By checking the consent box, or by accessing or using the Services, Customer acknowledges that it has read and understood the terms of this Agreement and, for good and valuable consideration, agrees to be bound by the terms of the Agreement. If you do not accept these terms, then do not register for an account or use the Services. These Terms may be amended or updated by us from time to time without notice and the terms of the Agreement may have changed since your last visit to our website. It is your responsibility to review these terms for any changes. Your use after any amendments or updates to these terms shall signify your assent and acceptance of such revised terms. You should visit this page periodically to review these Terms. Should you not agree to these Terms or any amendments thereof, your only remedy is to discontinue use of the Services in accordance with the termination conditions set forth in this Agreement.
“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.
a. 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.
b. 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.
d. Limitations on Use. By using our Services, you agree on behalf of yourself and your users not to directly or indirectly:
i. modify, translate or create derivative works based on the Services;
ii. 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;
iii. 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;
iv. attempt to gain unauthorized access to the Services or its related systems or networks;
v. transmit through the Services any harassing, fraudulent or unlawful information or material;
vi. copy, modify, host, stream, sublicense, or resell the Services;
vii. enable or allow others to use the Services using your account information;
viii. use the Services in violation of our policies, applicable laws, or regulations;
ix. use the Services to send unauthorized advertising, or spam;
x. harvest, collect, or gather user data without their consent;
xi. transmit through the Services any material that may infringe the intellectual property or other rights of third parties; or
xii. permit, allow, or acquiesce to any person taking any of the actions prohibited under this clause.
e. 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.
f. 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 (together, the “Features”). You agree not to claim any ownership in the Services, Mortgage Automator Marks, or Features and acknowledge that the Features can be released to any or all of our clients at any time. 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.
g. License Grant by Customer. Customer grants to Mortgage Automator a royalty-free, fully paid, worldwide license to copy, modify, develop, access, collect, store and otherwise use the Customer Data solely for the purpose of providing the Services to you.
3. FEES AND PAYMENT.
a. 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. 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.
b. Renewal Term. This Agreement will automatically renew for further periods equal to the period of the Initial Term (each, a “Renewal Term”), unless either party provides the following days of written notice prior to the end of the then current term of its intention not to renew this Agreement: a) for monthly subscriptions, at least ten (10) days’ notice or b) for annual subscriptions, at least thirty (30) days’ notice.
c. 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.
d. 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.
e. 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.
f. 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.
g. 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.
a. 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.
b. 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:
i. you breach any provision of this Agreement;
ii. you fail to make timely payment of fees for the Services;
iii. 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;
iv. you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel;
v. 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;
vi. we are required to do so by law; or
vii. we elect to discontinue the Services, in whole or in part.
c. 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.
d. 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.
a. 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.
b. 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.
c. Your Accounts. You are solely responsible for;
i. any use of the Services by you and your users
ii. 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
iii. 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.
a. 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:
i. 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,
ii. information that is publicly available through no wrongful act of Recipient, or
iii. information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
b. 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
i. 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
ii. 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:
a. Discloser’s written request; and
b. 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