Last Updated: September 01, 2020
Lendesk Technologies ULC (“Lendesk”) OWNS AND PROVIDES THE SERVICES (DEFINED BELOW) ACCESSED THROUGH ITS WEBSITE LENDESK.COM, INCLUDING THROUGH THE LENDESK PLATFORM (DEFINED BELOW).
THIS AGREEMENT APPLIES TO ALL PERSONS OR ENTITIES WHO HAVE SUBSCRIBED FOR THE SERVICE (EACH A “LENDER”) AND THEIR USERS, ANY USER WHO UPLOADS MATERIALS TO THE SERVICE ON BEHALF OR AT THE REQUEST OF A LENDER, OR LENDER’S USERS WHO HAVE VIEW ACCESS OR USE OF THE SERVICES OR LENDESK PLATFORM.
BY USING THE SERVICES, LENDER HEREBY ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LENDER DOES NOT ACCEPT THIS AGREEMENT, THEN USE OF THE SERVICES AND LENDESK PLATFORM IS NOT PERMITTED OR GRANTED.
THIS AGREEMENT MAY BE AMENDED OR UPDATED BY LENDESK AT ANY TIME FROM TIME TO TIME WITHOUT NOTICE. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT FOR ANY CHANGES. USE OF THE SERVICES OR LENDEKS PLATFORM AFTER ANY AMENDMENTS OR UPDATES OF THIS AGREEMENT SIGNIFIES YOUR AGREEMENT AND ACCEPTANCE OF THE REVISED PROVISIONS.
Lender offers financial products in Canada, including but not limited to residential mortgages, lines of credit and personal loan (each, a “Lender Product”). The Lendesk Platform provides services to participating mortgage originators (each, a “Broker”), including a communications service that enables a Broker to communicate electronically with Lender. These communications may include applications for mortgages and other loan types (each, an “Application”) and related information and documents sent by a Broker to Lender, and mortgage loan, personal loan or line of credit offers and related information and documents sent by Lender to a Broker (each, an “Offer”).
Lender wishes to receive Applications and other communications from Brokers, and to send Offers and other communications to Brokers, using the Lendesk Platform. Lender may also use the Lendesk Platform to access and use the lender underwriting tools (the “Underwriting Service”) and certain data storage services (the “Storage Service”).
THEREFORE the parties agree as follows:
1. Definitions and Interpretation
In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:
“Affiliate” means, in relation to a party: (a) any corporation or other entity that Controls, is Controlled by, or is under common Control with, that party; (b) any corporation or other entity in a franchise relationship with that party; and (c) any corporation or other entity in a franchise relationship with any corporation or other entity that Controls, is Controlled by, or is under common Control with, that party. For the purpose of this definition, “Control” means, with regard to any corporation or other entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation or other entity, whether through the ownership of securities, by contract or otherwise.
“Agreement” means this agreement, including the Background, Order Form, links, schedules and any documents annexed to this agreement or otherwise referred to in this agreement, as all may be amended from time to time.
“Anonymized Data” means aggregated anonymized data that: (a) may be derived in part from Communications; and (b) does not contain the identity of Lender or a Lender Affiliate or their Customers or Personnel.
“Applicable Law” means, as applicable to the performance of a party’s obligations and activities under this Agreement, any Canadian domestic law, rule, statute, regulation, by-law, order, ordinance, protocol, code, guideline, treaty, policy, notice, direction or judicial, arbitral, administrative, ministerial or departmental judgment, award, decree, treaty, published interpretation, directive, or other requirement or guideline in force at any time during the Term which governs or regulates any person (including any party), property, transaction, activity, event or other matter, including any such rule, order, judgment, published interpretation, directive or other requirement or guideline issued by any Governmental Authority.
“Application” has the meaning specified in the Background.
“Broker” has the meaning specified in the Background.
“Business Day” means a day other than a Saturday, a Sunday or a holiday on which banks in British Columbia are not open for business.
“Communications” means any communication provided by a Broker or a Lender through the Lendesk Platform, including Applications and Offers, and including all information in any such communication.
“Customer” means a customer or prospective customer of Lender on whose behalf a Broker has submitted an Application to Lender through the Lendesk Platform.
“D+H Corporation” means D+H Mortgage Technology Corporation.
“Documentation” means the documentation generally made available by Lendesk to lenders using the Lendesk Platform.
“Effective Date” means the first of either of the following to occur: (i) both parties have executed an Order Form for Lendesk to provide the Services, or (ii) Lender’s first access of the Lendesk Platform.
“Fees” means those fees, charges and costs payable for the Services as set out in an Order Form related to Funded Mortgages fees (calculated in accordance with the terms of the Order Form) and a separate periodical subscription fee.
“Force Majeure” means any circumstances beyond the reasonable control of a party, including acts of nature, fire, flood, acts of Governmental Authorities, failures of power supplies or communications, defects in operating systems, denial of service attacks, failures by a third party to provide services, power surges, war, terrorism, riot, insurrection, strikes, labour disputes and trade union actions.
“Funded Mortgage” means, except as otherwise provided in this Agreement, a Lender Product that is advanced by Lender in response to an Application, as more particularly described in section 4.2.
“Funding Report” means, for each calendar month, a listing prepared by Lender of (a) all Applications for Lender Products that become Funded Mortgages in the calendar month; and (b) all other Funded Mortgages for which Fees are payable in the calendar month, all as more particularly described in sections 4.2 and 4.3.
“Governmental Authority” means any Canadian national, provincial, county, municipal, governmental, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or Canadian court or other law, rule or regulation-making entity having jurisdiction over Lendesk, Lender, any Broker, or any other person, property, transaction, activity, event or other matter related to this Agreement.
“Handle” means to access, receive, collect, use, transmit, store, process, record, disclose, transfer, retain, dispose of, destroy, manage or otherwise handle Personal Information.
