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These Terms and Conditions (“Terms”) are incorporated in their entirety by reference into any Order form entered into between Home Lending Pal Inc., a Delaware C Corporation (“HLP”) and Company (“Company”), and collectively these Terms along with the Order form constitute the entire Agreement between Company and HLP. Pursuant to these Terms, HLP may provide marketing services to Company. The delivery mechanism of said marketing services, the type of services delivered and the pricing for said marketing services may be set out more specifically in one or more Order forms entered into between Company and HLP.

 

Unless specifically stated on the Order form, the provisions of these Terms shall govern the Agreement between Company and HLP. To the extent a specific term in the Order form contradicts these Terms, the Order form shall supersede only to the extent necessary these Terms.

Company, by signing the HLP Order form, acknowledges that they have reviewed and agreed to the Terms set forth below:

  1. General Definitions As used in the Agreement, the following terms have the meaning set out below:
    1. “Party/Parties” means HLP and Company, who are each known individually as a Party and collectively as Parties, to these Terms and the HLP Order form.
    2. “Agreement” means these Terms as well as the HLP Order form, which collectively comprise the entire agreement of Company and HLP on the subject matter addressed in the Terms and HLP Order form.
    3. “Consumer” means the individual or entity submitting a Lead.
    4. “Order form” means
      1. The HLP Order form signed by both Company and HLP that together with these Terms comprise the Agreement between HLP and Company; and
      2. Any email or other written communication, issued subsequent to the initial signed HLP Order form, through which Company and HLP may establish mutual assent to renewal, continuation, modification or updating of any of the terms contained in the initial, signed HLP Order form bearing the signature of both Company and HLP. To the extent that there is any ambiguity as to the terms of any renewal, continuation, modification or update may have been agreed upon through an email or other written communication issued subsequent to the initial signed HLP Order form, the terms of the initial signed HLP Order form shall control.
    5. Lead Definitions.
      1. “Lead” means a collection of information including but not limited to contact information, credit score or product interests submitted by a consumer to HLP and through which information the consumer may be contacted by Company.
      2. “Online Lead” means a Lead submitted through an HLP Lead form, hosted on an HLP website or on a third-party website, which consists only of the data entered by the consumer on that form.
      3. “Phone Transfer Lead” means either
        1. That a consumer is transferred via phone to Company after the consumer has initiated a call to HLP its partners, agents or affiliates, and
          1. Online lead information is transmitted as soon as practicable to Company; Or
        2. That a consumer indicates they would like to be contacted by telephone, and HLP, its partners, agents or affiliates, initiates a call to that consumer and upon contact transfers that consumer via phone to a Company, and
          1. Online Lead information is transmitted as soon as practicable to Company
  2. Lead Generation Services. Upon the Effective Date set out in the Order form, HLP will provide leads, and Company agrees to purchase leads, in the categories and volume specified by Company in the Order form (“Business Purpose”). HLP makes no guarantee that it will fulfill any volume requirements for leads requested by Company. Company will be responsible for the maintenance of its systems in order to receive the leads sent by HLP, and HLP will not be responsible for any leads that may be lost or otherwise not received by Company as long as HLP is sending or transmitting the leads to Company in the manner specified in the Order form.
    1. Use of Lead Data. HLP will deliver Leads to Company. Company will make commercially reasonable efforts to contact the consumer associated with any Lead within two (2) business days of receipt of the Lead or such longer time period as agreed upon by HLP and Company in a signed Order form. Company understands and acknowledges that Leads delivered to Company may not be exclusively delivered to Company and that Leads may be shared with multiple entities contracting with HLP for advertising and/or Lead sales services without regard to whether or not one entity may be in direct or indirect competition with Company.
  3. Data Ownership. Company agrees and understands that HLP retains ownership of all data collected including data related to Leads and Lead collection. Notwithstanding the exclusive ownership of the data as stated herein, Company is granted a permanent, non-exclusive, royalty-free right and license to use the information contained in any Lead conveyed to Company by HLP subject to the other restrictions and obligations contained in this Agreement.
