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Finmo-Square

Finmo

End User Access Terms

Last Updated: June 23, 2021

 

Lendesk Technologies ULC presenting Finmo (“Finmo”, “Lendesk”, “we”, “us” or “our” as the context dictates) is a Canadian company that helps mortgage brokers and mortgage professionals (your “Mortgage Professional”) work more efficiently with clients and to submit client loan applications to lenders. The terms set out below (these “End User Access Terms”, and in combination with our Privacy Policy, which are incorporated by reference and available at our websites, are our “End User Terms”) govern your use of Finmo’s application (“App”) and any website or subdomains (“Website”) (collectively, the “Service”) as offered for your use by a Mortgage Professional.

 

Please read our End User Terms (especially the clauses about liability and dispute resolution and class action waiver) carefully since they are legally binding. By using the Service, you confirm that you accept our End User Terms and that you agree to abide by them and that you are providing permission to us to contact you if needed solely for the purposes of the Services. Please note that these Terms are subject to change from time to time.

 

If you do not agree to our End User Terms, please do not use our Service. If you need clarification on the Service contact us at usersupport@finmo.ca.


Your use of the Service shall be a clear acknowledgement that you agree with our End User Terms.

 

Understanding Our Role

You (the “Client”, “you” or “your” as context dictates) will leverage our Services at the invitation of your Mortgage Professional for the purposes of assembling and submitting to lenders the information package as required for your loan application (“Application”) to prospective lenders. Pursuant to our End User Terms, our Services provide functioning data repository, retrieval and submission platform which enable Mortgage Professionals to offer you an elegant Application submission process.


Your Mortgage Professional continues to be responsible for compliance with any applicable laws and rules generally set out by a governmental and regulatory authority in respect of your Application.


We provide the Service in our own personal or corporate capacities, and should not be considered an agent or representative of a Mortgage Professional, a Client or a lender.


The “User” in these End User Access Term refers to the person who is subscribing to our Service acting solely for the person’s own benefit or acting on behalf of others (e.g. brokerage corporate entity). If you are using the Service on behalf of an organization, you agree to our End User Terms on behalf of that organization, and represent you have authority to bind that organization to the terms contained herein.


Though your use of our Service is subject to our End User Terms, many aspects of the process to submit the Application and receive information from lenders may be subject to third parties’ policies and rules, including those relating to your lender intermediaries and the lenders, as well as the app stores where you may download and use our App. We encourage all parties to be aware of those policies and rules, as applicable since we do not control, track, or otherwise influence those third party rules.

 

How Our Service Works

Our Service allows Mortgage Professionals to offer their clients a digital mortgage experience. We give Mortgage Professionals a customizable web app on the mtg-app.com domain. Once you create an account and complete a mortgage application, we store this application for the Mortgage Professional on Finmo. The Mortgage Professional can use our service to follow-up and collect uploaded documents. The Mortgage Professional is responsible for getting the proper consent from you using our Service. After collecting your data, the Mortgage Professional uses Finmo to transmit the deal to the lender for approval.

 

Account Credentials – Management and Incidents

Your access to our Services requires you to register and create an account on the Website. Once your account is created, you must keep your account credentials safe and keep your account secure by limiting access to our Website. You must inform your Mortgage Professional immediately if your account has been compromised (e.g. you think someone may be able to use the Service using your credentials or a virus or other malware on your computer is impacting your ability to log in to our Website). If we suspect any unauthorized access to your account or if we see or suspect suspicious activity in relation to your account, we retain the right, but do not have the obligation, to suspend your account and take any other related action as we deem reasonable, and you agree to assist in executing such actions, which may involve your resetting of passwords or taking other measures as may be required. Your timely notification to your Mortgage Professional and us on potential or actual vulnerabilities to your account and application is important and you agree to act accordingly.

 

If any communication you receive from your Mortgage Professional in respect of the Application or your account looks suspicious or has links that you do not expect, please do not open or click through. Instead, email or call your Mortgage Professional.

 

Cancellation

You may decide at any time to cancel your account by contacting us at usersupport@finmo.ca. We reserve the right to suspend, and if deemed appropriate, cancel your right to use the Services.


Fees and Payment

Your use of our Services is free.


If we terminate, suspend or remove your account for any reason, including your violation of the End User Terms, we are not obligated to compensate you in any manner.


Representations, Warranties and Covenants

You acknowledge and agree that: (1) you are 18 years old or older; (2) you have the authority to bind yourself, or such other party which you may be representing, to our End User Terms; (3) your use of the Service shall only be for purposes that are permitted by these End User Access Term, and (4) you will comply with all applicable laws, including regulatory requirements and government orders of any kind applicable to your use of the Services.

