3. About Our Services; Fees; Expenses
In the event that you are interested in making an offer to purchase Loans for sale on Aliro, you will either notify LendKey directly of, or specify on Aliro, your desire to purchase the designated Loans, and you have to complete LendKey’s loan commitment form, which will indicate the amount of funds that Lender commits to apply to the purchase of Loans from the selling lender in such program over a specified period of time. You will have a certain number of days to review the seller’s Loans offered on Aliro prior to purchasing the respective loans, which will be set forth in the applicable Loan Participation Agreement or other related loan sale documentation.
In the event that you enter into a transaction with another user through the Aliro platform, we may provide the documentation that may be used to effect and evidence transactions (e.g., Loan Participation Certificate, Loan Sale Summary, Loan Sale Agreement and Bill of Sale), which shall be subject to your own legal review for your acceptance. We may work with you and the other party to the transaction(s) to facilitate the closing and signing of the required documentation prior to the finalization of the transaction(s). Additionally, if you purchase Loans, we will facilitate the transfer of purchase proceeds from you to the seller of the Loans that you purchase, which requires that you provide us with your bank account information and ensure that such bank account from which proceeds will be used to make purchases has sufficient funds to complete the transaction(s).
In connection with transactions to which you are a party that occur on this Website through the Aliro platform, LendKey will receive funds from the seller or servicer representing collections on loans in which Loan Participations or Eligible Obligations have been sold, and obtain payment data from the seller or servicer related to those collections in order to determine the amount that may be due to you, and remit such amount to you. For the avoidance of doubt, we may rely on all repayment information disclosed to us by sellers and sellers’ servicers of Loan Participations or Eligible Obligations, you assume full risk in connection with the repayment of the loan in which you purchase Loan Participations, Eligible Obligations or Whole Loans, and we are not responsible for any loss associated with a borrower’s failure to pay or a seller/servicer’s failure to remit amounts due to you. Additionally, we may provide you with monthly fund remittance reports that reflect the amounts collected and remitted in connection with your Loan Participations and/or Eligible Obligations that you purchase through the Aliro platform. Any questions in connection with how any Whole Loans, Loan Participations, or Eligible Obligations you purchase on the Aliro platform are being serviced must be directed to the entity who sold such loans or other such party who holds the servicing rights.
Not a Lender. We are not a lender, nor do we hold any interest in any loans transacted on this Website through the Aliro platform. We do not make loans or make credit decisions in connection with any loans in which you may purchase Loan Participations, Whole Loans, or Eligible Obligations. Additionally, we do not verify that any such Loans have been underwritten and/or originated as agreed to between you and any respective seller.
No Endorsement. We do not recommend or endorse any particular debt sale program, lender/seller, or asset class sold on the Aliro Platform. It is up to you to determine whether a debt sale platform is appropriate for you and whether you have the legal ability to engage in the transactions on the Aliro Platform through this Website. We are not liable for any damages or costs related to your relationship with any other party who you engage with on the Aliro Platform and this Website.
Not an Agent. This Agreement and/or your use of this Website and the Aliro platform do not create any sort of partnership or joint venture between you and us, and we are not your agent unless as otherwise may be set forth herein. You acknowledge that, unless stated otherwise, we are not engaged in rendering any investment, trading, tax, accounting, legal or other professional advice, and that if any such advice is required, the services of a competent, licensed professional should be sought. No employee, agent or representative of LendKey is authorized to provide any such advice of any nature whatsoever, and any such advice is unauthorized and may not be relied upon by you or any other person.
Sharing of Information. You agree that we may share information that you provide to us with prospective buyers and sellers of Loan Participations, Whole Loans, and Eligible Obligations for the purposes of identifying parties who may wish to transact with you.
