END USER SOFTWARE SUBSCRIPTION AND USAGE AGREEMENT
Last updated: 11/16/16
This Agreement (“Agreement”) is made and entered into effective as of the date shown above by and between Advanced Transparent Solutions, LLC, doing business as ATS SECURED (“ATS SECURED”, “we”, “us”, or “our”) and users (“User”, “you”, or “your”) who use or interact with the online services provided by ATS SECURED (collectively, the “Service”). By using or accessing the Service, you acknowledge and agree that you have read and understood this agreement.
ATS SECURED provides, using its proprietary automated System, certain payment processing and account reconciliation services (“Services”) used in connection with, among other things, the settlement of mortgage lending transactions. Customer is a mortgage lender, settlement agent, title underwriter, bank and/or mortgage industry vendor as applicable, and desires to utilize the System in connection with the settlement of certain mortgage loans originated by the Customer. ATS SECURED hereby makes the System available for use by Customer on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the customer agrees as follows:
The following terms used in this Agreement shall have the meanings ascribed below:
- “Portal” shall mean the internet-based portal through which the Customer and other persons may access and use the System, which shall be accessible through a URL as may be designated by ATS SECURED from time to time.
- “System” shall mean the proprietary system of software solutions offered by ATS SECURED for use by third parties in the settlement of mortgage lending transactions, which System may be accessed through the Portal.
- “Transaction” shall mean a mortgage lending transaction involving the Customer, whether as a lender or as a settlement agent, that is settled using the System.
CUSTOMER’S USE OF THE SYSTEM
3. PRICING AND PAYMENT; TAXES
Customer shall pay to ATS SECURED the fees, without any deduction or set-off, as specified by ATS SECURED to such Customer in accordance with the ATS SECURED price list in effect from time to time, as such list may be modified or changed by ATS SECURED in its sole and absolute discretion at any time; provided that ATS SECURED will give not less than thirty (30) days written notice to Customer of any such modification or change. ATS SECURED’s current price list shall be provided to Customer at any time upon Customer’s request. Customer will make payment to ATS SECURED of its fees contemporaneously with, and as part of, the settlement of each Transaction. All amounts payable by the Customer to ATS SECURED are exclusive of any customs, tariffs, duties, sales, use or value-added taxes, or similar governmental charges (“Taxes”) which may be assessed based on ATS SECURED’s performance of its obligations hereunder, and all such Taxes remain the responsibility of the Customer.
4. TERM AND TERMINATION
- Term. The term of this Agreement will commence on the date shown above (the “Effective Date”) and continue until terminated by written notice from one party to the other. Any such termination of this Agreement shall be effective as of the date specified in the written notice of termination, which date shall be not less than sixty (60) days following delivery of the notice.
- Wind-Down of Relationship Upon Termination. Upon termination of this Agreement, the parties shall reasonably cooperate to wind-down the activities contemplated by this Agreement, including the completion of any Transactions pending as of the effective date of termination, and any Services provided by ATS SECURED in connection therewith shall be billed at the then-current market rates for such Services.
5. SYSTEM UPDATES
ATS SECURED reserves the right to make technical, functional and other modifications to the System and Services without any approval of Customer at any time, including, without limitation: (i) fixes to errors; (ii) software updates; (iii) enhancements contained in new releases; and (iv) developments of new software tools for analyzing, measuring, aggregating, and organizing loan data for the purpose of generating new data and information regarding banking sector trends, evolving characteristics of the loan marketplace, risk predictors and risk management, and other financial and economic indicators of particular value and relevance to ATS SECURED and its customers. Any such modification shall not have a material adverse effect on the functionality of the System.
6. GENERAL PROVISIONS
- Independent Contractor. ATS SECURED and Customer shall be at all times during this relationship acting as independent contractors, and each shall be responsible for bearing its own costs and directing its own activities in support of this Agreement. In no event shall either party act, or represent itself, as an agent, partner, employee, or a fiduciary of the other party with the authority to make legally binding commitments on behalf of the other party.
- Notices. Any notice, consent, requests, invoices or statements required or permitted under this Agreement shall be given in writing and sent by U.S. Postal Service registered or certified mail, return receipt requested, or by overnight express mail service provided by a national courier, with proof of delivery retained, to the address specified above or to any other address that may be designated by prior written notice.
- Governing Law; Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Nebraska, without reference to its conflict of laws provisions, and applicable US federal laws and regulations. Any dispute, controversy or claim arising out of, resulting from, relating to or in connection with this Agreement, including existence, validity, breach or termination of this Agreement, whether during or after the term of this Agreement, shall be submitted for resolution exclusively in the courts of Douglas County, Nebraska, and the parties hereby irrevocably consent to the jurisdiction of such courts in any such action, suit, or proceeding.
WARRANTY DISCLAIMER; LIMITATION OF LIABILITY; COMMENCEMENT OF ACTION. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ATS SECURED EXPRESSLY DISCLAIMS ALL WARRANTIES PERTAINING TO THE SYSTEM OR SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SYSTEM AND THE SERVICES PROVIDED TO THE CUSTOMER PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS.” THE TOTAL LIABILITY OF ATS SECURED FOR ALL DAMAGES RELATING TO, ARISING OUT OF, RESULTING FROM OR IN CONNECTION WITH A CLAIM UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ATS SECURED IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT OR THE SYSTEM OR THE SERVICES WHICH CAUSED THE DAMAGE. IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RELATING TO, RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR ACTIONS FOR NONPAYMENT, NO PARTY MAY COMMENCE AN ACTION UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT OR A BREACH OF THIS AGREEMENT, OR IN THE EVENT THAT SUCH DEFAULT OR BREACH IS NOT DISCOVERABLE BY THE INJURED PARTY WHEN IT HAS OCCURRED, MORE THAN ONE YEAR AFTER SUCH DEFAULT COULD, IN THE EXERCISE OF DUE DILIGENCE, WOULD HAVE BEEN DISCOVERED.
Force Majeure. Any delay in or failure of performance by either party to this Agreement, other than failure to pay amounts when due pursuant to the terms of this Agreement, shall not be considered a breach of this Agreement and shall be excused to the extent caused by any occurrence or event beyond reasonable control of such party. Such occurrences or events shall include, but not be limited to, fortuitous events and acts of God; wars, riots, acts of terrorism and insurrections; laws, decrees, ordinances and government regulations; strikes and lockouts; and floods, fires and explosions.
- No Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, the Customer and ATS SECURED. This Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third party, including without limitation, employees, vendors and clients of either Party, or to create any rights or causes of action in or on behalf of any third parties, including without limitation, employees, vendors and clients of either party or create any obligations for either party to any such third party.
- Mitigation of Damages. Each party to this Agreement shall use all diligent efforts to mitigate its damages, losses and expenses under this Agreement.
- Headings; Severability. Headings and subheadings used in this Agreement are for convenience only. Any portion or provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining portions or provisions hereof in such jurisdiction or, to the extent permitted by law, rendering that or any other portion or provision hereof invalid, illegal or unenforceable in any other jurisdiction.