Terms of Services

a.  Each BrokerLOS service for which Customer subscribes shall be provided upon the terms and conditions set forth in this Agreement and one or more contemporaneous and/or future documents (each, a “Schedule”) describing the specific BrokerLOS services (collectively, “Services”) to be provided hereunder and any additional terms and conditions applicable thereto. “Services” shall not include any service not specified in a Schedule. Each Schedule must be executed by Customer and shall be governed by the terms and conditions set forth herein, except to the extent otherwise expressly provided in such executed Schedule. From time to time, Customer may elect to subscribe for any additional Services that were not specified on the initial Schedule. Such additional Service(s) shall be provided pursuant to the terms and conditions of one or more additional Schedules that upon execution by Customer will be incorporated herein. Each such additional Schedule shall be effective as of the date it is executed by Customer or as otherwise provided therein.

b.  If necessary, Customer shall cooperate with BrokerLOS to provide, prior to the Effective Date or at such time thereafter as BrokerLOS may permit, any information reasonably requested by BrokerLOS to set up a client account, including without limitation the business and technical contacts for BrokerLOS within Customer’s organization. If and to the extent set forth in an active Schedule, BrokerLOS shall provide training to Customer’s personnel in such subscribed Service. Customer shall cause all its personnel who will use or assist with the use of the Services to undergo such training as shall be reasonably necessary to ensure proper use of the relevant Services. If Customer requests on-site training, BrokerLOS will provide Customer with a prior estimate of any travel or other special out-of-pocket expenses associated with the provision of such training, and Customer shall be responsible for all out-of-pocket costs and expenses incurred in connection therewith.

c.  Customer shall use the Services and Ancillary Services (as defined in Section 2 below) solely for its own internal business operations and shall not (i) use or permit the Services and Ancillary Services to be used by or for the benefit of any third party, and (ii) use or permit the Services and Ancillary Services to be used for any other purpose or in any other manner. Customer shall be solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services and Ancillary Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Customer Systems”). Customer shall also be responsible for maintaining the security of the Customer Systems, Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account or the Customer Systems with or without Customer’s knowledge or consent. Customer shall not interfere in any manner with the operation of the Services or attempt to probe, scan or test vulnerability of the Services without prior authorization of BrokerLOS. Customer shall have the sole responsibility to verify that the Services and Ancillary Services meet its requirements, and to ensure the accuracy of Customer Data (as defined in Section 6 below).

d.  BrokerLOS has no obligation to monitor Customer’s use of the Services, but it may do so and may block any use of the Services or Ancillary Services it believes may be (or is alleged to be) in breach of this Agreement or violation of law; provided, that BrokerLOS will give Customer prompt notice of such action together with an explanation of the basis therefor. In addition to and not in lieu of any other rights it holds under this agreement, BrokerLOS reserves the right to suspend the Services provided to Customer if Customer has breached this Agreement (including without limitation Schedules and the Terms of Use, as defined below). BrokerLOS further reserves the right to monitor whether Customer is using excessive computing resources. BrokerLOS agrees to notify Customer in writing if BrokerLOS determines that Customer is using excessive computing resources that is materially impacting the performance of the Services for other subscribers, and the parties agree to use good faith efforts to resolve the situation.

e.  BrokerLOS shall use commercially reasonable efforts to make the Services available and fully functional on a 24x7 basis (twenty-four hours per day, seven days per week) during the Term, except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance during non-business hours by BrokerLOS, or (ii) for any unforeseen cause beyond BrokerLOS's reasonable control, including but not limited to Internet service delays or communications network failures, denial of service attacks or similar attacks that were beyond BrokerLOS’s reasonable control to prevent, or any force majeure events set forth in this Agreement. BrokerLOS will monitor performance indicators on the systems and network infrastructure (its own and that of third-party suppliers) in order to gauge the overall performance of its web-based services, and will use commercially reasonable efforts to address systems and network infrastructure as required to maintain satisfactory performance of the Services. System status, including scheduled maintenance and downtime, may be checked at any time at: https://www.spherelos.com/status.