 

You promise that you shall not directly or indirectly:

  1. reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms in any part of the Service;
  2. use or allow the use of the Service for any purpose other than what is authorized by us;
  3. damage, disable, overburden or impair any part of the Services, including our servers or network, or interfere with any other party’s use and enjoyment of the Service;
  4. access the Service in order to build a commercially available product or service which competes with the Service;
  5. copy any features, functions, integrations, interfaces or graphics which are part of the Service;
  6. violate any laws;
  7. make statements, on any part of the Service on any topic associated with us, which could reasonably be considered false or misleading;
  8. willfully tamper with the security of the Service, including attempting to probe, scan or test the vulnerability of the Service or to breach its security or authentication measures;
  9. transmit any information, through the Service in any other manner, which may be: (i) unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, indecent, inflammatory, sexually explicit, pornographic or profane; (ii) in violation of a third party’s rights in inventions, discoveries, or improvements (whether patented or able to be patented and whether or not reduced to practice), including patents, patent applications, certificates of invention, utility models, continuations, continuations-in-part, provisionals, divisions, reissues, renewals, re-examinations and extensions thereof, trade secrets, know-how, designs, methodologies, processes, rights in data, and similar rights; the protection of works of authorship or expression and copyright (whether or not registered), trademark, trade names, service marks, logos, domain names and trade dress; and similar rights under any laws or international conventions throughout the world, whether now existing or hereafter arising or developed, including the right to apply for registrations, certificates, or renewals with respect thereto, the rights to prosecute, enforce, and obtain damages (“Intellectual Property Rights”) or is subject to Intellectual Property Rights; (iii) refutes or is contrary to what is set out anywhere in the Service; (iv) is considered “spam” (including machine or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation or any form of lottery or gambling); (v) contains or installs any viruses, worms, malware, Trojan horses or other content that is designed or intended to disrupt, damage or limit the function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; and (vi) violates the privacy of any third party; or
  10. attempt to gain unauthorized access to the Service or our computer systems or networks through hacking, password mining or any other means.
We reserve the right to investigate and prosecute, to the fullest extent of the law, any violation of the above. We may suspend, modify or terminate your use of the Service immediately at our sole discretion.

 

Rights and Ownership

Rights in our Intellectual Property. Lendesk and its licensors own all Intellectual Property Rights in the Service including applicable copyrights, patents, trademarks and other proprietary rights. Other than usage rights, you don’t have any rights of any kind in our Service. The End User Terms do not transfer any intellectual property between you and us, and we reserve all rights that are not expressly granted under the End User Terms.


Your Data. Given our Services’ function as repository of your data, we appreciate that your data is very important to you. You own your data. Your Mortgage Professional will need to retain your data legally to remain compliant. Lendesk does not gain any ownership or use rights in such data other than as set out herein. Your rights in your personal information is further set out in our Privacy Policy.


Rights to Handle Data. You grant us a non-exclusive and transferable right to handle your data to (i) enable you to utilize the Service, and (ii) generate information derived from your use of our Service, including, usage information, metrics and other data points which are not able to be reverse engineered to reveal your identity (“Anonymized Information”). We will own all Anonymized Information and are free to use it in compliance with our Privacy Policy, including but not limited to improving our Services.


You agree that all data which is handled by us may be, without further required consent by you, handled by a third-party for purposes which serve our business requirements, including data processing, monitoring or storage, or for regulatory or other reasons which are imposed on us in Canada. We respect your privacy and will handle your data in ways which is respectful and preserves your privacy as set out in our Privacy Policy.


Rights to Inputs. If you ever make, or are ever invited by us to make comments, improvement, suggestions or provide other content (“Input”), you will do so without any expectation from us and we shall have a royalty-free, worldwide, transferrable, sublicensable, irrevocable, perpetual license to use or incorporate such Input into our Service or our business as we see fit. We have no obligation to monitor the submission of, or make use of, such Input.

 

Links to Other Materials

Some of the links available to you through the Service will allow you to leave the Service. Such external internet sites and the material are not under the control of Lendesk, and Lendesk makes no representations and disclaims all liability with respect to such sites and materials. The links are provided only for your convenience, and their inclusion does not constitute nor imply approval or endorsement by Lendesk of the sites or their content.

 

Third Party Vendors

Certain features of the Service incorporate software that are developed by third parties (“Third Party Vendors”). You acknowledge and agree that your use of any services provided by Third Party Vendors is governed by the terms and conditions of such Third Party Vendors, which include, but are not limited to Google and SnapNOA. Any breach of the terms of conditions of such third parties, whether identified herein or not, shall constitute a breach of these End User Access Terms. We do not provide any representations or warranties with respect to software provided by Third Party Vendors.

