FINLOCKER GENERAL TERMS AND CONDITIONS
Please read these General Terms and Conditions (“Terms”) carefully. FinLocker, LLC, a Delaware limited liability company, together with its subsidiaries, affiliates and partners (collectively, “FinLocker”) Reusable Consumer Financial Locker and Consumer Data Sharing platform, These Terms are a binding electronic contract (the “Terms”) between the entity that you represent (“Customer”), and FinLocker (together, the “Parties”). By accessing or using the Services or otherwise registering to use the Services made available by FinLocker, Customer agree to be bound by these Terms. These Terms affect Customer’s legal rights and obligations, so if Customer do not agree to these Terms, do not use the Services.
1. AGREEMENT STRUCTURE
1.1 Complete Agreement. These Terms in addition to a mutually executed written agreement or online registration are the complete agreement between the Parties. Together, they supersede any prior or contemporaneous oral or written communications between the Parties concerning the subject matter of these Terms. There are no additional conditions, understandings, agreements, representations or warranties, express or implied, which are not specified herein. These Terms shall control and supersede any purchase orders, invoice terms, or other similar documents, in any format, whether provided before or after these Terms. Such other terms shall be void to the extent they relate to the subject matter contemplated by these Terms.
1.2 Construction. Addendum executed by the Parties under this Agreement shall be subject to these Terms. Addendum, if any, shall set forth the specific Services, delivery/access methods, fees, Customer’s project leaders, the timeline for Services to be provided, the budget, Acceptance Criteria, and procedures. When fully executed by authorized signatories of the Parties, Addendum shall be incorporated into and shall form a part of this Agreement.
1.3 Order of Precedence. The provisions of the various Addenda documents shall, to the extent possible, be interpreted so as to supplement each other and avoid any conflict between them. In the event of a conflict between the terms and conditions of these Standard Terms and Conditions on the one hand and the terms and conditions of an Addendum, on the other hand, the terms and conditions of these Master Terms and Conditions shall control, unless explicitly stated otherwise in the Addendum. In that case, the conflicting terms and conditions in such Addendum shall apply only to that Addendum, or to the extent otherwise set forth in this Agreement.
2. GENERAL FINLOCKER OBLIGATIONS
2.1 Access. FinLocker will provide the Services over a secure connection browser-based interface, Single Sign-On, or FinLocker’s Application Programming Interfaces (“APIs”).
2.2 Software. FinLocker shall deliver electronically any local Software (if any) to be installed on Customer’s equipment for use in connection with the Services. FinLocker shall provide such assistance as is reasonably required to install any local software on Customer’s equipment on a time and materials basis, to be charged at FinLocker’s then-current standard rates for Professional Services. FinLocker hereby grants to Customer and its Authorized Users a non-exclusive, transferable, royalty-free (except for fees), worldwide right and license to access, use, display, and execute the local Software necessary for, or otherwise used in connection with, the Services.
2.3 Infrastructure. As part of the Services, FinLocker shall: (i) procure and maintain the
infrastructure (including hardware, software, connectivity, security, tools, and other resources) either directly, indirectly or through a Cloud Service Provider as necessary to securely host the SaaS (Software as a Service) Application and deliver the Services.
3. SERVICE ACCESS
3.1 Use. Subject to payment of the applicable Fees and Customer’s compliance with these Terms, FinLocker hereby grants Customer a non-exclusive, non-transferable, non-sublicensable limited right to access and utilize the Service solely for Customer’s own internal business purposes in accordance with these Terms.
3.2 Prohibited Uses. Customer shall not use the Services for purposes other than as set forth in the Terms or any applicable Addendum. In furtherance thereof, Customer will not (i) resell the Services or any data received in connection therewith or otherwise disclose, disseminate, reproduce or publish any portion of the Services in any manner or permit the same; (ii) use the Services to create derivative products or other derivative works; (iii) modify, translate, alter, disassemble, decompile, manipulate or reverse engineer any portion of the Services; (iv) except for Authorized Users and Consumers, permit any third party to use the Service; (v) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on Customer or its Authorized Users’ own intranets or otherwise for its own internal business purposes without FinLocker’s prior review and written consent; (vi) use FinLocker APIs or Single Sign On functionality to create a private label (white label) offering without FinLocker’s prior review and written consent; (vii) send spam or other duplicative or unsolicited messages in violation of Applicable Laws; (viii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (ix) send through, store in or otherwise introduce to the Service through its use or otherwise a Computer Virus; (x) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (xi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.3 Access to Service. Each Customer, each Authorized User, Customer’s Consumer, and Computer System will have unique Access Codes to be used to access the Service. Customer is responsible for maintaining (including the confidentiality of) the Access Codes and will be solely liable for all activities that occur under such Access Codes or arising from Customer’s instruction in connection with the disclosure of the Access Codes. Customer shall immediately notify FinLocker of any unauthorized use of any such Access Codes. Customer agrees on its own behalf, and to require its Authorized Users on their behalf, to access the Service in a secure manner in compliance with FinLocker’s reasonable standards established from time to time which currently require, to the extent applicable, use of web browsers, applications, and servers utilizing a minimum of 128-bit TLS 1.2 encryption. Customer agrees that each of their Authorized User (employees or contractors) of the service will have their own unique Access Codes.
3.4 Use of Service. Prior to using Service for production usage, Customer must review and approve all content delivered and any Customer-specific configurations or implementations. Customer’s use of the Service constitutes the acceptance of the System in a production environment.
