TERMS OF SERVICE
These Terms were last updated on January 24, 2024 and are effective between You (meaning the company or other legal entity for which You are accepting these Terms) and Optimal Blue.
1. DEFINITIONS. The defined terms in this Agreement will have the meanings ascribed to them herein, unless otherwise specifically modified in an amendment or addenda.
2. SERVICES. Optimal Blue will provide to Customer those Optimal Blue Services (as defined in Section 12 below) along with the software necessary to access such Optimal Blue Services (collectively, with all upgrades, updates, modifications, versions, releases and enhancements, the “Software”).
3.1 Grant of License to Customer. Optimal Blue grants to Customer a non-exclusive, limited, term, revocable, non-transferable, non-assignable right to access and use, and to permit those persons authorized by Customer to access and use, the Software and the Optimal Blue Services for the Term (defined below), subject to the terms and conditions of this Agreement or other addenda or schedules attached hereto or thereto. Customer will use the Software and the Optimal Blue Services in accordance with this Agreement and any other documentation provided by Optimal Blue therewith. All rights not expressly granted herein are reserved by Optimal Blue. Optimal Blue has and shall continue to have sole and exclusive ownership of all right, title and interest in and to the Software and the Optimal Blue Services, including ownership of all intellectual property rights pertaining thereto, all copies thereof and all derivative works, modifications and enhancements thereto, subject only to the right and license expressly granted to Customer herein.
3.2 Customer Use of NMLS® Public Use Information. With respect to any NMLS® public use information retrieved by Customer through the Optimal Blue Services, Customer agrees and warrants that it and its Authorized Users will not, during the Term or thereafter, use such NMLS® public use information other than for the following internal purposes: (i) verifying the license or registration status of companies, branches, and/or mortgage loan originators to support due diligence and compliance objectives; (ii) accessing or verifying licensing or registration information of companies, branches and/or mortgage loan originators in order to enhance consumer protection and reduce fraud; or (iii) conducting research or analyses related to the mortgage industry. Any use of the NMLS® public use information not expressly set forth in this Section 3.2 is prohibited. The link to the NMLS® Terms & Conditions is as follows: https://www.nmlsconsumeraccess.org/Home.aspx/TermsOfUse.
3.4 Other Customer Use Restrictions. In addition to any matters described in the Documentation (defined as: Optimal Blue-created user guides and manuals, handbooks, training materials, and all other printed or electronic materials relating to or describing the use of the Optimal Blue Services and made available by Optimal Blue to Customer) and notwithstanding anything in the Agreement to the contrary, Customer agrees to and warrants that, during the Term and thereafter, it will comply with the following additional limitations and restrictions with respect to the Optimal Blue Services:
3.4.1 Customer and its Authorized Users will not use, copy, modify, distribute, transfer, lease, assign, inappropriately use or access or sublicense the Optimal Blue Services, Confidential Information or any part thereof (electronically or otherwise), except as expressly authorized by Optimal Blue herein or in any Schedule.
3.4.2 Customer and its Authorized Users will not reverse assemble, reverse compile or otherwise translate or reverse engineer any other part of the Optimal Blue Services.
3.4.3 Customer shall limit the use of the Optimal Blue Services to Authorized Users, unless specifically set forth in this Agreement.
3.4.4 Customer shall not allow Authorized Users to share user login information. Customer will be responsible for administering all user accounts, including new user set up, account suspension or deletion, and assigning appropriate work groups or security rights.
3.4.5 Customer shall not place nonpublic personal information in any environment other than the production and disaster recovery environments.
3.2.6 If Customer violates any of the terms in this Section 3.2, Optimal Blue reserves the right to revoke access of any Authorized User in addition to any other remedies it has under this Agreement.
3.5 Grant of License to Optimal Blue. Customer grants to Optimal Blue, for no additional consideration hereunder, a perpetual, royalty free, fully paid, non-exclusive license to use, modify, promote, display, distribute, sublicense or create derivative works of any data and information (including loan applicant information) provided to Optimal Blue by Customer or created by Optimal Blue through the use of the Optimal Blue Services; provided, however, that except for contact information or as otherwise specifically provided in this Agreement, Optimal Blue will not indicate Customer’s or any Authorized User’s use of the Optimal Blue Services as the source of such data and Optimal Blue will de-identify any and all data of Customer’s loan applicants used by Optimal Blue pursuant to this Section 3.5.
