE OF SUBSCRIPTION SERVICES OF LOANSPACE LLC (“LOANSPACE”). BY ENTERING INTO AN ORDER FORM THAT REFERENCES THIS SUBSCRIPTION SERVICES AGREEMENT, CUSTOMER AND LOANSPACE EACH ACCEPTS AND AGREES TO ALL OF THE TERMS AND CONDITIONS HEREOF. CUSTOMER HAS NO RIGHT TO USE ANY LOANSPACE SUBSCRIPTION SERVICES OTHER THAN PURSUANT TO AND IN ACCORDANCE WITH THIS SUBSCRIPTION SERVICES AGREEMENT AND THE APPLICABLE ORDER FORM.
1. Definitions. In addition to the capitalized terms defined upon first use herein, certain capitalized terms are defined in the Schedule of Definitions included at the end of this document.
2. Scope of Agreement. The capitalized term “Agreement” when used herein refers to the terms of an Order Form together with this Subscription Services Agreement. If the Parties enter into more than one Order Form, then each additional Order Form shall be deemed to form a new and separate Agreement between the Parties (and the phrase “this Agreement” shall be deemed to reference the particular Agreement required by the context, independently of and separately from each other agreement between the Parties), unless the additional Order Form specifically states that it is supplementing and amending an existing Order Form.
3. Provision and Use of Subscription Services.
3.1. During the applicable Subscription Period, LoanSpace shall make available the Subscription Services to Customer on the terms and subject to the conditions set forth in this Agreement.
3.2. LoanSpace is responsible for the deployment, operation, management and hosting of the Subscription Services, including the provisioning and maintenance of all server-side hardware, software and telecommunications capacity. Customer is responsible for all hardware, software, connectivity and related infrastructure required for Customer and Authorized Users to access and use the Internet and the Subscription Services.
3.3. LoanSpace provides the Subscription Services subject to the availability commitments and associated remedies set forth in the LoanSpace Service Level Agreement available at https://loanspace.com/legal/SLA.
3.4. Customer is solely responsible for the security and proper creation, use and termination of all Authorized User IDs, passwords and other security devices used in connection with the Subscription Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons. Customer shall immediately inform LoanSpace if there is any reason to believe that a user ID, password, or any other security device has or is likely to become known to any Person not authorized to use it, or is being or is likely to be used in an unauthorized way. LoanSpace reserves the right (at its sole discretion) to require Customer to change any or all of the user IDs, passwords or other security devices used by Customer in connection with the Subscription Services, and Customer shall promptly comply with any such requirement.
3.5. Customer is solely responsible for its relationships with all Clients, Authorized Users and Affiliates of Customer, for their use of the Subscription Services, and for ensuring that they comply with all the terms and conditions of this Agreement. LoanSpace may in its sole discretion elect to require that Authorized Users, as a condition to their initial or continued access to or use of the Subscription Services, agree to the terms of an end user license agreement in a form designated by LoanSpace in order to protect LoanSpace and its rights consistent with the terms of this Agreement (“EULA”). Any violation of the terms and/or conditions of this Agreement or the EULA by an Authorized User, Client or Affiliate of Customer shall be deemed to be a violation by Customer of such terms and conditions. Without limiting the foregoing, Consultants who will be acting as Authorized Users must have passed LoanSpace’s then-current certification process for Consultants, which may include periodic re-certification requirements, as a condition to their initial and continued access to and use of the Subscription Services.
3.6. The Subscription Services may contain or support features designed to integrate or interoperate with software applications, online services or other products and services offered by third Persons (collectively, “Third-Party Offerings”). Any acquisition, access or use by or on behalf of Customer of Third-Party Offerings, including the availability and performance of any Third-Party Offerings, is solely between Customer and the applicable third-party provider and LoanSpace shall have no liability to Customer in connection therewith. Without limiting the foregoing, LoanSpace does not warrant or support Third-Party Offerings or any related integrations, and LoanSpace makes no representations or warranties, express or implied, as to the availability, performance, legality or non-infringement of any Third-Party Offerings or related integrations or interoperation.