4. CUSTOMER CONTENT AND SERVICES
4.1 Access. Customer authorizes FinLocker to store, process, analyze, and to share with Consumers any data, reports or other content and services from Customer’s Data Providers for the purposes of delivering the Service to the Customer, and to retain copies of and to use such data, reports or other content as FinLocker deems reasonably necessary to provide compliance support, as may be requested by Customer, with regulatory and/or audit requirements. FinLocker may also retain archived copies of such data, reports, and other content according to FinLocker’s standard backup procedures and is retained solely for regulatory or other legal compliance purposes.
5. SCOPE, AVAILABILITY, AND MODIFICATIONS
5.1 Scope of Service. The Service is intended to enable content delivery from FinLocker Data Providers, Customer’s Data Providers and other Data Providers, to provide business rules-based analysis of such content and calculations based on such content, to facilitate the review of such content by the Customer, and to enable communication and content sharing between Customer and Consumers who wish to allow Customer access to Consumer Content. FinLocker does not act for or represent in any way either the Customer or the Consumers. FinLocker is not a party to, third-party beneficiary of, or a guarantor of performance with respect to any transaction, agreement, or arrangement concluded between Customer and any Consumer. Specifically, Customer agrees and acknowledges that (i) FinLocker does not control the quality, safety, legality or availability of the Consumer Content, content from FinLocker Data Providers, content from Customer’s Data Providers or content from other Data Providers, the terms and conditions on which the Consumer provides the Consumer Content to Customer; (ii) under no circumstances shall FinLocker take title to, or in any manner obtain an interest in, or otherwise be deemed to be within the chain of title of, any Consumer Content, FinLocker Data Provider content, Customer’s Data Provider content, or other Data Provider content that might pass between FinLocker and Customer and between Consumer and Customer. Customer acknowledges that FinLocker takes no responsibility for the terms and conditions governing the provision of Consumer Content, content from Customer Data Providers, or content from other data providers. Customer shall be solely responsible for addressing and resolving any issues arising from any transaction, agreement, arrangement or interaction between Customer and any Consumer, whether or not resulting from the use of the Service (a “Consumer Transaction”), and shall not hold FinLocker responsible or liable in any way for the actions, errors or omissions of any Consumer; iii) FinLocker’s services are not provided by a “consumer reporting agency,” as that term is defined in the Fair Credit Reporting Act (15 U.S.C. § 1681, et seq.) (“FCRA”) and do not constitute “consumer reports,” as that term is defined in the FCRA. FinLocker’s services may be used to assist entities in processing data that may be relevant to a determination of eligibility for credit, insurance, employment or another purpose in connection with which a consumer report may be used under the FCRA. However, FinLocker’s services do not provide any findings bearing on a consumer’s creditworthiness and should not be used as such; (iv) due to the nature and origin of public record information, the public records and commercially available data sources used by FinLocker may contain errors; and (v) FinLocker can only share information from Customer’s Data Providers and FinLocker Data Providers with a Consumer as allowed by FinLocker’s contractual relationships with these providers.
5.2 Availability of Service. Customer understands, acknowledges, and agrees that FinLocker will use commercially reasonable efforts to make the Service available. Notwithstanding anything to the contrary stated herein, Customer acknowledges and agrees that (i) the availability of the Service is subject to the availability of connection services to and within the Internet and to other network functions within and around the Internet and that the Internet, by its nature, is not fault-tolerant; and (ii) FinLocker Services are hosted by one or more Cloud Service Providers which may have outages beyond FinLocker’s control. FinLocker shall not have any liability for any breach of any representation, warranty, or covenant of these Terms that arises out of or relates to the unavailability of such connection services, other network functions, or Cloud Service Provider(s) for whatever reason.
5.3 Modification of Service. Customer understands and agrees that FinLocker may modify the Service (an “Improvement”), their names, or how the Service is made available and that those modifications may create differences in how Customer accesses the Service. Customer further understands and agrees that, upon reasonable advance written notice to Customer, FinLocker reserves the right to replace any of the Service with services offering the same or more functionality than its predecessor. For Customers who use FinLocker APIs, FinLocker will give Customer at least ninety (90) days’ notice before FinLocker discontinues support for any released version of FinLocker APIs and unless otherwise noted any version of FinLocker APIs will be supported for no less than six (6) months unless FinLocker needs to change/remove due to security concerns, performance and scalability issues, compliance needs, regulatory needs or the requirements of FinLocker Data Provider, Customer’s Data Providers, or other Data Providers which cause such change or removal to be necessary.
6. ADDITIONAL SERVICES
6.1 General. FinLocker will provide the following additional services if included in Addenda by FinLocker: Initial Term Agreement, Consulting and Integration Services and Training Services.
6.2 Consulting and Integration Services. In the event the Parties agree to include any Consulting and Integration Services in an applicable Addendum, such Addendum must include a detailed statement of the project and work to be performed by FinLocker, the Agents to be allocated to such project by FinLocker, each Party’s project leaders, the timeline for and term of the project, the project budget, Acceptance Criteria, and procedures. The rates for Consulting and Integration Services performed on a time and materials, or other basis are set forth in applicable Addendum.
6.3 On-Site Services. Any time FinLocker or FinLocker’s Agents are physically on a Customer site or accessing or interacting with Customer’s systems, employees, staff, customers or affiliates from a remote location, FinLocker will comply at all times with the use, security and access policies for the facilities and systems of Customer, as made available to FinLocker in writing prior to such on-site service or systems’ access. FinLocker is fully responsible for the actions and omissions of Agents while on Customer premises or accessing or interacting with Customer systems, employees, staff, Customer, or affiliates. FinLocker will require Agents to follow all Customer rules, guidelines, policies and instructions, and Applicable Law. Unless otherwise stated in an Addendum, Customer will reimburse FinLocker for all reasonable out-of-pocket or other expenses incurred for FinLocker’s performance of the additional services.
