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Terms and Conditions for Use of The Product
Acceptable Use and Conduct
You are solely responsible for your use of the Product and all data related to your account. You agree to indemnify, defend and hold harmless Lendesk and its suppliers from any and all loss, cost, liability and expense arising from or related to your data, your use of the Product, or your violation of these terms.
Use of the Product must not infringe or violate third party rights or others’ use and enjoyment of the Product. As such, you agree not to use the Product: to violate, or encourage the violation of, the legal rights of others; to engage in, promote or encourage illegal activity; for any unlawful, invasive, infringing, defamatory or fraudulent purpose; to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; to post, store or share of pornographic, racist, threatening or violent images or data; to use the Product in a manner that violates the terms of service of a Third Party Vendor (as defined below); to access, tamper with, or use non-public areas of the Product, Lendesk’s computer systems, or the technical delivery systems of Third Party Vendors; to attempt to probe, scan or test the vulnerability of any Lendesk system or network or breach any security or authentication measures.
Lendesk reserves the right, in its sole discretion, to terminate any account that it finds in violation of these terms, without recourse.
Access to the Product is permitted on a temporary basis, and we reserve the right to withdraw or amend the service provided on the Product without notice. Lendesk will not be liable if for any reason the Product is unavailable at any time or for any period.
In order to access and use certain content, features, or functionality of the Product we may require you to register for the Product and have a unique username and password combination (“User Credentials”) and provide certain additional information, which may include, without limitation, customer name, address and email address (collectively, a “User Account”). If you elect to become a registered user of the Product, you are responsible for maintaining the strict confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Product by you or any person or entity using your User Credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any fee-based transactions. You agree to (a) immediately notify Lendesk of any unauthorized use of your User Credentials or User Account, or any other breach of security, and (b) ensure that you log off from the Product at the end of each session. It is your sole responsibility to (i) control the dissemination and use of your User Credentials and User Account, (ii) update, maintain and control access to your User Credentials and User Account, and (iii) cancel your User Account on the Product. We reserve the right to deny access, use and registration privileges to any User of the Product if we believe there is a question about the identity of the person trying to access any account or element of the Product. Lendesk shall not be responsible or liable for any loss that you incur as a result of someone else using your User Account and/or password.
Lendesk makes no representation or warranty of any kind in relation to the Product. In particular, you should be aware that information contained on the Product may be incomplete, may contain errors or may have become out of date. Lendesk makes no commitment, and disclaims any duty, to update any of the information on the Product.
To the extent permitted by law, we, other members of our group of companies and third parties connected to us hereby expressly exclude all conditions, representations warranties and other terms which might otherwise be implied by statute, common law or the law of equity.
The Product may generate, or otherwise enable you to obtain or generate, certain sample forms, including without limitation sample cost of borrowing disclosure forms (collectively, “Sample Forms”). The Sample Forms are provided for your convenience as examples only. Your use of the Sample Forms is at your own risk. The Sample Forms are not intended to encompass the full form of disclosure which may be required for the purpose for which you intend to use the Sample Forms. Any form you or a lender enters into with a borrower will override these Sample Forms to the extent they conflict with one another. Lendesk makes no representation or warranty of any kind in relation to the Sample Forms, and specifically does not represent or warrant that the Sample Forms comply with applicable laws or will be suitable for the purposes for or the jurisdictions in which you intend to use the Sample Forms. You are solely responsible for ensuring that your use of the Sample Forms complies with all applicable laws and is appropriate for the applicable factual circumstances under which you use the Sample Forms. If you determine that a Sample Form does not comply with all applicable laws or is not appropriate for the applicable factual circumstances, you must create and use your own form and not use the Sample Form.
The Product is provided on an “as-is”, “as-available” basis and we shall have no liability for any direct, indirect or consequential loss or damages incurred by any user in connection with this Site or in connection with the use, inability to use, or results of the use of this Site, any websites linked to it and any materials posted on it, whether caused by tort (including negligence), breach of contract or otherwise.