f.  BrokerLOS’s customer support team shall provide Customer with support services via Knowledge Base, chat, or through the “Create a ticket” options in the application, or by email at support@spherelos.com Support services shall be limited to those required in connection with proper use of the Services as contemplated by this Agreement. Standard support includes assistance with general system questions, how-to's, password resets, and setting up available integrations with BrokerLOS. Standard support does not include special sessions specifically dedicated to one client, or issues relating to the BrokerLOS API or any custom forms. Without limiting the foregoing, standard support services shall not include services necessitated by (i) defects in connectivity or in any website, hardware or software other than as owned or operated by or on behalf of BrokerLOS, (ii) issues relating to the use of or questions from third party systems or providers, or (iii) improper use of any equipment, server, connective device, or website. Further support terms are set forth at https://www.spherelos.com/terms-of-support.

g.  Use of BrokerLOS’s website is subject to the Terms of Use posted on the BrokerLOS platform. “Terms of Use” means the terms, rights and obligations specified on the BrokerLOS platform, as applicable, and in any agreement with an end user that governs access to and use of BrokerLOS platform, including the Privacy Policy, as in effect on the Effective Date and as amended by BrokerLOS from time to time in its sole discretion. In the event that of any conflict between the terms and conditions contained within this Agreement the terms and conditions contained within the Terms of Use, the terms and conditions of this Agreement shall control.

BrokerLOS may from time to time make available to Customer additional non-core ancillary services (“Ancillary Services”) that are not part of the Services provided under any Schedule and which may be provided by a third-party provider. Such Ancillary Services may include e-Sign services and other similar convenience functionality. If desired, Customer may access such Ancillary Services through the BrokerLOS system, and pricing for such services is also specified on the BrokerLOS website. BrokerLOS may add or remove Ancillary Services at any time at its sole discretion. If Customer utilizes any Ancillary Services, charges for such use shall be billed by BrokerLOS in the same manner specified for other Services on a Schedule. Use of Ancillary Services that are provided by a third party may be subject to terms required by such third-party provider.

In addition to the terms set forth on each Schedule, the following provisions shall also apply (for the purposes of this Section 3 only, references to “Services” shall include Ancillary Services):

a.  Customer shall be responsible for and shall pay any and all sales, use, excise, or other taxes (except U.S. taxes imposed on BrokerLOS’s income) levied or imposed by any governmental entity or agency on or on account of the provision of the Services to Customer. In the event that BrokerLOS is required by any governmental entity or agency to pay any of such taxes, Customer agrees that BrokerLOS may be reimbursed for such payment of taxes by a charge assessed to Customer in the BrokerLOS Automated Payment Portal (“APP”) during the next billing cycle. BrokerLOS will provide to Customer documentation evidencing such tax requirement and BrokerLOS’s payment of the same.

b.  Without limiting any other provisions of this Agreement, in the event that any charge assessed through the APP is declined or otherwise rejected, BrokerLOS reserves the right to (i) suspend the Services provided to Customer until all amounts owing have been paid, and (ii) require a deposit or payment in advance for any further provision of Services. Repeated or continued declined or rejected payments, or the bad faith disputation of invoiced amounts, shall be deemed a material breach of this Agreement by Customer. All invoiced amounts not paid by the Due Date shall be subject to a finance charge equal to the lesser of (i) one percent (1%) per month or (ii) the maximum rate permitted by applicable law. Customer agrees that this finance charge represents a fair and reasonable estimate of the expenses BrokerLOS will incur by reason of late payments and is not a penalty. BrokerLOS may assess finance charges through the APP.

c.  If Customer disputes the accuracy or applicability of any invoiced charge or credit, Customer will notify BrokerLOS in writing of such dispute as soon as practicable, but in no event later than ten (10) business days after such discrepancy has been discovered. Such notice shall set forth in reasonable detail the basis for Customer’s challenge to the disputed charges. In no event will Customer initiate a dispute regarding the accuracy or applicability of a charge or credit more than six months after the invoice date first reflecting such charge or credit. In the event that any disputed charge is determined to be invalid, BrokerLOS shall refund such amount to Customer together with any finance charges paid by Customer thereon.

a.  This Agreement shall terminate upon the earlier of (i) the date that all Schedules have expired or been terminated in accordance with their respective terms or (ii) the date that this Agreement is terminated pursuant to the other provisions of this Section 4.

b. In the event that BrokerLOS elects to terminate this Agreement pursuant to paragraphs (i) or (ii) below, Customer shall be responsible for all monthly minimum usage charges set forth in any Service Order through the end of the Initial Term or then-current Renewal Term (as the case may be) for each respective Service, as well as any other amounts to which BrokerLOS is legally entitled hereunder. As used herein, “Initial Term” and “Renewal Term” shall have the meanings ascribed to them in each respective Service Order.