7.1 Fees. Customer shall pay FinLocker the fees for the Services as set forth in applicable Addendum. Unless provided otherwise in an applicable Addendum, FinLocker shall invoice Customer for all fees incurred and Customer shall pay FinLocker the fees within fifteen (15) days of the date of FinLocker’s invoice. Customer shall be responsible for and shall pay the fees for all Services accessed using unique Access Codes issued to Customer, Authorized Users, or your Consumers whether or not authorized by Customer. If full payment is not made in compliance with this section or the applicable Addendum, Customer may be assessed a late charge equal to 1 ½ percent of the unpaid amount per month, or the maximum limit permitted by law, whichever is less. If Customer becomes fifteen (15) or more days past due and fails to pay all past due fees within ten (10) days of FinLocker’s written notice of such delinquency, FinLocker may suspend access or delivery of any Services provided under these Terms until all past due charges and any related interest are paid or terminate the Terms. During any period for which access or delivery of the Services is suspended, Customer shall continue to incur and pay any minimum fees due. Customer shall pay FinLocker all costs of collection of past due amounts owed to FinLocker hereunder, including without limitation, attorney fees, collection agency fees, and court costs.
7.2 Taxes. Fees are exclusive of sales, use, excise, ad valorem, and other taxes. When FinLocker has the legal obligation to collect such taxes, the appropriate amount shall be added to FinLocker’s invoice and paid by Customer, unless Customer provides FinLocker with a valid tax exemption certificate prior to issuance of the invoice. Such certificate must be in a form authorized by the appropriate taxing authority.
7.3 Expenses. Customer will reimburse FinLocker for all reasonable out-of-pocket or other expenses incurred for FinLocker’s performance of its obligations under these Terms.
7.4 Third-Party Fees. The fees payable by Customer to FinLocker in accordance with this Section 7 do not include (and Customer shall be solely responsible for) any applicable royalties, costs, expenses and/or fees that may be imposed by Customer’s Data Providers or other Data Providers used in connection with the Services.
8. PROPRIETARY RIGHTS
8.1 Title to Technology. All Intellectual Property rights pertaining to FinLocker, the Services, any Software, in whole or in part, shall be, vest with and remain the exclusive property of FinLocker and its third-party licensors. Customer shall not on its’ own behalf or on behalf of any third party violate FinLocker’s Intellectual Property rights.
8.2 Title to Consumer Content. As between the Parties, all Intellectual Property rights in Consumer Content supplied by Consumers in connection with their account with FinLocker are and shall remain the exclusive property of FinLocker. Customer makes no claims, warranties, or representations regarding the ownership of Consumer Content. Customer may use Consumer Content only to provide Consumer with Customer’s Products and Services and in no other manner. In no event shall Customer claim any rights or take any action with respect to any Consumer Content that is inconsistent with the duties of a bailee for hire. Customer shall not use, disclose, sell, assign, loan, lease, dispose of, encumber or Commercially Exploit (or authorize any third party to do so) any Consumer Content for any purpose other than the strict performance of its duties and obligations as requested or authorized by the Consumer.
8.3 Suggestions. FinLocker shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer and its Authorized Users relating to the Service.
8.4 Trademarks. “FinLocker,” the FinLocker logo and all FinLocker product names are trademarks or service marks of FinLocker or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under these Terms, except that Customer shall have the limited right to use the Marks solely as they appear in the Services. Customer shall not use the Marks in any advertising or promotional material nor shall Customer disclose FinLocker as a service provider to any third party, except for such disclosures required by federal, state, or local government regulations, or as otherwise may be approved in advance and in writing by FinLocker. Customer shall not remove, alter or obscure any Marks or proprietary notices contained in the Services or other materials provided by FinLocker.
9.1 General Warranties. Both Parties represent and warrant that: (i) the Party is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under these Terms, in accordance with Applicable Law and its articles of incorporation, bylaws and/or other governance documents; (ii) the Party has obtained all required consents, licenses, approvals, and/or permissions to authorize it to enter and perform its obligations under these Terms; (iii) the Party will not make any representations, warranties, or guarantees on behalf of the other Party; and (iv) the Party will comply with all Applicable Laws.
9.2 FinLocker Warranties. FinLocker represents and warrants: (i) the Services shall operate in material conformance with the scope defined in Addendums to or Orders attached tothe Ordering Document and any other Addendum that defines the FinLocker scope; (ii) the Services will be performed in a professional manner consistent with applicable industry standards; (iii) the Services shall not contain any Computer Virus; and (iv) FinLocker owns or otherwise has all right, title and interest in and to the Services and any associated Intellectual Property and has the absolute right to provide the foregoing to Customer.
10.1 Confidential Information. In the performance of these Terms, each Party may obtain nonpublic information from the other Party that is confidential and proprietary in nature (“Confidential Information”). Such Confidential Information includes, but is not limited to, the terms of these Terms, information relating to the Services, information regarding a Party’s current, future and proposed products and services, product designs, plans and roadmaps, prices and costs, trade secrets, patents, patent applications, development plans, ideas, samples, media, techniques, works of authorship, models, inventions, know-how, processes, algorithms, software schematics, code and source documents, data, formulas, financial information, procurement requirements, customer lists, suppliers, investors, employees, business and contractual relationships, sales and marketing plans, Consumer Content, content from FinLocker Data Providers, content from Customer’s Data Providers, and content from other Data Providers, nonpublic personal information of consumers as defined by the Gramm-Leach-Bliley Act (Pub. L. 106-102) and any implementing regulations or guidelines, whether disclosed before or after the Effective Date and any other information the receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the disclosing Party. Confidential Information also includes any and all nonpublic information provided to the disclosing Party by third parties.