4. Rights and Limitations of Use.
4.1. Subject to the terms and conditions of this Agreement (including Customer's payment obligations hereunder), LoanSpace grants to Customer a limited, non-exclusive, non-transferable right and license during the applicable Subscription Period: (a) to access and use, and permit Authorized Users to access and use, the Subscription Services and Documentation solely for the Permitted Purpose; and (b) to the extent LoanSpace makes available to Customer, by way of download or other form of distribution, any pre-defined report formats or templates, software components, tools, materials or technology intended for use in connection with the Subscription Services, to store, install, execute and use the same internally within Customer’s organization, solely in connection with Customer’s authorized use of the Subscription Services.
4.2. Except for the rights expressly granted in Section 4.1, no other rights in or to any Subscription Services or LoanSpace IP, express or implied, are granted to Customer. Without limiting the foregoing, except to the extent expressly authorized by this Agreement, Customer may not: (a) transfer to any other Person any of its rights to use Subscription Services; (b) sell, rent, lease or share any Subscription Services; (c) permit any Person who is not an Authorized User to use or access any Subscription Services; (d) access or use any Subscription Services other than for the Permitted Purpose; (e) use any Subscription Services to provide outsourcing, service bureau, hosting, application service provider or online services to third Persons; (f) create any derivative works based upon any Subscription Services or LoanSpace IP; (g) copy any feature, design or graphic in any Subscription Services or LoanSpace IP; (h) attempt to circumvent any security feature or access or derive the source code or architecture of any Subscription Services or LoanSpace IP; (i) use or access any Subscription Services or LoanSpace IP in order to build a competitive solution or to assist someone else to build a competitive solution; (j) load or penetration test the Subscription Services or otherwise use any Subscription Services in any way that is, or could reasonably be expected to be, detrimental to LoanSpace’s ability to provide services to any other customer; (k) use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tool, program, algorithm or methodology to access or monitor the Subscription Services or LoanSpace IP; (l) use any Subscription Services to access in any unauthorized manner the data of any other customer of LoanSpace; (m) use any Subscription Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material including code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, or to store or transmit material in violation of third-party privacy rights; (n) alter, remove or conceal any government restricted rights notice or any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the Subscription Services, the Documentation or any other LoanSpace IP; (o) use the Subscription Services in a manner that violates any applicable Law; or (p) permit any other Person to do any of the foregoing.
5. Customer Data.
5.1. LoanSpace shall implement and maintain reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data. LoanSpace shall not access or use Customer Data except (a) in connection with providing, supporting and maintaining the Subscription Services (including for billing purposes), and (b) as required by applicable Law in accordance with Section 12.2. Customer is solely responsible for all other aspects of Customer Data, including its sourcing, inputting, management, accuracy, quality, legality and results and the privacy of protected personal information.
5.2. Customer acknowledges that the Subscription Services are not intended and were not designed for the management of consumer loans or to otherwise facilitate or support the provision of financial products or services to individuals. Customer represents, warrants and covenants that it will at no time input, upload, store or process in connection with its use of the Subscription Services (A) any information or data pertaining to any consumer loan or other consumer credit facility, (B) any “personally identifiable financial information” as defined in the Gramm-Leach-Bliley Act or (C) any “personal data” or “personal information” (or the equivalent term) under applicable Law.
5.3. Certain Subscription Services may include or support integration or interoperability intended to facilitate the exchange of Customer Data between the Subscription Services and Third-Party Offerings. By making use of any such integration or interoperability, Customer (i) grants all necessary authorizations and permissions required for the relevant exchange of Customer Data between Subscription Services and Third-Party Offerings and (ii) assumes all risk associated with or resulting from such exchange of Customer Data and agrees that LoanSpace shall not be responsible for any resulting disclosure, modification or loss of Customer Data.
5.4. LoanSpace will have the right to review, extract, compile, synthesize and analyze any non-personally identifiable data or information derived from Customer’s, its Affiliates and Authorized Users’ use of the Subscription Services (“LoanSpace Data”). By way of example, LoanSpace Data may include information about dates and times Authorized Users access the Subscription Services, the portions of the Subscription Services visited, the performance of the Subscription Services, and aggregated, anonymized or de-identified information based on Customer Data; however, no data or information that identifies Customer, any Client, any Affiliate of Customer, any Authorized User or any other individual shall be included in the LoanSpace Data. LoanSpace shall own all right, title and interest in and to the LoanSpace Data upon creation and may freely use and otherwise exploit the LoanSpace Data for any lawful business purpose.
