Terms of Service
Effective as of: February 17, 2020
“Customer Data” means any files, documents, and other information submitted by the Customer to Mortgage Automator in connection with the Services.
“Initial Term” means (i) for monthly subscriptions, one calendar month, or (ii) for annual subscriptions, one calendar year.
“Services” means our proprietary loan management software which is accessible through our Website.
“Term” means the term of this Agreement consisting of the Initial Term and any subsequent renewals and extensions as provided for in this Agreement.
“Website” means, collectively, the Mortgage Automator website located at http://www.mortgageautomator.com and any subdomains thereof.
2. ACCESS AND USE OF THE SERVICES.
- License Grant by Mortgage Automator. Subject to the terms and conditions of this Agreement and Customer’s compliance therewith, Mortgage Automator grants to Customer a revocable, non-exclusive, non-transferable license during the Term to access and use the Services over the Internet.
- License Revocation by Mortgage Automator. Mortgage Automator reserves the right to revoke the license to access and use the Services for any Customer breach of the Agreement including, but not limited to, failure to pay subscription fees when due.
- Limitations on Use. By using our Services, you agree on behalf of yourself and your users not to directly or indirectly:
- modify, translate or create derivative works based on the Services;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services;
- knowingly or negligently use the Services in a way that abuses or disrupts our networks, user accounts, or the integrity or performance of the Services or third party data contained therein;
- attempt to gain unauthorized access to the Services or its related systems or networks;
- transmit through the Services any harassing, fraudulent or unlawful information or material;
- copy, modify, host, stream, sublicense, or resell the Services;
- enable or allow others to use the Services using your account information;
- use the Services in violation of our policies, applicable laws, or regulations;
- use the Services to send unauthorized advertising, or spam;
- harvest, collect, or gather user data without their consent;
- transmit through the Services any material that may infringe the intellectual property or other rights of third parties; or
- permit, allow, or acquiesce to any person taking any of the actions prohibited under this clause.
- Changes to Services. We reserve the right to enhance, remove, or modify features of our Services at our sole discretion, but will provide you with written notice prior to implementing any change that materially reduces the core functionality of the Services. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
- Proprietary Rights and Mortgage Automator Marks. You acknowledge that we retain all proprietary right, title and interest in and to the Services; any software, applications, inventions or other technology developed in connection with the Services; our name, logo or other marks (together, the “Mortgage Automator Marks”); and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Mortgage Automator Marks or is similar to any of these. You acknowledge that the Services are licensed to you on a subscription basis on the terms and conditions of this Agreement and are not “sold” to you.
- License Grant by Customer. Customer grants to Mortgage Automator a transferable, royalty-free, fully paid, worldwide license to copy, reproduce, modify, develop, access, collect, store and otherwise use the Customer Data.
3. FEES AND PAYMENT.
- Subscription Fees. Subscription fees are due and payable in full by Customer at the start of the Initial Term in advance of receipt of the Services. Upon expiry of the Initial Term, your subscription will automatically renew for further periods equal to the period of the Initial Term unless terminated by either party in accordance with the termination provisions of this Agreement. For monthly subscriptions, subscription fees plus applicable taxes will be automatically charged to your credit card on a monthly basis. For annual subscriptions, subscription fees plus applicable taxes will be charged to your credit card as one lump sum at the time of purchase and on your renewal date.
- Determination of Fees. Subscription fees are determined in our sole discretion and are subject to change at any time and for any reason. In the event of a pricing change, we will provide you with written notice of such changes. Should your subscription fees change partway through the Term, the new subscription fees will take effect starting on your next billing cycle.
- Payment. Any and all payments you make to us for subscription fees are final and non-refundable. You are responsible for all fees and charges imposed by your data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may take steps to verify whether your payment method is valid, charge your payment card or bill you for all amounts due for your use of the Services, and automatically update your payment card information using software designed to do so in the event your payment card on file is no longer valid. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment.