“Initial Term” has the meaning specified in section 2.1.1.
“Intellectual Property Rights” includes any copyright, patent (whether registered or pending), trademark (whether registered, unregistered or pending), service mark, trade name and style, logos or designs, design right (whether registered or unregistered), technical information, engineering procedures, know-how and processes (whether confidential or otherwise), industrial designs, semi-conductor topography right, integrated circuit topographies, trade secret, all other similar rights anywhere in the world now and in the future and any or all goodwill related to any or all of the foregoing including all applications therefor and all re-issues, divisions, continuations, re-examinations, renewals, extensions and continuations in part thereof.
“Lender Data” means all information provided by or on behalf of Lender in connection with the FxLink Services by input through the Lendesk Platform.
“Lender Product” has the meaning specified in the Background.
“Lender Usage Data” means any data, including metadata, in any way related to or generated from the use of the Services by Lender, Lender Affiliates or their Users. For greater certainty, Lender Usage Data does not include Communications.
“Lendesk Platform” means Lendesk’s proprietary online communication and mortgage-related services currently known as Lendesk “Platform”, or Lendesk “Alternative Gateway”, and the Systems used by Lendesk to provide the Lendesk Platform, all as Modified, supplemented or replaced from time to time, including, the Underwriting Service and Storage Service.
“Lendesk Proprietary Materials” has the meaning specified in section 8.1.
“Losses” means any loss, cost, liability, fees, interest, fine, penalty, assessment or damages available at law or in equity, or expense (including interest, court costs and reasonable fees and expenses of lawyers, accountants and other experts and professionals).
“Malicious Code” means any virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism or similar software, hardware, system or combination of any of them that is intended or designed to, is operable to, is likely to or has the effect of disabling, deleting, erasing, denying authorized access to, permitting unauthorized access to, repossessing, encrypting, damaging, degrading, destroying, corrupting or otherwise affecting or interfering with the provision of the Services or the normal use of the Lendesk Platform or any data or files on or used in conjunction with any of them, but excluding code that serves the function of ensuring software license compliance.
“Modifications” means, in respect of any software, deliverables, hardware, equipment, services, documentation or other item, all modifications, amendments, corrections, adjustments, revisions, enhancements, changes, deletions, improvements, upgrades, updates, versions, releases, supplements, design contributions, translations, successors or derivative works of or to such software, deliverables, hardware, equipment, services, documentation or other item and “Modified” has a corresponding meaning.
“Offer” has the meaning specified in the Background.
“Order Form” means a written document signed by both parties (electronically or otherwise) setting out the Services acquired, the applicable Fees, and any other additional terms and conditions agreed to by the parties.
“Parties” means Lender and Lendesk collectively, and “party” means either of Lender or Lendesk.
“Personal Information” means “personal information” about an identifiable individual as defined under any applicable Privacy Laws.
“Personnel” means, with respect to any person, those individuals who are the directors, officers, employees, agents, consultants, or independent contractors of that person. For greater certainty, a Broker is not Personnel of either Lender or Lendesk.
“Privacy Laws” means: (a) the Personal Information Protection and Electronic Documents Act (Canada) and any applicable similar legislation of any province or territory pertaining to the collection, use, retention, security or disposal of Personal Information, as amended from time to time; and (b) any regulations, policies, requirements, guidelines or standards established by a privacy regulatory authority or other Governmental Authority, as amended from time to time.
“Proprietary Materials” of a person means anything that is the object of or that may be protected by Intellectual Property Rights or that is otherwise maintained as confidential by the person, such as software (including source code and object code), systems, data, modules, tools, methodologies, analysis, frameworks, specifications, reports, manuals, interfaces, schematics, solution construction aids, programming architecture, technology, compilations of information, databases, advertising and marketing materials, formulae, designs, concepts, models, drawings, inventions, business methods and processes or other information or data, and including: (a) all documentation relating to any of the foregoing; and (b) any Modifications to any of the foregoing or to the documentation therefor.
“Renewal Term” has the meaning specified in section 2.1.2.
“Security Breach” means any incident or event that has resulted, or has a substantial potential to result, in: (a) any unauthorized person for whom the Lender is responsible accessing the Lendesk Platform or any transmission of Malicious Code to or through the Lendesk Platform; or (b) any unauthorized person accessing the Lendesk Platform from or through the Lender systems or any transmission of Malicious Code from or through the Lender systems to the Lendesk Platform.
“Security Procedures” has the meaning specified in section 5.4.1.
“Services” has the meaning specified in section 3.1.
“Systems” means, in respect of either party, the information technology systems used by that party, including hardware, software, related communications services and network devices, and third party information technology services such as SaaS, PaaS and IaaS services.
“Term” means the Initial Term and all Renewal Terms, if any.
“User” means an individual who is authorized by Lender to use the Services, and to whom Lender (or, when applicable, Lendesk at Lender’s request) has supplied a user identification and password (for Services utilizing authentication).
Unless otherwise specified, all references to money amounts are to the lawful money of Canada. Section headings shall not affect the interpretation of this Agreement. References to sections are to the sections of this Agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) or Governmental Authority. Unless the context otherwise requires, words in the singular shall include the plural and vice versa and words importing gender include all genders. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”. A reference to any party shall include that party’s successors and permitted assigns. Unless something in the subject matter or context is inconsistent therewith or unless otherwise provided in this Agreement, a reference to any Applicable Law is to that Applicable Law as now enacted or as the same may from time to time be amended, re-enacted or replaced. If the terms of the Order Form conflict with the Terms of Service, then these Terms of Service shall prevail to the extent of the inconsistency. The parties acknowledge that their respective legal counsel has reviewed and participated in settling the terms of this Agreement, and agree that any rule of construction to the effect that any ambiguity in this Agreement will be resolved against the drafting Party will not be applied to the interpretation of this Agreement.
