The following sets out terms and conditions that are to be applied in conjunction with N-Abler Services Agreements (the Agreements) Subscribers, as defined in the Agreements, have entered into with NorthBrook Financial Technologies Inc. (the Service Provider).
These additional terms and conditions are effective as at August 1, 2015 and are applicable to all Agreements entered into by a Subscriber and the Service Provider after that date.
No amendments can be made to these additional terms and conditions without written notification to the Subscriber by way of Supplemental Agreement.
The balance of this documents sets out the additional terms and conditions and their applications.
A. Use of Services:
i. The Service Provider gives the Subscriber a non-exclusive, non-transferable, revocable authorization to use the Services, including information received as a result of using them, in accordance with this Agreement and subject to any conditions described in an attached schedule or an applicable Supplemental Agreement.
ii. Where the Subscriber, the Service Provider, or other Program Partner is providing Input Data that by law requires consent, that party is responsible to obtain any consent from, and give any notice to, the individual that is required by law at the time the individual is providing Input Data used in or by the Services.
iii. The Subscriber must keep all Grading Output Data secure and confidential, and will not disclose or transfer any part of the Grading Output Data to a third party (including to an individual who is the subject of the Grading Output Data) unless:
a. it is being used by an affiliate or related party in connection with evaluating an application for a loan from the Subscriber or the funding of same;
b. the disclosure or transfer is required by law;
c. the Subscriber is providing the Grading Output data to its regulators, auditor or legal counsel, upon request; or
d. the Service Provider has consented to the disclosure or transfer in writing.
iv. When requesting and/or using the Services or otherwise performing any activities and obligations contemplated under this Agreement, the Service Provider and the Subscriber agree to comply with all federal, provincial, state and local laws, including, but not limited to, the various consumer reporting acts or equivalent, the Personal Information Protection and Electronic Documents Act (Canada) or equivalent privacy acts, and any regulations, judicial actions and/or orders of an administrative tribunal, as now or as may become effective throughout the term of this Agreement.
v. The Subscriber will be responsible for the availability and performance of any computer system infrastructure, program, leased lines, modems or other communication devices the Subscriber uses in the course of its use of the Services, in addition to those of any SP the Subscriber may use. The Subscriber shall ensure that it or its SP maintains the confidentiality of non-public information and protects the non-public information from unauthorized access, destruction, use, modification or disclosure. The Subscriber is responsible for all security breaches emanating from any computer system infrastructure, program, leased lines, modems or other communication devices the Subscriber or SP uses in the course of the use of the Services. The Subscriber shall be liable for all actions and omissions of its SP, including without limitation SP’s compliance with this Agreement.
vi. The Service Provider is not a party to any contractual arrangement entered into between the Subscriber and SP, and is not liable for any dispute that arises between the Subscriber and SP. Furthermore, the Subscriber understands and agrees that SP shall not be entitled as a third party beneficiary or otherwise, to take any action or have any recourse against the Service Provider in respect of any claim based upon any actual or alleged failure to perform under this Agreement.
Vii. The Subscriber acknowledges that when it authorizes an agent, user or affiliate to access or use the Services the Subscriber is responsible to ensure the agent, user or affiliate does so in compliance with all N-Abler Services Agreement terms and conditions and that any non-compliance by the agent or affiliate has the same effect as it does if the Subscriber was in the same non-compliance itself.
viii. The Service Provider shall have no liability in relation to the Subscriber’s passwords, including those it provides to authorized users or access codes misuse or any unauthorized access using the Subscriber’s passwords or access codes. The Subscriber acknowledges that the Service Provider shall assume that the individual(s) logging or accessing the Service Provider’s systems using the specific code(s) and password(s) assigned to the Subscriber are in fact authorized to do so by the Subscriber. The Subscriber shall be liable for all actions and omissions of its passwords, including without limitation compliance with this Agreement.
ix. Nothing in this Agreement is intended to allow the Subscriber to purchase the Services for the purpose of selling or otherwise providing them, or the information contained or derived from Services, to any third party, except as specifically provided hereunder, including as needed in connection with processing a loan application or funding a loan.