Fees; Expenses. Any and all fees charged to you, which may include a fee in connection with our loan servicing fund remittance and/or reporting services described above, may be set forth in a separately signed agreement (e.g., Loan Participation Agreement) that you and we are parties to. Notwithstanding the foregoing, we, in our sole discretion, may update the fees that we charge from time to time by providing you with advance written notice as may be set forth in any such separately signed agreement. We may be compensated by sellers of Loans on the Aliro platform. If you wish to be a seller on the Aliro platform and wish to use the Website for such transactions and Services, you may be required to enter into a separate agreement with us, which will set forth any applicable fees. You are responsible for all of your own expenses, including, without limitation, costs related to any required true sale opinion, legal costs and expenses attributable to Lender’s legal review, all applicable expenses agreed to with a seller on Aliro (including servicing-related expenses), and expenses incurred in conducting due diligence and risk analysis activities in connection with a prospective or actual sale on Aliro.
4. Electronic Communications
Conduct of Business Electronically. You consent to use electronic signatures and records and to receive all disclosures electronically, including, without limitation, our Website, the email address you provided us, or other means. You agree to conduct business with us electronically over the internet. These communications include, without limitation, (a) all documents, notices, and agreements arising relating to your use of this Website and the Aliro platform, as well as the Services that you may receive; and (b) your registration on this Website.
Email or Web Posts. We will communicate with you electronically, including, without limitation, by way of email or by posting notices on the Website or a website that replaces it. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that these communications be in writing.
Receipt of Communication. You will be deemed to have received an electronic communication from us when we either send it to the email address you provided us or when we post the communication on our Website.
5. Conditions on Use
Unless otherwise agreed in writing, we will make the Website available to you pursuant to the following terms:
(a) Provision of Access. Subject to the terms and conditions contained in this Agreement, we hereby grant to you and your Authorized Users a non-exclusive, non-transferable right to access and use the features and functions offered on the Website. We will provide you with the necessary passwords, security protocols and policies and network links or connections and other Access Protocols to allow you and your Authorized Users to access the website. Lender and any Authorized User may only use the Website in accordance with the Access Protocols.
(b) Usage Restrictions. You shall not: (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of, and offered on, this Website are compiled or interpreted, and you acknowledge that nothing in this Agreement will be construed to grant Lender any right to obtain or use such code; (b) allow third parties other than Authorized Users to gain access to Aliro; (c) use Aliro or any LendKey confidential information to develop a competing product or service; (d) use Aliro in a manner that violates privacy rights or that constitutes infringement of the intellectual property or other proprietary rights; (e) use Aliro in a manner that otherwise violates applicable laws, statutes or regulations or (f) use Aliro to provide timesharing, service bureau, subscription service, hosting, or outsourcing services. Lender will ensure that its use of Aliro complies with all applicable laws, statutes, regulations or rules.
(c) Retained Rights; Ownership. Lender retains all right, title and interest in and to the Lender Data, and LendKey acknowledges that it neither owns nor acquires any additional rights in and to the Lender Data not expressly granted by this Agreement. LendKey further acknowledges that Lender retains the right to use the Lender Data for any lawful purpose in Lender’s sole discretion. Subject to the foregoing, Lender hereby grants to LendKey a non-exclusive, non-transferable right and license to use the Lender Data for the limited purposes of performing LendKey’s obligations under this Agreement. Notwithstanding anything set forth herein, to the extent permitted by applicable law, LendKey may (i) aggregate, use, and/or disclose Lender Data (even for commercial purposes) in any manner that does not specifically identify Lender; and (ii) share loan sale transaction information (including the identity of the Lender who purchased the Loan Participations, Eligible Obligations, and/or Whole Loans) with the servicer of the applicable loan(s).
(d) Ownership of LendKey Services. Subject to the rights granted in this Agreement, LendKey retains all right, title and interest in and to Aliro and the Website, and Lender acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement or any licenses to the software used to provide Aliro. Lender further acknowledges that LendKey retains the right to use the foregoing for any lawful purpose in LendKey’s sole discretion.