2.1.1 The initial term of this Agreement commences on the Effective Date and terminates on the twelve-month anniversary of the Effective Date (the “Initial Term”) unless earlier terminated in accordance with this Agreement.
2.1.2 The Term of this Agreement will automatically renew for successive twelve-month periods (each, a “Renewal Term”) on the same terms and conditions a party provides the other party with written notice of its intention not to renew this Agreement at least 90 days prior to the expiry of the Initial Term or the then current Renewal Term, as applicable. Unless agreed to otherwise in the Order Form Lendesk may increase the Fees payable in the Renewal Term by up to 5% of the immediately prior Initial Term’s or Renewal Term’s Fees.
3. The Services
3.1 The Services
Subject to Lender’s compliance with its obligations under this Agreement, including the payment of applicable Fees, Lendesk will use commercially reasonable efforts to provide access to the following services to Lender (the “Services”) during the Term:
3.1.1 Ability to receive Communication to Lender through the Lendesk Platform or provide notice to Lender that the Communication from a Broker is available for retrieval by Lender.
3.1.2 Ability to send Communication to Broker through the Lendesk Platform, or provide notice to Broker that the Communication from a Lender is available for retrieval by Broker.
3.1.3 Subject to (i) a Lender being a member in good standing with the applicable credit bureau service providers, (ii) complying with such credit bureau service provider agreements, rules and policies, and (iii) providing Lendesk with the necessary credentials from such credit bureau service provider, Lendesk may provide Lender with access for credit bureau services for an additional fees beyond the Fees;
3.1.4 Lendesk may provide Lender with access for document electronic signature for additional fees beyond the Fees; and.
3.1.5 the Storage Service will be subject to any volume restrictions as determined by Lendesk based on the Fees payable for the Storage Service.
The parties will collaborate, co-operate and use commercially reasonable efforts to promote the use of the Lendesk Platform for the submission of Applications to Lender.
3.3 Lender Responsibilities
3.3.1 Following Lender’s receipt of an Application, Lender will provide a response to the Application through Lendesk, in accordance with Lender’s normal business practices. The manner, messaging type and format of responses may be modified from time to time as mutually agreed by the parties, but will be in a format compatible with the Lendesk Platform.
3.3.2 Lender will: (a) be responsible for its Users’ compliance with this Agreement, the Documentation, and all instructions relating to the Lendesk Platform or the Services provided by Lendesk from time to time; (b) be responsible for the accuracy, quality and legality of Communications; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Lendesk promptly of any such unauthorized access or use; and (d) use the Services only in accordance with this Agreement, the Documentation, any instructions provided by Lendesk from time to time, and Applicable Laws.
3.3.3 Lender will not: (a) allow anyone other than an authorized User to access the Services, or allow Users to share or assign authentication credentials; (b) make the Services directly or indirectly available to, or use the Services for the benefit of, anyone other than Lender or its Affiliates; (c) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a SaaS, service bureau or outsourcing offering, or use the Services to process the data of any other person; (d) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (e) use the Services to store or transmit Malicious Code; (f) interfere with or disrupt the integrity or performance of the Services or data contained in Lendesk Platform; (g) attempt to gain unauthorized access to the Services or the Lendesk Platform; (h) reverse engineer, disassemble, or decompile the Lendesk Platform or apply any other process or procedure to derive the source code, object code or design of any software used by the Lendesk Platform (to the extent such restriction is permitted by law); (i) create derivative or merged works of the Services or the Lendesk Platform; (j) allow any competitor of Lendesk to directly or indirectly access or use the Lendesk Platform or the Documentation; or (k) allow any person that Lender may engage to create a product or service that is competitive with the Lendesk Platform to access or use the Lendesk Platform or the Documentation. Lender’s or a User’s intentional violation of Section 3.5.3, or any use of the Services in breach of this Agreement or the Documentation, by Lender or Users that in Lendesk’s judgment imminently threatens the security, integrity or availability of Lendesk’s services, may result in Lendesk’s immediate suspension of the Services. Lendesk will use commercially reasonable efforts under the circumstances to provide Lender with an opportunity to remedy such violation or threat prior to any such suspension.
3.3.4 Lender is solely responsible to ensure that it has and retains all necessary original and copies of information that it submits to, process, stores or receives through the Lendesk Platform and ensure that it has back up copies of all of the Communications, data, information and materials on Lender’s own local system or a third party system, including all data, files and records that Lender submits to, processes, stores or receives through the Lendesk Platform.
3.3.5 The Lendesk Platform is connected to a system operated by D+H Corporation (“FxLink Services”) providing access rights for Lenders and mortgage originators authorized by D+H Corporation (“Access Data Rights”) to exchange communications in connection with mortgage applications and related activities through the marketplace (“Marketplace”). Lender acknowledges and agrees to all the terms set out in section 184.108.40.206 through 220.127.116.11 as they relate to the Lendesk and D+H Corporation connection:
18.104.22.168 D+H Corporation is not responsible for investigating or verifying the accuracy of any information accessible via the Marketplace including information submitted or made available by any prospective mortgagor or other Marketplace user, any acts or omissions by a prospective mortgagor or customer, the creditworthiness of any prospective mortgagor or customer or verifying the accuracy of any information available via the Marketplace.
22.214.171.124 Lender shall comply with all specifications, standards, policies and operating procedures relating to the Marketplace and the Data Access Rights, and the following Marketplace rules which include all information, policies and procedures relating to the operation of the Marketplace, which may be amended from time to time by D+H Corporation in its sole discretion on notice to Lendesk and to Lender:
126.96.36.199.1 Lender must access the Lendesk Platform each Business Day and respond to all mortgage loan applications posted to it with either an indication of acceptance (by providing terms of a commitment) or rejection (with the reason for such rejection), in the time frames and in the format specified by D+H Corporation from time to time.