6. Support.
6.1. LoanSpace shall make available to Customer standard web- and email based technical support with respect to the Subscription Services, subject to the LoanSpace Support Policy available at https://loanspace.com/legal/support. Technical support shall only be provided to a maximum of two (2) Customer Designated Representatives who have been appropriately trained with respect to the use of the Subscription Services. Other Authorized Users shall use the Documentation and rely on the Customer Designated Representatives for support. LoanSpace shall not be obligated to provide technical support to other Authorized Users or outside of LoanSpace’s normal support hours.
6.2. Customer acknowledges that the Subscription Services were not designed to Customer’s individual requirements and that Customer is solely responsible for confirming that the Subscription Services meet such requirements. Customer further acknowledges that the Subscription Services are based on a standardized service platform made available by LoanSpace to a variety of customers. LoanSpace will make available to Customer as part of the Subscription Services the error corrections and improvements that LoanSpace makes available to its similarly situated customers generally as part of their subscription to the Subscription Services, but specifically excluding any new products, offerings, modules, functionality or features for which LoanSpace charges a separate fee, unless Customer separately purchases a license or subscription thereto. LoanSpace reserves the right to make changes to the Subscription Services. If any such changes materially diminishes the functionality and value of the Subscription Services as a whole, then: (a) LoanSpace shall notify Customer at least thirty (30) days prior to implementing such change (except in cases where LoanSpace determines that expedited implementation is required); and (b) if Customer disapproves of any such change that materially diminishes the functionality and value of the Subscription Services as a whole, Customer shall have the right, exercisable no later than fifteen (15) days after such change has been implemented, as Customer’s sole remedy, to terminate this Agreement upon notice to LoanSpace and recover a refund of prepaid subscription fees pursuant to Section 11.6(d). Customer agrees that its subscription to the Subscription Services is not contingent on the delivery of any future functionality or features, or dependent on any statements made by LoanSpace regarding possible future functionality or features.
7. Fees and Payment.
7.1. Customer shall pay all fees and charges as specified in each Order Form. Except as otherwise set forth in this Agreement, all payment obligations under an Order Form are non-cancelable and amounts paid are non-refundable. Unless otherwise specified in an Order Form, all fees and charges for the initial Subscription Period are due upon the effective date of such Order Form, and Customer shall pay all other fees and charges within thirty (30) days of the date of LoanSpace’s invoice therefor.
7.2. LoanSpace may charge Customer interest at the rate of 1.5% per month (or the highest rate allowable by Law, if less) for any past due amounts, from the date payment was due until the date paid, other than with respect to any amount disputed by Customer in good faith where Customer is cooperating diligently to resolve the dispute. Customer shall bear any costs (including attorneys’ fees and costs) incurred by LoanSpace in collecting any amounts due hereunder.
7.3. LoanSpace reserves the right to increase any fees at any time, provided that no increase of the subscription fee payable by Customer for the Subscription Services shall take effect until the start of the next Subscription Period following LoanSpace’s notice to Customer of such fee increase, sent no later than thirty (30) days prior to the start of such Subscription Period.
7.4. Customer shall pay any sales, use, value added and other taxes and import duties (other than corporate income taxes payable by LoanSpace) due as a result of any amounts paid by Customer to LoanSpace under any Order Form.
7.5. Customer shall not charge any fee to LoanSpace related to invoice processing, and shall pay or reimburse LoanSpace for any such fee charged by any third Person that Customer requires LoanSpace to use in connection with processing LoanSpace’s invoices to Customer.
8. Warranties.
8.1. Each Party represents and warrants to the other Party that: (a) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement; and (b) the execution, delivery and performance of this Agreement by it does not violate, conflict with or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable Law or order of any court or other tribunal, except where such violation, conflict or default would not materially impair such Party’s performance of its obligations or the other Party’s enjoyment of its rights under this Agreement.