(e) Subject to the terms and conditions of this Agreement, LendKey shall exercise commercially reasonable efforts to provide Technical Assistance for the use of Aliro to Eligible Support Recipients during LendKey’s ordinary and customary business hours in accordance with its standard policies and procedures. LendKey shall have no obligation to provide Technical Assistance, by any means, to any entity or individual other than Eligible Support Recipients. Lender can designate up to two (2) persons, which designees shall be eligible to receive Technical Assistance from LendKey (“Eligible Support Recipients”). Such designees may be changed at any time by written notice. Eligible Support Recipients shall request Technical Assistance (i) by telephoning LendKey at such telephone number as LendKey may specify for such purposes from time to time; or (ii) by directing electronic mail requests to LendKey at the electronic mail address as LendKey may specify for such purposes from time to time.
(f) Authorized Users Access to Services. Lender may permit any Authorized Users to access and use the features and functions of Aliro as contemplated by this Agreement. Lender will be responsible for all actions or omissions of its Authorized Users and activity on or through Aliro under or using passwords or other Access Protocols unique to Lender’s Authorized Users. Passwords and other Access Protocols unique to Authorized Users cannot be shared or used by more than one Authorized User at a time. Lender shall use commercially reasonable efforts to prevent unauthorized access to, or use of, Aliro and shall notify LendKey promptly of any such unauthorized use known to Lender. Lender acknowledges and agrees that it may need certain networking capabilities, bandwidth and hardware to use Aliro. Lender is solely responsible for all hardware, software, Internet connectivity and bandwidth required to gain access to Aliro.
(g) Lender Responsibility for Data and Security. Lender and its Authorized Users shall have access to the Lender Data and shall be responsible for all changes to and/or deletions of Lender Data and the security of all passwords and other Access Protocols required in order to access Aliro. LendKey will use industry standard means to protect the Lender Data from unauthorized access. Lender shall have the sole responsibility for the accuracy, quality, integrity, backup, legality, reliability, and appropriateness of all Lender Data. Lender acknowledges and agrees that LendKey will have no obligation to archive or back-up Lender Data, nor will LendKey have any liability for any loss or corruption of Lender Data, nor will LendKey have any obligation under this Agreement to retain any Lender Data.
(h) Service Rules and Guidelines. Lender and all Authorized Users shall use Aliro solely for its internal purposes as contemplated by this Agreement and shall not use Aliro to: (a) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (b) interfere with or disrupt the integrity or performance of Aliro or the data contained therein; (c) attempt to gain unauthorized access to Aliro, computer systems or networks related to Aliro; or (d) interfere with another user’s use and enjoyment of Aliro.
(i) Lender may provide suggestions, comments or other feedback (collectively, “Feedback”) to LendKey with respect to Aliro and related services. Feedback is voluntary. LendKey may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Lender’s intellectual property rights to make use of the Feedback, Lender grants LendKey an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with LendKey’s business, including the enhancement of Aliro.
You grant us a royalty free, worldwide, nonexclusive, perpetual, and irrevocable license to exercise the copyright, publicity, and database rights with respect to any and all information you provide us (including using, reproducing, distributing, preparing derivative works of, and displaying, as intended and agreed upon, under any agreement in connection with the transactions on the Aliro platform through this Website). Additionally, as permitted by applicable law, you agree that we may aggregate, use, sell, and/or otherwise disclose information submitted to us in connection with your use of the Website and the Aliro Platform in any manner that does not specifically identify you or any individual, and that you are not entitled to share in any fee or other revenue that may result from such activities.
7. Intellectual Property
Lender agrees that it will not make any attempt to directly contact or work with any of the parties that have been introduced by LendKey, either directly or via Aliro, and it agrees that the Lender will work exclusively through LendKey with those parties introduced. For a period of twelve (12) consecutive months following Lender’s discontinuance of Lender’s use of Aliro and LendKey’s Services provided hereunder (including, but not limited to, the loan servicing fund remittance and reporting services described in Section 3), Lender agrees that it will not purchase/accept Loans from or sell Loans (including Loan Participations and Eligible Obligations) to any of the parties that have been introduced by LendKey or through Aliro, unless LendKey is notified in writing that the parties are dealing directly and LendKey is paid all sums payable under this Agreement had LendKey been permitted to render all services contemplated hereunder. Notwithstanding the foregoing, if Lender has entered into a separate Aliro Platform Agreement with LendKey that includes a non-circumvention provision (“Platform Agreement Non-Circumvention”), such provision shall apply as set forth therein, and the non-circumvention provision set forth in this Section 8 shall be applicable following the end of the Platform Agreement Non-Circumvention term in the event that Lender continues to use this Website/Aliro and/or LendKey’s Services.