10.2 Obligations. The Parties agree that at all times, and notwithstanding the termination or expiration of these Terms, they shall hold all Confidential Information of the other Party in strict confidence and trust, and shall not use, reproduce or disclose the Confidential Information of the other Party to any person or entity except as specifically permitted in these Terms. Each Party may disclose Confidential Information of the other Party only to those of its employees, contractors, consultants, and advisors who have previously agreed to be bound by terms and conditions at least as restrictive as those set forth in these Terms and who have a need to know such information.
10.3 Exclusions to Confidentiality. The restrictions on use and disclosure of Confidential Information set forth in Section 10.2 shall not apply to the extent the Confidential Information: (i) is or becomes generally available to the public through no fault of the receiving Party (or anyone acting on its behalf); (ii) was previously rightfully known to the receiving Party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the receiving Party by a third party who may rightfully transfer and disclose the information without restriction and free of any obligation to keep it confidential; (iv) is independently developed by the receiving Party or a third party without reference or access to the disclosing Party’s Confidential Information; or (v) is otherwise agreed upon by the Parties not to be subject to the restrictions set forth in Section 10.2.
10.4 Disclosures Required by Law. The receiving Party may disclose Confidential Information if required to do so as a matter of law, regulation or court order, provided that: (i) the receiving Party shall use all reasonable efforts to provide the disclosing Party with at least (10) days’ prior notice of such disclosure, (ii) the receiving Party shall disclose only that portion of the Confidential Information that is legally required to be furnished, and (iii) the receiving Party shall use reasonable efforts to seek from the party to which the information must be disclosed confidential treatment of the disclosed Confidential Information.
11. INFORMATION SECURITY; COMPLIANCE
11.1 Information Security. To the extent required by Applicable Law, each Party represents that it has implemented and maintains an information security program as required by the Gramm-Leach Bliley Act of 1999 (15 U.S.C. Section 6801 et seq.) and the regulations promulgated thereunder and the Interagency Guidelines Establishing Standards for Safeguarding Customer Information. Such program shall include appropriate administrative, technical and physical safeguards reasonably designed to: (i) ensure the security and confidentiality of consumer information; (ii) protect against any anticipated threats or hazards to the security or integrity of consumer information; (iii) protect against unauthorized access to or use of consumer information that could result in substantial harm or inconvenience to any consumer; and (iv) ensures disposal of the consumer information in a secure manner.
11.2 Security Breach. If a Party experiences a security breach that compromises Consumer Content, content delivered by the other Party, Security Credentials, confidential information of the Other party (a “Security Breach”), a Party will promptly notify the other Party of such Security Breach, and they will promptly coordinate with the other Party to investigate and remedy the Security Breach. Except as may be strictly required by Applicable Law, a Party agrees that it will not inform any third party of any such Security Breach without the other Party’s approval, which shall not be unreasonably withheld or delayed; however, if such disclosure is required by Applicable Law, a Party agrees to work with the other Party regarding the content of such disclosure so as to minimize any potential adverse impact upon the other Party and its clients and customers.
11.3 Subcontractors. FinLocker may utilize subcontractors in the performance of Services under the Terms. FinLocker shall be responsible for performing due diligence of its subcontractors and managing their performance, including securing contractual obligations relating to confidentiality. The use of any subcontractor shall not release FinLocker from any of its obligations under the Terms, and FinLocker shall remain liable for all acts and omissions of any such subcontractor.
11.4 Nondiscrimination and Labor Relations. The Parties incorporate by reference the provisions of the equal opportunity clauses of Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, Section 503 of the Rehabilitation Act of 1973, as amended, and Executive Order 13496, 29 CFR Part 471, Appendix A to Subpart A, if applicable, FinLocker and its subcontractors shall abide by the requirements of 41 CFR sections 60-1,4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability.
11.5 Consumer Information. Each party agrees that in addition to and not in limitation of anything else contained in these Terms, except as expressly permitted by these Terms it will abide by all applicable federal, state, and local law and regulations guidelines governing fair information practices and consumers’ rights to privacy, including without limitation the Fair Credit Reporting Act (15 U.S.C. § 1681 et. seq.) (the “FCRA”) and the Gramm-Leach-Bliley Act of 1999, (15 U.S.C. § 6801 et. seq.), as the same may be amended from time to time and the regulations promulgated thereunder. Provider has safeguards in place to protect the confidentiality and integrity of all information within its control.
11.6 Retention of Consumer Content. To the extent that any Consumer Content that is not subject to an Information Agreement is contained in archived data or systems and return or destruction of the same according to this section is unduly burdensome, Customer shall destroy such Consumer Content, content from FinLocker, FinLocker Data Providers in accordance with Customer’s general data destruction policies and content from Customer’s Data Providers and other Data Providers provided via FinLocker Services in a manner consistent with their contractual obligations with theses providers, but in no event shall Customer retain the Consumer Content, content from FinLocker Data Providers, content delivered via FinLocker Services from Customer’s Data Providers and other Data Providers, for a time period exceeding what is required under Applicable Law. Customer shall use, retain, and dispose of all Consumer Content in the possession of Customer that is subject to an Information Agreement pursuant to the terms of such Information Agreement. FinLocker Data Providers may retain content they delivered provided that the source of the information is not disclosed and the information is used in conjunction with other independent information, FinLocker data providers may use, store and disclose content they provided and other such information acquired in connection with the Services in statistical form for pattern recognition, modeling, enhancement and improvement, system analysis and to analyze the performance of the Services. FinLocker may use, store and disclose the content and other such information acquired in connection with the Services in statistical form for pattern recognition, modeling, enhancement and improvement, system analysis, and to analyze the performance of the Services.
