This Agreement is entered into as of CONTRACT DATE ("Effective Date") between LoanApp, Inc., a Delaware corporation, with it's principal place of business at 909 North Sepulveda Blvd, El Segundo, CA 90245 ("Provider"), and COMPANY NAME ("Client"), a COMPANY TYPE ("State of Incorporation") with its principal place of business at COMPANY ADDRESS ("Address").
WHEREAS, Provider operates the Loanapp.com website (the "Website"), which enables consumers to input data concerning their financial requirements and review various loan products and loan rates, and which enables participating lenders to receive consumer data via various transmission methods from Provider;
WHEREAS, Provider wishes to make available to Client certain data obtained from consumers via the Website on the terms and conditions described in this Agreement (the "Loanapp.com Data Distribution Program");
WHEREAS, Client is in the business of providing mortgage loan services to consumers and wishes to subscribe to the data gathering and transmission services offered by Provider;
WHEREAS, Provider has entered into technology and distribution agreements with various companies to draw consumer traffic to the Website and facilitate consumer navigation through mortgage loan financing and related sites and;
WHEREAS, Client wishes to obtain the benefits of the technology and distribution arrangements created by Provider for the enhancement of its business.
NOW, THEREFORE, in consideration of the premises and the respective representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I PROVIDER SERVICES
Provider shall perform the following obligations and provide the following services in connection LoanApp.com Data Distribution Program:
1.1 Marketing. Provider shall use methods and distribution channels as it deems advisable to advertise and market the Website to increase the number of consumers served by the Website.
1.2 Establishment of Inquiry Formats and Templates. Provider shall establish on the Website a format for consumers to use to input information deemed relevant by mortgage lenders and others in the business of providing credit services, for the evaluation of the creditworthiness of such consumers.
1.3 Display of Product Information. Provider will display on the Website general descriptions of loan products. Provider shall not be required to publish any product descriptions that it has reason to believe are unavailable, or that constitute impermissible or bait and switch advertising.
1.4 Transmission of Consumer Data. Following input by consumers of data, Provider will match the data with the criteria of up to four lenders or brokers based on filters established and furnished to Provider by the lenders or brokers. Client will be notified by Provider via email if data has been submitted that meets its requirements. Client may then log on to a secure web site that is password protected to retrieve the data. Client will have choice of download formats.
Once a consumer has submitted consumer data to Loanapp.com which is relevant to a specific credit product (e.g., mortgage, home equity, commercial loan, auto loan, credit card or other), consumer will be blocked from requesting additional lenders through loanapp.com for 30 days after the initial submission. Consumer will be allowed to submit requests for alternative products at any time.
1.5 Client Support. Provider shall provide support to Client concerning the Website and all matters related to Client's participation in the Loanapp.com Data Distribution Program, including but not limited to furnishing of periodic reports documenting the data transmitted.
1.6 Customer Survey. Provider shall transmit a customer survey to all consumers who submitted consumer data via the Website. Provider shall establish minimum customer satisfaction requirements. Clients whose service levels fall below minimum standards, as determined by the responses to the customer surveys, will be subject to immediate termination from the Loanapp.com Data Distribution Program, upon notice from Provider.
ARTICLE II CLIENT'S SERVICES
2.1 Provision of Loan Services. Client will act as a loan originator or lender with respect to consumer and mortgage loans and other credit products made available through the Website.
2.2 Communication with Consumers/Customer Service. Client will make timely contact with prospective borrowers whose data is transmitted via the Loanapp.com Data Distribution Program and shall keep consumers informed of the status of their requests for credit. For the purposes of this section, timely contact shall mean that Client contacts consumers who have transmitted data within 2 business days of receipt of such data from Provider. Client will promptly and within required legal time frames, respond to complaints and problems brought to Client's attention by consumers or Provider.
2.3 Processing and Underwriting. Client shall process and arrange for underwriting for all loan applications received from Provider, including such of the following as may be appropriate to the loan or credit product involved:
(a) Appraisal. Client shall engage an appraisal firm and ensure that the property appraisal is performed in a timely manner.
(b) Verifications. Client shall maintain frequent contact with the loan applicant to collect verifications of employment (VOE), income (VOI), assets, and debt, including mortgage debt (VOM).
(c) Underwriting. Client or its designee shall underwrite loan applications and inform consumers of the underwriting decision, providing adverse action letters under the Equal Credit Opportunity Act ("ECOA") if appropriate.