9. Service Disruption
10. Limits of LendKey Responsibility; Limitation of Liability
Lender acknowledges that Aliro is made available to Lender as a tool to aid in the purchase and sale of Whole Loans, Eligible Obligations, and loan Participations. Lender agrees that Lender will not rely solely on the information in Aliro and that Lender will rely on its own professional judgment in assessing whether to purchase or sell such loans. Lender is solely responsible for (a) Lender’s use of Aliro and this Website and (b) any decision Lender makes, in whole or in part, therefrom.
The quality of Aliro’s analysis and optimization depends on the Lender’s inputs. Lender is solely responsible for ensuring the quality of all its inputs and in all data provided directly to LendKey. As such, Lender is solely responsible for carefully reviewing and updating all input parameters and modifying their values in all ways necessary to ensure their accuracy and fidelity. While there are other factors governing analysis and optimization accuracy, the quality of the product outputs depends on the accuracy of Lender inputs.
Without limiting the generality of the other disclaimers herein, Lender agrees and acknowledges that LendKey makes no representation or warranty as to, and shall have no responsibility for (i) the accuracy or completeness of any representation, warranty or data provided by the seller of any Whole Loans or Loan Participations to be purchased by Lender, or the existence, validity, enforceability, collectability or conformity with any agreed-upon criteria of any such Whole Loans or Loan Participations; (ii) the authority of any seller to sell Whole Loans or Loan Participations to be purchased by Lender or of any purchaser to buy Whole Loans or Loan Participations to be sold by Lender; (iii) any failure of the seller or its servicer to collect or transmit funds due to the Lender with respect to Whole Loans or Loan Participations; (iv) any failure by a purchaser to honor its commitment to purchase Whole Loans or Loan Participations offered by Lender; (v) the tax, accounting, or regulatory treatment of any transactions effected via Aliro, or the suitability of any Whole Loans or Loan Participations purchased by Lender; (vi) any actions required to perfect Lender’s interest in Whole Loans or Loan Participations purchased via Aliro; or (vii) any dispute between any seller and any buyer of Whole Loans or Loan Participations via Aliro.
As Aliro evolves, LendKey may provide Lender explanations on how Aliro works and certain additional disclaimers. Any such additional disclaimers acknowledged by any Lender, including through a click-wrap made available within Aliro, are agreed to be incorporated by reference into this Agreement.
LendKey assumes no responsibility under this Agreement other than to render the Platform Services and Shadow Servicing Services called for in a manner LendKey reasonably believes to be in the interests of Lender and with such care as an ordinary prudent person in a like position would use under similar circumstances. Lender acknowledges that LendKey does not perform any due diligence on the parties; does not recommend how the Loan Participations and Whole Loans shall be treated for accounting purposes; does not provide an opinion or advice regarding the creditworthiness of any of the Loan Participations and Whole Loans offered for purchase or sale; and does not guarantee the performance of the underlying loans or the actions of the parties to the transaction.
LendKey, its directors, officers, stockholders and employees will not be liable to Lender for any acts or omissions by LendKey, its directors, officers, stockholders or employees under or in connection with this Agreement, except by reason of acts or omissions constituting bad faith, fraud, willful misconduct, gross negligence or breach of this Agreement. Lender shall reimburse, indemnify and hold harmless LendKey, its directors, officers, stockholders and employees of and from any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature whatsoever, including, without limitation, attorneys’ fees, in respect of or arising from any acts or omissions of LendKey, its stockholders, directors, officers and employees made in the performance of LendKey’s duties under this Agreement and not constituting bad faith, willful misconduct, fraud, gross negligence or breach of this Agreement.