4. PRIVACY AND CONFIDENTIALITY.
4.1 Privacy Generally. The Parties recognize the potential applicability of the confidentiality and security requirements of laws and regulations related to the protection of personally identifiable information of consumers, including but not limited to the Gramm-Leach-Bliley Act, applicable state privacy laws, anti-spam laws, and the rules and regulations promulgated by the various federal and state agencies to administer and enforce such laws (the “Privacy Laws”). The Parties will comply with all applicable Privacy Laws. Any information protected by the Privacy Laws shall only be captured, stored, used or disclosed in compliance with such Privacy Laws.
4.2 General Mutual Confidentiality.
4.2.1 Each Party (the “Disclosing Party”) has previously disclosed and will continue to disclose Confidential Information to the other Party (the “Receiving Party”). As used in this Agreement, regardless of whether disclosed to the Receiving Party before, during or after the execution of this Agreement, the term “Confidential Information” shall mean any and all trade secrets, due diligence or negotiations for additional products or services, and other confidential information of a Party, including, without limitation, (a) all product specifications, data, know-how, formulae, compositions, processes, designs, sketches, reports, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, marketing tools, business plans, business methods, business practices, business concepts, computer software and programs (including object code and source code), database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, and methods), and any other information, however documented, that is proprietary to such Party, (b) all non-public personal information of any of Customer’s customers; (c) all trade secret and other information concerning the business and affairs of such Party (including historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel training and techniques and materials, and pricing), however documented, and (d) all notes, analysis, compilations, studies, summaries, and other material prepared by or for such Party containing or based, in whole or in part, on any information included in the foregoing, whether or not expressly marked as proprietary or confidential. Confidential Information shall not include any information that (i) at the time of disclosure or thereafter is in the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party or available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source was not bound by an obligation of confidentiality with respect to such information; or (iii) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party.
4.2.2 The Parties shall treat the terms of this Agreement and all communications and negotiations related to this Agreement and potential business relationship as confidential. The Receiving Party shall keep secret and treat as confidential each item of the Disclosing Party’s Confidential Information and shall not disclose, or permit the disclosure of, any of the Disclosing Party’s Confidential Information to any person or entity without the prior written consent of the Disclosing Party, except to such Party’s employees, contractors, consultants, and agents who are using, receiving, supporting or providing the Optimal Blue Services hereunder or otherwise having a who need to know such information in order for the Party to fulfill its obligations under this Agreement and are aware of and agree to be bound by the confidentiality obligations set forth in this Section 4. To the extent that the Confidential Information rises to the level of a trade secret under applicable law, then the Receiving Party shall, for as long as such Confidential Information remains a trade secret (or for the maximum period of time otherwise allowed under applicable law), protect and maintain the confidentiality of such trade secrets and refrain from disclosing, copying, or using any such trade secrets without the Disclosing Party’s prior written consent. The Receiving Party shall not use, or permit the use of, any Confidential Information for any purpose other than in connection with the proper performance of this Agreement and the exercise of its licenses granted hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (A) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party, if permitted by applicable law, and made a reasonable effort to obtain a protective order; or (B) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement shall commence on the date you accepted this Agreement (the “Effective Date”) and shall remain in effect until either Party (a) notifies the other Party in writing of its intent to terminate, or (b) have signed a Master Services Agreement or Amendment with Optimal Blue which contains superseding terms.
5.2.1 Either Party may unilaterally terminate this Agreement for any reason at the end of the then-current Term in accordance with Section 5.1 above.
5.2.2 Either Party may terminate this Agreement upon written notice to the other Party with immediate effect in the event the other Party breaches any provision of this Agreement, which breach is not cured to the reasonable satisfaction of the non-breaching Party within thirty (30) days of receipt of written notice of the breach from the non-breaching Party.
5.2.3 The Parties may terminate this Agreement by mutual written agreement of the Parties pursuant to the terms contained in such mutual written agreement.
5.3 Effect of Termination.
5.3.1 Upon termination of this Agreement, Customer’s access to the Optimal Blue Services shall be discontinued as of the effective date of such termination.
5.3.2 Unless otherwise provided herein, Customer shall pay, prior to the effective date of termination of this Agreement, all undisputed fees and expenses incurred under this Agreement prior to the effective date of such termination.