11.7 Reusable Consumer Financial Locker. All data contained in the Reusable Consumer Financial Locker is the property of the Consumer, and the Consumer determines what data from the Reusable Consumer Financial Locker may be accessed by the Customer or any other party. Any derived data, analysis, reports, calculations, or other similar data and contents that are part of the Reusable Consumer Financial Locker are the property of FinLocker with a license to share this data.
11.8 Consumer Data Share Usage. Unless otherwise specified in an addendum to this agreement, a Consumer Data Share may not be used for multiple transactions and may not be provided to multiple unrelated parties. By way of example, 1) the data from a single Consumer Data Share may be provided to any parties involved in a specific transaction; 2) for a lead generation use case a Consumer Data Share may only be provided to a single party, if the data is delivered to as a lead to then Customer will be responsible to pay for multiple Consumer Data Shares.
12. TERM AND TERMINATION
12.1 Term. Unless otherwise stated in an Addendum or Ordering Document, the Term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Addenda. The term of each Addendum is as specified in such Addendum. Unless otherwise stated in an Addendum or Ordering Document, this Agreement shall be extended for additional one (1) year periods each, unless either party notifies the other party sixty (60) days prior to the expiration of the then-current term that it does not wish to renew this Agreement.
12.2 Termination for Cause. If either Party breaches any provision of these Terms, the non-breaching Party may, upon providing written notice of such breach, terminate these Terms in its entirety, if the breach is not cured within 30 days following such notice (unless a shorter cure period is otherwise set forth in the applicable Addendum). Notwithstanding the foregoing, FinLocker may immediately terminate these Terms (i) upon written notice in the event Customer breaches these Terms after receiving two prior breach notices; or (ii) if Customer breaches the licenses granted hereunder.
12.3 Termination for Insolvency. Either Party may immediately terminate these Terms upon written notice to the other Party in the event the other Party: (i) becomes insolvent; (ii) files, submits, initiates, agrees to or is subject to any bankruptcy petition, conservatorship, request or petition for appointment of a receiver, or demand or application for voluntary or involuntary dissolution; or (iii) makes a general assignment for the benefit of its creditors.
12.4 Termination by Regulators. The Terms may be terminated by: (i) any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, or judicial or administrative body, whether domestic, foreign or international, with jurisdiction over Customer (collectively, “Regulators”); or (ii) Customer if ordered to do so by any Regulator. Customer will provide FinLocker with prompt notice of any such required termination, including supporting documentation, and will cooperate with FinLocker regarding the winding down of any terminated Services.
12.5 Effects of Termination. Upon expiration or termination of these Terms, all license rights granted by FinLocker to Customer pursuant to the Terms shall terminate and Customer shall pay FinLocker in full for all Services accessed or used. Customer acknowledges that minimum fees, annual fees, flat fees, and the like are based on a minimum term as defined in the applicable Addendum. If the Terms are terminated due to Customer’s breach or at the request of Regulators, Customer shall pay FinLocker the full amount of any outstanding fees or the like for the remainder of the then-current term. Notwithstanding the foregoing, the Parties agree that if Customer accesses or continues to use the Services after the expiration or termination of these Terms, and FinLocker allows such access to the Services, then such use of the Services shall be governed by these Terms; provided, however, that acceptance by FinLocker of any order or delivery of any Services after the expiration or termination of these Terms shall not be considered an extension or renewal of these Terms, nor obligate FinLocker to accept any other orders or continue to deliver the Services.
12.6 Return or Destruction of Materials. Within 15 days of expiration or termination of these Terms, Customer shall destroy, or if requested by FinLocker, return all local Software, Service access information and FinLocker Confidential Information (including all copies of the same) (collectively, the “Materials”) and certify in writing signed by Customer that all Materials have been returned or destroyed. Notwithstanding the foregoing, Customer may retain a copy of the Services in an archival database, as required for regulatory compliance and internal record-keeping, and for no other use, commercial or otherwise.
12.7 Application to Addenda. For purposes of clarification, this Article 12 applies to each Addendum separately (and for such purpose, all references to “Agreement” in this Article 12 shall be deemed to mean such Addendum) and any expiration or termination of any Addendum shall not affect any other Addendum.
13. DISCLAIMER; LIMITATION OF LIABILITY
13.1 Disclaimer. TO THE MAXIMUM EXTENT ALLOWED BY LAW AND EXCEPT AS UNAMBIGUOUSLY AND EXPRESSLY SET FORTH IN THIS AGREEMENT, FINLOCKER AND ITS AFFILIATES AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) MAKE NO PROMISES ABOUT THE SERVICES AND CONSUMER CONTENT, CONTENT FROM FINLOCKER DATA PROVIDERS, CUSTOMER DATA PROVIDERS, OR OTHER DATA PROVIDERS AND THE SERVICES AND CONSUMER CONTENT, CONTENT FROM FINLOCKER DATA PROVIDERS, CUSTOMER DATA PROVIDERS, OR OTHER DATA PROVIDERS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO FINLOCKER), OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FINLOCKER AND ITS AFFILIATES AND SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETE OR FREE FROM ERRORS OR OMISSIONS OR WILL BE AVAILABLE 24 HOURS PER DAY, 7 DAYS PER WEEK, AND DO NOT ASSUME, AND EXPRESSLY DISCLAIM, ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN, OR THE UNAVAILABILITY OF, THE SERVICES, WHETHER SUCH ERRORS OR OMISSIONS OR UNAVAILABILITY RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. FINLOCKER AND ITS AFFILIATES AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES FOR ANY SPECIFIC PURPOSES.