You agree to defend, indemnify and hold Lendesk and its respective partners, members, contributors, organizers, directors, officers, employees, representatives, agents, licensors, advertisers, suppliers and operational service providers (collectively, the “Company Indemnitees”) harmless from any and all claims, liabilities, damages, losses, costs and expenses (including legal fees), arising in any way out of or in connection with (a) your use of the Product or any Sample Form, or (b) your breach or violation of these terms. Lendesk reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and all negotiation for its settlement or compromise (as applicable), and in each such case, you agree to fully cooperate with us upon our request.
Unless otherwise noted, all elements comprising the Product as well as the content and layout of the Product are the exclusive property of Lendesk or are used with permission and may not be reproduced or distributed, in whole or in part, without the prior written consent of Lendesk.
Links to Other Materials
Some of the links available to you through the Product will allow you to leave the Product. Such external internet sites and the material are not under the control of Lendesk, and Lendesk makes no representations and disclaims all liability with respect to such sites and materials. The links are provided only for your convenience, and their inclusion does not constitute nor imply approval or endorsement by Lendesk of the sites or their content. You may not provide hyperlinks to the Product without the prior written consent of Lendesk.
Third Party Vendors
Filogix Marketplace Terms
1. Definitions. In these Filogix Marketplace Terms:
(a) “D+H” means D+H Mortgage Technology Corporation, a Third Party Vendor.
(b) “Data Access Rights” means the right to send communications to Lenders and receive communications from Lenders and other users of the Filogix Marketplace in connection with mortgage applications and related activities.
(c) “Filogix Marketplace” means the system operated by D+H providing access for you to exercise Data Access Rights, which may be provided to you as a third party integration as described in the “Third Party Vendors” section above.
(d) “Lender” means a private lender or a financial institution who is a Marketplace User and who receives Loan Applications via the Filogix Marketplace.
(e) “Lendesk Data” means all information provided by or on behalf of Lendesk in connection with your use of the Filogix Marketplace either by input through the Filogix Marketplace or otherwise, and includes any information provided by you accessing or using the Filogix Marketplace.
(f) “Loan Application” means a loan application submitted via the Filogix Marketplace.
(g) “Marketplace Users” means Lenders and others authorized by D+H to access the Filogix Marketplace by means of Data Access Rights and to offer services, products and information to other Marketplace Users.
2. Your Obligations. You hereby agree that:
(a) D+H is not responsible for investigating or verifying the accuracy of any information accessible via the Filogix Marketplace, including information submitted or made available by any prospective mortgagor or other Marketplace Users, any acts or omissions by a prospective mortgagor or customer, the creditworthiness of any prospective mortgagor or customer or verifying the accuracy of any information available via the Filogix Marketplace;
(b) you shall comply with all specifications, standards, policies and operating procedures relating to the Filogix Marketplace and the Data Access Rights, which may be amended from time to time by D+H in its sole discretion;
(c) you shall not use the Data Access Rights or the Filogix Marketplace to transmit, upload, download, e-mail, access or otherwise make available content that: (i) is contrary to law; (ii) violated third party rights of any kind; (iii) is harmful, threatening, abusive, libelous, hateful or racially, ethically or otherwise objectionable; (iv) interferes with or disrupts (by way of unreasonable bandwidth use or otherwise) the Filogix Marketplace; or (v) solicits, directly or indirectly, other Marketplace Users, to become employees of or associated with you or to buy, purchase or license products or services which have not been authorized by D+H;
(d) you shall submit each Loan Application to one Lender only, for acceptance or rejection and, only after a Loan Application or commitment is rejected, may a Loan Application from the same borrower be submitted to another Lender and so on from time to time so that no more than one Lender at a time is considering a Loan Application form any one borrower, provided, however, a Loan Application shall be deemed to have been rejected by a Lender if a Lender does not respond within four hours of the time that you submit the application;
(e) you shall use reasonable efforts to maintain in the Filogix Marketplace the current status of all Loan Applications;
(f) you shall comply with all laws applicable to the use of the Filogix Marketplace and the Data Access Rights, including any requirement to be registered or licensed as a mortgage broker in each jurisdiction in which you carry on business;
(g) you shall cause all of your employees and independent contractors who originate or fulfill residential mortgages (“your Agents”) to comply with your obligations, and you are liable to D+H, as a third party beneficiary, for any acts or omissions of any of your Agents;
(h) you shall (i) obtain from your customers and other Marketplace Users any consent, acknowledgement and agreement that may be required for the use, transfer or disclosure of Lendesk Data by you and other Marketplace Users for the purpose of its use within the Filogix Marketplace, and (ii) provide evidence of the foregoing to Lendesk or D+H upon request by Lendesk;
(k) if you wish to use the “Expert” services related to the Filogix Marketplace, the you shall execute D+H’s Expert Agreement directly with D+H.