IN NO EVENT SHALL LENDKEY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF MARKET CAPITALIZATION, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY (“SPECIAL DAMAGES”), EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF UNLESS SUCH SPECIAL DAMAGES ARE THE DIRECT RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT WILL LENDKEY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES. EXCEPT AS A DIRECT RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, LENDKEY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY LENDKEY FROM YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD ENDING ON THE FIRST DATE ON WHICH THE LIABILITY AROSE.
11. Warranty Disclaimer
THE USE OF ALIRO AND PARTICIPATION IN ANY LOAN SALE PROGRAM CONTEMPLATED HEREUNDER ARE NOT GUARANTEED TO ACHIEVE ANY PARTICULAR RESULTS. EXCEPT AS EXPRESSLY SET FORTH OTHERWISE IN THIS AGREEMENT, THE WEBSITE AND ALIRO ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. LENDKEY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS, IMPLIED, STATUTORY, FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT. LENDKEY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT ALIRO WILL BE ACCURATE, COMPLETE, SECURE, WITHOUT INTERRUPTION, OR ERROR-FREE. LENDER AGREES AND ACKNOWLEDGES THAT ALIRO INCLUDES DATA OF THIRD PARTIES AND THAT LENDKEY IS NOT RESPONSIBLE IN ANY WAY FOR THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY SUCH DATA PROVIDED BY SUCH THIRD PARTIES, UNLESS SUCH INACCURACY, INCOMPLETENESS OR TIMELINESS ISSUE IS DUE TO LENDKEY’S NEGLIGENCE OR SYSTEM ERROR. LENDER FURTHER ACKNOWLEDGES AND AGREES THAT LENDKEY CANNOT CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; AND (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE SUBSCRIBER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. The use of any data, analysis or strategy, including any system or strategy integrated within Aliro, does not and cannot guarantee that Lender will make profits, increase profits or minimize losses.
(a) LendKey Indemnity. LendKey will indemnify, defend and hold Lender, its directors, officers, employees, members, managers and representatives (each a ‘“Lender Indemnified Party”), harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as any reasonable and related attorney’s fees and court costs, (collectively “Losses”) arising out of any third party claim alleging that Aliro infringes, misappropriates or violates any third party’s intellectual property rights.
(b) Exclusions. Section 12(a) will not apply if the alleged claim arises, in whole or in part, from (i) a use of Aliro by any Lender in a manner outside the scope of any right granted or in breach of this Agreement; (ii) a combination, operation or use of Aliro with other software, hardware or technology not provided by LendKey if the claim would not have arisen by the exclusive use of Aliro alone; or (iii) the Lender Data (any of the foregoing circumstances under clauses (i), (ii), or (iii) will be collectively referred to as a “Lender Indemnity Responsibility”).
(c) Lender Indemnity. Lender will indemnify, defend and hold harmless LendKey, its directors, officers, employees, members, managers and representatives (each an “LendKey Indemnified Party” and, together with Lender Indemnified Parties, the “Indemnified Parties”), from and against any and all Losses arising out of any third-party claim arising out of (i) any Lender Indemnity Responsibility or (ii) Lender’s offer for sale, commitment to purchase, sale, or purchase of Whole Loans or Loan Participations via Aliro.
(d) Indemnification Process. The foregoing indemnification obligations are conditioned on the Indemnified Party: (i) notifying the indemnifying party promptly in writing of such action, (ii) reasonably cooperating and assisting in such defense and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the Indemnified Party without the consent of the Indemnified Party. If the Indemnified Party provides notice of a claim in accordance with clause (i) above and is not notified within fifteen (15) days thereafter that the indemnifying party intends to defend the claim, the Indemnified Party shall be entitled to defend such claim, and settle or compromise such claim, subject to the indemnification provided for herein.
