TERMS AND CONDITIONS
Background. First Lenders Data, LP First Lenders Data, LP, a Texas limited partnership managed by First Lenders Data, Inc., a Delaware corporation d/b/a FirstClose (“FirstClose”), desires to provide Customer with non-exclusive access to its EquityIQTM software-as-a-service (the “Service”), and lead information (“Leads”) for potential consumers (“Consumers”) of Customer’s loan services, as set forth on the Order to which these Terms and Conditions are attached (the “Order”), as set forth more particularly herein and therein. These Terms and Conditions govern the provision of the Service and such Leads, and together with the Order constitute the entire agreement between the parties with respect to the subject matter contemplated herein and therein, and may be changed only by a subsequent writing signed by both parties. Terms capitalized herein but not defined herein have the meanings given to them in the Order.
1. Provision of Service.
1.1. Users. During the Term and subject to the terms and conditions set forth herein (including payment of all amounts due and any restrictions or parameters), FirstClose (a) will provide Customer with access to the Service and make the Service available to Customer’s administrative Users who have authority to manage and administer Customer’s account (“Admins”) and other Users (“Basic Users” and together with Admins, “Users”), and (b) grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, right to access and use the Service. Users will be required to abide by the terms of this Agreement. Any breach by a User will be deemed to be a breach by Customer. Customer shall be solely responsible for managing and administering User accounts, including issuing user names and passwords, provided that FirstClose may terminate or suspend any User’s access to the Service for any breach without notice. Customer shall be solely responsible for the security and confidentiality of Customer’s account information, including user names and passwords, and will ensure that no third party uses Customer’s account. Customer shall promptly notify FirstClose in the event that Customer becomes aware of any unauthorized access to the Service or any violation of the terms of this Agreement by Customer or any User.
1.2. Use of Service. Hosting and Maintenance. Customer shall use the Service for its intended purpose and Customer’s internal business use. Customer acknowledges that FirstClose may host the Service using its own infrastructure or it may engage a third party to host on its behalf. Updates may be provided at FirstClose’s discretion at no additional charge, and FirstClose may, in its sole discretion, make any changes that it deems necessary or useful to maintain or enhance the quality or delivery of the Service or to comply with applicable law. FirstClose will notify Customer at least six (6) months prior to making any change that will materially degrade the functionality of the Service used by Customer. As Customer’s sole and exclusive remedy in the event of any such change, Customer may terminate this Agreement without penalty upon 30 days written notice. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by FirstClose. During such time, the Service may be unavailable. Emergency maintenance may be required at other times in the event of system failure.
1.3. Support. During the Term, FirstClose will provide Customer with a reasonable amount of telephone and email support regarding the Service. FirstClose will provide Customer with the training and implementation services specified in the applicable Order. Training and support may be provided via phone, email or in-app chat.
1.4. Customer Responsibilities. Customer shall provide FirstClose with all information, materials and assistance as reasonably required for FirstClose to provide the Service to Customer and its Users pursuant to this Agreement. Customer shall not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity or by breach or attempted breach the security of the Service or any network, data, servers, computers or hardware used in connection with the Service. Customer will be solely responsible for the following: (i) providing all hardware, software, networking and communications capabilities required for use of the Service; (ii) at all times using the Service in accordance with the applicable documentation and any other written instructions provided to Customer by FirstClose; (iii) using the Service in a manner that does not infringe the intellectual property, privacy or other rights of third parties, and (iv) ensuring that Customer and its Users do not upload or transmit viruses or malicious code via the Service.
1.5. Restrictions. Customer may not rent, lease, lend, sell, redistribute, reproduce, make available or sublicense the Service, or use any component of the Service as a service bureau. Customer may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code, underlying structure, ideas or algorithms of, or modify, create derivative works of the Service, or any part thereof. If for some reason these restrictions are prohibited by applicable law or by an agreement FirstClose has with one of its licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s).
