The following Terms of Use (“Terms of Use”) describes the terms and conditions related to the use of the residential mortgage marketplace application, including any new features and services, provided by MortgageNEKS, LLC d/b/a LoanNex (“LoanNEX”) and accessible on LoanNEX’s website (collectively, the “System”). These Terms of Use apply to all users of the System.
The terms and conditions described herein supersede any conflicting legal notices contained on the LoanNEX website. These terms and conditions represent a legal agreement between LoanNEX and you (“you” or the “User”). The terms “you” and “User” include you and any principal (such as a corporation or other person or entity) on whose behalf you are acting when accessing the System. For the avoidance of doubt, if you are accessing the System on behalf of a person or entity, you represent that you have the authority to agree to these Terms of Use on behalf of the person or entity and that your use of the System shall constitute the agreement of such person or entity. In addition to these Terms of Use, your use of the System also is subject to the LoanNEX Online Privacy Statement, which is available on LoanNEX’s website (“Privacy Statement”).
By accessing and using the System (or any part thereof), both LoanNEX and the User agree to abide, and to be legally bound by these Terms of Use. If User does not accept these Terms of Use, LoanNEX is unwilling to provide access to or use of the System. In addition to these Terms of Use, you may enter into other agreements with LoanNex (“Other Agreements”) that will govern your use of the System or other services that LoanNex may agree to provide to you (“Services”). If there is any contradiction between these Terms of Use and such Other Agreement, the Other Agreement shall take precedence in relation to the specific aspects of the System or Services to which it applies.
Arrangement
Subject to these Terms of Use, LoanNEX agrees to provide User with access via the Internet to the System. User acknowledges that certain services and applications within the System may only be available to user if User has entered into an Other Agreement with LoanNEX which provides for the terms for services being provided and all related fees for such services.
Changes to Terms of Use
LoanNEX may, from time to time, change these Terms of Use. Such revisions shall be effective immediately; provided however, for Users that have registered for an account with LoanNEX, such revisions shall, unless otherwise stated, be effective at the time the User accepts such revisions by clicking through an updated version of these Terms of Use, or in any case, 30 days after posting.
License
Subject to these Terms of Use and provided that you are eligible for use of the System, User acknowledges that User shall have only a limited, non-exclusive, personal, nontransferable and revocable license to use the System in object code form only. This is a limited license for User’s internal business purposes only.
LoanNEX may revise the features and functions of the System at any time and from time to time, with or without notice, including without limitation, by removing such features and functions or reducing service levels.
Access Controls
You are responsible for maintaining the confidentiality of any login names and passwords assigned to you and you accept responsibility for all activities, charges and damages that occur under your account, to the fullest extent permitted by law. You also agree to exit completely from your account at the end of each online session. You shall not allow access to or use of the System by anyone other than an individual who is your employee and who has been registered to access and use the System on your behalf and has been assigned a login name and password. If you have reason to believe that someone is using your account without your permission, you should contact LoanNEX immediately. LoanNEX will not be responsible for any loss or damage resulting from your failure to notify LoanNEX of unauthorized use, or loss or damage you may incur as a result of someone else using your account, either with or without your knowledge. If LoanNEX requests registration information from you, you must provide LoanNEX with accurate and complete information upon registration and must update the information promptly when it changes.
Restrictions on Use
The System and any use thereof may not be licensed, sold, assigned or otherwise transferred by User. In addition, User shall not (i) duplicate, translate, modify, copy, printout, disassemble or reverse engineer the System, (ii) submit, transmit, process, collect or access (or permit any of the foregoing to occur with respect to), the data of any other person or entity, including, without limitation, personally identifying or other legally protected information, unless expressly authorized to do so by such person or entity and LoanNEX, (iii) use the System in any way that might result in any loss of its or any third party’s property or information, or (iv) use the marketplace and exchange functionality with respect to any product other than single, whole loan mortgages. The System has been designed to present System Content (as defined below) in a unique format and appearance. Unless LoanNEX gives you permission, you agree not to access the System using any interface other than the LoanNEX interface or download or reproduce any System Content from the System. LoanNEX may deny permission to link to the System (or any related site) for any reason in the sole discretion of LoanNEX, and you must be able to edit or delete promptly links that you create, upon the request of LoanNEX. You may not use the System for anything other than a lawful and legitimate purpose. Regardless of the location from where the System is used or accessed, you agree to comply with all applicable U.S. and other laws, regulations, statutes and ordinances in connection with the use of the System. Without limiting the generality of this paragraph, examples of prohibited uses include, without limitation:
Without limiting any rights or remedies to which LoanNEX is entitled, you agree to pay all damages incurred by LoanNEX and its licensors or providers that result from any violation of any provision in this Restrictions on Use section, and any such violation is a material breach of these Terms of Use and relieves LoanNEX of any of its contractual or other legal obligations to you, including the obligations of LoanNEX (including its confidentiality obligations) under these Terms of Use or any Other Agreement. LoanNEX will cooperate with the authorities in prosecuting anyone who violates such provisions, or attempts to defraud any person through the System or the information obtained from the System. YOU AGREE NOT TO CIRCUMVENT, OR FACILITATE A THIRD PARTY IN THE CIRCUMVENTION OF, ANY OF THE SYSTEM’S PRIVACY OR SECURITY MEASURES.