188.8.131.52.2 Lender must have all mortgage loan commitments granted, from time to time, remain open for acceptance by the borrower for a period of not less than three Business Days from the date the commitment is granted.
184.108.40.206.3 Where a Lender accepts a mortgage loan application submitted via the FxLink Services by a Marketplace user through the Lendesk Platform, that Lender shall accept and process that mortgage loan application through the use of the FxLink Services via the Lendesk Platform only.
220.127.116.11.4 Lenders shall comply with all applicable laws including privacy, real estate or consumer protection or similar legislation.
18.104.22.168.5 Lenders shall not use the Marketplace in order to transmit, distribute, store or destroy material in violation of any applicable laws or regulations or to infringe the rights of any other person or in a manner that is defamatory, obscene, threatening, abusive or hateful. The Marketplace may only be used for lawful purposes in connection with Lender’s mortgage business and may not be used in any way that violates the purpose and integrity of the Marketplace. Without limitation, Lenders shall not: access data not intended for such user or logging into a server or account that the user is not authorized to access; attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; attempt to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the site, overloading, “flooding”, “spamming”, “mailbooming” or “crashing”; send unsolicited content, including promotions and/or advertising of products or services or pornographic material; or forge TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
22.214.171.124.6 Violations of any system or network security may result in civil or criminal liability. D+H Corporation and Lendesk will investigate occurrences that may involve violations and may involve and cooperate with law enforcement authorities in prosecuting users who are involved in violations.
126.96.36.199.7 As permitted by the functionality of the Marketplace, Lenders shall: keep current in the Marketplace Lendesk Platform, Lenders’ minimum commission rates, mortgage terms, conditions and interest rates, as they may be changed by Lenders from time to time; and pay other Marketplace users, whether independent mortgage brokers or other customers, commissions or fees in at least the minimum amounts quoted in the MarketplaceLendesk Platform which provides input into the Marketplace.
188.8.131.52 Lender shall not use the Data Access Rights or the Marketplace to transmit, upload, download, e-mail, access or otherwise make available content that: (i) is contrary to law; (ii) violates third party rights of any kind; (iii) is harmful, threatening, abusive, libellous, hateful or racially, ethically or otherwise objectionable; (iv) interferes with or disrupts (by way of unreasonable bandwidth use or otherwise) the Marketplace; or (vi) solicits, directly or indirectly, other Marketplace users, to become employees of or associated with Lender or to buy, purchase or license products or services which have not been authorized by D+H Corporation and Lendesk.
184.108.40.206 Lender shall not (i) permit any other person (including an affiliate) to use Data Access Rights; (ii) re-license or sublicense the Data Access Rights to any other person (including an affiliate); (iii) process or permit to be processed the data of any other person except as contemplated by the expected use of the FxLink Services; (iv) induce, encourage or enable any Marketplace user to breach their agreements with Lendesk or D+H Corporation; or (v) use the Data Access Rights in the operation of a service bureau.
220.127.116.11 Lender shall exclusively use the Data Access Rights made available by D+H Corporation for mortgage origination from any mortgage originators authorized by D+H Corporation to access the Marketplace.
18.104.22.168 Lender shall comply with all laws applicable to the use of the Marketplace and the Data Access Rights.
22.214.171.124 Lender shall maintain detailed books and records and permit audit by Lendesk and D+H Corporation in accordance with the following: Lender shall maintain a detailed books and records relating the information necessary to compile Funding Reports; Lendesk as directed by D+H Corporation may, no more than one time in any 12-month period, upon five Business Days’ notice, audit Lender’s records related to this services order form to confirm the accuracy of Funding Reports and Lender’s compliance with this Agreement. Lender shall provide reasonable assistance to Lendesk in the conduct of the audit. The audit will be at Lendesk’s expense, unless the audit reveals a discrepancy of more than 10% of the relevant amounts in which case Lender shall reimburse Lendesk for the reasonable cost of the audit.
126.96.36.199 Lender shall obtain from its customers and other Marketplace users any consent, acknowledgement or agreement that may be required for the use, transfer or disclosure of Lender Data by Lender and other Marketplace users for the purpose of its use within the Marketplace and Lendesk Platform. Upon request by Lendesk, Lender shall provide evidence of consent to Lendesk and D+H Corporation.
188.8.131.52 Lender must promptly provide Lendesk with and advise Lendesk of any changes to the following information: full name, company name, address, telephone number, e-mail address and registration number. Lender acknowledges and agrees that Lendesk will share such information with D+H Corporation.
184.108.40.206 Lender acknowledges and agrees that D+H Corporation has access to data collected and provided by Lender including Personal Information of Lender’s customers and D+H Corporation may use that data, including to produce reports that aggregate and analyze that data, either alone or together with the data of D+H Corporation’s other customers (“Reports”). For Lender’s information, D+H Corporation will ensure that Reports (a) do not identify any individual or include any information be used to identify an individual, either alone or in combination with other information; and (b) do not identify Lender, or include any statistics broken out separately for any Lender (even if not identified).
220.127.116.11 In the event that D+H Corporation raises the fees it charges Lendesk per Funded Mortgage for the FxLink Services that provide Lender the connection to the Marketplace through the Lendesk Platform, Lender agrees and accepts that Lendesk will pass on such increase to the Lender’s Fees with 30 day notice to the Lender. For clarity, this term does not apply to any other connection that the Lender may have to D+H Corporation or the Marketplace that does not involve the Lendesk Platform.
3.4 Lendesk Platform Changes
Lendesk may make Modifications to the Lendesk Platform from time to time at Lendesk’s sole discretion, including removing functionality, adding new functionality, and making corrections, modifications and other enhancements.