(i) If any undisputed payment due from Customer is not received by BrokerLOS within 30 days after the due date, at its option upon written notice BrokerLOS may terminate this Agreement (including all Service Orders) or the relevant Service Order relating to the Service for which such payment is due. At such time BrokerLOS reserves the right to purge any of Customer’s data remaining on BrokerLOS servers.

(ii) In addition to the provisions of paragraph (i) above, BrokerLOS may terminate this Agreement (or any Service Order) upon notice to the other party if: (A) Customer breaches any other provision of this Agreement or a Service Order and fails to cure that breach within thirty (30) days after its receipt of a written notice from BrokerLOS, or if cure requires more than 30 days, cure is not commenced during the 30 day period and pursued diligently to completion; (B) Customer materially breaches any provision of Sections 6 or 7 of this Agreement or commits any other act or omission that materially threatens BrokerLOS’s Confidential Information or proprietary rights; or (C) Customer files a petition in bankruptcy, has had a bankruptcy petition filed against it, is adjudicated as bankrupt, has a receiver, trustee or other court officer appointed for its property, takes advantage of the insolvency laws of any jurisdiction to which it is subject, makes an assignment for the benefit of creditors, is voluntarily or involuntarily dissolved, or admits in writing its inability to pay debts as they come due.

c. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer hereunder shall immediately terminate, and Customer shall cease using the Services.

a.  Each party represents and warrants that it has full power and authority to enter into this Agreement.

b.  Customer represents, covenants, and warrants that it will use the Services and Ancillary Services only in compliance with this Agreement, BrokerLOS’s Terms of Use and all applicable laws and regulations, and that it will take appropriate measures so as to protect against the misuse thereof.

c.  BrokerLOS represents and warrants to Customer that all Services shall be performed in a professional and workmanlike manner by adequately trained and experienced personnel, and it shall use commercially reasonable efforts to maintain the Services.

d.  BROKERLOS DOES NOT WARRANT THAT THE SERVICES AND/OR ANCILLARY SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND/OR ANCILLARY SERVICES.

e.  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND ANY EFFECTIVE SERVICE ORDER(S), BROKERLOS EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUITABILITY OF ITS PRODUCTS OR SERVICES FOR CUSTOMER’S NEEDS OR (B) THE CAPABILITY, PERFORMANCE, OR FUNCTIONALITY OF ANY OF ITS PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, OR COMPATIBILITY THEREOF, OR (3) ANY WARRANTY THAT MAY ARISE BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. IF ANY EXCLUSION STATED IN THIS PARAGRAPH 5.d IS HELD UNENFORCEABLE, THEN ANY WARRANTY DEEMED APPLICABLE AS A RESULT THEREOF SHALL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE EFFECTIVE DATE, AND NO SUCH WARRANTIES SHALL APPLY AFTER THAT PERIOD.

a.  a. Customer acknowledges that as between the parties all right, title, and interest in and to the Services, the underlying web-based software that runs the Services on BrokerLOS.com and all improvements, enhancements or modifications thereto, together with its codes, sequences, derivative works, organization, structure, platforms, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “BrokerLOS IP”), is, and at all times shall remain, the sole and exclusive property of BrokerLOS. BrokerLOS IP may contain trade secrets and proprietary information owned by BrokerLOS and is protected by United States copyright laws and/or other U.S. laws and treaties relating to intellectual property. Neither the Services nor the Ancillary Services nor any work performed or created for Customer by BrokerLOS hereunder is a work made for hire. Except the right to use the Services and Ancillary Services, as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the web-based software, or the Ancillary Services.

b.  Customer shall not attempt, or directly or indirectly allow any third party to attempt, to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the BrokerLOS IP in any form or media or by any means. Customer shall not (i) remove or alter any product identification, trademark, copyright, confidentiality, proprietary or other notice affixed to or embodied within any BrokerLOS Proprietary Information (as defined in Section 7 below); (iv) rent, sublicense, assign, share or transfer any BrokerLOS Proprietary Information to any third party. Customer shall not access or use the Services or Ancillary Services, or any feature, information or functionality thereof, to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking.