3. No Legal Services. You acknowledge that Lendesk and D+H are not engaged in rendering legal services to any of its customers including you. If you believe that legal or other expert assistance is required, the services of a competent and qualified professional should be sought by you. You hereby assume full responsibility for use and interpretation of Lendesk Data and the results of all services.
4. Indemnification. You shall indemnify Lendesk and its affiliates, and each of their directors, officers, employees, agents, consultants, advisors and other representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (each, an “Indemnitee”) against (a) any reasonable, out-of-pocket expense incurred in defending a judicial, administrative or arbitration claim, suit, action or proceeding (including any interest) (a “Claim”) or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements (“Litigation Expenses”), and (b) any amount awarded in, or paid in settlement of, any Claim, including any interest but excluding any Litigation Expenses (“Losses”), together with Litigation Expenses, “Indemnifiable Losses”), arising from any Claim brought by someone other than the Indemnitees, against one or more Indemnitees, except to the extent that any Indemnitee negligently or intentionally caused those Indemnifiable Losses, arising out of any arrangements, discussions, dealings, contracts or agreements with any potential mortgagor by you and that is related to your use of the Data Access Rights or the Product.
5. Dispute Resolution.
(a) Procedure for Disputes. In the event a dispute arises between Lendesk and you relating to your use of the Filogix Marketplace or the Data Access Rights, or these Filogix Marketplace Terms or its subject matter, negotiation, performance, termination, interpretation or formation, prior to either party pursuing any other available remedies, the parties shall follow these procedures: (i) either party may give the other party written notice of any dispute not resolved in the normal course of business; (ii) representatives of both parties with decision making authority shall meet to attempt in good faith to negotiate a mutually acceptable resolution of the dispute within ten days after delivery of the notice, and thereafter, as often as reasonably necessary; and (iii) if, within 30 days after first meeting the parties have not successfully concluded a resolution, or if the parties fail to meet within the ten days period after delivery of the notice, the parties shall submit the dispute to arbitration by a single arbitrator agreed to by the parties, or failing agreement to a panel of three arbitrators, one chosen by each of Lendesk and you and one chosen by the two arbitrators so chosen. Notwithstanding the foregoing, either party may seek injunctive relief or equitable relief without complying with the procedures in this section. In the event of a dispute relating to payment of any or all of an invoiced or other amount under these Filogix Marketplace Terms, you shall pay all amounts which are not in dispute and the parties will resolve the dispute in accordance with the procedure set out above.
(b) Arbitration. Any arbitration shall be conducted in accordance with the provisions of the Arbitration Act, 1991 (Ontario) or any successor to that act, and shall take place in Toronto, Ontario. The arbitration award will be final and binding without any right of appeal and must address costs of the arbitration.
6. Governing Law; Venue. The laws of the Province of Ontario govern all matters relating to the performance of or otherwise arising out of these Filogix Marketplace Terms. Subject to Section 5 above, the only venue for disputes arising out of these Filogix Marketplace Terms is the appropriate provincial or federal court located in Toronto, Ontario, and the parties hereby submit to the exclusive jurisdiction of those courts.
7. Export Compliance. You shall not export, re-export, or otherwise transmit, directly or indirectly, any software, information, data or other materials received pursuant to your use of the Filogix Marketplace under these Filogix Marketplace Terms except in full compliance with law and these Filogix Marketplace Terms.
Jurisdiction and Applicable Law
Last Updated: February 5, 2020.