13.2 FCRA Disclaimer. FINLOCKER’S SERVICES ARE NOT PROVIDED BY A “CONSUMER REPORTING AGENCY,” AS THAT TERM IS DEFINED IN THE FAIR CREDIT REPORTING ACT (15 U.S.C. 1681, ET SEC.) (“FCRA”) AND DO NOT CONSTITUTE “CONSUMER REPORTS,” AS THAT TERM IS DEFINED IN THE FCRA. FINLOCKER’S SERVICES MAY BE USED TO ASSIST ENTITIES IN PROCESSING DATA THAT MAY BE RELEVANT TO A DETERMINATION OF ELIGIBILITY FOR CREDIT, INSURANCE, EMPLOYMENT OR ANOTHER PURPOSE IN CONNECTION WITH WHICH A CONSUMER REPORT MAY BE USED UNDER THE FCRA. HOWEVER, FINLOCKER’S SERVICES DO NOT PROVIDE ANY FINDINGS BEARING ON A CONSUMER’S CREDITWORTHINESS AND SHOULD NOT BE USED AS SUCH. FURTHER, DUE TO THE NATURE AND ORIGIN OF PUBLIC RECORD INFORMATION, THE PUBLIC RECORDS AND COMMERCIALLY AVAILABLE DATA SOURCES USED BY FINLOCKER MAY CONTAIN ERRORS.
13.3 Limitation of Liability. FINLOCKER’S TOTAL LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT OR FOR ANY OTHER CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO FINLOCKER DURING THE CONSECUTIVE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM. THIS LIMIT IS CUMULATIVE, AND ALL PAYMENTS UNDER THIS AGREEMENT ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMIT. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL FINLOCKER OR ITS AFFILIATES OR PROVIDERS, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, COMPENSATORY, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL OR USE, LOST OR DAMAGED DATA OR OTHER INTANGIBLE LOSSES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF FINLOCKER IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 13.3 IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
14.1 Indemnification by FinLocker. FinLocker shall indemnify, defend and hold Customer harmless from and against any claims, losses, liabilities, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Customer by a third party to the extent it is based on a claim that the Services infringe a United States patent, copyright or trademark (each, an “Infringement Claim”). FinLocker’s obligations with respect to this section are conditioned upon: (i) Customer providing FinLocker prompt written notice of the Infringement Claim or threat thereof; (ii) Customer giving FinLocker full and exclusive authority for the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal; and (iii) Customer giving FinLocker all information and assistance reasonably requested by FinLocker in connection with the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal.
14.2 FinLocker Options. If an Infringement Claim has been made, or in FinLocker’s opinion is likely to be made, FinLocker may, at its sole option and expense, either: (i) procure for Customer the right to continue using the Service; or (ii) replace or modify the Service so that it becomes non-infringing. If neither of the foregoing options is reasonably available, FinLocker may immediately terminate both Parties’ respective rights and obligations under these Terms with regard to the Service, and refund to Customer a pro-rata amount of any prepaid fees actually paid by Customer for the unused portion of such Service.
14.3 Exclusions. Notwithstanding the foregoing, FinLocker shall have no obligation to indemnify Customer to the extent an Infringement Claim arises from (i) the combination, operation or use of the Services with any other software, data, products or materials not supplied by FinLocker, (ii) the use of the Services in violation of the terms and conditions of these Terms; (iii) the alteration or modification of the Services; (iv) FinLocker’s compliance with Customer’s designs, specifications or instructions; or (v) Customer’s continued use of the Services after FinLocker has informed Customer of modifications or changes to the Services required to avoid the Infringement Claim.
14.4 SECTIONS 14.1 – 14.3 SET FORTH FINLOCKER’S ENTIRE LIABILITY TO CUSTOMER AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ANY THIRD PARTY INTELLECTUAL PROPERTY CLAIMS.
14.5 Indemnification by Customer. Except for FinLocker’s indemnity obligations set forth above, Customer shall indemnify, defend and hold FinLocker and FinLocker Data Providers and their respective officers, directors, managers, employees, and affiliates harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against FinLocker by a third party arising out of or related to (i) the use of the Services, Consumer Content, content provided by FinLocker Data Providers, Customer’s Data Providers, or other Data Providers by the Customer, Authorized Users, or Customer’s Consumers, (ii) any Consumer Transaction, (iii) Customer’s provision of or FinLocker’s use of any data, documentation or other materials provided by Customer under these Terms, (iv) any data breach of Customer’s Information Security, (v) any data loss by Customer and/or (vi) Customer’s breach of these Terms.
15.1 Publicity. Customer hereby grants FinLocker a world-wide, non-exclusive, royalty-free right and license to use Customer names and trademarks solely to identify Customer as a customer of FinLocker in any customer presentations and customer lists. Any other advertisement, solicitation, or public announcement of the existence of these Terms or the terms of the relationship created hereby, must be approved by both Parties in writing prior to release.