User shall not collect or save information related to other users of the System (including, without limitation, any information posted or accessible on the System regarding any loans) for any purpose other than for the purposes permitted by the System. Any attempt by User to circumvent the System and/or any applicable fee or restriction, may result, at LoanNEX’s sole discretion, in LoanNEX exercising rights and remedies available to LoanNEX at law or equity. Moreover, and without limiting the foregoing, in the event User purchases loans outside of the System that have been entered into the System, or otherwise conducts activity outside of the System on such loans where such activity would result in fees coming due to LoanNEX, User shall owe amounts to LoanNEX equivalent to the applicable fees that otherwise would have come due had such activity been conducted on the System.
LoanNEX may suspend or terminate User’s access to the System upon notice to User in the event that LoanNEX determines in its sole discretion that any User has violated the terms and conditions of these Terms of Use. User shall be liable for any violation of the terms and conditions of these Terms of Use and any person who uses the System on behalf of the User.
Loan Data, Performance Data and User Submissions
Users utilizing the System may input into the System (or cause to be provided by third parties, or authorize LoanNEX to obtain from a loan servicer, internal records or repository services) (i) data regarding or related to User, borrowers, property and loans, including, without limitation, information contained in Forms FNMA 1003 and FNMA 1008, credit criteria, rates, product pricing, Loan Level Pricing Adjustors, credit guidelines, credit screens and other information inputted, provided or obtained to or by LoanNEX or the System as permitted herein (collectively, the “Loan Data”) and (ii) payment performance data, prepayment and other performance data with respect to User and/or loans (the “Performance Data”). Such Loan Data and Performance Data will typically be regarding loans, including, without limitation closed loans, open loans currently subject to an ongoing open mortgage application and requested loans identified by credit criteria (collectively, the “Subject Loan(s)”). LoanNEX may use the Loan Data and Performance Data to score and otherwise analyze the Subject Loans for purpose of testing, evaluating, and building aggregate data sets for use within the System. User is responsible for the back-up and protection of its data, including data security for its own systems, and for determining whether any privacy laws, regulations or other legal duties or restrictions apply to the Loan Data or Performance Data that User makes available to LoanNEX and the System. LoanNEX is not responsible for loss, corruption or unavailability of data within User’s possession or control.
Portions of the System allow (or may allow in the future) you to submit or transmit other information, text, materials or other content (collectively, “User Submissions”) to or through the System.
User hereby grants, and User hereby represents and warrants that User has the right to grant, to LoanNEX an irrevocable, perpetual, non-exclusive, transferable, fully paid, royalty-free, worldwide license (with right to sublicense) and right to copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), distribute and otherwise use in any manner Loan Data, Performance Data and User Submissions, for any purpose, to prepare derivative works therefrom (including, without limitation, the scoring and other related data analytics produced by the System relating to the Subject Loans), or incorporate into other works (including, without limitation, for developing and marketing new products), provided that, with respect to Loan Data and Performance Data, such use does not disclose any information that would be identifiable to the User, in either case without the written authorization of the borrower or User, as applicable. User further agrees that LoanNEX shall not be liable in any way for any confidential or personally identifiable information inputted into the System by any of User’s users.
To the User’s knowledge, all Loan Data and Performance Data is factually correct for the time period applicable to the purpose for which such data was submitted. User shall not use falsified Subject Loans for the purpose of attracting or soliciting business or trades from other users.
Some Users may be authorized to review and receive personal information (including credit data) and property data posted by other Users on the System. Notwithstanding the foregoing, you are not authorized to disclose or otherwise use such information for any purpose other than assessing the creditworthiness of Subject Loans, locking interest rates, and buying and selling Subject Loans.
While LoanNEX may from time to time provide Services to assist the User in entering certain Loan Data into the System, LoanNEX does not provide any warranties, expressed or implied, as to the accuracy or completeness of such information. All Loan Data and Performance Data made available on behalf of the User on the LoanNEX system are the User’s sole responsibility to manage, update and monitor.