c.  Customer shall own all right, title and interest in and to the non-public data provided by Customer to BrokerLOS to enable the provision of the Services (the “Customer Data”).

d.  Customer hereby grants BrokerLOS a limited, non-exclusive, revocable, non-transferable and personal license to display Customer’s name and a logo of Customer, such logo to be selected and provided by Customer (collectively, the “Trademarks”), for the sole purpose of displaying the Trademarks to users of the BrokerLOS platform, but only during the term of this Agreement. This trademark license may be terminated by Customer immediately upon written notice in the event that Customer determines, in its sole reasonable discretion, that BrokerLOS’s use of the Trademarks materially misuses, tarnishes or dilutes the Trademarks in any way. BrokerLOS hereby acknowledges, covenants and agrees that (i) the Trademarks shall only be used in accordance with the terms and conditions of this Agreement; (ii) it shall have no rights in the Trademarks other than the limited right to use them as expressly set forth herein; and (iii) it shall not remove, deface or change any Trademarks or any notices or designations related thereto.

e.  Notwithstanding anything to the contrary, BrokerLOS shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and BrokerLOS will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other BrokerLOS offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

f.  The provisions of this Section 6 shall survive termination of this Agreement.

a.  A party disclosing Proprietary Information may be referred to as a “Disclosing Party”; a party receiving Proprietary Information may be referred to as a “Receiving Party”; and a party’s employees, contractors service providers (including but not limited to vendor management providers), and agents, and their employees and agents, may be referred to as “Representatives”. “Proprietary Information” means any information or data, whether in written, oral, or electronic form, that is confidential and/or proprietary to the Disclosing Party (or a third party from which the Disclosing Party has obtained such information). Proprietary Information includes but is not limited to patents, copyrights, trade secrets, trademarks, service marks, trade names and dress and applications relating to the same, domain names, proprietary software, code, files, materials, data, methodologies, methods, know-how, concepts, ideas, formulae, inventions, processes or procedures used in the provision of services, including without limitation all related written, magnetic, or recorded information, documents, or materials, data, and graphics, and all information relating to such party’s business, finances, marketing, products, services, customers or other third parties, or manner of operation. Proprietary Information of BrokerLOS includes but is not limited to all BrokerLOS IP. Proprietary Information of Customer includes but is not limited to all Customer Data. Notwithstanding the foregoing, the confidentiality obligations of the Receiving Party hereunder shall not apply to information that the Receiving Party can properly document (i) is already in the possession of the Receiving Party without restrictions on disclosure prior to the time of disclosure under this Agreement, as evidenced by written records kept by Receiving Party in the ordinary course of its business or as evidenced by proof of actual prior use by Receiving Party, (ii) is or becomes generally available to the public other than as a result of the actions or omissions of the Receiving Party or its Representatives in breach of this Agreement, (iii) is independently developed by the Receiving Party without any use of or reference to the Proprietary Information, as evidenced by written records kept by Receiving Party in the ordinary course of its business, or (iv) subsequent to disclosure under this Agreement, is disclosed to Receiving Party without restriction on disclosure by a third party who has the lawful right to make an unrestricted disclosure to Receiving Party without violating any obligation of confidentiality.

b.  The Receiving Party agrees: (i) to take, and shall cause its Representatives to take, commercially reasonable, industry standard precautions to protect Disclosing Party’s Proprietary Information from unauthorized disclosure or use, and (ii) not use such information other than in the course of carrying out the contemplated purposes of this Agreement. Each party shall be liable for any breach of this Agreement its Representatives.

c.  The Receiving Party may make disclosures of Proprietary Information to the extent required by applicable law, rule, regulation, order or regulator request (a “Disclosure Requirement”); provided, that Receiving Party shall (i) if legally permissible, notify the Disclosing Party as promptly as practicable of the Disclosure Requirement, (ii) at Disclosing Party’s sole expense, use commercially reasonable efforts to limit disclosure and obtain confidential treatment or a protective order, or cooperate with Disclosing Party in obtaining such remedy; provided that the Receiving Party shall not be required to undertake litigation or legal proceedings in its name, and (iii) if necessary, provide its consent so that Disclosing Party may participate in any proceeding related to the Disclosure Requirement.