5.3.3 Upon termination of this Agreement, each Party shall return, render unusable, or destroy all originals and all copies of any Confidential Information of the other Party, regardless of the medium in which they are stored, in good order, render unusable or destroy and certify to the other Party as to such destruction. Notwithstanding the foregoing, Receiving Party may retain one copy of the Confidential Information in its files for archival purposes only and, to the extent it would be unreasonably costly or cumbersome, Receiving Party shall not be required to delete intangible copies of Confidential Information that have been made a part of Receiving Party’s (or its agents’ or consultants’) routine systems back-up files and/or procedures that are not readily accessible to the Receiving Party, provided that any intangible copies that are retained pursuant to this sentence shall be deleted or destroyed in accordance with routine procedures and shall remain subject to Section 4 until deleted or destroyed.
5.3.4 Regardless of the circumstances of termination or expiration of this Agreement, the provisions of Sections 3.2, 4, 5.3, 6, 8, 9, and 11 shall survive the termination or expiration of this Agreement and continue according to their terms.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Optimal Blue Representations and Warranties. Optimal Blue represents and warrants to Customer that: (a) it is the lawful owner of the Software or, to the extent it is not the lawful owner, it has all rights necessary for it to provide the Optimal Blue Services and Software to Customer under this Agreement; (b) it has used no less than commercially reasonable efforts to scan for viruses within the Software and prevent the Software from containing any viruses, devices or other code designed to delete, disable, deactivate, interfere with or otherwise harm any hardware, information or software; (c) this Agreement has been validly agreed to and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally; (d) it has all requisite authority to enter into this Agreement and to carry out the transactions contemplated hereby; (e) its delivery of this Agreement, and its performance and compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which it is bound or to which its properties are subject, and (f) it shall comply with all applicable laws, rules and regulations related to its obligations and performance under this Agreement. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6.1, OPTIMAL BLUE DOES NOT EXTEND ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY OR FREEDOM FROM ERROR OF THE OPERATION, USE AND FUNCTION OF THE OPTIMAL BLUE SERVICES.
6.2 Customer Representations and Warranties. Customer represents and warrants that: (a) this Agreement has been agreed to and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally; (b) it has all requisite authority to enter into this Agreement and to carry out the transactions contemplated hereby and thereby; (c) its acceptance and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which it is bound or to which its properties are subject, and (d) it shall comply with all applicable laws related to its obligations and performance under this Agreement.
6.3 Customer acknowledges and agrees that Optimal Blue does not and cannot control the flow of data to or from the Optimal Blue Services and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inaction of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Although Optimal Blue will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Optimal Blue cannot guarantee that such events will not occur. Accordingly, Optimal Blue disclaims any and all liability resulting from or related to such events.
7. ACCOUNTING AND LEGAL ADVICE. It is understood and agreed by and between the Parties that Optimal Blue is not qualified to render any legal or accounting services or to prepare any accounting or legal documents for the implementation of the Optimal Blue Services. Customer acknowledges that its attorney and/or accountant shall be solely responsible for rendering or preparing all legal advice, legal opinions, legal determination, legal documents, tax returns, financial statements and other accounting documents. Customer is solely responsible for the cost of such legal and accounting services.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1 Optimal Blue Intellectual Property. Customer acknowledges and agrees that, as between Optimal Blue and Customer, Optimal Blue is and shall remain the exclusive owner of Optimal Blue’s products, software, hardware, Confidential Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein (collectively, “Optimal Blue IP”). To the extent Customer now or in the future owns any such rights, Customer hereby irrevocably transfers, assigns and conveys all right, title and interest in and to all such rights to Optimal Blue without further compensation or action on behalf of Optimal Blue. Customer shall not challenge or assist any third party in challenging Optimal Blue’s ownership of such rights. Except as expressly recited, no rights or obligations are to be implied from this Agreement and no license is hereby granted to Customer, directly or indirectly, under any patent, trade secret, copyright or other intellectual property right now held by, which may be obtained, or which are or may be licensable by Optimal Blue. Optimal Blue expressly reserves all rights not expressly set forth in this Agreement. Customer shall not, and shall not assist any third party to, copy, sublicense, rent, lease, use, permit use of, modify, create derivatives of or make available any Optimal Blue IP and/or related materials except as expressly permitted in an agreement signed by an authorized representative of Optimal Blue.