1.6. Reservation of Rights. All intellectual property rights in and to the Service remain the sole property of FirstClose and/or its licensors. If Customer or any of its Users submits to FirstClose comments, suggestions, or other feedback regarding the Service (“Feedback”), Customer agrees that FirstClose will be free to use such Feedback for any purpose without accounting or obligation.
2. Provision of Leads. Subject to the terms and conditions set forth herein, during the Term, FirstClose agrees to use commercially reasonable efforts to provide the Leads specified in the Order to Customer on a non-exclusive basis. FirstClose does not guarantee that any minimum quantity of leads will be provided, and does not guarantee the quality of any Leads provided. Lead information shall be transmitted in such form as FirstClose determined from time to time, including via .csv file, and/or through an integration with a LOS or CRM system. For Customer’s convenience and upon Customer’s request, FirstClose may, in addition to the delivery of Leads to Customer via e-mail, FirstClose may deliver leads by transmission into Customer’s supported LOS system, CRM database or similar system. Although FirstClose will use commercially reasonable efforts to supply Leads to Customer via such alternate delivery method, for the avoidance of doubt FirstClose is not responsible for Leads not delivered to Customer for any reason external to FirstClose (including, without limitation, due to downtime of any such alternate system), and no credits or refunds will be issued for any such Leads. If Customer requests that FirstClose deliver Leads to Customer via its LOS system, CRM database or similar system, then Customer represents, warrants and covenants to FirstClose that Customer has all rights to grant FirstClose permission to access such LOS system, CRM database or similar system for the limited purpose of delivering Leads to Customer’s account, including Customer’s sharing of any applicable passwords or account keys that may be associated with Customer’s account. Finally, for any Leads that may be supplied hereunder to Customer’s LOS system or CRM database or similar system via a web service call but that are rejected due to system time outs or other reasons beyond the reasonable control of FirstClose, then Customer will not be charged for such Leads; however Customer acknowledges and agrees that it will have no rights to use, archive or otherwise store any Consumer Information associated with such rejected Leads.
3. Customer Obligations. Customer agrees to: (i) initiate contact with each Lead promptly following the Lead’s placement in Customer’s account; (ii) accurately identify itself to such Consumer and inform such Consumer that Customer obtained his or her Consumer Information (defined below) from FirstClose hereunder; (iii) provide the Consumer with the requested quotation and/or other requested information; and (iv) comply with any request from such Consumer to not be contacted in the future. Customer is solely responsible for verifying all Lead and Consumer Information supplied hereunder for accuracy. “Consumer Information” means the information comprising or related to the Lead. Customer will comply with all laws, rules, regulations and requirements (“Laws”) applicable to Customer’s business and performance of this Agreement, including, without limitation, all Laws regarding the offer and sale of Customer’s products and services, lending and disclosure requirements, and privacy, storage and security of Consumer Information. Customer will maintain appropriate physical, technical and organizational measures to protect all Lead and Consumer Information provided hereunder against unauthorized access, use or disclosure. Customer will: (i) notify FirstClose promptly in writing and no later than twenty-four (24) hours following the occurrence of any apparent breach of security, such as loss, theft or unauthorized disclosure or use of Customer’s user name, password, other account information or any Lead or Consumer Information transmitted to Customer hereunder; and (ii) provide all necessary and reasonable cooperation to FirstClose to comply with any laws applicable to such security breach, including, without limitation, (x) the notification of all Leads or Consumers who may have a right to be informed of such breach and (y) the investigation and prosecution of such breach.
4. Ownership. Consumer Information. As between the parties, FirstClose will retain ownership of all Leads. Customer is hereby granted a limited, non-exclusive right to use each Lead for ninety (90) days from the date of delivery for the sole purpose of promptly contacting the Consumer and providing the requested quotation and/or other requested information. For the avoidance of doubt, Customer will not disclose, sell, transfer, assign or furnish any Lead acquired hereunder to any third party. Customer will: (i) maintain in the strictest confidence all Consumer Information acquired hereunder; and (ii) permanently delete or remove from their records or database all personal identifiable information regarding any Consumer within ninety (90) days of the delivery of the associated Lead to Customer’s account, unless Customer establishes a contractual relationship with any such Consumer prior to such date.