- Late Payment Penalties. If you fail to make any payment in full when it becomes due, we may charge you an account reinstatement fee of $100 plus applicable taxes.
- Taxes and Withholding. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs and similar taxes (collectively, “Taxes”) imposed by any government entity based on the Services. Additionally, if you do not satisfy your tax obligations, you agree that you will be required to reimburse us for any Taxes paid on your behalf, and we may take steps to collect Taxes we have paid on your behalf. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
- Custom Development and Enhancement Requests. This Agreement does not include any programming services for custom development or modifications. Such work, if negotiated and agreed to between us and you, shall be the subject of a separate agreement for development services between the parties. Customer acknowledges that Mortgage Automator is not a contract development organization, but rather we make a single general release of the Services available. As such, Customer further acknowledges that the Services are a major and valuable asset of our business and, as such, we shall have complete control of the design and development of the Services, including with respect to any enhancements and modifications. Therefore, we have the right, and sole discretion, to reject any request for enhancement or modification to the Services by Customer.
- Termination by You. You may stop using the Services at any time. Termination of your account does not relieve you of any obligation to pay outstanding fees. You acknowledge and confirm that upon termination, you are not entitled to a prorated refund of any prepaid fees.
- Termination by Us. If we terminate this Agreement, or your use of the Services for reasons other than for cause, we will make reasonable efforts to notify you at least 30 days prior to termination. We may, at any time, terminate your right to use and access the Services if:
- you breach any provision of this Agreement;
- you fail to make timely payment of fees for the Services;
- you materially breach any provision of this Agreement, and (A) the breach cannot be corrected; or (B) we notify you of the breach and you fail to correct it within 14 days of the notice;
- you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel;
- you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop;
- we are required to do so by law; or
- we elect to discontinue the Services, in whole or in part.
- Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that upon request, we may, in our sole discretion, provide you with limited access to the Services for a period not to exceed 30 days, solely to enable you to retrieve your Customer Data from the Services. We have no obligation to maintain your Customer Data after that period. You agree that we will not be liable to you for any losses, damages, costs, or lost profits with respect to any termination, interruption, discontinuation, or inaccessibility of the Services, notwithstanding that same may have been terminated, discontinued, or otherwise made unavailable to you without notice or cause.
- Survival. The provisions of Sections 2(f) (Proprietary Rights and Mortgage Automator Marks), 2(g) (License Grant by Customer), 3 (Fees and Payment), 4(c) (Effect of Termination), 4d (Survival), 5 (Customer Data and Accounts), 6 (Confidentiality), 8 (Warranties and Indemnification), 9 (Limitation on Liability), and 10 (Additional Terms) survive any termination of the Agreement.
5. CUSTOMER DATA AND ACCOUNTS.
- Customer Data. Subject to the license you grant to us in accordance with the provisions of this Agreement, you retain all rights to your Customer Data and we do not own your Customer Data. You represent and warrant that no Customer Data submitted to us infringes on the rights of any third party or violates any law, legislation, regulation or other contract. Each party agrees to apply reasonable technical, organizational and administrative security measures to keep Customer Data protected in accordance with industry standards. You agree to comply with all legal duties applicable to you as a data controller by virtue of the creation, modification, storage, transmission and submission of Customer Data within or outside of the Services.
- Use of Logo for Promotional and Marketing Materials. You agree that we may use your trademark, logo and trade name (“Branding”) within our promotional and marketing materials. We are granted no other right to the Branding and acknowledge that we shall not gain any proprietary interest in the same. We are under no obligation to make use of, or to provide compensation for, the right or permission granted by you to use or distribute the Branding, from time to time in forms and in ways we determine acceptable in our sole discretion. We shall be the exclusive owner of all right, title, and interest, including copyright, in our promotional and marketing materials, notwithstanding that we may include the Branding therein.