8.2 Customer Intellectual Property. Optimal Blue acknowledges and agrees that Customer is and shall remain the exclusive owner of Customer’s products, software, hardware, Confidential Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein (collectively, “Customer IP”). To the extent Optimal Blue now or in the future owns any such rights, Optimal Blue hereby irrevocably transfers, assigns and conveys all right, title and interest in and to all such rights to Customer without further compensation or action on behalf of Customer. Optimal Blue shall not challenge or assist any third party in challenging Customer’s ownership of such rights. Except as expressly recited herein, no rights or obligations are to be implied from this Agreement and no license is hereby granted to Optimal Blue, directly or indirectly, under any patent, trade secret, copyright or other intellectual property right now held by, which may be obtained, or which are or may be licensable by Customer. Customer expressly reserves all rights not expressly set forth in this Agreement. Optimal Blue shall not, and shall not assist any third party to, copy, sublicense, rent, lease, use, permit use of, modify, create derivatives of or make available any Customer IP and/or related materials except as expressly permitted in an agreement signed by an authorized representative of Customer.
8.3 Use of Marks and Names. Subject to the terms and conditions of this Agreement, each Party (“Licensor”) grants the other Party (“Licensee”) a limited, non-exclusive, non-transferable, royalty-free right and license to use, reproduce, display and perform its trade name, logo and trademarks or service marks (collectively, the “Marks”), solely for the purpose of the Licensee fulfilling its obligations or exercising its rights hereunder. Licensee will obtain written permission prior to each and every use of Licensor’s Marks, as well as permission for the manner(s) in which such Marks may be used, which approval will not be unreasonably withheld by Licensor. Licensee will use Licensor’s Marks in conformance with any branding and trademark usage policy Licensor may communicate to Licensee from time to time. Licensee’s use of Licensor’s Marks will be subject to Licensor’s quality control procedures. Licensee acknowledges that Licensee’s use of Licensor’s Marks will not create in Licensee, and Licensee will not represent it has, any right, title or interest in or to Licensor’s Marks other than the license granted above. Licensee will not challenge the validity of or attempt to register any of Licensor’s Marks, nor will it adopt any derivative or confusingly similar names, brands or marks, or create any combination marks with Licensor’s Marks. Licensee acknowledges Licensor’s ownership and exclusive right to Licensor’s Marks and agrees that all goodwill arising as a result of Licensee’s use of Licensor’s Marks will inure solely to the benefit of Licensor.
8.4 Customer Feedback. Optimal Blue shall own all right, title, and interest to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer to Optimal Blue relating to the improvement of the Products (“Customer Feedback”). Optimal Blue shall have no obligation to Customer with regard to the Customer Feedback. Customer shall have no obligation to provide Customer Feedback.
9.1 Optimal Blue Fees. During the Term, Customer will pay Optimal Blue the fees as Customer agreed to within the Optimal Blue system (the “Optimal Blue Fees”). Optimal Blue may change the pricing of the Services at any time. In addition, the Optimal Blue Fees are subject to increase once per annum by the greater of three percent (3%) or the percentage increase in the Consumer Price Index for All Urban Consumers: All Items Less Food and Energy for the twelve (12) months preceding the applicable date as most recently published by the United States Government. By downloading, installing or otherwise accessing the services, Customer agree to pay the Optimal Blue Fees. Customer’s set up fee(s) will be charged immediately. All other fees are usage based only and Customer will only be charged for Services Customer has “On” in the preceding month.
9.2 Professional Services and Training. Except as otherwise specifically set forth in this Agreement, Customer shall be responsible for any professional services, training, custom work (i.e., underwriting and eligibility guidelines, pricing tables, SRP grids and LLPAs, custom screens, business rules and calculations) and full or partial custom integration with third-party systems provided by Optimal Blue to Customer with respect to the Optimal Blue Services provided pursuant to this Agreement at Optimal Blue’s then-current hourly rates. Optimal Blue and Customer will mutually agree to these items and document them in writing. At Optimal Blue’s sole discretion, one-half of the agreed upon estimated cost of such services shall be paid by Customer upon acceptance by Optimal Blue.
9.3 Billing and Taxes. Optimal Blue shall submit invoices by electronic mail to the email address designated by Customer. The Optimal Blue Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only Taxes based on Optimal Blue’s net income. If Optimal Blue has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 9.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Optimal Blue with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.4 Payment Method. Payments shall be remitted to Optimal Blue credit card (i.e. Visa, MasterCard or American Express).