  4. Term. The Agreement between Company and HLP shall begin on the Effective Date set forth in the Order form and will continue as long as an Order form is in effect unless otherwise terminated by the Parties pursuant to these Terms.
  5. Payment. Company will make payment to HLP as specified in the Order form, and unless otherwise indicated in the Order form such payments shall be made to HLP within thirty (30) calendar days following the date of invoice. Failure to make payment within the timeframe specified by the Order form or this paragraph, will constitute a material breach of the Agreement. In the event Company fails to make timely payment, HLP may terminate the Agreement or at its option, HLP may add a late fee to any subsequent Company invoice until Company’s account is paid in full. The late fee may be equal to 1.5% of the invoiced amount on the delinquent payment. Notwithstanding its option for termination of the contract or assessment of a late fee, HLP reserves the right to pursue any other available legal or equitable remedies to address delinquent payments from Company.
  6. Intellectual Property Use. Company grants HLP a non-exclusive, non-transferable, royalty-free license to access, reproduce, display and communicate to consumers Company’s marketing content, trademarks, service marks and logos to fulfill the obligations of HLP under the Order form. Such licenses will terminate automatically upon the termination of this Agreement.
  7. Privacy Policy. Upon receipt of any Leads from HLP, Company agrees to abide by the Privacy Policy of HLP, which can be found at https://homelendingpal.com/privacy-policy/
  8. Conversion Data Reporting.
    1. Company will make reasonable efforts to provide HLP a conversion update on a monthly basis or as otherwise set out in the Order form. In this conversion update, Company will report to HLP in writing with respect to each Lead delivered to Company by HLP in the prior month, Company will denote the delivered Leads with the HLP unique identifier number, the date that the Lead was delivered and the following additional information with respect to that lead:
      1. For a lender:
        1. the type of loan product being offered to the consumer associated with a given Lead; and
        2. The purpose of the loan offered to the consumer associated with a given Lead; and
        3. The length of the term of the loan offered to the consumer associated with a given Lead; and
        4. The amount of the loan offered to the consumer associated with a given Lead; and
        5. The date that the Company sent a pre-qualification or pre-approval questionnaire to consumer in order to verify financial, credit or employment information submitted in the Lead form; and
        6. Rate information on the loan offered to consumer associated with a given Lead, same rate information to include the rate, APR and points on the loan; and
        7. The date that the loan offered to the consumer, following Company’s receipt of the Lead, closed.
      2. For a Non-lender:
        1. Conversion reports shall be made as mutually agreed upon by Company and HLP and as codified in the HLP Order form signed by Company.
      3. Conversion updates prepared by Company and submitted to HLP pursuant to this section and its sub-parts shall conform to the format set out by HLP.
      4. HLP reserves the right to change the information requested to be included in the Conversion update as well as the format for reporting same information; HLP may make such changes to the reported information and format from time-to-time without prior consent from Company.
    2. Conversion updates or audit reports written pursuant to this paragraph shall constitute Confidential Information and shall be subject to the provisions of Section 13 below.
    3. Further, Company agrees to make at least one outbound contact attempt via telephone to ensure compliance with laws and regulations surrounding fair lending.
  9. Compliance.
    1. In the performance of this Agreement, Company, and any employees, subcontractors, agents or other personnel of Company shall comply with all applicable federal, state and local laws, regulations and codes, including without limitation, all applicable Consumer Financial Protection Bureau guidance, and all applicable rules, requests, bulletins, rulings and other guidance of regulators with jurisdiction over either or both parties (“Applicable Law”) (as well as the procurement of permits and licenses when needed).
    2. In this Agreement, Applicable Law, includes without limitation, federal, state and local laws and regulations governing or relating to privacy rights or cyber security in connection with its performance under this Agreement including, without limitation, the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, et seq. (“GLB”) and the regulations issued thereunder (12 C.F.R. Part 40) and to the extent applicable to HLP, the Fair and Accurate Credit Transactions Act (15 U.S.C. 1681, 1681w) and the regulations issued thereunder (12 C.F.R. Parts 30 and 41) and with other statutory, legal and regulatory requirements applicable to the Parties (collectively, “Privacy Laws”).