8.2. LoanSpace further warrants to Customer that the Subscription Services will function substantially in accordance with the applicable Documentation. In the event of a nonconformance with such warranty, Customer will promptly (and in no event later than thirty (30) days after the non-conforming services were provided) notify LoanSpace of such nonconformance and LoanSpace will, following receipt of such notice from Customer, use commercially reasonable efforts to make available to Customer a conforming version of the Subscription Services. The foregoing sets forth the exclusive remedy of Customer, and the sole liability of LoanSpace, in the event of any nonconformance with any of the warranties set forth in this Section 8.2 or otherwise with respect to any errors, service interruptions or other problems with the Subscription Services.
8.3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, LOANSPACE IS PROVIDING THE SUBSCRIPTION SERVICES “AS IS” AND LOANSPACE DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBSCRIPTION SERVICES OR THEIR PERFORMANCE HEREUNDER, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, LOANSPACE DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, FREE OF VIRUSES OR OTHER UNAUTHORIZED CONTAMINATING OR DESTRUCTIVE PROPERTIES, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM INCLUDING ANY THIRD-PARTY OFFERINGS.
8.4. NEITHER LOANSPACE NOR THE SUBSCRIPTION SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE AND LOANSPACE IS NOT A FINANCIAL PLANNER, BROKER OR TAX ADVISOR. The Subscription Services are intended only to assist Customer in its financial organization and decision-making and are broad in scope. It is the responsibility of Customer and its Authorized Users to review and determine the suitability of any output generated from the Subscription Services and to consult independent legal, tax, accounting or other professional advice before using any such output.
9. Indemnification.
9.1. LoanSpace shall defend (or at its option settle) any Claim alleging that the Subscription Services as provided by LoanSpace hereunder infringe any third Person's rights in any copyright, trademark or United States patent, and LoanSpace shall indemnify and hold harmless Customer and its employees and agents from and against any and all Losses resulting from any such Claim, in each case except to the extent the Claim (a) relates to Customer Data or other materials provided by or on behalf of Customer or its Authorized Users; (b) relates to Customer’s way or process of doing business; (c) relates to the actual or alleged infringement of inventions, technologies or methods in widespread unlicensed use by third Persons at the time the Subscription Services have been used by Customer; or (d) is otherwise subject to Customer’s defense and indemnification obligations under Section 9.2. Notwithstanding the foregoing, LoanSpace shall in no event have any obligation or liability under this Section 9.1 with respect to any Claim asserted, brought or threatened by or on behalf of any Client or Authorized User. In the event of any actual Claim of infringement or if LoanSpace has reason to believe that such a Claim may be brought, LoanSpace may at its option and sole expense either obtain the rights necessary to extinguish or avoid the infringement, or make any modifications to the Subscription Services that are recommended by LoanSpace’s counsel to avoid infringement of third Person rights, provided that if any such modification materially diminishes the functionality and value of the Subscription Services as a whole, Customer may within thirty (30) days following LoanSpace’s implementation of such modification terminate this Agreement by notice to LoanSpace and recover a refund of prepaid subscription fees pursuant to Section 11.6(d). This Section 9.1 states Customer’s sole remedy and LoanSpace’s entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third Person.
9.2. Customer shall defend (or at its option settle) any Claim that relates to (a) Customer Data or any other content or materials provided by Customer or its Affiliates or Authorized Users, (b) Customer’s relationships with Clients and/or Authorized Users or (c) the use by Customer or its Affiliates or Authorized Users of the Subscription Services or LoanSpace IP in breach of this Agreement or in violation of applicable Law or the rights of any third Person rights, and Customer shall indemnify and hold harmless LoanSpace, its Affiliates and their respective employees and agents from and against any and all Losses resulting from any such Claim.
9.3. As a condition to the obligations of the Indemnifying Party under either of Sections 9.1 or 9.2 above, the Indemnified Person shall: (a) promptly notify the Indemnifying Party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the Indemnifying Party of any liability or obligations hereunder except to the extent the Indemnifying Party has been prejudiced by such delay; (b) permit the Indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the Indemnifying Party in investigating and defending such Claim, at the Indemnifying Party’s expense (provided that the Indemnified Person shall not be entitled to compensation for time spent providing such cooperation). The Indemnified Person shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.