d.  Within 30 days of the Disclosing Party’s request, the Receiving Party shall destroy the Disclosing Party’s Confidential Information and certify such destruction in writing signed by an authorized representative of the Receiving Party; provided, that (i) BrokerLOS shall not be obligated to destroy or erase electronic Customer Proprietary Information where such information will be irretrievably erased or destroyed eventually in the ordinary course of BrokerLOS’s data retention and destruction procedures, and (ii) BrokerLOS may retain a copy of any Customer Proprietary Information for recordkeeping or for regulatory or other legal compliance purposes. Until return, erasure or destruction, such information will remain fully subject to the terms of this Section 7.

e.  The parties agree that an impending or existing violation of any provision of this Section 7 may cause the Disclosing Party irreparable injury for which it would have no adequate remedy at law, and agree that the Disclosing Party shall be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it.

f.  The provisions of this Section 7 shall survive termination of this Agreement.

In addition to any limitations on the rights, obligations or liabilities of either party set forth elsewhere in this Agreement, and notwithstanding any other provisions of this Agreement, the following limitations on liability shall apply:

BROKERLOS (FOR THE PURPOSES OF THIS SECTION 8 INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE PROVISION OF ANY SERVICES HEREUNDER OR THE USE, MISUSE OR INABILITY TO USE ANY SERVICES (INCLUDING BUT NOT LIMITED TO LOSS OF USE OR GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF PROFITS OR REVENUE, AND COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), REGARDLESS OF THE FORM OF ACTION WHETHER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF CUSTOMER OR SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL BROKERLOS’S LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CUSTOMER FOR ALL SERVICES TO BROKERLOS UNDER THIS AGREEMENT WITHIN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF THE CLAIM AROSE OR $1,000.00, WHICHEVER IS GREATER. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THESE LIMITS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 8 IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. The provisions of this Section 8 shall survive termination of this Agreement.

Customer agrees to indemnify, defend and hold harmless BrokerLOS (such term as used in this Section 9 to include BrokerLOS’s officers, directors, employees and agents) from and against all damages and costs, including reasonable attorneys’ fees, finally awarded against BrokerLOS or finally settled upon and arising from third party claims related to Customer’s breach of any of its obligations to, or violation by Customer of the rights of, any of its consumers or any other third person. The provisions of this Section 9 shall survive termination of this Agreement.

a.  As part of the Services, BrokerLOS may provide links to certain lenders, mortgage service providers, and other third parties (“Service Providers”). In the event Customer intends to use or request the services and products of Service Providers, Customer is solely responsible for reviewing and understanding the terms and conditions governing the usage of such Service Providers and their services and products. Customer understands that Customer is subject to the specific terms, fees, conditions, policies, and agreements imposed by such Service Providers. BrokerLOS makes no representation or warranty of any kind concerning Customer’s use of such Service Providers and their services and products or the performance or results obtained by Customer or its customers by using such Service Providers and their services and products.

b.  In the event Customer sends information, including, but not limited to, a borrower or potential borrower’s (“borrower”) personal information, directly or indirectly, to Service Providers, BrokerLOS will not be responsible for any information sent by Customer to such Service Providers and is not responsible for information requested by such Service Providers. BrokerLOS assumes no responsibility as to whether information requested by a Service Provider is appropriate. It is Customer’s sole responsibility to contact a Service Provider regarding what particular type of information is being shared or exchanged, the Service Provider’s use and sharing practices of such information, and whether the Service Provider has updated or revised its policies regarding the Service Provider’s use and sharing practices. BrokerLOS assumes no responsibility for the disclosure, dissemination, collection, use, sale, or sharing of information about a borrower and/or Customer. It is Customer’s sole responsibility to ensure that Customer and its employees and agents comply with any applicable laws, including but not limited to, all privacy laws, now and hereafter in effect, and to ensure that any information Customer (including its employees and agents) shares with Service Providers is in compliance with applicable law, Customer’s own privacy notices and policies, and any consent or disclosure instructions provided by a borrower to Customer.

c. The Point of Sale (“POS”) and Customer Relationship Management (“CRM”) systems accessible through the Services as available on the Sphere platform are owned and operated by Taygo, Inc. ("Taygo”). Taygo is a third party unaffiliated with LendingPad, and use of the POS and/or CRM is subject to any terms and conditions that Taygo may require relating to the use of those systems. The POS and CRM are made available for use through the Services but are expressly excluded from and are not part of the Services provided by LendingPad hereunder. 