- Your Accounts. You are solely responsible for;
- any use of the Services by you and your users
- obtaining consent from your users and or any other person whose consent may be required by law or contract, to the collection, use, processing and transfer of Customer Data, and
- providing notices or obtaining consent as legally required in connection with the Services. We do not send emails asking for your usernames or passwords, and to keep your accounts secure, you should keep all usernames and passwords confidential. We are not liable for any loss that you may incur if a third party uses your password or account. We may suspend the Services or terminate the Agreement if you or your users are using the Services in a manner that we determine could cause harm to us, in our sole discretion. You agree to notify us immediately and terminate any unauthorized access to the Services or other security breach.
- Definitions. For purposes of this section, a party receiving Confidential Information will be the “Recipient” and the party disclosing such information will be the “Discloser”, and “Confidential Information” includes all information disclosed by Discloser to Recipient during the Term of this Agreement and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that all parts of the Services (other than Customer Data), whether marked as “confidential” or “proprietary” or not, will be considered to be Confidential Information of Mortgage Automator; and provided further that Discloser’s Confidential Information does not include:
- information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential Information of the Discloser,
- information that is publicly available through no wrongful act of Recipient, or
- information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Covenant. To the extent that any Confidential Information will be shared between the parties, Recipient hereby agrees that during the Term and at all times thereafter it shall not
- disclose such Confidential Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; or
- use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement. Recipient shall use at least the same degree of care in safeguarding the Confidential Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than reasonable care be exercised. Upon the earlier of:
- Discloser’s written request; and
- the termination or expiration of this Agreement, regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential Information of Discloser in its possession or control and cease all further use thereof. Mortgage Automator may retain a copy of such Confidential Information for the sole purpose of and to the extent necessary for it to comply with applicable legal, regulatory, or reasonable internal backup or archival policies. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
- Injunctive Relief. Recipient acknowledges that violation of the provisions of this section may cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
7. COMPLIANCE WITH LAWS.
- In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, and data protection laws and regulations. If necessary and in accordance with applicable law, we will cooperate with local, state, provincial, federal and international government authorities with respect to the Services. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
8. WARRANTIES AND INDEMNIFICATION.
- NO WARRANTIES. WE DO NOT REPRESENT OR WARRANT THAT
- THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA,
- OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR
- ALL ERRORS OR DEFECTS WILL BE CORRECTED. USE OF THE SERVICES IS AT YOUR SOLE RISK. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, OR TO TERMINATE THE NON-CONFORMING SERVICES AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FOR THE NON-CONFORMING SERVICE, FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Indemnification. Customer agrees to indemnify and hold harmless Mortgage Automator, its employees, officers, directors, and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable legal fees) to third parties relating to:
- Customer Data,
- Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or
- Customer’s use of the Services, including in combination with any third party software, application or service.
9. LIMITATION ON LIABILITY.
- LIMITATION ON INDIRECT LIABILITY. WE SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO:
- LOSS OF DATA
- LOSS OF INCOME
- LOSS OF OPPORTUNITY
- LOST PROFITS
- COSTS OF RECOVERY
- BUSINESS INTERRUPTION OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITY OF DAMAGES
- LIMITATION ON AMOUNT OF LIABILITY. OUR TOTAL CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE SERVICES DURING THE 2 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
10. ADDITIONAL TERMS.
- No Responsibility for Data Storage and Backup. Although we use commercially reasonable efforts to backup data on a regular basis, Mortgage Automator cannot guarantee that the Services will provide backups of any Customer Data stored on it. It is Customer’s responsibility to backup onto Customer’s local system all Customer Data.
- No Responsibility for Documents. As part of the Services, we provide form documents for use by customers. Although we use commercially reasonable efforts to keep the forms up to date as a result of changes in law and in the marketplace, Mortgage Automator cannot provide a guarantee as to when the forms will be updated, if at all. It is Customer’s responsibility to ensure that all documents are up to date and legally binding.