10. LIMITATIONS OF LIABILITY.
10.1. EXCEPT FOR LIABILITY ARISING FROM A WILLFUL OR INTENTIONAL BREACH OF SECTION 12 (CONFIDENTIALITY) OR FROM A BREACH OF SECTION 13 (PROPRIETARY RIGHTS), OR FROM CUSTOMER’S FAILURE TO PAY AMOUNTS DUE UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, OR ANY OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
10.2. LOANSPACE’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER TO LOANSPACE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.
10.3. THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS AGREEMENT WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS (OR LACK THEREOF) OF ANY REMEDIES PROVIDED HEREIN. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE SUBSCRIPTION SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.
11. Subscription Period, Renewals, Termination and Suspension.
11.1. LoanSpace makes the Subscription Services available on a subscription basis, and Customer is purchasing (subject to Section 14) a subscription to access and use the Subscription Services during the Subscription Period, upon the terms and conditions set forth in this Agreement. Unless otherwise specified in the Order Form, neither Party may terminate any Subscription Services for convenience prior than the end of its Subscription Period.
11.2. Upon expiration of a Subscription Period, Customer’s subscription to the applicable Subscription Services and the term of this Agreement shall automatically renew for consecutive renewal periods each of the same duration as the initial Subscription Period or one (1) year, whichever is shorter, at LoanSpace’s then-current subscription price (subject to Section 7.3), unless either Party notifies the other Party no later than fourteen (14) days prior to the scheduled renewal date that it is electing not to renew this Agreement, in which case the subscription and the term of this Agreement shall end upon the expiration of the then-current Subscription Period.
11.3. Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party.
11.4. Upon ten (10) days’ notice to Customer, LoanSpace may suspend the Subscription Services in whole or in part if Customer fails to make when due any payment required under this Agreement or under any other agreement entered into by the Parties. LoanSpace may also suspend the Subscription Services in whole or in part if Customer otherwise breaches any term of this Agreement or any other agreement entered into by the Parties and fails to cure such breach within thirty (30) days after receipt of notice of the breach from LoanSpace, until such time as the breach is cured. Notwithstanding the foregoing, LoanSpace may immediately suspend the Subscription Services, with or without prior notice to Customer, in order to avoid or mitigate irreparable harm to LoanSpace. Any suspension hereunder shall be without limitation of any other right or remedy available to LoanSpace.
11.5. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.
11.6. Upon the termination or expiration of this Agreement for any reason:
(a) LoanSpace will terminate access to the Subscription Services, and all rights and licenses granted by LoanSpace pursuant to this Agreement shall terminate.
(b) Customer shall pay all amounts that have accrued and are owed hereunder within ten (10) days following any termination or expiration of this Agreement.
(c) Upon written request by Customer made within thirty (30) days after the effective date of expiration or termination and provided Customer has complied with Section 11.6(b), LoanSpace shall make available to Customer for download one or more electronic files of any Customer Data stored in the Subscription Services. After such thirty (30)-day period, LoanSpace shall have no obligation under this Agreement to maintain or provide any Customer Data.
(d) If this Agreement is validly terminated by Customer pursuant to either of Sections 6.2, 9.1 or 11.3 and Customer is in full compliance with all material terms and conditions of this Agreement, LoanSpace shall within ten (10) days following the effective date of such termination refund to Customer all subscription fees previously paid by Customer for the terminated Subscription Services with respect to the then-remaining portion of any prepaid but unused Subscription Period.
(e) If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, each Party shall be entitled to retain any records to the extent it has been advised in writing by counsel that such retention is required to comply with applicable Law.
(f) Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.
12. Confidentiality.
12.1. Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not: (a) use such Confidential Information other than for the purposes of this Agreement; or (b) disclose any such Confidential Information to any third Person except those directors, officers, employees, Consultants and agents of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information using at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
12.2. The obligations of the Parties under Section 12.1 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt notice and assistance to the disclosing Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy to protect against disclosure.
12.3. Any breach of the confidentiality obligations set forth in this Section 12 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach.
12.4. This Section 12 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason, except with respect to any Confidential Information of LoanSpace contained in or constituting LoanSpace Software, for which this Section 12 will remain in effect indefinitely.
12.5. In the event that the provisions of this Section 12 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the Parties, then the terms of this Section 12 shall govern with respect to Confidential Information disclosed in connection with the subject matter of this Agreement.