Use of the POS and/or the CRM is optional at Customer’s sole election, and such use is subject to the terms set forth in Section 10 of the Master Services Agreement (Third Party Service Providers), and any further terms relating to third party providers otherwise set forth in the Documents.  Without limiting the foregoing, LendingPad expressly disclaims any responsibility for or liability arising from Customer’s use of the POS and/or the CRM.

Except as otherwise provided below in this Section 12, any claim, dispute, or controversy between the parties, under, arising out of, or related to this Agreement, including issues of specific performance, shall be determined by arbitration, or upon mutual consent of the parties by mediation, as specified below. Arbitration and/or mediation proceedings shall be conducted virtually in accordance with the Virtual Hearing Order and Procedures established by the American Arbitration Association (“AAA”). In the event that a party objects to conducting a virtual hearing, in-person proceedings shall be conducted in Washington, D.C.

a.  Arbitration shall be conducted under the Commercial Arbitration Rules, Expedited Procedures, of the AAA in effect on the date hereof, as modified by this Agreement. There shall be one arbitrator selected by the parties within 10 days of the arbitration demand or if not, by the AAA, who shall be an attorney with at least 15 years business law experience. The arbitrator shall apply substantive law and may award injunctive relief, equitable relief (including specific performance), or any other remedy available from a judge, including expenses, costs and attorney fees to the prevailing party and pre-award interest, but shall not have the power to award punitive damages. The decision of the arbitrator shall be final and binding and an order confirming the award or judgment upon the award may be entered in any court having jurisdiction. Except as required by law, the existence of any dispute, any settlement negotiations, the arbitration hearing, any submissions (including exhibits, testimony, proposed rulings and briefs), and the rulings thereupon shall be deemed confidential. As such, all parties hereto agree to maintain all such information as confidential utilizing at least as great a standard of care as they utilize for confidential information in their own businesses but not less than a reasonable standard of care. The arbitrator shall have the authority to impose sanctions for violation of this provision.

b.  Prior to initiation of arbitration proceedings, by mutual consent the parties may submit any claims, disputes or controversies arising hereunder to nonbinding mediation conducted by the AAA under the AAA Mediation Procedures. The mediator shall be selected by mutual consent and shall be a person acceptable to all parties. After commencement of mediation proceedings, at any time any party may immediately terminate mediation and demand arbitration. The costs of mediation shall be borne equally by all parties involved; provided, that if the matter is subsequently taken to arbitration, the mediation costs shall be awarded by the arbitrator.

c.  With respect to claims for injunctive relief brought by either party, the party making the claim may elect to bring such claim in state or Federal court rather than engaging the alternative dispute resolution process provided above. In addition, the provisions of this Section 12 shall not apply to claims or disputes in which the amount at issue is less than $5,000.

a. Relationship of Parties.   The parties agree and acknowledge that the relationship of the parties is in the nature of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture and neither party is the other’s agent, partner, employee or representative. Neither party hereto shall have the right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights of any kind to any third persons.

b. Notice.   Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent by registered or certified mail, postage prepaid, return receipt requested or delivered personally to the party’s address set forth in this Agreement. Either party may revise its address upon written notice to the other party.

c. Governing Law; Forum Selection.   The parties agree that this Agreement shall be governed by the laws of the State of Delaware, without regard to the conflict of law provisions thereof. Except as provided in Section 11 above, all disputes arising in connection with this Agreement shall be subject to the sole and exclusive jurisdiction of the state and Federal courts located in, or closest to, Washington, D.C., and the parties hereby (i) submit to such jurisdiction and venue and waive the defense of forum non conveniens and (ii) consent to the service of process in any such action by registered mail, return receipt requested, or by any other means provided by law.