 

The bank statements pull feature is powered by a Third Party Vendor, Flinks Technology Inc. (“Flinks”). If you use the bank statement pull feature you agree that you allow the application to access your account transaction history, account number, name, email, address and phone number (“Bank Statement Data”) and share a Bank Statement Data with your Mortgage Professional. If you use the bank statement pull feature, you agree that Flinks and Lendesk may use the Bank Statement Data internally for the purpose of providing and improving the bank statement pull feature and providing and improving the Service.

 

Permission for Communication

We and your Mortgage Professional may use email to stay in touch with you. You agree that when you use this Service and submit your e-mail address or personally identifying information (e.g. name, phone number) during or prior to access of the Service, you: (1) consent to receive communications from us, your Mortgage Professional and, in certain circumstances, Third Party Vendors providing certain portions of the Services which were selected for you by your Mortgage Professional, through electronic means, including via the email address or phone number you have provided us; and (2) agree that the End Use Terms, agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications would satisfy if they were in writing and physically presented to you.

 

Disclaimers

IN ADDITION TO ANY OTHER DISCLAIMERS SET OUT IN OUR END USER TERMS, THE SERVICE PROVIDED, INCLUDING ALL CONTENT, TOOLS, AND FUNCTIONS, ARE “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND MADE BY US. WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR ACCURACY, OR INTEGRATION WITH ANY SYSTEM, INCLUDING THAT BELONGING TO A LENDER OR A LENDER INTERMEDIARY.


ALTHOUGH THE SERVICE MAY BE INTEGRATED WITH OR RUN ON THIRD PARTY SYSTEMS, WE ASSUME NO OBLIGATION AND PROVIDE NO GUARANTEES WHATSOEVER IN CONNECTION WITH THE PERFORMANCE OF THIRD PARTIES. WE ARE NOT RESPONSIBLE TO YOU FOR THE CONDUCT OF ANY SUCH THIRD PARTY OR FOR ANY RELATED DELAY, ERROR, INACCURACY, OR INACCESSIBILITY OF ANY MATERIAL OR SERVICE THEY SUPPLY.


WE DO NOT WARRANT THAT THE SERVICE OR THE FUNCTIONS THEREIN WILL BE UNINTERRUPTED OR ERROR FREE. YOU AGREE THAT YOUR USE OF THE SERVICE CREATES NO OBLIGATION UPON US, THE SERVICE PROVIDER, OTHER THAN AS AGREED UNDER THE END USER TERMS AND THERE IS NO RELATIONSHIP (WHETHER CONTRACTUAL, FIDUCIARY OR OTHERWISE) CREATED BETWEEN YOU AND US OTHER THAN PURSUANT TO THE END USER TERMS.


ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.


TO THE FULLEST EXTENT OF THE LAW, WE DO NOT REPRESENT THAT ANY INFORMATION EXCHANGED BETWEEN A PARTY IN THE PROVISION OF THE SERVICE IS SECURE, EVEN IF WE BECOME AWARE OF ANY, OR ARE TOLD ABOUT, A POTENTIAL BREACH.

 

Release and Indemnification

You agree to indemnify, defend and hold harmless Lendesk, its officers, directors, employees, agents, successors and permitted assigns from and against any and all expenses, claims and demands, losses, costs, damages, actions, suits or other proceedings (“Claims”) including legal fees and disbursements, arising out of: (i) your use of the Service, including your violation of any of the provisions in these End User Access Term; (ii) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants or obligations under these End User Access Term; or (iii) negligence or willful misconduct by you or any third party on your behalf in connection with the use of the Services provided by us.


We may, at our sole discretion, choose to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.

 

Limitation of Liability

Under no circumstances shall Lendesk, its directors, officers, representatives, and affiliates be liable for:

  1. any indirect, incidental, special, consequential or exemplary damages arising from or relating to the use of the Service – this includes, but is not limited to, any loss of rewards or savings on purchases, profit, earnings, anticipated earnings, interruption or loss of service, or any consequential losses, problems, or fault howsoever arising out of the use of the Service; or
  2. the acts, omissions or conduct of any third party which interacts with the Services in the process of your use of the Services.
WITHOUT LIMITING THE FOREGOING IN THIS SECTION ENTITLED “LIABILITY” THE LIMIT ON TOTAL CUMULATIVE LIABILITY OWED BY LENDESK (INCLUDING OUR REPRESENTATIVES AND AFFILIATES) TO YOU OR ANY PERSON FOR ANY CLAIMS ARISING FROM OR RELATING TO THE SERVICE SHALL BE LIMITED TO A MAXIMUM OF ONE (1) CANADIAN DOLLAR.

 

Term and Termination

Our End User Terms shall be deemed to be applicable to you upon your use of the Service and shall only cease to apply to you upon an actual deletion or deactivation of your account through the means stated in the End User Terms. Abandonment or non-use of the account will not lead to an automatic termination of your account and the End User Terms will continue to apply to you.