13. Proprietary Rights.
13.1. As between the Parties, all Intellectual Property Rights in and to any Customer Data are and shall remain the sole property of Customer and its Affiliates, as applicable, and LoanSpace shall acquire no right of ownership or use with respect thereto, except that LoanSpace and its Affiliates and their respective employees and agents shall have the right to reproduce, modify, use, host, transmit and display the same in connection with LoanSpace’s provision of the Subscription Services and otherwise as set forth in Section 5.13.2. As between the Parties, all Intellectual Property Rights in and to the LoanSpace IP are and shall remain the sole property of LoanSpace and its Affiliates and their respective licensors, as applicable, and Customer shall acquire no right of ownership or use with respect to any LoanSpace IP except for the limited rights or licenses specified in Section 4. Without limiting the foregoing, Customer acknowledges that the LoanSpace Software and Subscription Services and the inventions, know-how and methodology embodied therein are proprietary to, and are the valuable trade secrets of, LoanSpace and its Affiliates and licensors, as applicable, and that the LoanSpace Software constitutes Confidential Information of LoanSpace.
13.3. Customer, Customer’s Affiliates or Authorized Users may from time to time provide LoanSpace with suggestions, comments, recommendations and/or feedback regarding the Subscription Services and/or LoanSpace’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily and without compensation. As between the Parties, all Feedback shall be exclusively owned by LoanSpace and LoanSpace shall be freely entitled to reproduce, prepare derivative works of, disclose to third Persons, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback, at its sole discretion, without obligation or liability of any kind to Customer or to any other Person.
13.4. The provision by LoanSpace of Subscription Services for use by or on behalf of any unit or agency of the United States Government (the “Government”) are subject to the following: The Subscription Services and related LoanSpace Software and Documentation constitute “commercial computer software” and/or “commercial computer software documentation,” respectively, and the Government’s rights with respect to the same are, in the case of civilian agency use, and if for the Department of Defense use, limited by the terms of this Agreement, pursuant to FAR 12.212 and/or DFARS §227.7202-1 through §227.7202-4 as applicable. The use of any Subscription Services, LoanSpace Software or Documentation hereunder by the Government constitutes acknowledgment by the Government of LoanSpace’s proprietary rights therein and thereto. If the Government has a need for rights not granted under these Terms of Service, it must negotiate with LoanSpace to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
14. Freemium Offerings. Certain Subscription Services may be made available by LoanSpace pursuant to a so-called “freemium” pricing model, whereby access to and use of all or part of the Subscription Services are offered by LoanSpace to Customer initially free of charge (a “Freemium Offering”) unless and until: (a) certain limitations or thresholds specified in the Order Form have been met or exceeded; (b) Customer elects to order or enable functionality or features for which LoanSpace charges a separate fee (e.g., so-called “premium” features); or (c) LoanSpace otherwise elects to discontinue the Freemium Offering, at which point the applicable Subscription Service will cease to constitute a Freemium Offering and Customer’s continued access to and use thereof will require an active paid subscription to the applicable Subscription Services pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, if Customer has obtained a Freemium Offering, then: (i) Customer may access and use such Freemium Offering solely in accordance with any additional limitations applicable thereto as specified in the Order Form and/or Documentation; (ii) LoanSpace may terminate this Agreement as it pertains to the Freemium Offering at any time, for any reason or no reason, upon notice to Customer; and (iii) all Freemium Offerings are provided solely on an “as is” basis and none of the covenants, obligations, representations or warranties of LoanSpace forth in Sections 3.3, 5.1, 6, 8.2 or 9.1 shall apply to Freemium Offerings.
15. Force Majeure. If either Party is unable to perform any obligation (excluding any payment obligation) under this Agreement because of any matter beyond that Party's reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial dispute (whether or not involving employees of either Party), epidemic or pandemic, acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond a Party’s reasonable control (each, a “Force Majeure Event”), that Party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such Party shall resume performance as soon as practicable upon removal of the circumstances constituting the Force Majeure Event.
16. Publicity. Customer hereby grants LoanSpace the right to issue a press release announcing that Customer has become a customer of LoanSpace, and to reproduce and display Customer’s name and logo on LoanSpace’s website and in brochures, social media and other marketing materials for the purpose of identifying LoanSpace’s relationship with Customer. Except as provided in the preceding sentence, all media releases, public announcements and public disclosures by either Party relating to this Agreement or its subject matter shall require the mutual approval of the Parties.