9.5 Audit/Billing Disputes.
9.5.1 During the Term and for a period of two (2) years thereafter, each Party will keep all usual and proper records related to the Optimal Blue Fees incurred by Customer pursuant to this Agreement.
9.5.2 In the event of a good faith dispute, Customer must notify Optimal Blue in detail in writing as to the nature of the disputed Optimal Blue Fees and the reason for Customer’s disagreement within thirty (30) days of receipt the related invoice from Optimal Blue. Optimal Blue must respond by providing documentation in reasonable detail substantiating the disputed Optimal Blue Fees. The Parties will make all reasonable attempts to resolve the dispute as amicably as possible within thirty (30) calendar days. If unable to resolve during the thirty (30) calendar days, the Parties will attempt to resolve the dispute in accordance with Section 11.14. The payment of the disputed amount will be due upon receipt of invoice after resolution of the dispute. Customer’s withholding of that payment prior to resolution of the dispute will not constitute a breach of this Agreement.
10. INDEMNIFICATION; LIMITATION OF LIABILITY.
10.1 Indemnification. Each Party shall at its expense, defend, indemnify and hold harmless the other Party and its affiliates (including their respective officers, directors, employees and agents) from and against any and all third-party demands, liabilities, costs, expenses (including all reasonable attorneys’ fees), losses, damages, judgments, or settlements (“Claims”) arising or resulting from a claim or proceeding brought by a third party relating to the software and services covered under this Agreement against such Party as a result of infringement or violation of any copyright, trademark, patent, trade secret or other intellectual property right or proprietary right of any third party by such Party (“Infringement Claim”).
10.1.2.1 Neither Party will have any obligation under this Section 10 with respect to any Infringement Claim by the other Party to the extent resulting from any of the following: (a) an unauthorized modification, operation or use of a Party’s intellectual property by the other Party or any third party to the extent such infringement Claim is caused by such modification, operation or use; (b) any combination, operation, or use of a Party’s intellectual property with systems other than those contemplated by this Agreement or the specifications or that may otherwise be approved by such Party; (c) the failure by a Party to implement any update or new version provided to such Party by the other Party; or (d) any representations or warranties made by a Party regarding the other Party’s products or services.
10.1.2.2 Optimal Blue shall not be liable for any mistake of law or for any loss arising out of the Optimal Blue Services performed hereunder, or for any act or omission, unless any of the foregoing was the result of Optimal Blue’s negligence or willful misconduct.
10.1.3 Infringement Claim. In the event that an Infringement Claim is brought or threatened, the infringing Party may, at its sole option and expense: (a) procure for the non-infringing Party the right to continue use of the infringing processes, products or services, or the infringing part thereof; (b) modify or amend the infringing process, products or services, or infringing part thereof, or replace the infringing processes, products or services, or infringing part thereof, with other processes, products or services having substantially the same or better capabilities; or (c), if neither of the foregoing is commercially practicable, immediately terminate this Agreement upon written notice to the non-infringing Party.
10.1.4 Indemnification Procedure. An Indemnified Party must give written notice to the Indemnifying Party as soon as practicable after it becomes aware of any fact, condition or event which may reasonably give rise to such Infringement Claim. An Indemnifying Party will be excused from its indemnification obligations under this clause for the Indemnified Party's failure to give timely notice, only to the extent the Indemnifying Party is actually prejudiced by such failure (to the extent determined by a court of competent jurisdiction). After receiving notice of an Infringement Claim, an Indemnifying Party may exercise its right to defend, at its sole expense, the Indemnified Party against the proceeding by giving the Indemnified Party such notice within ten (10) days. An Indemnifying Party may choose the legal counsel for the defense. The Indemnified Party may, at its own cost, participate in the investigation, trial and defense of any such proceeding, and any appeal arising from the proceeding and employ its own counsel in connection therewith. An Indemnified Party may choose the legal counsel for its participation in the defense. The parties shall reasonably cooperate with each other in connection with any defense. If the Indemnifying Party fails to promptly and diligently assume the defense of such proceeding after receipt of notice hereunder, the Indemnified Party against which such Infringement Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such proceeding with counsel of its own choosing at the expense of the Indemnifying Party and the Indemnifying Party shall have the right to participate therein at its own cost. The Indemnifying Party may not compromise or settle any such proceeding or consent to the entry of any judgment related to such proceeding without the prior written consent of the Indemnified Party, (which approval shall not be unreasonably withheld), or enter into any settlement negotiations in connection with such proceeding without giving prior written notice to the Indemnified Party.