B. Access to Services:
i. The Service Provider will make best efforts to have the Services available to the Subscriber during Standard Access Time, except, as noted below, or in circumstances beyond the Service Provider’s control. Use of the Services outside of Standard Access Time will be accessible only on an as-available basis. Outages, errors and support requests will only be addressed within the Standard Access Time.
ii. Should an unforeseen disruption to the Services occur during Standard Access Time the Service Provider will make commercially reasonable efforts to clear the disruption within three (3) hours. Further the Service Provider will advise the Subscriber when the disruptions are expected to exceed the 3 hour target and, when possible, will provide the Subscriber with best estimates as to when resumption of the Services will occur.
iii. Planned network, application changes to product systems and normal service maintenance will be completed during non-critical period(s) outside of Standard Access Time. The Service Provider will notify the Subscriber of any expected disruption to the Services that may occur as a result of such work not less than 48 hours prior to commencement of such work.
iv. In the event that changes are required to the Services or Service Provider’s systems, and i) such changes will materially impact the delivery of Services to the Subscriber, and ii) the Subscriber has not previously been advised of such changes, the Service Provider will make best efforts to advise the Subscriber forty five (45) days in advance of such changes so that the parties can, if necessary, adopt testing procedures of any revised or updated process upon mutually agreeable terms; provided, however, that if such changes are required as a result of any changes to legislation or regulations or any regulatory or judicial actions or where the changes remedies a system or Services error, the Service Provider reserves the right to make such changes immediately without notice to the Subscriber.
C. Changes to Services:
i) The Subscriber may, from time to time, request that the Service Provider make certain changes to the Services and/or underlying application. The Service Provider can choose to make such changes to the Services or underlying application, where, at the sole discretion of the Service Provider, such changes do not negatively impact or conflict with other Services or other applications the Service Provider has developed or provides to other users or Program Partners.
ii) Subscriber requests for Services changes will be reviewed by the Service Provider and decisioned within 5 Business Days of receipt of the change request. A written response will be provided to the party requesting the change at that time.
iii) The Service Provider will provide written notification regarding any requested application change that cannot be completed and implemented within 30 days of receipt of the written change request.
iv) Where the Service Provider agrees to make Subscriber requested changes which, in the sole opinion of the Service Provider, are material, the changes will be completed based on a mutually agreed upon Supplemental Agreement, otherwise such changes will be classified as customization work and will be subject to a written quote outlining the changes, the applicable charges for such customization work, and the expected delivery dates.
v) The Service Provider will make best efforts to affect any corrections to the Services, uncovered by the Service Provider, or identified to the Service Provider by the Subscriber by e-mail within 15 business days following discovery or notification.
vi) Where identified errors cannot be corrected within 15 business days the Service Provider will contact the Subscriber with its estimated date for error rectification.
vii) Subscriber error notifications will be submitted by e-mail to the Service Provider at email@example.com
viii) All changes made to the Services, the underlying application, any function related to the underlying application, or delivery functions will be the exclusive and unconditional property of the Service Provider.
ix) The Service Provider may make changes to the Services at any time at its sole discretion. Where such changes will have a material impact on the use of the Services the Service Provider will notify the Subscriber prior to implementing the changes.
x) Where the Service Provider notifies the Subscriber of planned changes and the Subscriber feels the changes will negatively impact the value of the Services the Subscriber can notify the Service Provider in writing of its decision prior to implementation of the changes. Should the Service Provider then implement the changes the Subscriber has the right to terminate the Agreement within 30 days of the change implementation.