3.5 Sample Forms
The Lendesk Platform may generate, or otherwise enable Lender to obtain or generate, certain sample forms, including without limitation sample cost of borrowing disclosure forms (collectively, “Sample Forms”). The Sample Forms are provided for Lender’s convenience as examples only. Lender’s use of the Sample Forms is at its own risk. The Sample Forms are not intended to encompass the full form of disclosure which may be required for the purpose for which Lender intends to use the Sample Forms. Any form Lender or a Broker enters into with a borrower will override these Sample Forms to the extent they conflict with one another. Lendesk makes no representation or warranty of any kind in relation to the Sample Forms, and specifically does not represent or warrant that the Sample Forms comply with applicable laws or will be suitable for the purposes for or the jurisdictions in which Lender intends to use the Sample Forms. Lender is solely responsible for ensuring that its use of the Sample Forms complies with all applicable laws and is appropriate for the applicable factual circumstances under which it uses the Sample Forms. If Lender determines that a Sample Form does not comply with all applicable laws or is not appropriate for the applicable factual circumstances, Lender must create and use its own form and not use the Sample Form.
4. Fees and Invoicing
For the Services, Lender will pay to Lendesk the fees (“Fees”), and in accordance with the terms of this Agreement and the payment terms set out in the Order Form.
4.2 Funded Mortgages and the Calculation of Fees
Except as may otherwise be expressly agreed and set out in the Order Form, the parties agree to the following in respect of the Fees:
4.2.1 If a Funded Mortgage secures multiple pre-planned advances (such as, but not limited to, a construction mortgage or a reverse mortgage), then Fees are payable on the amount of each advance except as otherwise expressly described in this Section 4.2.
4.2.2 A mortgage that secures multiple advances or loans, including a home equity line-of-credit or similar Lender Product, will be deemed to be a Funded Mortgage. If any advance secured by the mortgage is or will be used to fund the purchase of real property (including leasehold property) or to refinance a mortgage that was used to fund the purchase of real property (including leasehold property), then Fees are payable on the advance as specified in section 4.1. If the previous sentence does not apply, then the Fee will be a flat amount per Funded Mortgage as set out in the Order Form regardless of the amount or timing of any advances under the Funded Mortgage and the Fee will be payable on the closing of the mortgage.
4.2.3 A renewal of an existing Lender Product is a Funded Mortgage if and only if an Application for the renewal was submitted by a Broker using the Lendesk Platform and the Broker is paid any commission or similar fee in respect of the renewal. In such event, Fees are payable on the principal amount of the Funded Mortgage on the effective date of the renewal.
4.2.4 If Lender receives an Application in respect of a Customer for any Lender Product through the Lendesk Platform and Lender also receives one or more Applications in respect of the same Customer for the same mortgage under the same Lender Product through some other service or through direct application by the Customer to Lender, then Lender may choose, in its sole discretion, which, if any, Application to accept. The mortgage will be a Funded Mortgage if and only if any one or more of the following applies: (a) Lender chooses to accept the Application received through the Lendesk Platform rather than one of the other applications; (b) the Application was received through the Lendesk Platform before any other application and the Broker receives any commission or similar fee in respect of the mortgage; or (c) any information from the Application received by Lender through the Lendesk Platform is used to fund the Mortgage.
4.3 Funding Reports
If the Lender is required to pay Lendesk a fee based on mortgage application volumes per an order form, then within 15 days after the end of each calendar month, Lender will provide Lendesk with a Funding Report.
4.4 Invoicing; Reconciliation of Invoices; Interest on Late Payments; Suspension of Services
For each calendar month, Lendesk will issue an invoice to Lender after Lendesk receives Lender’s Funding Report for that calendar month. Lender will pay each invoice within 15 days following receipt of the invoice. Lender will make payment by cheque or such other method of payment as may be agreed by the parties. The parties will perform a reconciliation of invoices with a frequency to be agreed to by them (provided that the reconciliation occurs not less frequently than annually). If Lender does not pay an invoice within 15 days following receipt of the invoice, Lender will also pay simple interest on the unpaid amount from the due date until payment is made at an interest rate equal to the lesser of: (a) 9% per annum; or (b) the highest interest rate allowed under Applicable Laws. If any charge owing by Lender is 30 days or more overdue and such default is not remedied within 10 days after notice from Lendesk, then Lendesk may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
The Fees exclude all GST, HST, sales, excise, service, value-added, consumption taxes or similar taxes (“Taxes”), all of which are the responsibility of Lender. Lendesk may charge and Lender will pay applicable Taxes that Lendesk is legally obligated or authorized to collect from Lender. Lendesk will remit such Taxes to the applicable taxing authorities as required by Applicable Laws. Lender will provide such information to Lendesk as reasonably required to determine whether Lendesk is obligated to collect Taxes from Lender. Lendesk will not collect any Taxes for which Lender furnishes a properly completed exemption certificate or a direct payment permit certificate for which Lendesk may claim an available exemption from such Taxes.
5. Privacy and Security
5.1 Privacy and Personal Information. Lender and Lendesk each agree that:
5.1.1 All Personal Information in any copy of a Communication that is retained within the Lendesk Platform is in the possession and control of the (i) Broker to which the Communication was sent, and (ii) the Lender in respect of data or information stored on the Lendesk Platform pursuant to the Storage Services.
5.1.2 For (i) the Communication, the Broker is the data controller of that Personal Information, and (ii) for Storage Services, the Lender is the data controller of that Personal Information, and (as may applicable) Lendesk is a data processor on behalf of the Broker or Lender. Lender has no access to or control of the Personal Information in respect of Communication.
5.1.3 All Personal Information in any copy of a Communication that is retained within the Lender systems is in the possession and control of Lender. Lender is the data controller of that Personal Information, and Lendesk is not a data processor on behalf of Lender. Lendesk has no access to or control of that Personal Information.