We may terminate your access to all or any part of the Service at any time, with or without cause and with or without notice, effective immediately and for any reason deemed appropriate in our sole discretion.


Except for the provisions set out in the Surviving Provisions clause, these End User Access Term shall no longer be applicable to you if your account is cancelled or terminated.


Upon termination of your account (i) all rights, licenses and authorizations granted pursuant to these End User Access Term shall immediately terminate, and (ii) we may disable your access to the Service.


Notwithstanding anything to the contrary in these End User Access Term, with respect to information and materials then in our possession or control, we may retain (i) any of your data in our backups, archives and disaster recovery systems until such data is deleted in the ordinary course and all such retained data shall remain subject to all confidentiality, security and other applicable requirements of our End User Terms, and (ii) your data, including your personal information to comply with your Mortgage Professional’s data retention policies.

 

Our End User Terms May Change

We reserve the right, at our sole discretion, to amend these End User Access Term at any time.


If our End User Terms are modified in a way we consider significant, we shall post the amended End User Terms on our Website. Although we shall take reasonable steps to notify you of such significant changes made, you are expected to check our End User Terms periodically for any amendments. Your continued use of our Services following such notification shall constitute your affirmative acknowledgement of these End User Access Term, and your agreement to abide and be bound by our End User Terms, as amended. If at any time you choose not to accept our revised End User Terms, including following receipt of notification of any modifications made hereto, then please do not use the Service and as applicable, terminate your account.

 

Governing Law

Our End User Terms and any access to or use of the Service shall be governed by, and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada therein, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the Province of British Columbia.

 

Language

The parties confirm their express wish that this agreement and all documents related thereto be drawn up in the English language. Les parties confirment leur volonté expresse de voir la présente convention et tous les documents s’y rattachant être rédigés en anglais. If these End User Terms are translated into any other language, the English language version shall prevail.

 

Quebec Waiver

If and to the extent applicable to Client, Client hereby waives any rights it may have pursuant to articles 2126 and 2129 of the Civil Code of Québec and acknowledges that its sole rights and recourses with respect to termination of these End User Terms are those set forth in the Term and Termination section.

 

Waiver of Class Proceedings

Users hereby waive any right they may have to commence or participate in any class action lawsuit against Lendesk related to any claim, dispute or controversy and, where applicable, you and any User hereby agree to opt out of any class proceeding against Lendesk otherwise commenced.

 

Severability

If any portion or provision of our End User Terms shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of our End User Terms, or the application of such portion of provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of our End User Terms shall be valid and enforceable to the fullest extent permitted by law.

 

Assignment

We may assign or delegate our End User Terms in whole or in part, to any entity at any time with or without your consent and without prior notice to you.


You may not assign or delegate any rights or obligations under our End User Terms without our prior written consent and any unauthorized assignment and delegation by you is void.

 

Headings and Summaries

The headings, captions and summaries in these End User Access Term are for convenience only and in no way define or describe the scope or content of any provision of these End User Access Term.

 

Notices

Except as otherwise stated in our End User Terms or as expressly required by law, any notice to us, including for purposes of termination, shall be given in writing by certified postal mail to:


PO Box 48299 Bentall, Vancouver, BC, V7X 1A1


Any notice to you shall be given to the most current email address in your account.


Other Rules of Interpretation and Definition

Any reference to gender includes all genders; words importing the singular number only shall include the plural and vice versa; the word“or”is not exclusive; the words“including”, “includes” and “include” mean “including without limitation; and “shall” means “will” and “must”, all three of which can be changed interchangeably and shall not mean “may”. “handle” means to process, record, transfer, access, receive, use, disclose, retain, dispose of, destroy, manage, collect, store, or otherwise handle. “law” as used herein, means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority.

 

No Waiver of Covenants

Failure by any party to insist upon the strict performance of any of the covenants, agreements, terms, provisions or conditions contained in the End User Terms or to exercise any election shall not be construed as a waiver or relinquishment of such covenant, agreement, term, provision or condition but the same shall continue and remain in full force. No waiver shall be deemed to have been made unless expressed in writing.

 

Surviving Provisions

Only the clauses in relation to Representations, Warranties and Covenants, Rights and Ownership, Permission for Communication, Release and Indemnification, Liability, Governing Law, Arbitration, Waiver of Class Proceedings, and Surviving Provisions in these End User Access Term shall survive following any termination or expiration of your account.


Entire Agreement and Understanding

These End User Access Term, our FAQ and the Privacy Policy by reference, constitute the entire agreement and understanding between you and Lendesk. No other communication, written or oral, with respect to the subject matter of our End User Terms shall apply.

 

 

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