17. Audit. Customer acknowledges that the Subscription Services may include features designed to monitor Customer’s compliance with applicable usage limitations and/or for purposes of determining the fees and charges under this Agreement. In addition, LoanSpace may audit Customer’s use of the Subscription Services upon reasonable advance notice, not more than once per calendar year unless LoanSpace has reasonable cause to believe that Customer is using or permitting the Subscription Services to be used in an unauthorized manner. If any such monitoring or audit reveals that the Subscription Services have been used in excess of the applicable usage limitations set forth in the Order Form or in any other unauthorized manner, Customer will, within thirty (30) days of receipt of LoanSpace's invoice, reimburse LoanSpace for the reasonable, documented costs of such audit and pay any additional charges that would apply, under LoanSpace’s then-current prices, for such excess or other unauthorized use, without limitation of any other remedies LoanSpace may have under law or this Agreement.
18. General Provisions.
18.1. LoanSpace shall have the right to modify any of the terms or conditions of this Agreement from time to time, and continued use of the Subscription Services after being notified of any such modification will constitute Customer’s acceptance thereof. Notwithstanding the foregoing, if any such modification would materially diminish the value of the Subscription Services (a “Material Modification”), the Material Modification shall not take effect until the start of the next Subscription Period following LoanSpace’s notice to Customer of such Material Modification sent no later than thirty (30) days prior to the start of such Subscription Period. Customer’s failure to object to a Material Modification and/or terminate this Agreement pursuant to Section 11.1 within fifteen (15) days after being notified of a Material Modification shall constitute Customer’s acceptance of such Material Modification. Except as set forth in this Section 18.1, no waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each Party. Any forbearance or delay on the part of either Party in enforcing any of its rights under this Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence.
18.2. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its choice of law principles. Any litigation between the Parties concerning this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts in Delaware. Nothing contained in this Section 18.2 shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.
18.3. Customer shall not assign or otherwise transfer this Agreement, or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of Law, without the prior written consent of LoanSpace in each case. Any attempt to do any of the foregoing without LoanSpace’s prior written consent shall be a material breach of this Agreement and any assignment or purported assignment without such consent shall be null and void ab initio. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
18.4. Unless otherwise specified in this Agreement, any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to LoanSpace at [520 Newport Center Drive, Suite 610, Newport Beach, CA 92660] or to Customer at the Customer’s addresses for notices set forth in the Order Form or, in each case, as changed from time to time by notice. Such notices shall be effective when received.
18.5. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision(s).
18.6. The headings and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement. The words “including,” “include” and “includes,” and the phrases “by way of example,” “such as” and “for example” when used in this Agreement shall each be deemed to be followed by the words “without limitation.”
18.7. This Agreement does not create or evidence a partnership, joint venture or any other fiduciary relationship between the Parties. The Parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this Agreement.
18.8. This Agreement constitutes the entire agreement between Parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, as well as any previous memoranda of understanding and side letters between the Parties with respect to such subject matter. In the event of any conflict, discrepancy or inconsistency between an Order Form and this Subscription Services Agreement, the terms of the Order Form shall govern solely with respect to the subject matter of such Order Form. Neither the course of conduct between Parties nor trade usage shall modify or alter this Agreement.
Schedule of Definitions
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person. For purposes of this Agreement, a Person shall be deemed to have “control” over another Person if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least 50% of the issued and outstanding voting stock or other equity interest of such other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.
“Authorized User” means an individual employee or Consultant of Customer, any Affiliate of Customer or any of their respective Clients, who is authorized by Customer to use the Subscription Services for the Permitted Purpose, and who has accepted the terms of the EULA if required by LoanSpace pursuant to Section 3.5, regardless of whether or not the individual is actively using the Subscription Services at any given time; provided, however, that no Authorized Users may be, nor work for a direct or indirect competitor of LoanSpace.
“Claim” any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third Person against an Indemnified Person.
“Client” means any third Person that has engaged Customer or any of its Affiliates to provide services in connection with the administration of commercial real estate loans owned or managed by such third Person.