5.2 Lendesk Security
5.2.1 Lendesk will maintain reasonable administrative, physical, and technical safeguards (collectively, “Security Procedures”) designed to protect the security, confidentiality and integrity of the Lendesk Platform and the data within it.
5.2.2 Lendesk warrants that it is, and agrees that during the Term it shall remain, compliant with the requirements of CPA Canada’s Trust Services Principles and Criteria for Security, Availability, Processing Integrity, Confidentiality and Privacy, as updated from time to time (the “SOC 2 Principles and Criteria”) or an equivalent standard (as determined by Lendesk, acting reasonably).
5.2.3 Lendesk will perform Background Checks (each, a “Background Check”) on Lendesk Personnel prior to permitting such Lendesk Personnel to provide Services to Lender. Background Checks will be performed in accordance with Lendesk’s internal policy, as amended from time to time, and will include at least a criminal record check.
5.2.4 Lendesk will employ current industry-standard protection measures intended to prevent Malicious Code from being introduced to the Lendesk Platform.
6. Lendesk Warranty
6.1 Lendesk Warranty
Lendesk warrants that, during the Term: (a) the Services will perform materially in accordance with the applicable Documentation; (b) Lendesk will not materially decrease the overall security of the Services; and (c) Lendesk will not materially decrease the overall lender functionality of the Services acquired by Lender. For any breach of a warranty above, the sole right of Lender and the sole responsibility of Lendesk shall be for Lendesk to exercise commercially reasonable efforts to cause the Services to conform to the warranty within a commercially reasonable time after receipt by Lendesk from Lender of a written notice identifying any such failure to so conform.
6.2.1 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF EITHER PARTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. LENDESK DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ANY OR ALL OF LENDER’S PARTICULAR REQUIREMENTS, OR THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF MALICIOUS CODE, OR THAT COMMUNICATIONS WILL BE SECURE OR NOT LOST OR ALTERED. LENDESK DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE VOLUME OF APPLICATIONS THAT LENDER MAY RECEIVE THROUGH THE SERVICES.
6.2.2 LENDESK HAS NO RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION IN ANY COMMUNICATION, INCLUDING ANY INFORMATION IN AN APPLICATION. LENDESK DOES NOT REVIEW OR VERIFY SUCH INFORMATION, AND LENDER USES SUCH INFORMATION AT ITS OWN RISK. IN NO EVENT SHALL LENDESK, ITS CONTRACTORS OR AGENTS, OR PERSONNEL BE HELD LIABLE TO OR THROUGH LENDER FOR ANY LOSS OR DAMAGE WHATSOEVER RESULTING FROM RELIANCE ON ANY INFORMATION PROVIDED BY LENDESK PURSUANT TO THIS AGREEMENT OR THE LENDESK PLATFORM OR RELATED THERETO. ALL RESPONSIBILITY AND LIABILITY FOR THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION IS THAT OF LENDER OR THE BROKER, AS APPLICABLE.
6.2.3 LENDER ACKNOWLEDGES THAT NOTHING IN THIS AGREEMENT, THE DOCUMENTATION OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THE UNDERWRITING SERVICE, IS INTENDED AS A SUBSTITUTE FOR PROFESSIONAL OR LEGAL ADVICE ON THE REGULATORY REQUIREMENTS OF MORTGAGES, BROKERING, BANKING, BANKING OPERATIONS, LENDING, LENDING OPERATIONS, OR OTHER TOPICS GENERALLY APPLICABLE TO FINANCIAL INSTITUTIONS OR BROKERS. LENDER ACKNOWLEDGES THAT LENDESK DOES NOT AND CANNOT PROVIDE LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICES OR ADVICE TO LENDER, AND THE INFORMATION CONTAINED IN THIS AGREEMENT, THE DOCUMENTATION, AND THE SERVICES DOES NOT CONSTITUTE LEGAL, ACCOUNTING OR PROFESSIONAL ADVICE OR OPINIONS.
6.2.4 LENDER WILL ENSURE THAT ANY DETERMINATION OR DECISIONS MADE BY A LENDER RELATED TO ANY APPLICATION OR THE UNDERWRITING SERVICE ARE MADE WITH HUMAN INTERVENTION AND HUMAN AGENCY, AND ARE NOT SOLELY RELIANT UPON THE OPERATION OR PROCESSING OF THE LENDESK PLATFORM.
7. Additional Terms
7.1 Lender Products
From time to time during the Term, Lender will make information available concerning Lender Products, including to Lendesk and Brokers, by way of public announcements, communications or circulars. Lender agrees that Lendesk may make such information concerning Lender Products as has been provided by Lender available to Brokers on the Lendesk Platform.
Until the later of: (a) seven years after the end of the Term; and (b) the date all pending matters relating to this Agreement (e.g. disputes, tax assessments or reassessments) are closed, the Lender will maintain all material records, documents and other information relating to the Services, Applications, Funded Mortgages, and this Agreement. Without limiting the generality of the foregoing, Lender will maintain records sufficient to allow Lendesk to verify Lender’s Funding Reports. For greater certainty, neither party is responsible for the records of any Broker.
During the Term and for the period during which the parties are required to maintain records, documents and other information under section 7.2, the Lender will provide access to any such records, documents and other information to the other party, its audit representatives and Governmental Authorities, on not less than ten Business Days’ prior written notice, to enable such person to audit, investigate and review the records, documents and other information to verify compliance with the terms of this Agreement. Any overpayment or underpayment by an audited party will be rectified within 30 days of final determination of such overpayment or underpayment.