(e) Infringement. If Aliro is, or in LendKey’s opinion, is likely to become the subject of any infringement-related claim, then LendKey will, at expense and in its discretion: (i) procure for Lender the right to continue using Aliro; (ii) replace or modify the infringing technology or material so that Aliro becomes non-infringing and remains materially functionally equivalent; or (iii) terminate the Agreement and give Lender a refund of any prepaid, but unearned fees, calculated on a pro rata basis in the event of any partial access to Aliro provided and for any partial time for which Aliro was accessible.
(f) THE PROVISIONS OF THIS SECTION STATE LENDKEY’S ENTIRE LIABILITY AND LENDER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT ALIRO AND THE WEBSITE INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
13. Privacy and Security
(a) For the purposes of this Agreement, “Confidential Information” shall mean all information or other material that is confidential or proprietary to the disclosing party (including a third-party lender on Aliro) and provided to or otherwise obtained by the other party, either directly or via the Aliro platform. Additionally, for purposes of this Section 13 only, lenders who have access to Aliro and to the Confidential Information of other lenders as a user of Aliro are third-party beneficiaries and shall be entitled to enforce the provisions of this Section 13 as if it were a party hereto. Confidential Information may include, but is not limited to, customer information, strategic/business plans of either Party and/or its affiliates, Loan Participation and Whole Loan portfolio information, account information, current and projected business volumes, and product pricing strategies, regardless of the form of the information. Confidential Information also includes the following types of information, whether provided in writing (whether marked as confidential or not), orally, or by any other means or medium whatsoever: marketing plans/information and business development plans, new product ideas, trade secrets, copyrights, price and cost data, pricing and billing policies, forecast assumptions and volumes; information relating to either Party’s proprietary rights prior to any public disclosure thereof, including but not limited to, the nature of the proprietary rights and proprietary information which include, techniques, design, sketches, drawings, models, inventions, know-how processes, apparatus, equipment, algorithms, software programs, software source documents, and formulas related to the current, future, and proposed products and services, and includes, without limitation, their respective information concerning research, experimental work, development, design details and specifications, technical and engineering data, financial information, works of authorship, improvements, production data, test data and test results, the status and details of research and development of products and services, ideas, and information regarding acquiring, protecting, enforcing and licensing proprietary rights.
(b) Except as provided in Section 13(c), the receiving party agrees to: (i) keep strictly confidential all Confidential Information of the disclosing party, (ii) protect, using the same degree of care that the receiving party uses to protect its own Confidential Information of like nature and importance, but in no event with less than a reasonable standard of care, any Confidential Information of the disclosing party, and (iii) use Confidential Information of the disclosing party only for the purpose of facilitating transactions and the delivery of the services under this Agreement (which shall include, in the case of LendKey’s use of such information, the enhancement of Aliro, provided that such Confidential Information is not accessible by other users) or otherwise in accordance with the prior express written consent of the disclosing party; that may use such. The receiving party shall permit access to Confidential Information of the disclosing party only to those of its employees, agents and/or subcontractors who need to know such information in order for the receiving party to exercise its rights or perform its obligations under this Agreement and who have been informed of the confidential nature of the Confidential Information. The receiving party shall be responsible for any breach of this Agreement by its employees, agents and/or subcontractors. The receiving party shall protect as confidential and not disclose the disclosing party’s Confidential Information to any other party except as may be necessary to exercise its rights or perform its obligations under this Agreement and only to third parties that agree to the confidentiality terms stated herein.
(c) The receiving party shall be under no obligation with respect to Confidential Information that (i) was in the public domain prior to the receipt of the information, or subsequently becomes part of the public domain by publication or otherwise, other than by the wrongful act of the receiving party or its employees or agents, (ii) was in the lawful possession of the receiving party prior to its receipt hereunder, was not acquired by the receiving party, directly or indirectly, from the disclosing party or its employees, and the source(s) of such information had not obtained the information wrongfully and had no obligations of confidentiality with respect thereto, or (iii) was independently developed by the receiving party without access or reference to the Confidential Information. Notwithstanding the foregoing, the receiving party shall be permitted to disclose Confidential Information to the limited extent the receiving party is required to do so pursuant to a government or court order or to satisfy any legal requirement of a governmental or regulatory authority; provided that the receiving party has first notified the disclosing party in writing (to the extent it is permitted to do so) of its receipt of the government or court order to disclose the Confidential Information and has given the disclosing party an opportunity to seek a protective order limiting such disclosure; provided, further that the receiving party discloses the minimum amount of Confidential Information reasonably necessary to comply with the government or court order. The receiving party has the burden of proving that the Confidential Information is subject to one or more of the above listed exclusions.