“Consultant” means a consultant engaged by Customer or any Affiliate of Customer to provide services to and for the sole benefit of Customer or such Affiliate and who has passed LoanSpace’s applicable certification requirements referenced in Section 3.5; provided, however, that no Consultant may be, nor work for a direct or indirect competitor of LoanSpace.
“Customer” means the Person entering into this Agreement with LoanSpace, as identified in the Order Form.
“Customer Data” means any Confidential Information of Customer, its Affiliates, their respective Clients or Authorized Users, in each case that is input and stored in any LoanSpace system pursuant to such Person’s use of the Subscription Services.
“Confidential Information” means any information, including information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees, which is disclosed by the disclosing Party in connection with this Agreement whether before, on or after the Effective Date, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the receiving Party or any of its employees or designated agents. Confidential Information includes the terms of this Agreement. Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain or otherwise available on an unrestricted basis to one or more third Persons without violation of this Agreement by the receiving Party; (b) information that was known to or in the possession of the receiving Party on a non-confidential basis prior to the disclosure thereof to the receiving Party by the disclosing Party, as evidenced by written records; (c) information that was developed independently by or on behalf of the receiving Party, without use of or reference to the Confidential Information; or (d) information that is disclosed to the receiving Party by a third Person without violation of this Agreement by the receiving Party.
“Customer Designated Representative” means the Customer-designated employee(s) or Consultant(s) identified as such on an Order Form or within the appropriate registration field within the Subscription Service as updated by Customer from time to time.
“Documentation” means the online user guides, documentation, and help and training materials for the Subscription Services as made available by LoanSpace from time to time.
“Indemnified Person” means a Person being indemnified pursuant to this Agreement.
“Indemnifying Party” means the Party indemnifying the Indemnified Person.
“Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind; (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable Law.
“Law” means any and all statutes, laws, ordinances, regulations, rules, codes and other requirement or rule of law of any federal, state, local or foreign governmental authority.
“LoanSpace” means LoanSpace LLC, a Delaware limited liability company, or such other contracting LoanSpace entity as may be specified in the Order Form.
“LoanSpace IP” means the LoanSpace Software, the Documentation and all other software (including both source code and object code, as applicable), documentation, templates, designs (including screen and report designs and the content and “look and feel” (e.g., text, graphics, images, logos and button icons) of the Subscription Services), data, databases, queries, reports, exports, extracts, scripts, functions, files, materials, technology and works created, utilized and/or provided by or on behalf of LoanSpace in connection with the Subscription Services or the performance of this Agreement, and all Intellectual Property Rights related to any of the foregoing.
“LoanSpace Software” means all software forming part of or used by LoanSpace to deliver Subscription Services, including any upgrades, improvements, enhancements or derivatives thereof.
“Losses” means, in connection with an indemnified Claim, the amount of a final judgement (including any award of fees and expenses) rendered against the indemnified Person, and/or the amount of a settlement entered into by the indemnifying Party or with its consent, each to the extent payable to a third Person.
“Order Form” means an order form with respect to Subscription Services that incorporates by reference this Subscription Services Agreement, and may be in the form of a written order executed by the Parties or an online order submitted by Customer and accepted by LoanSpace via the ordering functionality on a LoanSpace website.
“Party” means Customer or LoanSpace and “Parties” means, collectively, both parties to this Agreement.
“Permitted Purpose” means the use, in accordance with the Documentation and the terms of this Agreement (including any applicable usage limits set forth in the Order Form) of the Subscription Services solely for the management of commercial loans owned or managed by Customer or any Affiliate of Customer or any of their respective Clients. Without limiting the foregoing, the management of any consumer loan or credit facility is expressly excluded from the “Permitted Purpose.”
“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture or other form of business or legal entity.
“Subscription Services” means LoanSpace’s generally commercially available hosted software-as-a-service offerings, the specific features and functionality of which are described in the applicable Documentation, and to which Customer has ordered a subscription pursuant to an Order Form. A particular Subscription Services offering may sometimes be referred to in the Order Form or Documentation as an “Application” or “App.”
“Subscription Period” means the initial period for which Customer has contracted to subscribe to the Subscription Services, as specified in the Order Form, along with each renewal period of Customer’s subscription pursuant to Section 11.2.