(d) Flood, Tax, Ancillary Services. Client shall order flood certifications, tax service and other ancillary services as needed.
(e) Title. Client shall assist prospective borrowers to arrange for a title search and title insurance.
(f) Escrow. Client shall engage a reputable escrow firm and arrange for escrow services pending closing and sale of loans and shall handle escrow funds, while in its control, in accordance with all legal and regulatory requirements.
2.4 Funding and Closing. Client shall fund and close loans based on applications it received through the Website, including using its own funding sources to close and fund loans in Client's name as original payee/mortgagee.
ARTICLE III COMPENSATION
3.1 Federal and State Law. The compensation structure set forth below reflects the intent of the parties but is subject to change, by mutual agreement of the parties, to comply with applicable federal and state laws and regulations.
3.2 Fees. Client shall compensate Provider for being included in the Website and having its loan and credit products displayed there by Provider ("Non Refundable Setup Fee") and for the collection and transmission of consumer data ("Transmission Fee") based on the fees schedule at http://www.loanapp.com/products/pricing.html which is subject to change at any time. Setup Fees shall be payable in advance, upon execution of this Agreement. Client shall pay all Transmission Fees in advance. A charge of 1.5% of the Transmission Fees due shall be added to each payment made by Client which is received by Provider more than five (5) calendar days after its due date. If Provider is required to collect any fees due from Client under this Agreement, Client shall be responsible for all costs of collection, including reasonable attorney's fees and costs.
(A) Eligibility. Provider will refund to Client, through credits to amounts due for Transmission Fees, the Transmission Fees paid in connection with data sets transmitted by Provider that fall within any of the following categories: (1) they are duplicate data sets for the same consumer and with respect to the same credit product; (2) the data transmitted is incomplete and does not permit Client to make contact with the consumer, either because the data provided contains incorrect telephone numbers, email addresses, or otherwise; (3) the data was entered by a consumer lacking legal capacity to make a contract (e.g., a minor, a person of diminished mental capacity, etc.); or (4) Client determines, following contact with the consumer, that the data entered concerning the consumer's identity is false. Client will not be entitled to request a refund for data entered by consumers that is incorrect concerning income, assets, debts, or other information necessary to the underwriting and/or processing of a credit request.
(B) Procedure to Claim Refund. To claim a refund of Transmission Fees paid, Client must notify Provider that the data set is invalid, duplicate or otherwise subject to credit within seven (7) calendar days of its receipt of the data. All requests for refund made by Client must be made online to through the administrative interface provided to Client. It is a further condition of refund ability of Transmission Fees that Client have attempted to contact the consumer within the two (2) business days allowing Client's receipt of the consumer data from Provider. Notwithstanding the foregoing, initial deposits are non-refundable.
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Representations and Warranties of Client. Client represents and warrants that the following are true and correct and shall remain true and correct during the Term:
(A) Authority. Client is a corporation duly organized, validly existing and with full corporate power and authority to transact any and all business contemplated by this Agreement and it possesses all requisite authority, power, licenses, permits and franchises to conduct its business as presently conducted. Its execution, delivery and compliance with its obligations under the terms of this Agreement are not prohibited or restricted by any government agency. Client has taken all necessary action to authorize its execution, delivery and performance of this Agreement.
(B) Conflict with Existing Laws or Contracts. The execution and delivery of this Agreement and the performance of its obligations hereunder by Client will not (i) conflict with or violate (i) Client's Certificate of Incorporation or By-laws, or (ii) any provision of any law or regulation or any decree, demand or order to which Client is subject, or (iii) conflict with or result in a breach of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any of the terms, conditions or provisions of any agreement or instrument to which Client is a party or by which it is bound or any order or decree applicable to Client or result in the creation or imposition of any lien on any of its assets or property.
(C) Licenses and Consents. Client has obtained all necessary or required governmental licenses, permits, approvals, and consents for the transactions contemplated by this Agreement. No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by Client of or compliance by Client with this Agreement.
(D) Legal Action Against Client. There is no claim, action, suit, proceeding or investigation pending or, to the best of Client's knowledge, threatened against Client or against any of its principal officers, directors or key employees, which, either in any one instance or in the aggregate, may result in any adverse change in the business, operations, financial condition, properties or assets of Client, or in any impairment of the right or ability of Client to carry on its business substantially as now conducted through its existing management group, or in any material liability on the part of Client, or which would draw into question the validity of this Agreement, or of any action taken or to be taken in connection with the obligations of Client contemplated therein, or which would be likely to impair the ability of Client to perform the terms of this Agreement.
