SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is made and effective this___day of _________, 2009, by and between The Loan Post Inc., ("Developer") and ___________________ ("Licensee(s)").
Developer has developed and licensed to licensee(s) its software platform, for Web Based, Automated, Loss Mitigation Processing (the "Software,") and as further described in Exhibit "A", attached hereto.
Licensee desires to utilize a copy of the Software at the Licensee's pre-selected domain, and through Developer's domain: www.TheLoanPost.com.
NOW THEREFORE, in consideration of the mutual promises set forth herein, Developer and Licensee agree as follows:
Developer hereby grants to Licensee a quarterly or monthly (See Client Invoice), non-exclusive, limited license to use the Software in the United States of America as set forth in this Agreement.
Licensee shall not attempt to modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey access to the Software or any right in the Software to anyone else or any other site without the prior written consent of Developer. Any/all such licensed sites shall be listed on Exhibit "A" as attached hereto and may be modified from time-to-time by agreement of both parties in exchange for fair consideration in fees.
In consideration for the grant of this web-based INTERNET application license and the use of the Software, Licensee agrees to pay Developer the license fee as specified in the Client Invoice.
4. Warranty of Title.
Developer hereby represents and warrants to Licensee that Developer is the owner of the Software and has the right to grant to Licensee the rights set forth in this Agreement. In the event of any breach of the foregoing representation and warranty, Licensee's sole and exclusive remedy shall be to require Developer to provide all client and user data entered and created by all company users in a usable format to upload into a comparable software system and/or readable spreadsheet like Microsoft Excel.
5. Warranty of Functionality.
Developer warrants that the Software shall perform in all material respects according to the Developer's specifications concerning the Software when used with the appropriate computer equipment. Material Respects specifically means...
The software application will automatically produce documents reviewed and approved by Licensee. Examples of documents could be for "Client Ready" or "Bank Ready" documents. All auto-generated documents must be reviewed and approved by client. Custom packages are developed at client request and will usually be charged a fee.
The software application will organize client files, securely store clients sensitive information like Date of Birth and Social Security Number and secure/encrypt file paths to all documents(PDFs, Images, Word Docs, etc...) uploaded and stored on Developers server.
Serve Uptime is guaranteed 99% of the time with all planned downtimes for server reboot, maintenance, or upgrades during late night non-business hours.
In the event of any breach or alleged breach of this warranty, Licensee shall promptly notify Developer. Licensee's sole remedy shall be that Developer shall correct the Software so that it operates according to the warranty, as long as the non-functional issues are controllable by the developer. It is recommended that all licensee(s) keep and store physical copies of client files and records in case of audits from an outside agency or accidental deletion of files.
6. Software Maintenance.
Developer shall provide to Licensee any new, corrected or enhanced version of the Software as created by Developer. Such improvements, which occur weekly and sometimes daily, shall include modifications to the Software which increase the speed, efficiency or ease-of-use of the Software, and some additional capabilities or functionality to the Software, and shall include any new or rewritten versions of the Software. At the Developer's sole discretion will certain upgrades or functionality be released to the client at a cost agreed to by both parties.
Licensee will receive enhancement maintenance support on an ongoing basis, consistent with the licensing term (see Exhibit "A", as attached hereto). The fees for such enhancement maintenance support shall be included within the original licensee fee. Licensee shall notify Developer in writing if they desires to receive additional, optional maintenance or custom programming changes and Developer agrees to charge the rates consistent with Exhibit "A" attached hereto or at a price agreed to by both parties.
Industry Regulatory related maintenance.
Developer shall maintain the software system to correspond to industry changes related to and not limited to the client application process, proposal generator, and other modules built into the application streamlining common user functions for loss mitigation. Developer will make changes in a timely manner, but does not guarantee a specific time frame in which updates will be made. The developer will make attempts to stay abreast of industry regulations and modify the application to comply with these regulations. However, it is the licensee's responsibility to know all industry regulations. The licensee should not soley rely on the developer for advice on loss mitigation regulations or the application for information.
The license fee pursuant to this Agreement shall be due and payable at the beginning of setup. Quarterly licensing fees will be due up front and charged monthly thereafter until licensee cancels account.
In addition to all other amounts due hereunder, Licensee shall also pay to Developer, or reimburse Developer as appropriate, all amounts due for property tax on the Software and for sales, use, excise taxes or other taxes which are measured directly by payments made by Licensee to Developer. In no event shall Licensee be obligated to pay any tax paid on the income of Developer or paid for Developer's privilege of doing business.
9. Warranty Disclaimer.
DEVELOPER'S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability.
Developer shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue, legal liability, or otherwise, regardless of whether Developer was advised of the possibility of such losses in advance. In no event shall Developer assume any liability hereunder, regardless of whether Licensee's claim is based on contract, tort, strict liability and product liability, legal liability, or other recognizable caused action under Florida law or Federal Law.
The Licensee shall be responsible for providing any and all full disclosures when and where necessary related to Federal or State regulations on a per customer basis. The Developer will provide a standard set of disclosures for use to customers on behalf of Licensee, which will indemnify Developer from any third party or first party liability arising from the use, sale, transmission, or reliance upon Developer's Software Application. It is recommended that Licensee develop and display or provide their own customer disclosures.
It is the Licensee's sole responsibility to monitor and train all "Agents", "Branchs/AEs" and "Back Office Employees" on uses of the system, potential exposure of liability, and overall usage. The Developer will sponsor "Train the Trainer" type programs to teach higher level executives or manager level users on how the whole system works.