The Lender will not, either during the Term or within the period of six months following its expiry or termination, without the prior written consent of the other party, endeavor to entice away from Lendesk, by initiating any form of contact or communication, directly or through others, any employee of Lendesk, or employee of a contractor retained by the other party (either directly or indirectly) who was made known to the party in connection with the Lendesk Platform, any Services provided under this Agreement or otherwise in connection with this Agreement. This section 7.4 does not apply to the solicitation of an individual by means of general solicitation for employment, such as a newspaper or on-line advertisement. The restrictions contained in this section 7.4 are considered by the parties to be reasonable in all circumstances.
8. Intellectual Property
In this Agreement, “Lendesk Proprietary Materials” means all Proprietary Materials owned by or licensed to Lendesk at the Effective Date or acquired, developed or licensed by Lendesk independent of this Agreement, and includes any Modifications to any of them made or obtained by Lendesk. The Lendesk Proprietary Materials include the Lendesk Platform, the Services, the Documentation, the Lender Usage Data, the Anonymized Data, and any Modifications of any of them.
8.2 Ownership of Proprietary Materials
8.2.1 The Lendesk Proprietary Materials and all Intellectual Property Rights in or to the Lendesk Proprietary Materials (including any Modifications) are and will continue to be owned by Lendesk. Lender does not obtain any right, title or interest to the Lendesk Proprietary Materials except for such rights as are expressly provided in this Agreement.
8.3.1 Subject to Lender’s compliance with the provisions of this Agreement, Lendesk grants to Lender throughout the Term a non-exclusive, non-transferable right for Lender to communicate with the Lendesk Platform in order to receive Communications from Brokers, and to send Communications to Brokers.
8.3.2 Subject to Lendesk’s compliance with the provisions of this Agreement, Lender grants to Lendesk throughout the Term a non-exclusive, non-transferable right for Lendesk to communicate with the Lender (through its systems) in order to send Communications to Lender (or notifications that such Communications are available for download by Lender), and to receive Communications from Lender and to provide the Communications to the Broker.
Lender hereby grants to Lendesk a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, unconditional, perpetual license to use and incorporate into its business, Lendesk Proprietary Materials and its services, any suggestions, enhancements, requests, recommendations or other feedback provided by Lender or its Personnel.
8.5.1 Lender hereby grants to Lendesk a nonexclusive, non-transferable (except as provided in section 12.2), license, during the Term, to use Lender’s designated trademarks, service marks and logos (“Lender Marks”) within the Lendesk Platform and on Lendesk’s website and marketing collateral for the purpose of promoting the Services, if desired but without obligation, subject to the requirements of this section 8.5.1.
8.5.2 Without the prior written consent of the other party, neither party will, during or after the termination of this Agreement, use or adopt any domain name, trade mark, trade name, trading style or commercial designation that includes or is similar to, or may be mistaken to be similar to, the whole or any part of any domain name, trade mark, trade name, trading style or commercial designation of the other party.
9.1 Lender Indemnity
Subject to sections 9.3 and 9.4, Lender will defend, indemnify and save harmless Lendesk, its Affiliates, and its and their officers, directors, employees and agents from and against any third party claim, and all Losses awarded against or incurred by any of them in connection with that third party claim, where the third party claim is in connection with: (a) any Communication; (b) the use, misuse or non-use of the Lendesk Platform; (c) the use or misuse of any Sample Form; (d) any failure of Lender to comply with Applicable Laws; (e) any dispute between Lender and any one or more Customers and/or any one or more Brokers; (f) any arrangements, discussions, dealings, contracts or agreements with any prospective mortgagor by Lender and that is related to Lender’s use of the Data Access Rights or the Lendesk Platform; or (g) any failure of a Lender to comply with the terms of this Agreement.
9.2 Indemnification Procedure
If any third party makes a claim against an indemnified party which may reasonably be considered likely to give rise to a liability under the indemnities provided for in sections 9.1 or 9.2, then, as soon as reasonably practicable, the indemnified party will give written notice of the claim to the indemnifying party, specifying the nature of the claim in reasonable detail. The indemnifying party will have sole control of the defence of the claim (except that the indemnifying party may not settle the claim without the consent of the indemnified party unless the settlement unconditionally releases the indemnified party of all liability). The indemnified party will not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the indemnifying party (such consent not to be unreasonably conditioned, withheld or delayed). The indemnified party will furnish the indemnifying party with such information as the indemnified party may have with respect to such claim (other than legal advice relating to such claim) and will otherwise cooperate in good faith with and provide reasonable assistance to the indemnifying party in the defense of such claim.
Each party will use commercially reasonable efforts to mitigate any damages it suffers under this Agreement. Nothing in this section 9 or in any other provision of this Agreement shall restrict or limit a party’s duty to mitigate its damages.
10. Limitation and Exclusion of Liability
10.1 Exclusion of Consequential Damages
Subject to section 10.3, in no event will either party or its Affiliates have any liability to the other party or its Affiliates arising out of or related to this Agreement for: (a) any damages characterized as lost revenue, savings, profits, goodwill or reputation or similar economic claims; or (b) any indirect, consequential, incidental, exemplary, aggravated, punitive or special damages, even if such party has been advised of the possibility of such damages in advance, and whether the claim is made in contract or tort (including negligence), breach of warranty, strict liability, indemnity or under any other theory of liability.
10.2 Maximum Liability
Subject to section 10.3, in no event shall the aggregate liability of each party and that party’s Affiliates arising out of or related to this Agreement exceed the greater of: (a) $100,000; or (b) the total Fees actually received by Lendesk under this Agreement in the 12 months immediately preceding the date the cause of action first arose. The foregoing limitation will apply whether the claim is made in contract or tort (including negligence), breach of warranty, strict liability, indemnity or under any other theory of liability, but will not limit Lender’s payment obligations under section 4.
10.3 The limitations and exclusions of liability set out in section 10.1 and section 10.2 will not apply to any indemnification obligation set out in section 9.1 (Lender Indemnity), or for a breach of a party’s obligations in section 5.1 (Confidentiality).