(E) Binding Effect; Enforceability. This Agreement, assuming due authorization, execution and delivery hereof, and the obligations of Client hereunder, constitute the valid and binding obligations of Client, enforceable against Client in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(F) Compliance With Laws. Client has complied and will continue to comply with all applicable federal and state laws and regulations in its business operations, in the loan origination activities proposed to be conducted, and in the performance of this Agreement. In particular, Client represents and warrants that its loan origination, processing and underwriting systems and practices comply with applicable state and federal laws and regulations, including, without limitation, the Fair Housing Act, Fair Credit Reporting Act, Truth-in-Lending Act, Real Estate Settlement Procedures Act, and Equal Credit Opportunity Act. Client will not seek to hold Provider liable in any action prosecuted against Client by a borrower, government agency, or other party which alleges non-compliance with the laws applicable to originators of mortgage loans. Client will maintain errors and omissions insurance, fidelity bonds and similar financial instruments designed to protect those with whom it deals in the origination of mortgage loans, in commercially reasonable amounts, and will provide evidence of such instruments to Provider upon request. Provider will be a named or additional insured in such policies and instruments. The types and amounts of insurance, bonds and other financial instruments maintained by Client will be subject to approval and upward revision by Provider in its reasonable discretion, as the volume of Client activity subject to this Agreement increases.
Client represents on behalf of its officers, directors, and key employees that none of these individuals are currently in violation of any federal, state or other law or regulation applicable to them in their professional capacities as mortgage bankers, mortgage brokers, or any other regulated field or occupation, except as disclosed to Provider in writing in connection with this Agreement, and that there is no pending legal, administrative or similar action pending against any of them that would affect their ability to perform their obligations to Client or to the Participating Lenders, or to Provider hereunder.
4.2 Representations and Warranties of Provider. Provider represents and warrants that the following are true and correct and shall remain true and correct during the Term:
(A) Authority. Provider is a corporation duly organized, validly existing and in good standing under the laws of the State of California, with full corporate power and authority to transact any and all business contemplated by this Agreement and it possesses all requisite authority, power, and material licenses, permits and franchises to conduct its business, and to execute, deliver and comply with its obligations under this Agreement. The execution of this Agreement and its delivery and the performance by Provider of its obligations under this Agreement are not prohibited or restricted by any government agency. Provider has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(B) Conflict with Existing Laws or Contracts. The execution and delivery of this Agreement and the performance of its obligations hereunder by Provider will not (i) conflict with or violate (A) Provider's Certificate of Incorporation or By-laws, or (B) any provision of any law or regulation or any decree, demand or order to which Provider is subject, or (ii) conflict with or result in a breach of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any of the terms, conditions or provisions of any agreement or instrument to which Provider is a party or by which it is bound or any order or decree applicable to Provider or result in the creation or imposition of any lien on any of its assets or property.
(C) Licenses and Consents. Provider is not licensed as a mortgage solicitor, mortgage broker or mortgage lender in any state and is not approved by or subject to auditing by any federal or quasi-federal agency.
(D) Legal Action Against Provider. There is no claim, action, suit, proceeding or investigation pending or, to the best of Provider's knowledge, threatened against Provider, which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of Provider, or in any material impairment of the right or ability of Provider to carry on its business substantially as now conducted, or in any material liability on the part of Provider, or which would draw into question the validity of this Agreement, or any of the other instruments, documents or agreements entered into by Provider in connection with this Agreement, or of any action taken or to be taken in connection with the obligations of Provider contemplated therein, or which would be likely to impair materially the ability of Provider to perform under the terms of this Agreement.
(E) Binding on Provider; Enforceability. This Agreement, assuming due authorization, execution and delivery hereof, and all the obligations of Provider hereunder, constitute the valid and binding obligations of Provider, enforceable against Provider in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(F) Compliance With Laws. Provider has complied and will continue to comply with all applicable federal and state laws and regulations in its business operations, in the operation of the Website, and in the performance of this Agreement.
4.3 Mutual Covenants.
(A) Compliance with Laws. Client and Provider covenant to each other that they will comply with all applicable federal and state laws and regulations in performing their respective obligations under this Agreement. Any successful challenge of any particular provision of this Agreement, including the compensation provisions, by any governmental authority or other authority with jurisdiction over the parties, will, at the option of either party hereto, constitute sufficient cause for termination of this Agreement if the Agreement and its purposes cannot be reasonably effectuated without the challenged provision or term.