(d) The Parties acknowledge that Confidential Information is a valuable, special and unique asset of the disclosing party’s business and damages can result from unauthorized use or disclosure of Confidential Information. As such, a breach or threatened breach of any covenant contained herein may cause irreparable injury to the disclosing party. Money damages would be an inadequate remedy and the amount of such damages would be extremely difficult to measure. It may not be possible to establish proof of the extent of damages arising from unauthorized disclosure of Confidential Information. Accordingly, if the receiving party breaches this Section 13, the receiving party agrees that the disclosing party shall be entitled to preliminary and permanent injunctive relief to restrain the receiving party and its employees, agents and/or subcontractors from such breach or threatened breach, or to any and all similar relief available under applicable law, without posting of bond or other security. Nothing in this Agreement shall be construed as preventing the disclosing party from pursuing any and all remedies available to it for a breach or threatened breach, including the recovery of money damages from the receiving party and its employees, agents and/or subcontractors. Notwithstanding the foregoing, no provision set forth in this Agreement which purports to limit the receiving party’s liability or damages, or purports to affect the disclosing party’s remedies for breach of this Agreement, shall affect or limit the receiving party’s liability, damages or obligations relative to the Confidential Information and this Section 13.
(e) Both Parties understand and agree that as between the Parties, all Confidential Information of the disclosing party remains the exclusive property of the disclosing party. This Agreement shall not be construed as creating, conveying, transferring, granting or conferring upon the receiving party any rights, license or authority in or to the Confidential Information exchanged, except the limited right to use the Confidential Information of the disclosing party as specified herein. Furthermore, no license or conveyance of any intellectual property rights is implied or, except as expressly provided herein, granted by this Agreement.
(f) Upon the termination of this Agreement, each Party shall immediately and properly destroy (and provide evidence and a written certification thereof) all Confidential Information (and any reproductions thereof) of the other Party, except to the extent the receiving party is required by law to retain copies of such Confidential Information, and except that LendKey may retain archival copies of any information uploaded to Aliro.
(g) Subject to the compliance with the applicable privacy laws, the disclosing party may disclose or the receiving party may have access to nonpublic personal information of loan borrowers or co-signers (“NPPI”) for the sole purpose of facilitating transactions and the delivery of the services under this Agreement. NPPI will be considered Confidential Information and shall not be disclosed to third parties except if the disclosure is permitted or required within the stated exceptions of the applicable privacy regulations. The receiving party will safeguard the confidentiality of the NPPI as required by law and, in any event, to at least the same degree that the receiving party safeguards the NPPI of its own customers. Furthermore, if NPPI is disclosed hereunder or if a party otherwise has access to NPPI, the receiving party agrees to comply with the Gramm-Leach-Bliley Act (15 USC Section 6801), the Interagency Guidelines Establishing Standards For Safeguarding Customer Information (“Guidelines”) and applicable State privacy laws. Each Party shall implement appropriate measures designed to meet the objectives of the Guidelines. If the applicable privacy laws change, the Parties shall take such action as is necessary to comply with the applicable law as in effect from time to time.
(h) In the event that the receiving party experiences a security breach which potentially or actually affects, directly or indirectly, NPPI, the receiving party shall promptly: (i) notify the disclosing party in writing, (ii) utilize best efforts to take all measures necessary to ensure that the security breach has ceased, (iii) investigate the nature, scope and duration of the breach and promptly advise the disclosing party in writing of when, how and why the breach occurred and what NPPI was affected, and (iv) notify and cooperate with law enforcement.