Service and Subscription Fees
User acknowledges and agrees that in the event User has executed an Other Agreement, User shall pay subscription fees and/or transactional fees as incurred to LoanNEX for the use of the System, all as set forth in the Other Agreement.
Content and Ownership
Except for User Submissions, all content included or available in connection with the System, including text, graphics, logos, images, works of authorship, computer code, look and feel, trade dress, technical information, and other content, as well as available features or services discussed, referenced, provided or offered through or on the System, including the selection and arrangement thereof, shall be deemed “System Content.”
LoanNEX shall have sole and exclusive ownership of all right, title and interest in and to the System, System Content and all modifications and enhancements thereof, including but not limited to ownership of, or right to license, all trade secrets and copyrights pertaining thereto, all intellectual property rights therein and thereto, and all manuals, materials and documentation relating thereto subject only to the rights and privileges expressly granted by LoanNEX. These Terms of Use do not provide User with title or ownership of the System or System Content, but only a right of nonexclusive and nontransferable use, and except as expressly specified in these Terms of Use, nothing in these Terms of Use shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent, trademark or copyright of LoanNEX or any third party. At all times, User must keep the System and System Content free and clear of all claims, liens and encumbrances.
LoanNEX retains all rights with respect to the Site.
Disclaimers
YOUR USE OF THE SERVICES, SYSTEM OR SYSTEM CONTENT IS AT YOUR SOLE RISK TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW. THE SERVICES, SYSTEM AND ALL CONTENT GENERATED BY OR OTHERWISE ACCESSIBLE FROM THE SYSTEM (“SYSTEM CONTENT”) ARE PROVIDED AS-IS AND ON AN AS AVAILABLE BASIS, AND LOANNEX MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, SYSTEM OR SYSTEM CONTENT, OR AS TO ANY USE OF THE SERVICES, SYSTEM OR SYSTEM CONTENT, AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
LoanNEX does not guarantee the accuracy of any Loan Data or Performance Data. Although we provide rules for User conduct and postings, we do not control and are not responsible for what Users post on the System (including User Submissions) and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the System. LoanNEX is not responsible for the conduct, whether online or offline, of any User. LoanNEX does not guarantee and does not promise any specific results with respect to any Subject Loan or otherwise from the use of the System to sell or buy a loan.
The System may be temporarily unavailable from time to time for maintenance or other reasons. LoanNEX assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. LoanNEX is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software or failure of email on account of technical problems or traffic congestion on the Internet or on the System or combination thereof, including injury or damage to Users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the System. Under no circumstances will LoanNEX be responsible for any loss or damage, including any loss or damage to any Loan Data or Performance Data or personal injury or death, resulting from anyone's use of the System, any Loan Data or Performance Data or other content posted on or through the System or transmitted to Users, or any interactions between Users of the System, whether online or offline, including, without limitation, any transaction involving a Subject Loan.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LOANNEX OR ITS MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES, SYSTEM OR SYSTEM CONTENT, USER’S USE OF THE SERVICES, SYSTEM OR SYSTEM CONTENT, THESE TERMS OF USE OR THE TRANSACTIONS CONTEMPLATED HEREIN, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF LOANNEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LOANNEX’S AGGREGATE LIABILITY TO A USER FOR ANY AND ALL CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE SUBSCRIPTION FEES PAID, IF ANY, BY SUCH USER TO LOANNEX IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT, OMISSION, OR EVENT GIVING RISE TO THE LIABILITY.
LoanNEX’s willingness to enter into these Terms of Use is premised in substantial part on the provisions of the foregoing limitations, which are of the essence in this and associated agreements with User.
Indemnification
User agrees to release, hold, harmless and indemnify LoanNEX, and its members, managers, employees, agents and affiliates, from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from, arising out of or in connection with (i) User’s use of a Service, the System or System Content, (ii) User’s Loan Data and Performance Data or other content you post or share on or through the System, (iii) User’s reliance or use of another user’s Loan Data or Performance Data, including, without limitation, pricing, and credit requirements and guidelines as provided for on the System, (iv) User’s conduct in connection with the System or with other users of the System, including, without limitation, any transaction involving a Subject Loan, regardless of whether or not such information was input by the User or by LoanNEX.