(B) Continuing Obligations of the Parties. The parties shall cooperate with each other in the performance of this Agreement during the Term. Neither party shall take any action or refrain from taking any action which would jeopardize or compromise the performance of the Website or Client's systems or which would hinder the performance by the parties of their respective obligations to each other and to their customers. Each party shall promptly forward to the other all notices, claims, letters, documents and other information received by such party which are relevant to the performance of this Agreement. The parties shall provide to each other all information and documentation regarding their respective products and services which are necessary or relevant to the performance of this Agreement.
(C) Client's Books and Records. Client shall make all material books and records pertaining to the services and facilities provided under this Agreement, including without limitation, records and reports on applications that are initiated through the Website, available for inspection by Provider at Client's offices or any other mutually convenient location upon thirty (30) days prior notice by Provider.
(D) Further Assurances. At any time, and from time to time after the execution of this Agreement, upon the reasonable request of a party hereto, and at the expense of such party, the other party shall do, execute, acknowledge and deliver, and shall cause to be done, executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required in order to enable the parties to perform their respective obligations hereunder and carry out the terms of this Agreement.
ARTICLE V INDEMNIFICATION
5.1. General Indemnification by Client. Client shall defend and indemnify Provider and any directors, officers, employees or agents of Provider (collectively, "Provider Indemnified Parties") and hold each of them harmless from and against any and all claims, losses, damage, penalties, fines, forfeitures, reasonable legal fees and expenses (including reasonable attorneys' fees) and related costs, expenses of litigation, judgments, and any other costs, fees and expenses (each, a "Liability" and collectively "Liabilities") that were caused by or resulted from a breach of any of Client's representations, warranties, covenants and agreements contained in this Agreement or by Client's willful misfeasance, bad faith or gross negligence in the performance of or failure to perform as provided in this Agreement. Further, Client shall indemnify the Provider Indemnified Parties for losses, damages or Liabilities resulting from Client's failure to adhere to industry standards and any applicable canons of ethics in the origination, processing or funding of mortgage loans, including any Liabilities resulting from claims made by consumers using the Website to obtain loans from Client or from claims made by third party providers of loan-related services and products. The indemnification based on the conduct of Client shall not be limited to willful acts, bad faith or gross negligence.
5.2. General Indemnification by Provider. Provider shall defend and indemnify Client and any directors, officers, employees or agents of Client (collectively, "Client Indemnified Parties") and hold each of them harmless from and against Liabilities that were caused by or resulted from a breach of any of Provider's representations, warranties, covenants and agreements contained in this Agreement or by Provider's willful misfeasance, bad faith or gross negligence in the performance of or failure to perform as provided in this Agreement.
5.3 Survival of Indemnifications. Client's and Provider's respective indemnification obligations will survive the expiration or termination of this Agreement by either party for any reason.
5.4 Notice of Claims. Each party shall promptly notify the other in writing of any and all litigation and claims known to such party made against it or the other party in connection with this Agreement.
ARTICLE VI LIMITATION OF LIABILITY AND WARRANTIES
6.1 CONSEQUENTIAL DAMAGES/FORCE MAJEURE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY DELAY OR DEFAULT IN PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT IF SUCH DELAY OR DEFAULT IS CAUSED BY CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING BUT NOT LIMITED TO WARS OR INSURRECTIONS, RIOTS, ACTS OF GOVERNMENT, STRIKES, WORK STOPPAGES, LABOR TROUBLES, FIRE, EXPLOSION, EARTHQUAKE, FLOOD, EMBARGOES AND/OR ITS INABILITY TO OBTAIN MATERIALS OR TO ANY OTHER CAUSE OUTSIDE THE REASONABLE CONTROL OF THE PARTIES. THE PARTIES SHALL NOT BE LIABLE TO EACH OTHER IN ANY EVENT FOR ANY LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS BY REASON OF SHUTDOWN, OR INTERRUPTION OF SERVICE, OR FOR ANY OTHER CONSEQUENTIAL LOSS OR DAMAGE OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROVIDER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE WEBSITE OR SERVICES ASSOCIATED WITH THE WEBSITE WILL OPERATE ERROR-FREE OR BE UNINTERRUPTED.
ARTICLE VII TERM AND TERMINATION
7.1 Term. This Agreement shall be in effect on a month-to-month basis, commencing on the date of its execution. Each party agrees to give the other party thirty (30) days notice of its intention not to continue the relationship established by this Agreement.