- Free Services and Trials. Your right to access and use any free Services that we may offer is not guaranteed for any period of time and we reserve the right, in our sole discretion, to limit or terminate your use of any free or basic versions of any Services by any individual or entity. If you are using the Services on a trial or promotional basis (“Trial Period”), your Trial Period and access to the Services will terminate
- at the end of the Trial Period stated in your initial signup
- if no date is specified, 30 days after your initial access to the Services
- or upon your conversion to a subscription. Following expiration of the Trial Period, the Services will automatically continue unless you provide notice of cancellation to us, and you are responsible for payment of the applicable fees. During the Trial Period, to the extent permitted by law, we provide the Services “AS IS” and without any warranty or indemnity, and all other terms of this Agreement otherwise apply. We may modify or discontinue any trials or promotions at any time without notice
- Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify and publicly perform the Feedback.
- Third Party Features. The Services may be linked to, promote or advertise third party sites or applications (“Third Party Services”). We are not responsible for and do not endorse Third Party Services. You have sole discretion whether to purchase or connect to any Third Party Services and your use is governed solely by the terms for those Third Party Services.
- Beta Services. We may offer you access to beta services that are being provided prior to general release, but we do not make any guarantees, warranties or representations that these services will ever be made generally available, or that you will continue to have access to them, or that they will be functional, or be fit for any purpose (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, may put your equipment and data at risk, and use of the Beta Services is at your sole risk. We have no obligation to provide technical support and we may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us. For the Beta Services only, these terms supersede any conflicting terms and conditions in this Agreement, all such terms of this Agreement to apply to the extent that they do not conflict with this section.
- No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
- Security Emergencies. If we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, we may temporarily suspend the Services and we will take action to promptly resolve any security issues. We will notify you of any suspension or other action taken for security reasons, and you agree that we will not be required to compensate you for any losses or damages due to such interruption, and shall not be obligated to provide any refund for fees paid for the Services during any period of interruption or suspension, and you agree to pay the amounts owing for the Services as if there was no such interruption or suspension.
- Assignment. You may not assign your rights or delegate your duties under the Agreement either in whole or in part without our prior written consent, which may be withheld in our sole absolute and arbitrary discretion. We may assign our rights and delegate our duties and obligations under the Agreement either in whole or in part without your consent. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
- Notices. Notices must be sent by personal delivery, overnight courier or registered mail. We may also provide notice to the email or fax last designated on your account, electronically via postings on our website, in-product notices, or our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 1 Eglinton Ave. E, Suite 619 Toronto, Ontario M4P 3A1 and we will send notices to the mailing address, email address or fax last designated on your account. Notice is given:
- upon personal delivery
- for overnight courier, on the second business day after notice is sent
- for registered or certified mail, on the fifth business day after notice is sent
- or email or fax, when the email or fax is sent, or
- if posted electronically, upon posting
- Entire Agreement. This Agreement sets forth the entire agreement between us relating to the Services. There are no prior or contemporaneous oral or written agreements, warranties or representations made by us or on our behalf to you, except as explicitly referred to or contemplated herein. Nothing contained in any document or correspondence submitted by you will add to or otherwise modify the Agreement. We may update the Terms from time to time, which will be identified by the last updated date, and may be reviewed at the link to the Terms of Service on the Website. Your continued access to and use of the Service constitutes your acceptance of the then-current Terms.
- Severability. If any term of this Agreement is not enforceable, such term shall be severed from the remainder of the Agreement, and will not affect any other terms which shall be read without reference to the offending term.
- Independent Contractors. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties.
- Waiver. Failure to enforce any of our rights under the Agreement will not be considered a waiver of any remedies we may have with respect to that right. Unless otherwise specified, remedies are cumulative.
- Force Majeure. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist and provided that non-payment of amounts due hereunder shall not be excused by this provision.
- Governing Law and Location for Resolving Disputes. The laws of the Province of Ontario and the laws of Canada applicable in Ontario will govern this Agreement without regard to conflicts of law principles. The Parties agree that any action or proceeding arising out of or related to this Agreement shall be brought exclusively in the courts of the Province of Ontario, and each of the Parties hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding.
- English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Last updated February 17, 2020 . Replaces all prior versions.
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