10.2 Overall Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF THESE DAMAGES. REGARDLESS OF THE CAUSE, A PARTY’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT MAY BE OFFSET BY ANY CONTRIBUTORY NEGLIGENCE ON THE PART OF THE OTHER PARTY AND, IN ANY EVENT, SHALL NOT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR, TO THE EXTENT THAT TWELVE (12) MONTHS HAVE NOT ACCRUED UNDER THIS AGREEMENT, THE AVERAGE MONTHLY FEES PAID BY CUSTOMER UNDER THIS AGREEMENT, TIMES TWELVE (12).
11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Neither Party will commence or prosecute any action, suit, proceeding or claim arising out of or related to this Agreement other than in the state courts located in Dallas County, State of Texas. Each Party hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any such action, suit, proceeding or claim.
11.2 Publicity. Except as otherwise set forth herein, the Parties will work cooperatively to jointly create press releases from time to time, including but not limited to periodic client success case studies.
11.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be sent by any means reasonably used to provide the other Party with notice such as a softcopy (facsimile, e-mail) or hard copy (mail, overnight carrier or hand delivery). Notice shall be addressed to the other Party at the address listed below or to Customer at the Customer’s physical address on file at the time of the notice, with a copy to the e-mail of record at the time of the notice. IT IS THE RESPONSIBILITY OF CUSTOMER TO MAINTAIN ITS ADDRESS, ELECTRONIC MAIL AND TELEPHONE CONTACT INFORMATION WITH OPTIMAL BLUE FOR THE PURPOSES OF NOTIFICATION, AND CUSTOMER ACKNOWLEDGES THIS RESPONSIBILITY. IN THE EVENT NOTIFICATIONS ARE SENT TO CUSTOMER AT AN ERRONEOUS ADDRESS DUE TO LACK OF UPDATED INFORMATION, CUSTOMER WILL REMAIN BOUND BY ANY TERMS, CONDITIONS, ADJUSTMENTS, REVISIONS OR ANY ITEMS SET FORTH IN THE NOTIFICATION. Notice shall be deemed to have been given when the hard copy is received or three days after a soft copy or hard copy is sent, whichever is earlier. Notices shall be sent to the following addresses:
If to Optimal Blue: Contact: General Counsel
Optimal Blue LLC
5340 Legacy Dr., Bldg. 2, 2nd Floor
Plano, TX 75024
11.4 Force Majeure. In the event that either Party is hindered, delayed or prevented by an act of God, flood, hurricane or fire from its performance under this Agreement, the obligations of the Party shall be suspended and proportionately abated during the continuance of such condition, and the Party so affected shall not be liable in damages or otherwise for its failure to perform. In such an event, the delayed Party shall give written notice to the other Party and shall do everything reasonably possible to resume performance as soon as reasonably practicable.
11.5 Right to Audit. Optimal Blue recognizes that Customer’s operations may be audited regularly by various government agencies having supervisory and regulatory authority over Customer. Customer may also be required to audit its vendors and perform periodic vendor risk assessments. Optimal Blue agrees to cooperate with Customer’s efforts to meet its obligations and will use commercially reasonable efforts to comply in a timely manner with Customer’s requests for documentation and information. Requests for inspections, examinations and audits will be scheduled by Optimal Blue on a first come, first served basis in relation to similar requests from other Optimal Blue customers. Optimal Blue will not be obligated to disclose any records, information or procedures relating to any other Optimal Blue customer or that cannot be disclosed to Customer or its auditors due to contractual restrictions imposed upon Optimal Blue by third parties. Optimal Blue may charge Customer for any time in excess of eight hours per year plus materials and out of pocket expense costs incurred by Optimal Blue as a cost of cooperating and assisting with the audit. Except for audits performed by government regulators (“Regulators”), Customer will limit audits to a reasonable duration and no more than once per calendar year (unless specifically required in writing by any applicable Regulators). Any third-party assisting Customer with an audit may be required to sign Optimal Blue’s standard nondisclosure and confidentiality agreement in advance of performing any audits. Customer will provide, and instruct its internal and external auditors to provide, Optimal Blue with a copy of that portion of each written report containing comments concerning Optimal Blue or the Optimal Blue Services provided under this Agreement. Any such time spent by Optimal Blue in support of this Section 11.5, in excess of eight (8) hours annually, shall be charged to the Customer at Optimal Blue’s then current hourly rate for such audit services. Optimal Blue will provide Customer with 24/7 access to an online portal which includes applicable vendor diligence information such as insurance, information security, business continuity, and SOC or successor assessment reports. This portal may be updated or revised by Optimal Blue at any time without notice.