7.2 Termination for Cause. This Agreement may be terminated by written notice of either party at any time, due to one of the following Events of Default, after giving the defaulting party the applicable notice and opportunity to cure set forth below:
(A) Breach of the Agreement. If a party breaches a material term or condition of this Agreement, the non-defaulting party must give the defaulting party written notice of the breach. If the breach is of a monetary nature, the defaulting party will have five (5) business days to cure the default. Otherwise, the defaulting party will have thirty (30) days to cure the default. The non-defaulting party may terminate this Agreement at the expiration of the applicable cure period if the breach is not cured within the given cure period.
(B) Change in Control. If Client merges with, or is acquired by, a third party, and, in the sole opinion of Provider, such change materially adversely affects Client's ability to perform under this Agreement, or if in the sole opinion of Provider, any such third party is a competitor of Provider, then Provider may terminate this Agreement after giving thirty (30) days prior written notice to Client.
(C) Change in Financial Condition. If Client undergoes a material change in financial condition such that it is unable to meet its obligations under this Agreement, Provider may terminate this Agreement if, after giving Client written notice and a 5-day opportunity to cure, Client's financial condition has not been restored to the extent that it can perform its obligations hereunder; provided, however, that if the adverse change in Client's financial condition results in Client's failure to fund loans as and when scheduled for two (2) consecutive days, Provider may thereafter immediately terminate this Agreement.
(D) Bankruptcy. In the event of the occurrence of any of the following events, the non-defaulting party may terminate this Agreement immediately upon giving prior written notice to the defaulting party:
(i) the commencement of any bankruptcy, insolvency, reorganization, dissolution, liquidation of debt, receivership or conservatorship proceeding or other similar proceeding under federal or state bankruptcy, debtors relief, bank regulatory or other law by or against either party; (ii) or the appointment of a receiver, conservator, trustee or similar officer to take charge of, a substantial part of the property of either party.
7.3 Termination for Convenience. This Agreement may be terminated upon thirty (30) days written notice by either party for the convenience of such party. In the event of termination by Provider, the Transmission Fees prepaid by Client shall be pro-rated and the unused portion refunded to Client. All setup fees paid are non-refundable.
ARTICLE VIII MISCELLANEOUS
8.1 Notices. Any written notice required or permitted to be given to the parties hereunder shall be addressed to them at the addresses set forth at the top of this agreement, or to such other address as they shall designate.
All notices shall be in writing and delivered in person or shall be sent by registered or certified mail, return receipt requested, and shall be deemed effective, three days after the same is mailed as provided above with postage prepaid. Notice sent by any other method shall be effective only upon actual receipt.
8.2 Assignment; Contracting. This Agreement shall not be assignable in whole or in part by Provider or Client without the other party's prior written consent, and any attempted assignment without such consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
8.3 Waiver. No term or provision hereof will be deemed waived, and no variation of terms or provisions hereof shall be deemed consented to, unless such waiver or consent shall be in writing and signed by the party against whom such waiver or consent is sought to be enforced. Any delay, waiver or omission by Provider or Client to exercise any right or power arising from any breach or default of the other party in any of the terms, provisions or covenants of this Agreement shall not be construed to be a waiver by Provider or Client of any subsequent breach or default of the same or other terms, provisions or covenants on the part of either party.
8.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California, without respect to its conflicts of law principles.
8.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof, except where expressly noted herein, and all prior negotiations, agreements and understandings, whether oral or written, are superseded or canceled hereby.
8.6 Modification. This Agreement may not be amended or modified except in a written document signed by both parties.
8.7 Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, this Agreement shall be construed as if not containing that provision, and the rest of the Agreement shall remain in full force and effect, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
8.8 Independent Contractors. The parties, in performance of their obligations under this Agreement, are acting as independent contractors, and not partners, joint venturers or agents of each other and shall have no authority to act on behalf of the other. The parties shall each be responsible for payment of their respective taxes and assessments incurred in connection with performance of this Agreement. Neither party's employees are eligible for employee benefits of the other party.
8.9 Confidentiality. Each party agrees to keep all information related to the other party confidential. The parties further agree that the business strategy, marketing plans and product specifications of either party disclosed in connection with this transaction, as well as the terms of this Agreement, are confidential and shall not be used by the other party or disclosed by such other party to third parties unless such information is (i) required to effect the transactions contemplated herein, (ii) in the public domain or already in the possession of a party prior to the disclosure to it by the other party (including information received lawfully from third parties without an obligation of confidentiality); or (iii) required by law or regulation to be disclosed.