D. Services Support
i) The Service Provider will make best efforts to have customer support available to the Subscriber during Standard Access Time except in circumstances beyond the Service Provider’s control.
ii) The Subscriber and the Service Provider agree all communication required related to the ongoing Services will be conducted via e-mail. Notwithstanding any additional addressees the Subscriber may include on the e-mails, all e-mails to the Service Provider regarding support for the Services will be sent to firstname.lastname@example.org.
iii) The Service Provider will provide an initial response to e-mails from the Subscriber no later than (i) two (2) hours where the e-mail has been received during Standard Access Time before 4:00 PM ET or (ii) 10:30 AM ET the next Business Day following receipt where the e-mail was received after 4:00 PM ET. Initial responses will include, but will not be limited to, the Service Provider’s estimated time to address the identified issue.
iv) Copies of all e-mail records sent through email@example.com will be held for a period of 6 months for subsequent reference. At six (6) months previous e-mail records will be deleted.
v) The Service Provider will designate a relationship manager to the Subscriber, who will act as the central contact point between the Subscriber and the Service Provider. It will be the relationship manager’s responsibility to respond to all the Subscriber inquiries or requests or alternatively to ensure a qualified person at the Service Provider provides an initial response to the Subscriber no later than two (2) Business Days of receipt of the inquiry or request.
vi) The Service Provider will monitor the Input Data it receives, and will make best efforts to provide the Subscriber with a report on any reoccurring issues related to the Input Data. This report will be provided within 10 Business Days of identification of the incidence.
vii) The Service Provider will make best efforts to maintain an ongoing review of current regulatory guidelines that could impact those programs covered under this Agreement. Where, in the sole discretion of the Service Provider, the Service Provider believes amendments should be made to a program; the Service Provider will meet with the Subscriber to describe the scope of any changes the Service Provider chooses to make. All such changes the Service Provider decides to make will be completed at no charge to the Subscriber.
E. Training & Program Information
i) Unless otherwise stipulated in the agreement the Service Provider will make up to three (3) half days available to train Subscriber users. Each session will be held at a location of the Subscriber’s choice or through scheduled webinars. Where travel for training is required in excess of 150 kms the Service Provider will be allowed to charge for the recovery of travel expenses.
ii) The Subscriber grants the Service Provider the authorization to issues periodic emails to the Subscriber’s staff in order to keep the Subscriber informed of developments or general updates related to the Service Provider and the Program.
F. Intellectual Property Rights
i) The Service Provider shall own all copyrights, patents, trade secrets, trademarks and other intellectual property rights, programming code, application design, title and interest in or pertaining to all works (including computer programs) developed by the Service Provider for purposes of providing Services, this Agreement or developed by the Service Provider as part of its overall lender support services.
ii) For certainty the Service Provider retains all intellectual property rights in and to Grading Output Data, the Services, Programs and all subsequent changes that may be made to the Services and Programs.
iii) The party providing Input Data retains all intellectual property rights in and to any relevant Input Data.
iv) No party shall gain by virtue of this Agreement any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights owned by the Service Provider or the Subscriber.
i) The Service Provider may, indefinitely suspend the supply of all, some or any part of the Services immediately, subject to prior notice to the Subscriber and the opportunity for the Subscriber to cure the alleged breach, if the Service Provider:
a. reasonably believes that the Subscriber is not using the Services in compliance with this Services Agreement or an applicable Supplemental Agreement; or
b. non-disputed invoices are unpaid for a period greater than 30 days from the invoice date; or
c. is required to stop supplying the Services in order to comply with applicable law.
H. Limitation of Liability:
i) In no event shall the Service Provider be liable for consequential, special, opportunity costs or other costs even if the Service Provider has been advised of their possible existence.
ii) In no event shall the Subscriber be liable for consequential, special, opportunity costs or other costs even if the Subscriber has been advised of their possible existence.
iii) The Services, all related Input Data, information, functionality and resulting Grading Output Data are provided “as is” and “as available”. The Service Provider does not provide any warranties or representations regarding the Input Data, the Grading Output Data, or the functionality of the Services.