15.2 Relationship of Parties. The Parties acknowledge that this is a business relationship based on the express provisions of these Terms and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by these Terms. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct or supervise the daily affairs of the other Party, and neither Party shall act, represent or hold itself out as such. The rights, duties, obligations, and liabilities of the Parties shall be several and not joint, each Party being individually responsible only for its obligations as set forth in these Terms. Notwithstanding any use of the term “partner” in these Terms or any Services, product or programs made available to Customer, the Parties do not intend to create any legal relationship or partnership between each other, and neither Party will assert to any third party or otherwise claim that such a legal relationship exists between each other.
15.3 Notices. All notices required under these Terms shall be sent to the addresses on the signature page of this Agreement, with a copy to the Legal Department of the Party. All notices under this Agreement shall be deemed given: (i) when delivered by hand; (ii) 1 day after being sent by commercial overnight courier with written verification of receipt; or (iii) 5 days after being sent by registered or certified mail, return receipt requested, postage prepaid. Either Party may from time to time change its address for notification purposes by giving the other Party written notice of the new address and the date upon which it will become effective. Notwithstanding the foregoing, notices regarding changes in pricing, policies, or programs may be communicated by e-mail.
15.4 Assignment. Customer shall not assign or transfer these Terms or any rights or obligations under these Terms without FinLocker’s prior written consent. A change in control constitutes an assignment under these Terms. Any unauthorized assignment or transfer shall be void and constitutes grounds for immediate termination of these Terms by FinLocker. These Terms bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
15.5 Severability. If any provision or part of these Terms becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void and deemed deleted from these Terms. The validity, legality, and enforceability of the remaining provisions of these Terms shall not in any way be affected or impaired.
15.6 No Waiver. Any waiver is only valid to the extent expressly set forth in writing. No waiver by either Party of any right under these Terms shall constitute a subsequent or continuing waiver of such right or any other rights under these Terms.
15.7 Injunction. Customer acknowledges that the Services are a valuable commercial product, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of FinLocker’s intellectual property rights shall be deemed a material breach of the Terms, for which FinLocker may not have adequate remedy in money or damages, and FinLocker shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.
15.8 Force Majeure. Except for Customer’s obligation to pay the fees for Services provided, neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components or equipment); provided that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
15.9 Governing Law, Venue and Attorney’s Fees. These Terms are governed by and construed in accordance with the laws of the State of Missouri, without giving effect to its principles of conflicts of law. Any litigation arising out of these Terms shall be brought by either Party in a court of competent jurisdiction located in St. Louis County, Missouri, and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each Party hereby expressly and irrevocably waives the right to a jury trial. The prevailing party shall be awarded its reasonable attorneys’ fees and costs in any proceeding arising out of or related to these Terms.
15.10 No Third-Party Beneficiaries. FinLocker and Customer agree that these Terms are for the benefit of the entities executing such document(s) and are not intended to confer any rights or benefits on any third party, including any employee or client of either entity executing such document(s), and that there are no third party beneficiaries as to these Terms or any part or specific provision of these Terms.
15.11 Construction. Section headings of these Terms have been added solely for convenience of reference and shall not affect construction or interpretation of these Terms. All references to “days” shall mean calendar days unless otherwise specified. The Parties acknowledge that these Terms was prepared by both Parties jointly, and any uncertainty or ambiguity shall not be interpreted against any one Party.
15.12 Survival. The following sections shall survive the expiration or termination of these Terms: §3.2 Prohibited Uses; §4 DATA ACCESS; §7 PAYMENT; §8 PROPRIETARY RIGHTS; §9 WARRANTIES; §10 CONFIDENTIALITY; §11 INFORMATION SECURITY; COMPLIANCE; §12.6 Return or Destruction of Materials; §13 DISCLAIMER; LIMITATION OF LIABILITY; §14 INDEMNIFICATION; §15 GENERAL AND ANY OTHER SECTIONS WHICH, BY THEIR VERY NATURE, ARE INTENDED TO SURVIVE THE EXPIRATION OR TERMINATION OF THESE TERMS.
16. DEFINITIONS. The following are definitions applying to these Terms. Additional definitions applying solely to an Addendum to this Agreement will be outlined in that Addendum.
“Access Code” means an Authorized User’s or a computer system’s unique authentication credential(s) used to access to FinLocker SaaS Application(s). Authentication credentials can include user-id and password, certificates, or other methods that uniquely identify and authenticate an Authorized User or computer system. User-ids may be created by FinLocker on behalf of the Customer for their Authorized Users, they may be created by the Customer on behalf of their Authorized Users and Customer’s Consumers, and for Customer’s Consumers they may be directly created by Customer’s Consumer themselves.
• “Agent(s)” means any of FinLocker’s employees, subcontractors, staff, licensors, providers, or other third parties or individuals that provide or may provide Services or other products or services on FinLocker’s behalf pursuant to this Agreement.
• “Applicable Law” means all applicable state, federal, and/or local laws, rules and regulations, including, without limitation, Consumer privacy laws.
• “Authorized User” means a user who is authorized by the Customer to access and use the Service on behalf of the Customer.
• “Binder” means a container of information a Consumer has shared with the Customer or Data FinLocker has retrieved and processed on behalf of the Customer and with the Consumer’s Consent.
• “Binder Update” means when either a Consumer places new information into a Binder during the life of a Binder.
• “Binder Update Period” means the period of time a Consumer can place new information into a Binder or a Customer can request new information be placed into the binder by the consumer, ordering new content to be placed in the Binder (including but not limited to Employment and Income verifications, Tax Transcripts, Credit reports), or the Customer can refresh data in the Binder (including but not limited to asset verification data). Binder Update Period is determined either by the Consumer, as may be extended by the Consumer or as specified in an Order under this MSA. If not specified the Binder Update Period is 60 days. So long as a Consumer is active with FinLocker, they may continue to access any data in the Binder until it is deleted as specified in FinLocker’s data retention period.