WITHOUT LIMITING THE GENERALITY OF THESE TERMS OF USE, THE SYSTEM CONTENT IS THE PROPRIETARY PROPERTY OF LOANNEX, OR LOANNEX LICENSORS, AND IS PROTECTED BY U.S. AND INTERNATIONAL COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. EXCEPT AS SPECIFICALLY PERMITTED HEREIN, YOU AGREE NOT TO DUPLICATE, TRANSLATE, PUBLISH, DISTRIBUTE, PERFORM, DISPLAY, MODIFY, EXTRACT DATA FROM OR OTHERWISE EXPLOIT ANY OF THE SYSTEM CONTENT. YOU AGREE NOT TO FRAME, OR ASSIST THIRD PARTIES IN FRAMING OR LINK INTO ANY OF THE WEB PAGES CONTAINED OF THE SYSTEM (OR RELATED SITES) WITHOUT THE EXPRESS WRITTEN PERMISSION OF LOANNEX. SUCH FRAMING OR LINKING IS STRICTLY PROHIBITED UNDER THESE TERMS OF USE.
Copyright
All Content is: Copyright © 2016 Mortgage NEKS, LLC d/b/a LoanNEX or its licensors. All rights reserved.
Trademarks
The trade name, logos, emblems, insignia, names of products and the trademarks of LoanNEX (“Trademarks”) are the intellectual property of LoanNEX. The Trademarks and other logos and trademarks that appear throughout the System (and related sites) belong to LoanNEX, its affiliates or third party trademark owners, and are protected by U.S. and international trademark laws. Without the express prior written permission of LoanNEX, you agree not to display or use in any manner the Trademarks. The domain name for the System’s website (and related sites) Site, all page headers, custom graphics, and button icons are service marks, trademarks, logos or trade dress of LoanNEX. Nothing on the System (or related sites) shall be construed as conferring any license or other rights under the intellectual property or other proprietary rights of LoanNEX, its affiliates or licensors or any third party, whether by estoppel, implication or otherwise. The names of actual companies and products displayed on the System (or related sites) may be the intellectual property of their respective owners.
Mobile Device Terms
The following terms apply to persons accessing the System through a mobile device:
Relationship of the Parties
The relationship of LoanNEX and User established by these Terms of Use shall be solely that of independent contractors, and nothing herein shall create or imply any joint venture or other relationship. Nothing in these Terms of Use shall be construed to give either party the power to direct or control the daily activities of the other party, to make or give any agreement, statement, representation, warranty, or other commitment on behalf of such party, to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of such party, or to transfer, release, or waive any right, title, or interest of such party.
Severability; Survival
If any term or provision of these Terms of Use shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of these Terms of Use shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement. The Ownership, Disclaimers, Limitation of Liability, Indemnification, Governing Law, Headings, Final Agreement, Arbitration, Right to Recover Costs, Non-Waiver of Rights and Notices paragraphs, this paragraph and any perpetual licenses granted by you to LoanNEX, shall survive any termination or expiration of your account with the System or this Agreement.
Governing Law and Venue
These Terms of Use are to be governed by, construed and enforced according to the laws of the State of Missouri. Venue shall be in the County of St. Louis, Missouri.
No Assignment
User may not assign these Terms of Use or any associated agreements without the prior written consent of LoanNEX. These Terms of Use shall be binding upon and inured to the benefit of the parties and their respective administrators, successors and assigns.
Headings
Headings used in these Terms of Use are provided for convenience only and shall not be used to construe meaning or intent.
Final Agreement
These Terms of Use and any Other Agreements terminate and supersede all prior understandings or agreements on the subject matter hereof.
Arbitration
At LoanNEX’s election, any controversy, claim or dispute arising out of these Terms of Use, or breach thereof, shall be settled by final binding arbitration in accordance with the most applicable rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such arbitration shall be conducted in St. Louis County, Missouri, or such other place as may be mutually agreed upon by the parties. Within fifteen (15) days after the commencement of the arbitration, each party shall select one person to act as arbitrator, and the two arbitrators so selected shall select a third arbitrator within ten (10) days of their appointment. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ fees/expenses and administrative fees of arbitration.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES.
Non-Waiver of Rights
The failure to enforce at any time any of the provisions of these Terms of Use or to require at any time performance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity of these Terms of Use, or any part hereof, or the right of either party thereafter to enforce each and every provision in accordance with these Terms of Use.
Notices
All notices, requests, demands and other communications hereunder shall be deemed to have been duly given if the same shall be in writing and shall be delivered (i) personally, (ii) by registered or certified mail, postage prepaid, (iii) by facsimile transmission, with a copy by regular mail, or (iv) by overnight delivery service and addressed to the address last provided by the parties at time of contracting, or thereafter communicated in writing.