11.6 Successors and Assigns. This Agreement shall be binding on the Parties and their respective successors and assigns. This Agreement and the rights and obligations hereunder may not be assigned by either Party without the prior written consent of the other Party, except that such consent shall not be required in the event of (a) a recapitalization, reorganization, reincorporation or similar corporate event by either Party, or (b) a merger or acquisition of either Party pursuant to which all of the stock or all or substantially all of the assets of such Party is acquired by another Party, which Party agrees to assume the rights and obligations of the acquired Party under this Agreement. Any assignment in violation of the foregoing will be null and void.
11.7 Entire Agreement. Unless Customer has a Master Services Agreement (which, for the sake of clarity, supersedes this Agreement), this Agreement (and any modifying addenda to this Agreement or prior Terms of Service), constitutes the entire Agreement between the Parties relating to the matters contained herein and supersedes all previous communications, representations or agreements, either oral or written, with respect to the subject matter hereof.
11.8 Amendment. Optimal Blue may revise this Agreement and any other policy at any time by posting a new version of same at its website, and such new version will become effective on the date it is posted. In addition, Optimal Blue may need to revise or even remove certain services dependent on changes to United States state or federal laws.
11.9 Independent Contractors. The Parties are independent contractors and neither Party is an employee, agent, servant, representative, partner, or joint venture of the other. Neither Party has the right or ability to bind the other to any agreement with a third party, nor to incur any obligation or liability on behalf of the other Party without the other Party’s written consent.
11.10 Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
11.11 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
11.12 Waiver of Breach. The waiver by either Party of a default or breach or the failure by either party to claim a default or breach of any provision of this Agreement by the other Party shall not be or be held to be a waiver of any subsequent default or breach of the same provision or of any other provision of this Agreement.
11.13 Severability. In the event that any of the terms of this Agreement are or become illegal or unenforceable, such terms shall be null and void and shall be deemed deleted from this Agreement, and all the remaining terms of this Agreement shall remain in full force and effect.
11.14 Dispute Resolution. The Parties agree to attempt to resolve any dispute, controversy or claim arising out of or relating to this Agreement through negotiations between senior management of the Parties. If senior management is unable to resolve the dispute in a mutually acceptable manner within twenty (20) business days of written notice from the aggrieved party (or a timeframe as otherwise mutually agreed upon between the Parties), the Parties then agree to submit any claims, disputes and controversies between or among them in any way relating to this Agreement, the breach of this Agreement or their respective negotiation, execution, modification or extension to binding arbitration to be conducted in Dallas, Texas. The arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment on any aware rendered by the arbitrator may be entered in any court having competent jurisdiction. This Section 11.14 shall not apply to any cause of action that would entitle a party to injunctive relief.
12. SERVICES. The following Optimal Blue Services may be entered in to by the Customer:
12.1 Social Media Solutions: Optimal Blue provides the Social Media Solutions set forth below. Optimal Blue reserves the right to revise or remove certain services within the Social Media Solutions at any time; provided, however, if Optimal Blue makes a Material Change (defined as a substantial and/or adverse impact to the Optimal Blue Services) to the Social Media Solution purchased by Customer, Customer has thirty days from notice of the change to review the change(s). During those thirty days, if it is Material Change, Customer may give Optimal Blue prior written notice to terminate that specific Social Media Solution.
Social Media Compliance: Optimal Blue provides a Social Media Compliance Management System that incorporates different monitoring capabilities:
Social Media Audits: Optimal Blue will provide Customer with review of Customer’s employees’ digital points of presence and create a report reviewing the last 12 months of activity on each employee that Customer contracts for. Optimal Blue will provide a portal by which Customer can request audits and access reports, review findings to attempt to identify employee violations.
Social Media Marketing: The Social Media Marketing service allows Customer to connect to, communicate with, and engage with social media networks through one tool.