d. Attorneys’ Fees.   In the event that a dispute arises either directly or indirectly out of this Agreement, then and in the event that arbitration, suit or action is instituted to enforce or interpret the terms of this Agreement, the prevailing party in such arbitration, suit or action, or on the appeal of such arbitration, suit or action, shall be entitled to an award of its reasonable attorneys’ fees as set by the arbitrator or court before which the matter is heard or appealed, and their costs, including reasonable attorney fees and costs in collection of any judgment.

e. Survival.   Any provision of this Agreement which contemplates performance subsequent to the expiration or earlier termination of this Agreement, or which expressly states that it shall survive termination of the Agreement, shall so survive such expiration or termination and shall continue in full force and effect until fully satisfied.

f. Severability.   If any term, covenant, or condition of this Agreement (including all Schedules hereto) or the application thereof to any person, entity, or circumstance is held invalid or unenforceable to any extent by a final decision of a court of competent jurisdiction, after all appeal rights have expired or have been exhausted or waived, that term, covenant, or condition shall be deemed amended to the extent required by such decision. The remainder of this Agreement and the application of the challenged term, covenant, or condition to persons, entities, or circumstances other than those as to which it is held invalid or unenforceable shall not be affected and shall be valid and enforceable to the fullest extent permitted by law.

g. No Waiver.   No waiver by either party of any of rights pursuant to this Agreement shall be effective unless set forth in a writing delivered to the other party. No course of dealing, delay in exercising any right, power, or remedy, acceptance of payments, finance charges, or performance from a party when that party is in default, or enforcement of any remedy shall operate as a waiver or otherwise prejudice a party’s rights, powers, or remedies pursuant to this Agreement. All rights and remedies of the parties pursuant to this Agreement shall be cumulative and none shall exclude any other right or remedy given by this Agreement or by law.

h. Assignment.   Customer shall not assign or transfer this Agreement without the prior, written consent of BrokerLOS. This Agreement shall be binding upon each party’s successors and permitted assigns.

i. Force Majeure.   BrokerLOS will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond BrokerLOS's reasonable control, including but not limited to fire, flood, storm, act of God, war, terrorism or events associated therewith, malicious damage, failure of a utility service or transport or telecommunications network.

j. Headings.   The section and paragraph headings in this Agreement are for convenience only and they form no part of the Agreement and shall not affect the interpretation thereof.

k. Entire Agreement.  This Agreement is intended to be a final expression of the agreement between BrokerLOS and Customer regarding its subject matter and supersedes any prior or contemporaneous agreements or understandings related thereto, whether written or oral; provided, that if BrokerLOS and Customer are parties to an effective mutual non-disclosure agreement (“NDA”) with provisions more protective of a party’s Proprietary Information than the provisions of Section 7 above, such more protective terms of the NDA shall govern for the protection of such Proprietary information for so long as they remain effective, and following the termination thereof the provisions of Section 7 hereof shall apply. All Service Orders, and any other attachments or exhibits to this Agreement, whether presently contemplated or executed in the future, shall be deemed a part of and constitute integral terms of this Agreement, and references herein to “this Agreement” shall be deemed to include all Service Orders and any other attachments and exhibits hereto. If there is any conflict between this Agreement and the terms or conditions of any purchase order or other document delivered to BrokerLOS by Customer, the terms and conditions of this Agreement shall control. Except as otherwise provided in this Section 11.k., no amendment or modification of this Agreement will be binding unless reduced to a writing signed by duly authorized representatives of the parties and such writing makes specific reference to this Agreement and its intention to amend the terms hereof. Acceptance by BrokerLOS of click-wrap, browse-wrap, or similar online terms offered by Customer or any third party shall not constitute written consent to amend, modify, or supersede the terms of this Agreement.