• “Cloud Service Provider” means third parties who provide public computing infrastructure such as but not limited to Platform as a Service, Infrastructure as a Service, or managed security services. Example Cloud Services Providers include but are not limited to Microsoft, Amazon, Google, and Rackspace.
• “Commercially Exploit” means and includes, without limitation, developing information, statistics, compilations, summaries, surveys, abstracts, analytics, or combinations with or matches against other data, even if that data is de-identified or aggregated, whether or not for financial gain and whether or not for use by Customer or others.
• “Computer Virus” means any malicious data, code, program, routine, device or other internal component (e.g., computer worm, computer time bomb, software lock, malicious logic, Trojan horse, bug, error, defect or trap door, or similar component), which could damage, destroy, delete, disable, deactivate, alter or disrupt any computer program, firmware or hardware or which could, in any manner, reveal, damage, delete, disable, deactivate, destroy, alter or disrupt any data or other information in any manner that is capable of deleting, disabling, deactivating, interfering with, or otherwise harming hardware, data, or computer programs or codes, or that is capable of providing unauthorized access or produce unauthorized modifications.
• “Consumer” means a consumer that has created an account with FinLocker, whether such consumer created the account directly through FinLocker (a “FinLocker Consumer”) or such Consumer created the account through Customer’s access to FinLocker (“Customer’s Consumer”). An example of Customer’s Consumer is a borrower that is applying for a loan from Customer (lender).
• “Consumer Content” means information, data, reports, access permissions and other points of information and content of a Consumer in the possession of FinLocker that the Consumer has authorized to be provided to Customer, or has given Customer permission to access, use or share with parties external to Customer, for purposes of the provision of the Services.
• “Consumer Data Share” means when a Consumer shares data from their Reusable Consumer Financial Locker and such data is placed in a Binder. A Binder includes all data shared by the Consumer either initially or for as long as the Binder Update Period is still active. One Consumer Data Share is intended to be used for a single purpose or provided to a single party for a specific transaction.
• “Consulting and Integration Services” means any consulting, advisory, software development, systems integration, or customization services related to the Services which are requested by Customer and identified in an applicable Addendum at the rates outlined in the applicable Addendum.
• “Core FinLocker” means one or more of the FinLocker Services, of asset verification, employment and income verification, Day 1 Certainty® from Fannie Mae for asset verification, FinLocker rules engine, FinLocker rules engine, FinLocker asset, employment and income analytics for the processing and underwriting of a loan,
• “Customer’s Products and Services” means any products and services Customer offers or provides to in Customer’s normal business operations.
• “Customer Data Providers” means any provider of data or services which FinLocker accesses on behalf of the customer leveraging Customer’s contractual relationship with the data provider.
• “Closed Loan” shall mean a loan where any part of the FinLocker services are utilized of the loan origination, processing, or underwriting process, and the Consumer(s) have signed the closing documents for the loan.
• “Data Provider” means any 3rd party which provides data or services to FinLocker, which FinLocker uses as part of delivering FinLocker’s Services.
• “FinLocker Data Providers” means any provider of data or services which FinLocker accesses where FinLocker access to that provider does not require the Customer to have a relationship with that Provider.
• “Go-Live Date” means first day any FinLocker product (for example, asset verification, income verification product ordering, tax transcript ordering, income worksheet and calculations, rules engine, Consumer/lender collaboration, etc.) is used in the Customer Production FinLocker environment.
• “Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trade names, service marks, trademarks, moral rights, know-how, and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force.
• “Processed Loan” shall mean a loan where any part of the FinLocker services, including Lead To Loan, are utilized by Customer for the loan origination, processing, or underwriting process.
• “Professional Services” means installation, implementation, training, or consulting services, including custom modification programming, support services relating to custom modifications, on-site support services, and any other services as set forth under these Terms and designated as Professional Services. Unless otherwise specified in writing by the Parties, Professional Services will be charged to Customer on a time and materials basis at FinLocker’s then-current standard service rates.
• “Reusable Consumer Financial Locker” shall mean tools offered to the Consumer such as but not limited to, aggregated financial transactions, financial account and document account management, cash flow analysis, mortgage analysis, asset valuation management, document library, financial calculators, goals setting and management, budgets, property valuation, information on recently sold properties, information on properties for sale, expense management, transaction classification, analytic tools, machine learning, predictive analysis tools to enable Consumers to better manage their financial life, and other tools to help Consumers manage their finances, mortgages, properties, This list is meant to be illustrative of the scope, but in no way to limit the specific functionality included in Reusable Consumer Financial Locker.
• “Reusable Consumer Financial Locker Subscription” shall mean when the Consumer accepts an invitation to use Reusable Consumer Financial Locker or the consumer creates a Reusable Consumer Financial Locker using a web link provided by the Customer to the Consumer.
• “SaaS Application(s)” means FinLocker’s Software as a Service which is a collection of interlinked web pages, Application Programming Interfaces (API), associated back-end software, and data made available over the Internet and any platforms and applications used by FinLocker to display and perform the Services. SaaS applications do not include FinLocker Data Providers, Customer Data Providers, and other Data Providers, which FinLocker may access.
• “Software” means any software provided by FinLocker for local installation and use in connection with the Services and any improvements thereto.
• “Training Services” means the training services described in any applicable Addendum and any training necessary to enable Customer personnel to access and use the Services.