i) Proprietary & Confidential Information of the disclosing party shall be treated as safeguarded hereunder by the receiving party (i) for a period of 24 months after the date of disclosure and (ii) in the same manner that the receiving party treats its own Proprietary Information of like kind.
ii) Except as required to do so by law or regulatory body, the receiving party agrees that it will not disturb, disclose, or disseminate Proprietary & Confidential Information of the disclosing party in any way, to anyone except to its employees and consultants who are involved in a consideration or evaluation of the Proprietary & Confidential Information, provided that said employees and consultants have been advised of the obligations to protect the Proprietary & Confidential Information. Where legal disclosure is required the receiving party will provide the disclosing party with prompt notice of the disclosure to the extent permitted by applicable law. It is acknowledged that the receiving party may disclose Proprietary & Confidential Information to its regulators, auditors or external counsel upon request.
iii) Proprietary & Confidential Information shall not include information which falls within any of the following:
iv) Information which has come within the public domain through no fault of or action by the receiving party or its employees or consultants; or
v) Information which is rightfully available to the receiving party prior to its disclosure hereunder to the receiving party; or
vi) Information which becomes rightfully available from any third party;
vii) Information which was or is developed by the receiving party or any of its affiliates who have not had access to Information disclosed hereunder.
viii) Within 5 business days of its receipt of a request from the disclosing party, the receiving party, shall return, or certify the destruction of, all notes, correspondence, documents or other records, including all copies thereof, then in the receiving party’s or any of its affiliates’, and/or agents’ or representatives’ possession, furnished by the disclosing party or created by the receiving party hereunder. Such return, however, does not abrogate the continuing obligations of the receiving party under this Agreement.
ix) The parties agree that notwithstanding any of the terms and conditions above the administration and dissemination of all information received and provided as a result of this Agreement will be managed in accordance with the various consumer reporting acts or equivalent, the Personal Information Protection and Electronic Documents Act (Canada) or equivalent privacy acts, and any regulations, judicial actions and/or orders of an administrative tribunal, as now or as may become effective throughout the term of this Agreement.
J. Ownership of Information & Record Retention
i) Ownership of Client Information – The parties hereby agree and acknowledge that all of the information and data regarding the Client Data, and the Input Data, in any form whatsoever, provided to a party under this Agreement or otherwise obtained by a party in performing or utilizing the Services, is Confidential Information belonging to that party providing the information and, is the sole property of the providing party.
ii) Ownership of Grading Output Data – The Subscriber hereby agrees and acknowledges that all of the information and data regarding the Grading Output Data, or the production of the Grading Output Data in any form whatsoever, provided to the Subscriber or otherwise obtained by the Subscriber in performing the Services is Proprietary & Confidential Information belonging to the Service Provider and is the sole property of the Service Provider.
iii) Use of Benchmarking Data – The Subscriber acknowledges that the Service Provider can use all data collected in providing the Services over the period of the Agreement, for industry analysis, product development, and benchmark reporting, provided neither the Subscriber or any party who should reasonably expect to have the privacy maintained under applicable privacy laws and regulations is in any way identifiable. Such data shall not be considered Proprietary & Confidential Information under this Agreement.
iv) Each party shall, at its own expense, maintain data, information, records and documents relating to its respective businesses and the transaction of business with Prospective Borrowers, in such manner and for such time period as is required by applicable law or is necessary to ensure compliance with the terms hereof. If a party has reasonable grounds to believe a default has occurred under this Agreement, that party shall have the right to remotely (and not at the physical location of the other party) review the records of the other party upon written notice, provided that the requesting party shall be entitled to review only those payment activity records necessary to determine the existence and extent of a default hereunder.
i) Dispute Resolution – Any dispute or difference between the parties relevant to the matters in this Agreement which cannot be resolved or settled by the parties shall be settled and determined by arbitration, under the Arbitration Act, 1991 (Ontario). The parties hereto and all persons claiming through or under them hereby attorn to the jurisdiction of the Province of Ontario and the Courts of the Province of Ontario. Arbitration may not be waived except upon delivery by both the parties of a written notice to that effect. The parties will bear their own legal fees associated with the arbitration.