      1. Applicable Law also includes without limitation, the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001, et seq. (“ESIGN” Act) as well as the Real Estate Settlement Procedures Act, (12 U.S.C. § 2601, et seq.) and Regulation X promulgated thereunder (24 C.F.R. 3500 et seq.) (“RESPA”).
      2. Applicable Law, also includes without limitation, federal, state and local laws and regulations governing or relating to consumer-protection laws, and all applicable state and federal unfair and deceptive acts and practices (“UDAP”) laws (or unfair, deceptive, and abusive acts and practices (“UDAAP”) laws), especially in connection with advertising and marketing services. Company and HLP acknowledge and agree that, to the extent applicable, they will provide mortgage assistance relief services in accordance with all federal, state, and local rules and regulations governing mortgage assistance relief services, including the Mortgage Assistance Relief Services (MARS) Rule, 16 C.F.R. Part 322. Without limiting the foregoing, Company agrees that it will fully comply with privacy and consumer-contact laws, regulations, and guidance including, without limitation, the Gramm-Leach Bliley Act, the Telephone Consumer Protection Act (“TCPA”), the CAN-SPAM Act, the Do-Not-Call Implementation Act of 2003, the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Fair Debt Collection Practices Act. Company will comply with all telephone-number removal notifications that HLP sends to Company.
  10. Leads Provided Not for Resale. Company shall not re-sell, share or otherwise confer leads purchased from HLP without receiving prior written consent from HLP.
  11. Warranty. HLP and Company represent and warrant that they each possess the necessary right and authority to enter into the Agreement, that the execution of the Agreement and the performance of its obligations not and will not violate any agreement to which either Party is otherwise bound, and that the performance of the Agreement and obligations arising out of same will comply with all applicable federal, state and local laws and regulations.
    Further, Company represents and warrants that it shall maintain any and all licenses, certifications, registrations, bonds, or similar items required by applicable state or federal statute or regulatory authority for the conduct of Company’s business in any jurisdiction from which Company receives Leads. Company shall notify HLP of the loss or expiration of any such licenses, certifications, registrations or bonds within three (3) business days of such loss or expiration.
    No other warranties are made by either Party under the Agreement, including warranties of merchantability, or fitness for a particular purpose or non-infringement. Any information, confidential or otherwise, exchanged pursuant to the Agreement is provided “AS-IS”.
  12. Termination. Any Party may terminate this Agreement for cause if there has been a material breach of this Agreement, and the Party alleging such breach has given written notice of said breach to the other Party (same notice shall set out with specificity the facts supporting the alleged breach and the ways in which said breach may be cured) and the Party alleging a breach must allow the other Party ten (10) business days after that Party’s receipt of the written notice of breach in which to cure the alleged breach. A termination for cause shall be effective on the next business day following the ten day cure period unless the alleged breach has been cured. The Parties may also voluntarily terminate the Agreement at any time upon the execution of a written, mutually agreed upon termination notice signed by both Parties.
  13. Confidentiality.
    1. No Additional Confidential Information. Company and HLP agree that no confidential information as defined herein beyond this Agreement will be exchanged absent a written request for same.
    2. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean this Agreement as well as:
      1. Any information provided by Disclosing Party to Receiving Party relating to, Disclosing Party assets, Disclosing Party business models and trade secrets, or the business affairs of Disclosing Party of a proprietary or confidential nature, whether communicated orally or in writing, including by way of illustration and not limitation: (i) any marketing strategies, plans, financial information, projections, operations, sales estimates, business plans, and performance results relating to the past, present or future business activities of Disclosing Party, its affiliates, subsidiaries, and affiliated companies; (ii) financial and other business information with respect to Disclosing Party that Disclosing Party has not made publicly available; (iii) any information disclosed to Disclosing Party by any third party which Receiving Party has reason to know Disclosing Party has agreed, or is otherwise obligated, to treat as confidential or proprietary; and (iv) any information designated in writing as being confidential.