5. Pricing and Payment. The initial pricing information and payment terms for the Leads to be provided hereunder is set forth on the Order. Customer will be solely responsible for: (i) all taxes, fees and other similar charges that may be assessed against it in relation to the payments made by Customer to FirstClose for Leads acquired hereunder; and (ii) any fees that may be associated with FirstClose’s collection attempts hereunder, including without limitation FirstClose’s attorneys’ fees. If Customer agrees to provide an authorized credit card or other accepted payment method and agrees that, when amounts are due and payable hereunder, FirstClose may charge Customer’s payment method for such amounts.
6. Term and Termination. The Agreement will commence on the date set forth in the Order and will continue until the terminated date set forth therein (the “Initial Term”). Thereafter, the Agreement will automatically renew for successive renewal terms of the same length as the Initial Term unless otherwise set forth in the Order (each, a “Renewal Term” and, together with the Initial Term, the “Term”) until the Agreement is terminated in accordance with this Section. Notwithstanding anything else herein to the contrary, the following provisions will survive any termination of the Agreement and continue in full force and effect thereafter: 1.5-1.6 and 3-11 and 13-14 .
7. Representations and Warranties; Disclaimer. Customer warrants that (i) the execution and delivery by Customer of Purchase Order and the performance of the arrangements contemplated hereby are within its power and authority and have been duly authorized by all necessary action, and (ii) neither the execution and delivery of the Order by Customer nor the arrangements contemplated hereby require any consent, authorization, approval, notice to, or other action by or in respect of, or filing with, any third party or any governmental body or agency. FirstClose warrants that it shall perform its obligations hereunder in a good and workmanlike manner and that the Service will meet any published specifications or documentation. THE FOREGOING CONSTITUTES FIRSTCLOSE’S ONLY WARRANTY CONCERNING THE SERVICE AND THE LEADS, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY OF DATA, OR OTHERWISE.
8. Limited Audit Right. During the Term and continuing until the one (1) year anniversary of the termination of the Agreement, FirstClose (and its designated auditors) may from time to time, upon reasonable advance notice and during Customer’s business hours, conduct a limited audit of Customer’s business for the limited purpose of confirming Customer’s compliance with the terms and conditions of the Agreement (including, without limitation, Customer’s compliance with law and the confidentiality and data security provisions herein).
9. Limitation of Liability And Remedies. CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT (INCLUDIGN THE SERVICE AND THE LEADS) SHALL BE FOR FIRSTCLOSE, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS EXPENSE. EXCEPT FOR THE SPECIFIC REMEDIES EXPRESSLY IDENTIFIED AS SUCH IN THESE TERMS AND CONDITIONS, FIRSTCLOSE’S SOLE LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY CLAIM IN ANY MANNER RELATED TO THESE TERMS AND CONDITIONS SHALL BE THE PAYMENT OF DIRECT DAMAGES. IN NO EVENT SHALL FIRSTCLOSE’S LIABILITY (A) HEREUNDER IN THE AGGREGATE EXCEED THE FEES RECEIVED BY FIRSTCLOSE HEREUNDER OR (B) FOR ANY GIVEN CLAIM EXEED THE FEES RECEIVED BY FIRSTCLOSE IN THE 12 MONTHS PRECEDING SUCH CLAIM. IN NO EVENT SHALL FIRSTCLOSE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGE, LOSS OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties. FirstClose’s compensation for the Leads reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy contained herein.
10. Indemnity. Customer agrees to indemnify, defend and hold harmless FirstClose, its affiliates, and each of their respective members, owners, officers, directors, employees and authorized agents, from any and all liability, claim, loss, damage, demand and/or expense (including reasonable attorneys’ fees, administrative costs and settlement costs) asserted by any third party due to, arising from, or in connection with FirstClose’s authorized use of Customer’s trademarks, Customer’s unauthorized use of the Service, Leads or Consumer Information, violation of Law, or breach of its security or confidentiality related obligations hereunder.