11. Termination of Agreement
A party may terminate this Agreement on written notice to the other in accordance with this section 11.1 on the occurrence of one or more of the following events:
11.1.1 the other party commits a material breach of this Agreement and the breach is not remediable;
11.1.2 the other party commits a material breach of this Agreement, the breach is remediable, and the other party fails to remedy that breach within 30 days after being notified in writing to do so; or
11.1.3 the other party: (a) is bankrupt, insolvent, or unable to discharge its liabilities as they become due; (b) commences, maintains or is subject to any proceedings for the benefit of insolvent debtors or for protection from its creditors or relating to its liquidation, dissolution or winding-up or insolvency or the appointment of a receiver, receiver-manager or similar officer or custodian for the person or all or any material part of its assets or business; (c) makes an assignment for the benefit of all or substantially all of its creditors; (d) suspends or ceases, or threatens to suspend or cease, to carry on its business in the normal course; or (e) is subject to any liquidation, winding-up or dissolution.
11.2 Effect of Termination
11.2.1 From and after the effective date of the expiry or termination of this Agreement, Lender will not process any new Applications through the Lendesk Platform, provided that any transactions already in process will continue to be processed by the parties, and invoiced and paid in the ordinary course under the terms of this Agreement. Lender will pay Fees on Applications which are received by Lender prior to such expiry or termination, whether the Funded Mortgage is funded before or after such expiry or termination.
11.2.2 Neither the expiry nor termination of this Agreement will release either of the parties from any obligation or liability that accrued prior to such expiry or termination.
11.2.3 Sections 3.4.4, 4, 5.1 to 5.3, 6.2, 7.2 to 7.4, 8.2, 8.4, 8.5.2, 9, 10, 11.2 and 12, and the other provisions of this Agreement requiring performance or fulfillment after the expiry or termination of this Agreement, will survive the expiry or termination of this Agreement.
11.2.4 Notwithstanding any other provision of this Agreement, Lendesk may amend, alter, modify, change or terminate the Service (or any portion of the Service) on notice to Lender without cost, charge or liability. Lender hereby agrees that notice is deemed to be given if posted on Website, and no other notice is required.
12.1 Force Majeure. Neither party will have any liability to the other party for any failure or delay in performing its obligations under this Agreement for the duration of, and to the extent that the failure or delay is caused by, Force Majeure. Each party will use commercially reasonable efforts to promptly notify the other of the Force Majeure causing the failure or delay and its likely duration, and will co-operate with the other party to mitigate the consequences. If the period of failure or delay continues for 15 days, then the unaffected party may terminate this Agreement by giving five Business Days written notice to the affected party.
The Lender agrees not to assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of Lendesk, provided that each party may assign this Agreement to a third party who acquires all or substantially all of its business upon written notice to the other party so long as such third party is a competitor of Lendesk or is a person or entity outside of Canada. Any assignee must agree in writing with other party in advance to be bound by the terms and conditions of this Agreement.
12.3 Public Announcements
Lendesk is entitled to make a public announcement, communication or circular (“Announcement”) concerning this Agreement, and the intended business relationship between the parties, with Lender’s prior written consent regarding the content of such Announcement (not to be unreasonably withheld or delayed). Lendesk may refer to Lender generally in its advertising and marketing materials and discussions as a user of the Lendesk Platform.
Lendesk may change any of the terms of this Agreement by posting the revised terms on the Lendesk website. Unless Lender terminates their account, the new terms will be effective immediately upon posting and apply to any continued or new use of the Service.
Notices under this Agreement must be in writing and will be considered given if delivered by courier, hand or email to the address or email address of each party set out below, or to such other address or email address as a party may designate by notice under this section. Notices sent by courier or hand will be deemed to be delivered and received at the time of delivery. Notices sent by email without any notification of delivery errors will be deemed to be delivered and received when sent as follows: (a) if sent before 4 p.m. (Pacific Time) on a Business Day, on that Business Day; and (b) otherwise, on the next Business Day. Email may not be used for notices of a claim, notices of a breach, or notices of termination. Addresses for notice are set out in the Order Form, as may be amended from time to time. Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, the parties will negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.6 Rights and Remedies
Except as otherwise expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any other right or remedies under this Agreement and any rights or remedies provided by Applicable Laws.
A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
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 this Agreement is translated into any other language, the English language version shall prevail.
12.9 Quebec Waiver
If and to the extent applicable to Lender, Lender 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 this Agreement are those set forth in sections 2, 11 and 12.1.
12.10 Independent Parties
Each party agrees that it has no right to bind the other party in contract or otherwise in relation to any customers of either party and neither party shall represent that it has such right. Nothing contained in this Agreement nor any acts of either party shall create, or be deemed or interpreted as creating, a partnership, joint venture or a mandatory relationship, in any manner whatsoever and for any reason whatsoever. Nothing in this Agreement constitutes one party becoming a partner, employer, employee or agent of the other party.
12.11 No Restriction
Nothing in this Agreement shall restrict either party’s right to continue to conduct its business activities or arrangements that existed on the Effective Date or that otherwise come into being following the Effective Date.
Each party will pay its own costs incurred in connection with the negotiation, preparation, and execution of this Agreement.
12.13 Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement. There are no warranties, conditions, or representations and there are no agreements in connection with such subject matter, except as specifically set forth or referred to in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes and replaces any preprinted terms which may be included on any commercial documentation exchanged between the parties including any offers to sell, quotations, purchase orders, invoices and shipping documentation.
12.14 Governing Law
This Agreement and any dispute or legal proceeding arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or legal proceedings) shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable in British Columbia. Each party irrevocably agrees that the courts of British Columbia shall have exclusive jurisdiction with respect to any dispute or legal proceeding arising out of or in connection with this Agreement or its subject matter or formation and attorns to the exclusive jurisdiction of the courts of British Columbia.