      2. “Protected Data”, which includes by way of illustration and not limitation: (i) consumer information, including consumer phone number, consumer email address, consumer property address, products of Disclosing Party ordered by the consumer, or consumer financial records; (ii) consumer information Receiving Party has reason to know is personally identifiable information, which includes consumer-provided information used to obtain a financial product or service, information about a consumer resulting from any transaction involving a financial product or service, or information otherwise obtained about a consumer in connection with providing a financial product or service; and (iii) financial compensation, health records, and other employment information with respect to Disclosing Party employees that Disclosing Party has not made publicly available.
      3. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. Receiving Party acknowledges that the Confidential Information is proprietary to Disclosing Party, has been developed and obtained through great efforts by Disclosing Party and that Disclosing Party regards all of its Confidential Information as trade secrets.
    3. Exclusions.
      1. Receiving Party shall have no obligation of confidentiality under this Agreement with respect to the disclosure and/or use of any information (which shall not constitute Confidential Information hereunder) that it can be establish:
        1. Was already or has become generally known or publicly available without breach of this Agreement by Receiving Party;
        2. Was known by Receiving Party before receiving such information from Disclosing Party;
        3. Has become known by or available to Receiving Party from a source other than Disclosing Party, which source was not, to the knowledge of Receiving Party, under any obligation of confidentiality owed to Disclosing Party, subsequent to disclosure of such information to it by Disclosing Party;
        4. Has been independently developed by or for Receiving Party without use of or reference to Confidential Information by persons who had no access to Confidential Information;
        5. Has been provided to Receiving Party with a written statement from Disclosing Party that it is provided without restriction on disclosures; or
        6. Has been approved for release or use by written authorization of Disclosing Party.
    4. Obligations of Parties. Receiving Party acknowledges that irreparable injury and damage may result from disclosure to third parties, or utilization for purposes other than those connected with the Business Purpose, of any Confidential Information. Receiving Party agrees:
      1. To hold Confidential Information in strict confidence;
      2. Not to disclose Confidential Information to any third party except as specifically authorized herein or as specifically authorized by Disclosing Party in writing;
      3. To use reasonable precautions, consistent with Receiving Party’s treatment of its own confidential information of a similar nature, to prevent the unauthorized disclosure of Confidential Information, including, without limitation, protection of documents from theft, unauthorized duplication and discovery of contents, and restrictions on access by other persons to Confidential Information;
      4. Not to make or use any copies, synopses or summaries of oral or written material, photographs or any other documentation of Confidential Information made available or supplied by Disclosing Party to Receiving Party; and
      5. Not to use Confidential Information for any purpose other than the Business Purpose.
    5. Required Disclosures. Receiving Party may disclose Confidential Information if and to the extent that such disclosure is required by applicable law, provided that Receiving Party uses reasonable efforts to limit the disclosure and, if legally permitted, provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
    6. Return of Confidential Information. Receiving Party shall return all written material, photographs, and all other documentation made available or supplied by Disclosing Party, and all copies and reproductions thereof, on request. The foregoing notwithstanding, the Receiving Party may retain one copy of the Confidential Information as may be required by applicable law or regulation.
    7. Injunctive Relief. Both Parties acknowledge that the unauthorized use or disclosure of Confidential Information may cause irreparable harm to Disclosing Party. Accordingly, Receiving Party agrees that Disclosing Party will have the right to seek an injunction against any breach or threatened breach of this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach. Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief if such relief is obtained. Further, in the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses.
  14. Indemnification. Company will agree to indemnify, defend and hold harmless HLP, its officers, employees, directors, agents, affiliates and assigns from and against any and all claims, suits, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with any third party claim or proceedings including civil matters or administrative investigations or enforcement actions or criminal matters related to or arising out of any breach by the Company of its representations, warranties and obligations set forth herein.
  15. Limit of Liability. In no event will either party be liable to the other for any consequential, indirect, lost profit, exemplary, special or incidental damages arising from or relating to the Agreement even if the damaged Party had provided notice to the other Party of same damages. The total cumulative liability of either Party in connection with the Agreement, regardless of whether same liability sounds in contract or tort shall not exceed the total amount paid by Company in under the Agreement.