Furthermore, if any federal or State agency of law enforcement or government discovers the licensee as having marketed mortgage loan modification or foreclosure assistance services in a potentially deceptive manner, the Developer reserves the right to cancel and revoke any license granted by Developer. Please monitor all state and federal regulations relating to foreclosure assistance related services.
The FTC has issued specific warnings that you should be aware of and should strictly comply with. To be in compliance all your solicitations whether verbal, in web format, or other form of solicitation should avoid:
Guaranteeing or representing a high probability of success in achieving mortgage relief;
Falsely representing that homeowners have been approved for a loan modification;
Falsely representing that homeowners will get specific reductions in their mortgage payment amount or a specific interest rate;
Falsely representing an affiliation with free services, such as the HOPE NOW Alliance, a broad based coalition of HUD-certified housing counseling agencies and mortgage industry members that offers free assistance to homeowners;
Falsely representing an affiliation with the Federal government or Federal programs;
Falsely representing an affiliation with a homeowner's lender;
More information can be found here: http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre42.shtm
11. Licensee Responsibilities
Licensee shall assume all responsibility of researching,understanding, and complying with all current and future local, State, and Federal rules and regulations, laws, and legislation relating to loan modification and foreclosure rescue services.
The Developer and all staffed programmers with access to internal databases ensure that all data will remain under the ownership of the licensee. Under no circumstances will the licensee data be used for any solicitation. The licensee assumes responsibility in protecting their data from any front end access through compromised user names and passwords. Additionally, all data will be automatically backed up on a 2nd server daily. Access to client data is available for managers only, through the "Pipeline Page" via an Excel export function.
13. Software Licensing Fees
The Developer reserves the right to adjust pricing up to 20% from original agreement, not to affect the pricing during the duration of the agreed term, i.e. Annual, Semi-Annual, Monthly Developer will provide 30 day notice of any price changes. This will only be applied in the case of direct costs associated to the licensees' affiliate usage.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services. E-mail will be considered acceptable to firstname.lastname@example.org
15. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of the State of Florida.
16. Final Agreement/Termination Clause
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. This agreement may also be terminated within a 30 day notice provided in writing via certified mail, or Email from either party. The developer will ensure verbal communication expressing and executing the termination clause and we ask that the licensee do the same. The developer shall provide a full export of client data and completely erase all such data from the developer's database upon request.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then the balance of this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
If a dispute should arise with respect to this Agreement or the interpretation thereof, either party may deliver a written notice of such dispute to the other party. After a fifteen (15) day "cooling off" period has lapsed during which both Consultant and Client shall meet at times reasonably convenient to both to discuss the dispute, if the dispute shall not have been resolved, then such dispute shall be determined by an expedited arbitration proceeding conducted in Miami, Florida under the laws of the State of Florida and in accordance with the then-current Rules of Conciliation and Arbitration of the American Arbitration Association ("AAA"). The arbitration proceeding determinations shall be binding upon the parties. Such arbitration may be used only to interpret the provisions hereof and not to modify any provision of this Agreement or any agreements ancillary hereto. The arbitrators shall be selected by the mutual agreement of the parties or, where such agreement cannot be reached, in accordance with the AAA rules. After a decision by the arbitrators, the parties shall each immediately comply with the panel's decision. All arbitration fees and other costs and expenses shall be paid equally by the parties when required during the arbitration; provided, that the parties shall be entitled to reimbursement of such fees and costs in such other proportion as the arbitrator may determine. If judicial enforcement of such arbitrators' award is sought by either party, judgment may be entered upon such award in any court of competent jurisdiction, or application may be made to such court for judicial acceptance of the award and an order of enforcement. All discussions and documents prepared pursuant to any attempt to resolve a dispute under this provision are confidential and for settlement purposes only and shall not be admitted in any court or other forum as an admission or otherwise against a party for any purpose including the assertion of the applicability of federal and state court rules.
IN WITNESS WHEREOF, Developer and Licensee have executed this Software License Agreement on the day and year first above written.
The Loan Post Inc
Contact Name: _____________________________________________
Automated, auto-populating "client ready" and "bank ready" loss mititgation packages
Back end database access to access user registrations and edit/review/prepare/assign/propose/process/negotiate/track/report/ loan modification packages.
Do-It-Yourself (DIY) Loan Modification Module (if applicable)
Merchant processing functionality linked to licensee's bank account for DIY (if applicable)
Quarterly and/or Monthly
A: Setup/Training- (For Fees-Refer to Invoice/Proposal)
Includes web form integration to clients website or hosted by developer
On Demand Training/Support via GoToMeeting,
Custom (Auto-populating) Company Specific forms for client package
- Legal contract,
- Authorization form
- Payment forms, etc...
Includes web form integration to clients website or hosted by developer
Includes web form integration to clients website or hosted by developer
B. Quarterly Licensing/Subscription (For Fees- Refer to Invoice/Proposal)
Hosting of client application- Dedicated, high-end, redundant Servers
Daily Back Up of ALL client data with unlimited export functionality to client
Encryption and Security of secure/sensitive client data and uploaded documents via SSL (HTTPS)
Periodic software updates/upgrades to keep up with industry standards and regulations- (All feature requests accepted on case by case basis- some fees may apply- see below)
Weekly webinar/gotomeeting training session for all staff members with open Q+A and unlimited Email support and standard phone support.
Bug corrections, phone support and basic on-going upgrades and weekly updates are included within the license fee. Telephone support is available Monday through Friday, from 8:00am to 8:00pm EST. 877-812-4327 Email Support@theloanpost.com
Additional Custom Programming:
Billed at a rate of $75 per hour for custom programing. In most cases, there is no additional charges.
Included in monthly fee and available via weekly training webinars and also through train the trainer programs.