(i) Each Party’s obligations under this Section 13 shall be continuous and shall survive the termination of this Agreement.
14. Representations and Warranties
Lender represents and warrants to LendKey as follows:
(a) Lender is duly organized, validly existing and in good standing under the federal laws or the laws of the state in which the entity is domiciled, has the power to own its assets and to transact the business in which it is now engaged and is duly qualified and in good standing under the laws of each jurisdiction where its ownership or the conduct of its business requires such qualification, except for failures to be so qualified, authorized or licensed that could not in the aggregate have a material adverse effect on the business operations, assets or financial condition of Lender, taken as a whole.
(b) Lender has the power and authority to execute, deliver and perform this Agreement and all obligations required hereunder (including, without limitation, to purchase and own any such Whole Loans, Eligible Obligations, or Loan Participations it purchases via Aliro) and has taken all necessary action to authorize this Agreement and the execution, delivery and performance of this Agreement and all obligations required hereunder. Except as shall have been obtained, no consent of any other person including, without limitation, members and creditors of Lender, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by Lender in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement and all obligations required hereunder. This Agreement has been, and each instrument or document required hereunder will be, executed and delivered by Lender, and this Agreement constitutes, and each instrument or document required hereunder, when executed and delivered, will constitute, the legally valid and binding obligation of Lender enforceable against Lender in accordance with its terms.
(c) The execution, delivery and performance of this Agreement and the documents or instruments required will not violate any provision of any existing law or regulation binding on Lender, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on Lender, or the governing instruments of, or any securities issued by, Lender or of any contract or other Agreement, instrument or undertaking to which Lender is a party or by which Lender or any of its assets may be bound, and will not result in, or require, the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other Agreement, instrument or undertaking.
16. Notice and Contacting Us
All notices, statements and requests to, and demands made upon, us in accordance with the provisions of this Agreement shall be in writing and shall be deemed to have been given or made when presented for delivery, by United States registered or certified mail, return receipt requested with postage prepaid, or by Federal Express or other recognized same-day or overnight delivery service, or hand delivered by messenger, addressed to 9999 Carver Road, Suite 400, Cincinnati, OH 45242, or to such other address as we may from time to time designate by written notice given to you. Notwithstanding the foregoing, day-to-day communications and notifications under this Agreement (excluding notices of default, renewal, termination and indemnification) may be made through other reliable means, including electronically through email and/or Aliro.
17. Jurisdiction, Venue, and Choice of Law
This Agreement shall be construed under the laws of the State of New York, and for all purposes shall be governed by and construed and interpreted in accordance with the domestic laws of said state, and not the conflict of laws provision. You hereby consent to the jurisdiction of the courts located in New York County, New York for all actions arising out of or otherwise related to the enforcement of this Agreement.
18. Additional Terms
No agency. This Agreement does not create any sort of partnership or joint venture between you and us. Neither party shall have the authority to act as agent for the other party or to bind the other party to any obligation (except as expressly provided in this Agreement) without such other party’s written consent.
Force Majeure. Should any circumstance beyond our control occur which delays or renders impossible the performance of our obligations herein, the performance of such obligation shall be postponed for such time as such performance has to be suspended or delayed on account thereof or canceled if such performance necessarily has been rendered impossible thereby by an event of Force Majeure. Events of Force Majeure shall include, without limitation, acts of God, strikes, lockouts, or other industrial disturbances; acts of public enemies; order or restraint of any kind of the government of the United States of America or of any state or locality in which a Party is doing business or any of their departments, agencies or officials, or any civil or military authority; insurrections; riots; landslides; pandemics; earthquakes; fires; storms; droughts; floods; explosions; breakage or accident to machinery, equipment, transmission pipes or canals; or any other cause or event not reasonably within the control of the Parties.
Publicity. We may use the Lender’s name and logo in LendKey’s marketing and promotional materials, client lists, and website for the purpose of identifying Lender as a participating partner on Aliro and this Website.
EFFECTIVE DATE: September 17, 2021