IMPORTANT: THIS SERVICE ORDER S (“SERVICE ORDER”) AND THE DOCUMENTS SPECIFIED IN THE PARAGRAPH BELOW (COLLECTIVELY, THE “AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN CUSTOMER (AS IDENTIFIED ABOVE) AND BROKERLOS, LLC. BEFORE USING ANY BROKERLOS SERVICES, AN AUTHORIZED REP- RESENTATIVE OF CUSTOMER MUST CAREFULLY READ THE TERMS AND CONDITIONS OF THE AGREEMENT. BY CLICKING “ACCEPTED” AT THE BOTTOM OF THIS SERVICE ORDER AND USING THE SERVICES, CUSTOMER CON- SENTS TO BE LEGALLY BOUND BY THE AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK ON "NOT ACCEPTED" AT THE BOTTOM OF THIS SERVICE ORDER. PLEASE NOTE THAT CUS- TOMER WILL NOT BE PERMITTED TO USE THE BROKERLOS SERVICES UNLESS IT AGREES TO THE TERMS AND CONDITIONS OF THE AGREEMENT. AS USED BELOW, THE TERMS “ACCEPTED” AND “ACCEPTANCE” REFER TO CUSTOMER’S FORMAL ACCEPTANCE OF THE TERMS OF THE AGREEMENT AS DESCRIBED IN THIS PARAGRAPH.

Customer agrees to subscribe for the services specified below (“Sphere Service” or “Service”) on the terms set forth herein. The provision of the Service is expressly governed by the terms of the following documents: (i) the Master Services Agreement (“Agreement”), (ii) BrokerLOS Terms of Use, and (iii) BrokerLOS Privacy Policy (col- lectively, the “Documents”). The Documents are each incorporated herein by reference and are available at: ___________________________. All capitalized terms shall have the meanings ascribed to them herein, or if not so ascribed, as set forth in the Master Services Agreement.

1. Services.

(a)  As used herein, “Service” means the BrokerLOS Sphere Loan Origination System. Subject to the terms herein, BrokerLOS grants to Customer and Customer accepts from the BrokerLOS, a limited, non-exclusive, non-transferable right to access and use the Service solely for Customer’s internal mortgage business operations. BrokerLOS will make available to Customer, if applicable during the term of this Agreement, any new, generally available releases of the Service at no additional charge.

(b)  Customer agrees that the Service shall not be used by Customer, directly or indirectly, on behalf of or to benefit third parties that are not parties to this Agreement. Information obtained through the use of the Service is intended for Customer’s sole use and may not be transferred, distributed or resold in whole or in part (except to investors in and transferees of loans as to which the Service is provided). Nothing contained herein grants Customer the ability to resell the Service to third parties.

2. Service Fees

(b) Increases. BrokerLOS may increase Service Fees hereunder upon sixty (60) days’ prior notice to Customer.

(c) BrokerLOS shall invoice Customer for all fees for the provision of Service hereunder, as well asany associated costs and expenses, on a monthly basis. Customer shall pay to BrokerLOS all Service Fees and other charges due hereunder within thirty (30) days after the date of any invoice from BrokerLOS for such fees
(“Due Date”). All invoices are payable upon receipt. Fees payable under this Agreement are not subject toreduction or set-off for any costs, expenses, or liabilities incurred by Customer. All invoices shall be paid in U.S. dollars on the Due Date automatically via BrokerLOS’s Automated Payment Portal (“APP”). Customer shall register with the APP and select payments to be made either (i) by charge to a valid credit card that Customer places on file with BrokerLOS through the APP, or (ii) via Lending Pad’s ACH transfer process that Customer sets up through the APP.

Additional Service Fee terms are set forth in the Master Services Agreement.

3. Support. Customer support for the Service shall be provided as set forth in the Master Services Agreement and at https://www.spherelos.com/terms-of-support.

4. Third-Party Functionality  Certain optional features of the Sphere Service, including but not limited to the Customer Relationship Management (CRM) and Point of Sale (POS) features, are provided by third parties.BrokerLOS makes no representation or warranty of any kind regarding such features, and for avoidance of doubt all disclaimers set forth in Section 5(e) of the Master Services Agreement shall apply to such third-party features.

5. Term  The term of this Service Order shall commence on the Service Order Effective Date and shall continue in effect on a month-to-month basis until one party provides written notice to the other party of its intent to terminate this Service Order, in which case this Service Order shall terminate at the end of the calendar month following the month in which such notice was received by the non-terminating party.

If Customer accepts all terms and conditions of the above Service Order, click on "Accepted" below and then click “Continue”. If Customer does not accept these terms and conditions, just click “Continue” to close this window and exit the contract review and acceptance process. In the latter case, no contract will have been formed and Customer will not be permitted to use the Sphere Service.