Should the parties fail to resolve a dispute in the manner set out in the paragraph above, the Courts of the Province of Ontario shall have exclusive jurisdiction with respect to any action between the parties pertaining to this Agreement and each of the parties attorn to the exclusive jurisdiction of the Courts of the Province of Ontario.
ii) No Partnership – The Service Provider and the Subscriber are not partners or joint ventures with each other, and nothing herein shall be construed so as to make them partners or joint ventures, or impose any liability as such on either of them.
iii) Amendment – This Agreement may not be changed, amended, or modified, in whole or in part, except in writing signed by the parties hereto or their respective successors or assigns or otherwise as expressly provided in this Agreement and notice of such change, amendment or modification, in whole or in part, has been provided to all parties.
iv) Assignment and Enurement – This Agreement shall not be assigned by either party other than to an Affiliate without the prior written consent of the other party. This Agreement should enure to the benefit of the parties hereto and their respective successors and permitted assigns and shall be binding upon the parties hereto and their respective successors and assigns.
v) Waiver – A waiver of any default, breach or non-compliance under this Agreement is not effective unless in writing and signed by the party to be bound by the waiver. No waiver will be inferred from or implied by any failure to act or delay in acting by a party in respect of any default, breach or non-observance or by anything done or omitted to be done by such other party. The waiver by a party of any default, breach or non-compliance under this Agreement will not operate as a waiver of that party’s rights under this Agreement in respect of any continuing or subsequent default, breach or non-observance (whether of the same or any other nature).
vi) Governing Law – This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein and the Service Provider and the Subscriber attorn to the exclusive jurisdiction of the Courts of the Province of Ontario.
vii) Section Headings – The section headings have been inserted for convenience of reference only and shall not be applied to affect the meaning, construction or effect of this Agreement.
viii) Severability – Any term, covenant, agreement or provision of this Agreement which is illegal, invalid, prohibited, void or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity, prohibition, void-ability or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining terms, covenants, agreements or provisions of this Agreement or affecting the validity or enforceability of such term, covenant, agreement or provision in any other jurisdiction.
ix) Counterparts – This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument. Counterparts may be executed either in original, electronic or faxed form and the parties may adopt any signatures received by email or a receiving fax machine as original signatures of the parties.
x) Currency – All statements of or references to dollar amounts (without more) in this Agreement shall mean lawful money of Canada, unless otherwise specified.
xi) Day Not a Business Day – In the event that any day on or before which any action is required to be taken hereunder is not a Business Day, then such action shall be required to be taken on or before the requisite time on the first Business Day thereafter.
xii) Entire Agreement – This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no conditions, warranties, representations or other agreements between the parties in connection with the subject matter of this Agreement (whether oral or written, express or implied, statutory or otherwise) except as specifically set out in this Agreement.
xiii) Force Majeure – Neither party shall be liable to the other party for non-performance of this Agreement to the extent such non-performance is prevented or caused by an event or a series of events beyond the reasonable control of such non-performing party including, without limitation, fire, casualty, accident, riot or other similar event but not including lack of funds.
xiv) Language – The parties hereto expressly request and require that this Agreement and all related documents be drawn up in English. Les parties aux presentes conviennent et exigent que la present entente et tous les documents qui s’y arattachent soient rediges en anglais.
xv) Further Assurances – Each party shall, upon reasonable request, perform any act and execute and deliver any document now or hereafter reasonably required by the other party to carry out the terms of this Agreement in accordance with its true intent and meaning.
xvi) No Obligation / Non-exclusivity – The parties acknowledge that the Subscriber may, but is not obligated to, use the Services in connection with the origination and funding of commercial real estate financings and that the Subscriber may use other means, including those means as provided by other service providers that may be similar, but not identical to the Services for originating and funding commercial real estate financings.