  16. Affiliate Disclosure. The Parties understand that HLP is a corporate entity with affiliates engaged in loan origination services, real estate services, financial services and insurance services.
  17. Relationship and Non-Assignment. HLP is an independent contractor hired for a limited purpose by Company and nothing in this Agreement is intended to create an employment relationship nor do the parties intend to create any form of partnership, joint venture or agency relationship between HLP and Company. Company may not assign this Agreement and the rights or obligations of Company hereunder in whole or in part, unless HLP has provided its prior written consent to Company for such Assignment.
  18. Non-Circumvention. During the term of this Agreement, Company will not displace, and will use best its efforts to preclude any person or entity working on Company’s behalf from displacing, HLP media placements on any websites that promote or have promoted HLP proprietary web properties and/or HLP customers in connection with this Agreement. During the term of this Agreement and for a period of one (1) year following termination, Company will not, directly or indirectly, contract for the provision of Internet advertising or marketing services with any HLP publisher.
  19. Attorneys’ Fees. If HLP takes any action or initiates any proceeding (including arbitration) in order to enforce the terms of this Agreement, HLP shall be entitled to its reasonable attorneys’ fees and costs in addition to any other legal or equitable remedies to which HLP might otherwise be entitled to by law or under the Agreement.
  20. Service Outage and Force Majeure. To the extent that the services rendered by HLP to Company are dependent upon independent services provided by third-parties that are beyond HLP’s control, the loss or interruption of any one of those independent services may prevent the HLP from fulfilling its obligations under the Agreement. In the event of any loss or interruption of services, which services as used in this paragraph shall include but not be limited to power outage, Internet Service Provider outage, telecommunications outage or the outage of similar services on Company’s part, HLP will use commercially reasonable efforts to limit the duration of such loss or outage.
    Further, each party will be excused from performance under this Agreement, except for any payment obligations for services that have been or are being performed hereunder, for any period and to the extent that it is prevented from performing, in whole or in part, as a result of delays caused by the other party or any act of God, war, civil disturbance, court order, or other cause beyond its reasonable control. A party excused from performance pursuant to this Section shall exercise reasonable efforts to continue to perform its obligations hereunder and shall thereafter continue with reasonable due diligence and good faith to remedy its inability to so perform. Such nonperformance will not be a default or a ground for termination as long as the party uses commercially reasonable efforts to expeditiously remedy the problem causing such nonperformance and to execute its disaster recovery plan then in existence.
  21. Notice. Any notice, request, demand or other communication between Company and HLP arising out of or relating to the Agreement must be submitted in writing and sent to the other Party’s contact address as set out on the Order form and such notices may be sent either electronically via email or conventionally with postage prepaid by certified or registered mail, return receipt requested.
  22. Amendment. HLP shall make such periodic changes and amendments to these terms and conditions as HLP may in its sole discretion see fit in order to meet the changing regulatory and market demands of the industry, and will make any and all such changes and amendments without receiving prior consent from Company.
  23. Miscellaneous. If any provision of the Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of the Agreement and the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law; Any notice, request, demand or other communication between Company and HLP arising out of or relating to the Agreement must be submitted in writing and sent to the other Party’s contact address as set out on the Order form and such notices may be sent either electronically via email or conventionally with postage prepaid by certified or registered mail, return receipt requested.; The Agreement and the obligations of the Parties shall be interpreted by and shall be governed by the laws of the State of Florida without reference to its choice of law principles. The parties agree to submit to the exclusive jurisdiction of the Circuit Court of Orange County, Florida, or the United States District Court of the Middle District of Florida located in Orlando, Florida with respect to disputes arising out of or relating to the Agreement; The Agreement (these Terms and the Order form signed by HLP and Company) contains the entire agreement between the parties hereto with respect to the subject matter hereof; The waiver by either party to a breach of any provision or the failure to enforce any term of the Agreement by either party shall not operate or be construed as a waiver of any subsequent breach or affect the enforceability of any term of the Agreement on any other occasion.

— Updated February 2021

 

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