11. Confidentiality. “Confidential Information” means the Consumer Information and any FirstClose proprietary information, product plans, technical data, pricing, lead quality information, trade secrets or know-how disclosed to Customer in connection with this Agreement. Customer and its employees, agents and permitted representatives may from time to time have access to the Confidential Information. Except as expressly permitted herein, Customer shall, and shall ensure that its employees, agents, and representatives shall, keep the Confidential Information in strict confidence and not directly or indirectly disclose, publish, disseminate, make available, discuss or otherwise communicate in any way, to any person, any Confidential Information, without FirstClose’s prior written consent, and shall be liable for any breach by its employees, agents, and/or representatives. Customer shall make the Confidential Information of the FirstClose available only to its employees, agents, and/or representatives who have a reasonable need to know such Confidential Information in connection with the performance of the Agreement, provided that each such employee, agent, and/or representative is advised of the covenants applicable to and prohibiting any subsequent disclosure in accordance with the Agreement. In the event that Customer is required by a binding order of a governmental agency or court of competent jurisdiction to disclose any Confidential Information, it shall provide FirstClose with prompt written notice sufficient to allow that party an opportunity to appear and object to such disclosure. If such objection is unsuccessful, then Customer shall produce only such Confidential Information as is required by the court order or governmental action. All Confidential Information shall be the sole and exclusive property of FirstClose. Upon the termination of expiration of the Agreement, all Confidential Information (together with all copies thereof) shall promptly be destroyed upon request, with written certification of such destruction.
12. Trademark License. If “Customer-Branded” Leads are elected on the Order and for any Customer-branded landing pages or other features generated within the Service, FirstClose will have the right to use and is hereby granted an irrevocable, worldwide, royalty free, transferable, sublicensable right and license during the Term to use the Customer’s trademarks, trade names, service marks, and logos for and in connection with the solicitations made in order to generate the Leads and within the Service. FirstClose will comply with Customer’s trademark usage guidelines in connection with any such use.
13. Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) Texas law shall apply, (b) the arbitration will be conducted by a single arbitrator; however, at the request of either party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators, (c) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (d) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both parties. The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Notwithstanding this provision, each party may seek injunctive relief in any court of competent jurisdiction. The parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only
14. Miscellaneous. These Terms and Condition will be governed by and construed in accordance with the laws of the State of Texas applicable to agreements entered into, and to be performed entirely, within Texas between Texas residents. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to these Terms and Condition and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable. The parties are independent contractors and these Terms and Conditions will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. In any action at law or equity which is brought by one of the parties to enforce or interpret the provisions of these Terms and Condition, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled. Neither party shall be deemed to have breached any provision of these Terms and Condition as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s control. Neither party may assign these Terms and Condition, in whole or in part, without the other party’s prior written consent, provided that no consent is required in connection with a merger, reorganization, sale of assets or similar transaction. Any purported assignment in violation of this Section shall be null and void. These Terms and Condition shall be binding on all permitted successors and assigns. The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of these Terms and Condition as a whole, which will at all times remain in full force and effect. The failure of either party to enforce at any time the provisions of these Terms and Condition, or the failure to require at any time performance by the other party of any of the provisions of these Terms and Condition, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of these Terms and Condition shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. All notices required or permitted hereunder will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in this Section or in the Order or to such other address as may be specified by either party to the other in accordance with this Section. Notices to FirstClose should be sent to First Lenders Data, Inc., 10800 Pecan Park Blvd. #310, Austin, TX 78750 Attn: Tedd Smith.
Client | FirstClose offers a nationwide, one-stop solution to processing home equity loans and home equity lines of credit.Bill Carey, Director of Consumer Finance, Flagstar Bank