12.2 Comergence: Optimal Blue provides certain due diligence and monitoring solutions data from NMLS® Consumer Access℠ and investor marketing data as set forth below. Customer acknowledges and agrees that Optimal Blue obtains the public use information provided to Customer as part of the Comergence Services from the State Regulatory Registry (“SRR”) through a subscription to SRR’s NMLS® Consumer AccessSM, which requires that Customer be in compliance with the NMLS® Consumer AccessSM Terms and Conditions as stated above in Section 3.2.
Counterparty Oversight: Optimal Blue will provide certain due diligence and monitoring solutions, including third-party originator risk management solutions for verifying third-party originator compliance with regulatory requirements. Optimal Blue hereby grants Customer a license to use the Comergence Counterparty Oversight for the following internal purposes only: Verifying the license or registration status of companies, branches, and/or mortgage loan originators to support due diligence and compliance objectives; accessing or verifying various mortgage related regulatory information of companies, branches and/or mortgage loan originators in order to enhance consumer protection and reduce fraud; and/or conducting research or analyses related to the mortgage industry. Any use of the Comergence Counterparty Oversight not expressly set forth in this section is prohibited.
Prospect Marketing: Optimal Blue will provide Customer with access to investor marketing data which provides data intelligence on third party originators. This service includes information such as names, addresses, company ownership, and loan officer information. Optimal Blue agrees to provide to Customer up to six (6) hours of online training and assistance for initial set-up and configuration. Each additional hour online training will be billed to Customer at Optimal Blue’s then-current hourly rate.
12.3 Comergence API Integration Services: Customer shall be responsible for the following: (A) developing and maintaining its implementation of the API, as contemplated herein; (B) technical support with respect to its connection to the API and end-user’s use of the API; provided, however, that Optimal Blue will remain responsible for any technical support related to the API itself; (C) in no event shall Customer use the Optimal Blue Services in excess of limits or thresholds that Optimal Blue considers commercially reasonable for that particular service. If Optimal Blue reasonably concludes that Customer’s use is excessive Optimal Blue may throttle Customer’s excess use until such time that Customer’s use stays within reasonable limits. Throttling is defined as limiting the number of concurrent calls to a service to prevent overuse of resources; (D) Customer agrees that only Authorized Users are entitled to use and receive data through the API, and it will not provide access to the API or any data transmitted through the API to anyone who is not such an Authorized User. Notwithstanding the foregoing, Optimal Blue agrees that Customer may expose the API to its consumer customers; provided, however, that Customer may not do so in a manner that has the effect of circumventing the Authorized User restrictions set forth herein or in the Agreement; (E) Optimal Blue will support the current and the most recent prior version of the API. Optimal Blue will notify Customer at least 90 days in advance of terminating support for any version of the API. Customer shall be responsible or integration of any such updates or new versions of the API on a timely basis; (F) Customer acknowledges and agrees that Optimal Blue obtains the public use information provided to Customer as part of the Comergence Services from the State Regulatory Registry (“SRR”) through a subscription to SRR’s NMLS® Consumer AccessSM, which requires that Customer be in compliance with the NMLS® Consumer AccessSM Terms and Conditions as stated above in Section 3.2.
Optimal Blue agrees to provide up to five aggregate hours of customer support to Customer during Customer’s implementation of the API at no additional cost to Customer. Any additional hours of support needed by Customer to complete its integration will be billed by Optimal Blue at its normal hourly rates.
i. Counterparty Oversight (must be subscribed to Third-Party Oversight): This API service allows Customer, utilizing the Third-Party Oversight platform, to retrieve required data related to their counterparties.
ii. NMLS® Verification API: This API services allows customers to retrieve NMLS® public use information for a given entity per request.
iii. Compliance Questionnaire (must be subscribed to Third-Party Oversight): This API service allows Customer, utilizing the Third-Party Oversight platform, to retrieve required data related to questionnaires for accounts they have an active relationship with.
iv. Customer Contact Data (must be subscribed to Investor Marketing): This API service allows Customer, utilizing the Third-Party Oversight platform, to retrieve required data related to contacts for accounts they have an active relationship with.
v. Prospect Marketing (must be subscribed to Investor Marketing): This API service allows Customer, utilizing the Third-Party Oversight platform, to retrieve required data related to their prospects and to create new prospects.